BQBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 679
•27 March 2020
BQBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 679 (27 March 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0264
Re:BQBR
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:27 March 2020
Place:Sydney
The decision under review is affirmed.
...........................[sgd].............................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – temporary visa – citizen of New Zealand – failure to pass character test – offending history – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Migration Act 1958 (Cth) – Direction no. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member M Griffin QC
27 March 2020
BACKGROUND
The Applicant applies for review of a decision by the Respondent on 3 January 2020 not to revoke the mandatory cancellation of the Applicant’s Temporary visa (the visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant is a 36-year-old citizen of New Zealand, born 14 February 1984, who moved to Australia with his family in 1996 as a 12 year old.
The relevant visa was granted on 5 March 2016. The mandatory cancellation was on the basis that the Applicant had a substantial criminal record as defined by the Act. The Applicant’s criminal record is set out in detail below.
The Applicant formed a relationship in his teenage years with TM and has carried on a relationship with her since that time. It is common ground that the relationship has been tumultuous with separations and with the parties getting back together again. Presently, of course, the parties have been separated since September 2018 when the Applicant was arrested and ultimately sentenced to imprisonment for offences of domestic violence involving assault which he perpetrated against TM and his two eldest children.
The Applicant and TM have had six children in all together.
To understand the nature and dimension of the Applicant’s offending history, which it is acknowledged contain periods of no convictions of any kind, it is nonetheless both relevant and important to consider the entirety of his offending history.
Set out below is the history that is not contested by the Applicant and conveniently summarised in the Respondent’s outline.
COURT DATE
OFFENCE
SENTENCE
3 February 1999
(Cobham Children’s Court)
Robbery in company - SI
Community Service Order without condition: 100 hours
20 September 1999 (Cobham Children’s Court)
Steal from the person
Community Service Order without condition: 100 hours
Robbery in company – SI
Community Service Order without condition: 100 hours
Escape police custody
Control Order without condition: 14 days
Fail to appear on bail undertaking
Control Order without condition: 14 days
Resist or hinder police officer in the execution of duty
Probation: 2 years supervised juvenile justice drug and alcohol counselling
Have custody of an offensive implement in public place
Probation: 2 years supervised juvenile justice drug and alcohol counselling
12 February 2004 (Penrith Local Court)
Use unregistered vehicle on road area (not a trailer)
Fine: $150
Use uninsured motor vehicle
Fine: $150
Fail to display “L” on car as required
Fine: $100
Learner not accompanied by driver/police officer/tester
Fine: $100, Disqualification: 2 months
23 March 2004 (Penrith Local Court)
Drive while disqualified from holding a licence
Bond s 9: 12 months notify clerk of the court if any change in residential address, Fine: $1,000, Disqualification: 12 months
Special category driver drive with special range PCA
Fine: $600, Disqualification: 6 months
Seatbelt not adjusted/fastened (driver)
Fine: $600, Disqualification: 6 months
8 July 2004
(Blacktown Local Court)
Drive while disqualified from holding a licence
Fine: $650, Disqualification: 2 years
7 September 2005 (Penrith Local Court)
Common assault – T2
Bond s 9: 2 years supervised probation, and obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation
Destroy or damage property
<=$2000 – T2
Bond s 9: 2 years, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation, Fine: $600
5 October 2005 (Blacktown Local Court)
Contravene apprehended domestic violence order
Fine: $300
23 June 2006 (Blacktown Local Court)
Drive while disqualified from holding a licence
Bond s 9: 2 years disqualification
Use uninsured motor vehicle
Fine: $100
Use unregistered registrable Class A motor vehicle
Fine: $100
25 January 2007 (Blacktown Local Court)
Use uninsured motor vehicle
Fine: $350
Use unregistered registrable Class A motor vehicle
Fine: $350
Drive while disqualified from holding a licence
