Calvey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 277
•18 February 2021
Calvey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 277 (18 February 2021)
Division:GENERAL DIVISION
File Number(s):2020/8098
Re:Mr Michael Donald Calvey
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Senior Member B. Pola
Date:18 February 2021
Place:Brisbane
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 November 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.............................[SGD]...........................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
18 February 2021INTRODUCTION AND BACKGROUND
1. The Applicant, Mr Michael Donald Calvey, is a 33 year old citizen of New Zealand. Movement records indicate the Applicant was last granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia on 15 February 2009. The Applicant first arrived in Australia in July 1988 (as a six month old infant), and has largely resided in Australia aside from a period just short of four years, where the Applicant returned to New Zealand to live (from the ages of 17 to 21) [1].
[1] Exhibit G1, G9, pages 51 and 52.
2. The Applicant has a criminal history in both New Zealand and Australia. The Applicant’s criminal history in New Zealand included convictions for common assault, wilful damage, disorderly behaviour (likely to cause violence), behave threateningly, drink driving and breaches of community work[2].
[2] Exhibit G1, G8, page 50.
3. The Applicant’s first criminal offence in Australia occurred in October 2004, for which he was later sentenced in October 2009 after returning from New Zealand. The offence was in relation to the unlawful use of motor vehicles aircraft or vessels (noting no criminal conviction was recorded)[3].
[3] Exhibit G1, G6, page 44.
4. Following this, there was a break in the Applicant’s offending, where his criminal history records show the Applicant resumed offending in 2017. The Applicant’s final court appearance was in May 2020. Offences of the Applicant included 25 counts of contravening domestic violence protection orders (the majority of which are aggravated offences), one count of misleading information by prisoner, two counts of obstruct police officer, multiple drug and property offences, multiple weapons offences, numerous breaches of bail and failure to appear in accordance with an undertaking, and traffic offences including driving under the influence of drugs and having blood alcohol concentration in excess of the legal limit[4].
[4] Exhibit G1, G3, pages 39 to 44.
5. Whilst serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 14 May 2020 to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’). This was done on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [5].
[5] Exhibit G1, G15, pages 70 to 78.
6. Following the Visa Cancellation Decision, the Applicant made representations to the Respondent[6].
[6] Exhibit G1, G17 to G25, pages 83 to 106.
7. On 27 November 2020, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[7].
[7] Exhibit G1, G3, pages 14 to 21.
8. The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 7 December 2020 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[8].
[8] Exhibit G1, G1 and G2, pages 1 to 13. For the Tribunal to have jurisdiction to review the decision, the Applicant must have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision, refer to s500(6B) of the Migration Act. As 6 December 2020 (being the ninth day following 27 November 2020) fell on a Sunday, the Applicant could file on the following day being 7 December 2020, pursuant to s36(2) of the Acts Interpretation Act 1901 (Cth).
9. The application was heard in Brisbane on 8 February 2021, with the Applicant represented by Mr Joel McComber (pro bono) from Sentry Law. The Respondent was represented by Ms Charlotte Saunders from Minter Ellison, with all parties appearing via video link. The Tribunal heard oral submissions by and on behalf of the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons. Additionally, the Tribunal heard evidence from the following witnesses called on by the Applicant:
(i)The biological father of the Applicant, who also provided statements in the materials exhibited in support of the Applicant[9].
(ii)Ms JH, a former partner of the Applicant whom she shares two children. The Tribunal will refer to the children of Ms JH and the Applicant as Child 1 (seven years of age), and Child 2 (six years of age). The Tribunal observes that Ms JH provided a statement to the Tribunal in support of the Applicant remaining in Australia for their children to have the “opportunity to have a meaningful, in-person relationship with their father”[10].
(iii)Ms AG, a former partner of the Applicant whom she shares a child. The Tribunal will refer to the child of Ms AG and the Applicant as Child 1 (11 years of age). The Tribunal observes that Ms AG and the Applicant shared another child together whom is now deceased (which will be discussed in the later reasons of this decision). Ms AG wrote a statement in support of the Applicant[11].
[9] Exhibit G1, G22, page 103; and Exhibit A2(A2).