Imprisonment: 12 months, non parole period, 9 months suspended on enter Bond s 12: 12 months disqualification, 2 years cumulative
11 December 2007 (Blacktown Local Court)
Drive while disqualified from holding a licence
(Call Up) Periodic detention: 12 months, non parole period with conditions: 9 months release
Possess unauthorised prohibited firearm – T2
Periodic detention: 9 months, non parole period: 6 months release
Custody of knife in public place
Fine: $350
Drive while disqualified from holding a licence
(Call Up) Periodic detention: 12 months, non parole period: 9 months release
11 December 2008 (Windsor Local Court)
Larceny value <=$2000-T2 (15 accessory after the fact to an offence)
Periodic detention: 9 months
Goods suspected stolen in/on premises (not m/v)
Periodic detention: 9 months
21 January 2014
(Mt Druitt Local Court)
Possess prohibited drug
Fine: $400
3 March 2014
(Mt Druitt Local Court)
Destroy or damage property
<=$2000 (DV) – T2
Bond s 9: 12 months, Fine: $400
14 March 2017
(Mt Druitt Local Court)
Resist or hinder police officer in the execution of duty
s 10A conviction
26 March 2018
(Mt Druitt Local Court)
Common assault (DV) – T2
Fine: $1,000, Bond s 9: 18 months not to assault TM
Fail to appear in accordance with bail acknowledgment
s 10A conviction
13 December 20188 (Mt Druitt Local Court)
Common assault (DV) – T2
(Call Up) Imprisonment: 6 months
Enter inclosed land not presc premises w/o lawful excuse
Fine: $300, Imprisonment: 14 months, non parole period: 10 months
Common assault (DV) – T2
Imprisonment: 14 months, non parole period: 10 months
Contravene prohibition/restriction in AVO (Domestic)
Imprisonment: 3 months
Common assault (DV) – T2
Imprisonment: 4 months
Common assault (DV) – T2
Imprisonment: 3 months
Destroy or damage property (DV)
Fine: $300
Contravene prohibition/restriction in AVO (Domestic)
Imprisonment: 14 months, non-parole period: 10 months
Contravene prohibition/restriction in AVO (Domestic)
Imprisonment: 4 months
21 February 2019 (Parramatta District Court)
Common assault (DV) – T2
Order confirmed, Imprisonment: 6 months
Common assault (DV) – T2
Order confirmed, Imprisonment: 14 months, non parole period: 10 months
Contravene prohibition/restriction in AVO (Domestic)
Order confirmed, Imprisonment: 3 months
Common assault (DV) – T2
Order confirmed, Imprisonment: 3 months
Destroy or damage property (DV)
Order confirmed, Fine: $300
Contravene prohibition/restriction in AVO (Domestic)
Order confirmed, Imprisonment: 4 months
Contravene prohibition/restriction in AVO (Domestic)
Order confirmed, Imprisonment: 14 months, non-parole: 10 months
Common assault (DV) – T2
Order confirmed, Imprisonment: 4 months
Enter inclosed land not presc premises w/o lawful excuse
Order confirmed, Fine $300
The Applicant gave evidence at the hearing and attributed his offending to drug use. He gave evidence that he commenced using marijuana in 1995 (although a calculation means that he commenced using at age 11). The Applicant may therefore have been mistaken by the year, but the Tribunal accepts nonetheless that he commenced marijuana use at a relatively young age. Much later, and prior to the final offences, he was also a user of ice. This is the Tribunal’s view of the evidence on this topic. In fact, as will be discussed later, much of what the Applicant said to the Tribunal, albeit on oath, including his protestations of reform, in the Tribunal’s view, could not be accepted. He was simply not a witness of truth and little credibility can be attached to important aspects of his evidence.
The Applicant, the Tribunal accepts, had a satisfactory work history and has therefore contributed to Australian society. This is in his favour. The Applicant said during the course of his life in Australia that he had learnt “heaps of skills”.
The Applicant has family in Australia, not only his own children, and relevantly nieces and nephews who he claims to have a meaningful and consistent relationship with, but also parents and siblings, all of whom have provided statements attesting to the fact of their love for the Applicant and their devastation at the prospect of him being sent to New Zealand. Some of those siblings are step-siblings and half-siblings.
The Applicant, both in submissions and in evidence expressed, in passionate terms, which the Tribunal considered to be quite sincere, that the Applicant was regretful for his offending. He also made the fundamental argument throughout his testimony and in address that he had reformed. Furthermore, he said, that he was no risk now of re-offending nor was he a threat to Australian society. He argued that he had the skills to work, should he remain.