[10] Exhibit A2(A4).
[11] Exhibit A2(A3).
ISSUES
10. Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(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.”
11. As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[12]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[12] Exhibit G1, G13 to G48, pages 108 to 380.
12. The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[13]:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[14].
[Tribunal underline for emphasis]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
13. Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
14. If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked[15].
[15] Ibid.
Does the Applicant pass the character test?
15. As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” as per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
16. Helpfully, the Applicant has conceded in their submissions before the Tribunal that they do not pass the character test based on having been sentenced to a term of imprisonment of 12 months of more[16]:
“2. It is conceded that:
a) the mandatory cancellation of the Applicant’s subclass 244 visa on 14 May 2020 was required by, and in accordance with, s 501(3A) of the Migration Act 1958 (the Act); and
b) for the purposes of s 501CA(4)(b)(i) of the Act, the Applicant does not pass the ‘character test’ prescribed by s 501(6).”
[16] Exhibit A1, page 1, paragraph 2.
17. The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
18. In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act and must comply with directions made under the Migration Act.
19. In view of this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the “Direction”) must be applied[17]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act, it provides:
“(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”[18].
[Tribunal emphasis]
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
20. Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
21. Paragraph 8(4) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”; additionally, paragraph 8(5) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
22. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides that the three Primary Considerations the Tribunal must consider are:
a)Protection of the Australian community from criminal or other serious conduct (herein referred to as “Primary Consideration A”);
b)The best interests of minor children in Australia (herein referred to as “Primary Consideration B”); and
c)Expectations of the Australian community (herein referred to as “Primary Consideration C”).
23. The Other Considerations which must be taken into account are listed in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
24. A number of principles are set out in paragraph 6.3 of the Direction which further guide decision makers in the exercise of their discretion, which the Tribunal has transposed:
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;
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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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;
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;
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 be allowed to come to or remain permanently in Australia; and
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 for determining whether to exercise the discretion.
25. The Tribunal will now address the three Primary Considerations.
Primary Consideration A – Protection of the Australian community
26. In considering Primary Consideration A, paragraph 13.1(1) of the Direction, requires decision makers to 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.
27. Paragraph 13.1(1) of the Direction provides that Australians confer on non-citizens expectations that they:
(i)are and have been law abiding;
(ii)will respect important institutions; and
(iii)will not cause or threaten harm to individuals or the Australian community.
28. When decisions makers are deciding whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, paragraph 13.1(1) of the Direction provides that the mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principles, and that remaining in Australia is a privilege conferred on non-citizens in this country.
29. Paragraph 13.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration A:
(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.
30. In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Tribunal has had reference to the representations of the Applicant to the Respondent containing relevant documents which relate to the Applicant’s criminal offending history. The Applicant’s criminal offending history can also be gleaned from the s501 G-Documents[19], and the Respondent’s Supplementary Documents[20], comprising:
[19] Exhibit G1.
[20] Exhibit R1.
(a)The Applicant’s criminal history in Australia which appears in a document entitled, “Nationally Coordinated History Check Results” dated 22 May 2020[21], (with an earlier report provided on 14 April 2020)[22];
[21] Exhibit G1, G6, pages 39 to 44.
[22] Exhibit G1, G7, pages 45 to 49.
(b)The Applicant’s criminal history in New Zealand which appears in a document entitled “New Zealand Police Criminal History Report” dated 9 July 2020[23];
[23] Exhibit G1, G8, page 50.
(c)International movement records of the Applicant from the Department of Home Affairs[24];
[24] Exhibit G1, G9, pages 51 and 52.
(d)Transcript of Proceedings of the Magistrates Court of Beenleigh in the state of Queensland from their Honour K. O’Callaghan on 7 February 2020[25];
[25] Exhibit G1, G10, pages 53 to 56.
(e)Transcript of Proceedings of the Magistrates Court of Beenleigh in the state of Queensland from their Honour Kelly on 15 May 2020[26];
[26] Exhibit G1, G11, pages 57 to 59.
(f)A document entitled “Amended Verdict and Judgement Record”, dated 7 February 2020[27];
[27] Exhibit G1, G12, pages 60 to 64.
(g)Integrated Offender Management System, Sentence Calculation Details report from the Queensland Department of Corrective Services dated 16 March 2020[28];
[28] Exhibit G1, G13, pages 65 to 67.
(h)Queensland Police Traffic Record (submitted by the Applicant) and printed on 2 April 2020[29];
(i)Documents provided by Queensland Police, including summary of Domestic Violence Orders and Conditions and Court Briefs, various dates[30];
(j)Documents produced by Queensland Corrective Services, including Verdict and Judgement Record, Queensland Court Outcomes, Advice to Parole Board Report, Completion Summary – Court Ordered Parole Order, Completion Summary – Queensland Probation Order, Rehabilitation Needs Assessment, Extract of Offender Case File, of various dates[31];
(k)Department of Queensland Transport and Main Roads, Traffic Report, printed 24 December 2020[32]; and
(l)Documents produced by Beenleigh Magistrates Court including Court Briefs, Sentencing Schedule, Notice to Appear, Temporary Protection Orders, Protection Order, Varied Order, of various dates[33].
(m)
[29] Exhibit G1, G18, page 98.
[30] Exhibit R2, S1 to S12, pages 1 to 63.
[31] Exhibit R2, S13 to S19, pages 64 to 93.
[32] Exhibit R2, S20, pages 94 to 98.
[33] Exhibit R2, S21 to S27, pages 99 to 141.
Overview of the Applicant’s criminal offending history
31. Before considering paragraphs 13.1, 13.1.1, and 13.1.2 as they apply to Primary Consideration A of the Direction, the Tribunal will first provide an overview of the Applicant’s criminal offending history.
32. The Applicant’s criminal offending history in Australia began in October 2004 in relation to an offence of unlawful use of motor vehicles aircraft or vessels, with the Applicant receiving no conviction and a fine when he was sentenced in October 2009 upon returning from New Zealand.
33. Following this, there was a 13 year break in the Applicant’s criminal offending history, after which there are a significant number of offences recorded, coinciding with the dissolution of the Applicant’s relationship with Ms JH, and the Applicant developing an addiction to methamphetamines. The Tribunal observes the Applicant’s submissions that their methamphetamine use continued into his relationship with his now former partner Ms SR (discussed in the later reasons of this decision).
34. The Tribunal has set out the Applicant’s criminal offending history in the following table[34]:
[34] Exhibit G1, G6, pages 39 to 44. The Tribunal has reproduced the Applicant’s criminal offending history and ordered the history by date of appearance in court, and by date of offence. Where the Applicant has had orders revoked, they are shown in the appearance before the Court which revoked those orders.
| Court Date | Court | Offence | Date of Offence | Result |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 9 April 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 8 April 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 7 April 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 6 April 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 4 April 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 3 April 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 31 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 30 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 29 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 28 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 27 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 26 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 25 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 18 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 16 March 2020 | Conviction Recorded, Sentenced to 12 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | False or Misleading Information by Prisoner | 14 March 2020 | Conviction Recorded, Sentenced to 3 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 11 March 2020 | Conviction Recorded, Sentenced to 15 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 8 March 2020 | Conviction Recorded, Sentenced to 15 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 7 March 2020 | Conviction Recorded, Sentenced to 15 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 5 March 2020 | Conviction Recorded, Sentenced to 15 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Obstruct Police Officer | 3 March 2020 | Conviction Recorded, Sentenced to 3 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 3 March 2020 | Conviction Recorded, Sentenced to 15 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order (Aggravated Offence) | 12 February 2020 | Conviction Recorded, Sentenced to 15 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order | 7 December 2019 | Conviction Recorded, Sentenced to 9 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order | Between 19 November 2020 and 26 November 2020 | Conviction Recorded, Sentenced to 9 months imprisonment, Served concurrently |
| 15 May 2020 | Beenleigh Magistrates Court | Contravention of Domestic Violence Order | 19 November 2019 | Conviction Recorded, Sentenced to 9 months imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Contravention of domestic violence order | 6 December 2019 | Conviction Recorded, Sentenced to 3 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Possess utensils or pipes etc that had been used | 14 August 2019 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Possession of a knife in a public place or a school | 14 August 2019 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Possessing Dangerous Drugs | 14 August 2019 | Conviction Recorded, Sentenced to 3 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Failure to appear in accordance with undertaking | 6 February 2019 | Conviction recorded, not further punished |