The Applicant forcefully stated in evidence and address that the period “behind bars” as a person in custody gave him pause for thought and time to maturely consider his past behaviour. His argument continued that it was the realisation whilst in custody of possible deportation that operated, and would continue to operate, to ensure there would be no further offending and acts as a means of continuing his rehabilitation. He poignantly pointed out that “he only knows this country”. The Tribunal considers this a relevant matter in the Applicant’s favour when considering both ties to this country and impediments in removing him.
It is undoubted that the Applicant’s relationship with TM has been turbulent. In the Tribunal’s view, there is the real possibility that if the relationship continues after the Applicant’s release, it is likely to be beset by the same problems. The Applicant was offered the opportunity to call TM to give evidence during the hearing but he chose not to do so.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501CA of the Migration Act 1958 (Cth) (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)That the Applicant passes the character test as defined by section 501 of the Act; or
(b)
There is another reason why the original decision should be revoked
(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation;
and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction no. 79. which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction no. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia;
(d)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;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, 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; and
(f)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.
Part C of Direction no. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction no. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
(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.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction no. 79 provides:
(1) 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.
(2) 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.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction no. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
(a)the principle that violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
(e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Sub-paragraph 13.1.2 of Direction no. 79 states that decision-makers must have regard, cumulatively, to the following:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
Paragraph 13.2 of Direction no. 79 provides that decision-makers must make a determination in respect of each relevant child under 18 years about whether revocation is in the best interests of that child.
Paragraph 13.2(4) of Direction no. 79 provides that in considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction no. 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in paragraph 6.3 of Direction no. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties to Australia;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction no. 79 include (but are not limited to):
(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 include:
(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions 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, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Direction no. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (paragraph 14.3(1)).
Impact on victims
Paragraph 14.4 of Direction no. 79 provides:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Extent of impediments if removed
Paragraph 14.5 of Direction no. 79 identifies that the extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
It is clear according to the Act that because the Applicant has a ‘substantial criminal record’ (s 501(6)(a) of the Act) he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
THE EVIDENCE
Some of the documentation produced by the Applicant and evidence given by the Applicant requires consideration.
Aspects of the Applicant’s evidence leads the Tribunal to conclude that the Applicant’s evidence and relevant matters associated with that evidence simply cannot be accepted. Those matters are as follows.
The Applicant accepted that drugs have been found in his cell whilst he was in custody in July 2019. It was agreed those drugs had been concealed by the Applicant behind skirting board in his cell. The Applicant agreed, ultimately, that he had been given the drugs by someone else. The Applicant described the drug by its nickname although it is unclear precisely what the drug was. It is evident that it was an illicit substance.
The Applicant gave, during the course of his evidence, an extraordinary variety of explanations about the drug’s presence and its ownership. The Applicant asserted that it was not to be used by him but when further questioned by the Tribunal, said he intended to use it to barter for items of foodstuffs, specifically cans of chilli tuna. In an email to the Minister for Home Affairs on 1 January 2020, the Applicant said that “I don’t have an explanation for (the drugs) because the drugs did not belong to me”.
The variety of explanations given by the Applicant about the presence of the drugs in his cell leads the Tribunal to conclude that the Applicant was deliberately lying about the presence of the drugs. These drugs were found within months of the Applicant having completed the Equips drugs course. The Tribunal is of the view that the Applicant was still interested in using or dealing in drugs. The Applicant’s drug of choice prior to incarceration was “ice”. The Tribunal is, therefore, of the view that whilst in custody, the Applicant still had an association with drugs. This diminishes significantly the Applicant’s other assertions concerning his reform.
The Applicant was untruthful in evidence concerning three incoming passenger cards which he filled in on arrival to Australia in 2014, 2015 and 2016. In the same email referred to above, the Applicant said “I made a mistake concerning that situation.... I did not fully understand the question and therefore I ticked the other box.” This is inconsistent with the evidence on the documents. Further, the Applicant was pressed about these documents during the course of his evidence. His explanations were various, conflicting and thoroughly unbelievable. On this topic, he further demonstrated his lack of candour and which the Tribunal considered was an opportunistic attitude to lying in evidence.