| 7 February 2020 | Beenleigh Magistrates Court | Breach of Bail Condition | Between 1 February 2019 and 6 February 2019 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Breach of Bail Condition | 19 January 2019 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Possess utensils or pipes etc that had been used | 16 November 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Possessing Dangerous Drugs | 16 November 2018 | Conviction Recorded, Sentenced to 3 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Breach of Bail Condition | 14 November 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Authority required to possess explosives | 11 November 2018 | Conviction Recorded, Sentenced to 3 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Unlawful possession of weapons category D/H/R Weapon | 11 November 2018 | Conviction Recorded, Sentenced to 12 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Breach of Bail Condition | 9 November 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Breach of Bail Condition | 5 November 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Breach of Bail Condition | 2 November 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Breach of Bail Condition | 29 October 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Obstruct Police Officer | 17 October 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Possess utensils or pipes etc that had been used | 17 September 2018 | Conviction Recorded, Sentenced to 1 month imprisonment, Served concurrently |
| 7 February 2020 | Beenleigh Magistrates Court | Possessing Dangerous Drugs (Breach of Probation Order imposed on 4 June 2018) | 1 June 2018 | Conviction Recorded, Fined $200, Orders revoked and resentenced for original offences |
| 7 February 2020 | Beenleigh Magistrates Court | Possessing anything for use in the commission of a crime defined in Part 2 (Breach of Probation Order imposed on 4 June 2018) | 1 June 2018 | Conviction Recorded, Fined $200, Orders revoked and resentenced for original offences |
| 7 February 2020 | Beenleigh Magistrates Court | Possessing Dangerous Drugs (Breach of Probation Order imposed on 4 June 2018) | 24 February 2018 | Conviction Recorded, Fined $200, Orders revoked and resentenced for original offences |
| 7 February 2020 | Beenleigh Magistrates Court | Possess utensils or pipes etc that had been used (Breach of Probation Order imposed on 4 June 2018) | 24 February 2018 | Conviction Recorded, Fined $200, Orders revoked and resentenced for original offences |
| 7 February 2020 | Beenleigh Magistrates Court | Possessing property suspected of having been used in connection with the commission of a drug offence (Breach of Probation Order imposed on 4 June 2018) | 24 February 2018 | Conviction Recorded, Fined $200, Orders revoked and resentenced for original offences |
| 18 October 2018 | Beenleigh Magistrates Court | Failure to appear in accordance with undertaking | 21 September 2018 | Conviction recorded, Fined $500 |
| 4 June 2018 | Richlands Magistrates Court | Failure to appear in accordance with undertaking | 30 April 2018 | Conviction recorded, Fined $300 |
| 4 June 2018 | Richlands Magistrates Court | Failure to appear in accordance with undertaking | 13 March 2018 | Conviction recorded, Fined $300 |
| 4 June 2018 | Richlands Magistrates Court | Breach of / Application against order imposed | 28 February 2018 | Recognisance forfeited, $350 |
| 4 June 2018 | Richlands Magistrates Court | Breach of / Application against order imposed | 28 February 2018 | Recognisance forfeited, $550 |
| 4 June 2018 | Richlands Magistrates Court | Breach of / Application against order imposed | 28 February 2018 | Recognisance forfeited, $300 |
| 28 February 2018 | Beenleigh Magistrates Court | Possess property suspected of having been used in connection with the commission of a drug offence | 21 January 2018 | No conviction recorded, Recognisance $350. |
| 28 February 2018 | Beenleigh Magistrates Court | Possess utensils or pipes etc that had been used | 21 January 2018 | No conviction recorded, Recognisance $300, Good behaviour period 12 months |
| 28 February 2018 | Beenleigh Magistrates Court | Possessing Dangerous Drugs | 21 January 2018 | No conviction recorded, Recognisance $550, Good behaviour period 12 months |
| 18 January 2018 | Brisbane Magistrates Court | Possession of a knife in a public place or a school | 30 December 2017 | No conviction recorded, Fined $500 |
| 9 October 2009 | Ipswich Magistrates Court | Unlawful use of motor vehicles aircraft or vessels | 1 October 2004 | No conviction recorded, Fined $200 |
35. In the Tribunal’s mind, the evidence of the Applicant during the course of the hearing can largely be summarised as:
(i)initially either denying the facts of the offences put to him; and/or
(ii)offering an alternate version of events surrounding the offending; and/or
(iii)not being able to recall the circumstances surrounding the offences when they were committed.