The Applicant gave evidence in cross-examination that he had told TM not to mention certain aspects of the Applicant’s behaviour which she provided to the Tribunal. This was intended to create a false picture of the relationship between the parties. The Tribunal considers this behaviour another feature of the Applicant’s attempt to mislead the Tribunal and consequently reflects badly on the Applicant and the acceptability of his evidence. It also casts some doubt upon all the statements which he has provided to the Tribunal in terms of their reliability.
When the Applicant was asked questions by the Tribunal concerning whether he had family members in New Zealand, the Applicant was extremely evasive. The Tribunal was left with a very clear impression the Applicant was not being truthful on this topic.
The matters referred to above have been described in brief form only and do not reflect the entirety of the evidence. Apart from independent corroborative evidence, the Tribunal is strongly of the view that little of what the Applicant has said in evidence concerning his rehabilitation, his family and other matters which he argues are in his favour, can be accepted as truthful.
Protection of the Australian community (past conduct and future risk)
The Applicant’s criminal history, viewed as a whole, does not support the proposition that it is particularly serious. In the litany of possible offending, the criminal history falls towards the lower end of the scale. However, there are serious aspects to it, particularly those offences of common assault which relate to domestic violence and co-relatively, the breaches of domestic violence orders. The offences were perpetrated against TM, with the first offences occurring in 2004 and dealt with in 2005.
The offending in 2018 was a further example of domestic violence involving the same partner and two of his children. The details of this offending are disclosed in Tender Bundle volume 2 pages 55 and following.
In 2005 probation was ordered including counselling for drug and alcohol rehabilitation. The Applicant has been offered over the years many opportunities of rehabilitation. It seems to have had little effect.
In recent custody and immigration detention, the Applicant has undertaken courses directed to rehabilitation, including the Equips course, a drug rehabilitation course. The Applicant gave evidence that he considers himself as reformed, for reasons referred to above.
The Tribunal considers that the Applicant is not a creditworthy witness. Furthermore, as he has remained in immigration detention there has not been the opportunity to test his assertions as to whether, were he to remain in the community, he would be able to refrain from committing further offences. His offending relates to the domestic violence sphere and largely to his relationship with TM.
The Tribunal does not place any weight on the early offending as a child, however, it is properly relevant that the Applicant’s offending history has increased in seriousness. That offending history includes carrying or being in possession of a weapon, larceny and a not insignificant number of driving/traffic offences, demonstrating that the Applicant, over a significant period of time, failed to abide by orders of courts.
The most recent offending involved not only the Applicant’s partner TM but his two eldest children whom he also assaulted.
The Applicant’s offending is made all the more serious because the offending in 2018 occurred whilst he was placed on a domestic violence order with specific requirements that were meant to protect TM.
Although the Applicant spoke passionately about the fact that he believed he had reformed, the Tribunal places little weight on his assertions. Looking at the objective evidence, there is every reason to suppose that the Applicant will almost certainly re-offend again with the potential of more serious violent offences in the future towards TM and perhaps his children.
The Tribunal takes into account, in particular, that the offences of 2018 were perpetrated against children and a woman in a domestic situation setting. The Tribunal considers the offences of violence which have increased in seriousness over time, together with breaches of domestic violence orders, (suggestive of future offending) are particularly serious and there is the real risk of offending in the future. It cannot be said that this type of violence will only be perpetrated against family members.
The Tribunal, in coming to this conclusion, has taken into account those statements made by family and friends of the Applicant which are supportive of him and which speak highly of him.
Nonetheless, in all the circumstances, the Tribunal finds this consideration weighs heavily against the Applicant.
Best interests of minor children in Australia
The Applicant has six children whose ages are 17, 15, 10, 8, 3 and 2. There is evidence, which the Tribunal accepts, that the Applicant has a relationship with a number of nieces and nephews. On all the evidence, the Applicant comes from a culturally tight-knit family.
The submissions made by the Respondent prima facie correctly submit that each child should be assessed under this consideration independently as to the relationship with the Applicant and the child’s best interest. That, of course, is so in this case. The six children of the Applicant not only are a variety of ages spanning from a very young child to teenagers but their living situations and conditions are quite different. For example, the youngest child lives with family members, while the oldest boy, who has had some behavioural difficulties, has been living in a household with his aunt and uncle. Although the children’s situations are different, the Tribunal concludes that, on the evidence, there is no reason to make any distinction amongst the various children of the Applicant.
Should the Applicant be returned to New Zealand, the family unit (broadly described) and the children in particular, would suffer in a practical sense from financial deprivation by the Applicant not working and unable to contribute money to the household.
Although much of what the Applicant said about his own reform, rehabilitation and risk of further offending has been discounted by the Tribunal, it is accepted, without doubt on the evidence, that the Applicant’s children will suffer a great loss should he not be present physically in their lives. The Tribunal recognises that were the Applicant to live in New Zealand he would nonetheless be able to communicate digitally and electronically with his children. This is, however, far from ideal and not at all, in the Tribunal‘s view, in the best interests of each one of his children.
The Applicant has had effectively no contact with his youngest child since he has been in custody and immigration detention. Even though this is so, the youngest child and all other children, the Tribunal accepts, would benefit from the Applicant’s presence in their life in their lives.
This is so despite the fact that the Applicant has been responsible for assaults on the two eldest children and, the Tribunal infers, that the Applicant’s relationship with TM in the past at least has not been conducive to a satisfactory home life in which to bring up all his children.
As to the nieces and nephews, although the Applicant does not fulfil a parental role, nonetheless culturally it seems, and the Tribunal is prepared to accept, that the best interests of those children would also be promoted by the presence of the Applicant in Australia.
In relation to this consideration, the Tribunal is satisfied overall, that this consideration, taking into account all the children referred to above, weighs heavily in the Applicant’s favour.
Expectations of the Australian Community
Although the Applicant’s criminal history is not at the higher end of the scale of offending, nonetheless, it contains offences conveniently described as domestic violence offending. Moreover, this occurred on more than one occasion and therefore cannot be said to have been isolated offending. The last violent offending occurred in the context of a domestic violence order meant to protect TM. The Applicant’s offending also affected other family members, his children.
Applying the approach adopted by the majority of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, although paragraph 13.3 of Direction No 79 does not dictate an inflexible conclusion, in all the circumstances, the Tribunal is of the view that this consideration weighs against the Applicant.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.
Strength, nature and duration of ties
The Applicant arrived in Australia in 1996. His offending commenced approximately three years later in 1999. The criminal history reveals a large number of offences, some of which are offences of domestic violence as well as traffic offences and offences in relation to destroy or damage property.
Most, if not all, of the Applicant’s family, including his children, reside in Australia. His children are Australian citizens. The Applicant has contributed positively to the community despite his continued offending, by working in a variety of jobs which the Tribunal finds is a fairly continuous period.
The Tribunal considers that the ties with family and his children in Australia lead to a conclusion that this consideration weighs in the Applicant’s favour.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
Although there is evidence from TM and the Applicant’s children in the form of statements supportive of the Applicant, there is no relevant evidence to enliven this consideration.
Extent of impediments if removed
The Applicant is a 36-year-old man whose health appears to be satisfactory. He is unlikely to have any language or cultural barriers should he be returned to New Zealand. The Tribunal, however, recognises that should the Applicant be returned to New Zealand, there is likely to be a difficult period of adjustment including psychological, social and cultural matters. The Tribunal assumes on this topic that the Applicant has no family, or at least close known relatives, living in New Zealand. The Tribunal considers that having to leave family members in Australia, including children, and being returned to New Zealand, would present the Applicant with significant psychological, cultural and social hardship. This consideration weighs in the Applicant’s favour.
CONCLUSION
There are considerations referred to above which the Tribunal considers weigh in favour of revoking the mandatory cancellation. However, the overall seriousness of the Applicant’s past offending, in particular the offences of domestic violence which were committed on more than one occasion, and the fact that in 2018 his offending included two of his children, together with the Tribunal’s view that the Applicant is a risk of future offending are so serious, taken together, that they outweigh all other considerations in the Applicant’s favour.
The decision under review is affirmed.
I certify that the preceding 81 (eighty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
.........................[sgd]...............................................
Associate
Dated: 27 March 2020
Date(s) of hearing: 12 March 2020 Applicant: In person Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Remedies
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