36. With respect to whether or not the Tribunal is able to bring into question the underlying facts of prior convictions of the Applicant, the Tribunal observes that this has been considered on a number of occasions by judicial officers.
37. The Tribunal refers to the Full Federal Court’s decision of HZCP v Minister for Immigration and Border Protection[35] (herein referred to as “HZCP”), where His Honour McKerracher J stated at paragraph 77:
““77. As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.”
[Tribunal underline for emphasis]
[35] [2019] FCAFC 202.
38. The Tribunal further refers to the reasons of their Honour Colvin J in HZCP[36] with respect to administrative tribunal’s views on facts underlying criminal convictions[37]:
“The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts...”
[Tribunal underline for emphasis]
[36] [2019] FCAFC 202.
[37] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (at 165 [189]).
39. The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against him. The Tribunal gives significant weight to the Court’s consideration of the facts of the offences, and to the seriousness with which their Honours have regarded the offending of the Applicant.
40. The Tribunal will outline some of the more serious instances of the Applicant’s criminal offending, in the following categories:
(i)Domestic violence related offending;
(ii)Weapons related offending;
(iii)Drug related offending;
(iv)Other offending;
(v)Offending in New Zealand;
(vi)Conduct of the Applicant in criminal custody; and
(vii)Traffic related offending.
(i) Domestic violence related offending
41. There is evidence before the Tribunal of some 10 domestic violence protection orders, and temporary protection orders which have been taken out against the Applicant (including at least one order which had been varied to the exclusion of a person discussed in (i) below[38]. During the course of the hearing it became evident who the aggrieved persons were in need of protection for some of these orders, which the Tribunal has summarised below:
(i)The Applicant’s former partner Ms SR, including a former partner of Ms SR (and father to one of her children), in addition to all of Ms SR’s children. There is evidence that the former partner of Ms SR was subsequently removed from a protection order when it was varied[39].
(ii)The Applicant’s former partner, Ms JH, confirmed that she had a domestic violence protection order out against the Applicant at the time of their separation in 2017 in order to protect herself and their children (in addition to two further children of Ms JH from a previous relationship)[40].
[38] Exhibit R2, S1, pages 1 to 7; S26, pages 138 and 139; and S27, pages 140 and 141.
[39] Exhibit R2, S26, pages 138 and 139; and S27, pages 140 and 141. Transcript 8 February 2021, page 51,
lines 20 to 35.
[40] Exhibit R2, S1, pages 5 and 6. Transcript, 8 February 2021, page 60, lines 32 to 34.
42. There is evidence that protection orders were in place against the Applicant in February 2005[41], about two weeks after the Applicant arrived back in Australia from living in New Zealand[42]. The Applicant was questioned as to who the orders were protecting but was unable to recall this when asked at the hearing[43].
[41] Exhibit R2, S1, page 4.
[42] Exhibit G1, G9, page 52.
[43] Transcript 8 February 2021, page 37, lines 17 to 36.
43. The Applicant’s criminal offending history involves convictions for 25 domestic violence order contraventions (21 of which are a contravention of a domestic violence order (aggravated offence)). The earliest contraventions occurred in December 2019 and continued through to March 2020[44]. The Tribunal will refer to some of these offending episodes.
20 November 2019
[44] Exhibit G1, G6, pages 39 to 44.
44. Queensland Police Service Court Briefs state that in mid to late November 2019, the Applicant had sent numerous texts to his former partner, Ms SR, whilst the subject of a protection order. The brief states the following[45]:
“The majority of the text messages are abusive and controlling in nature stating such things as “You fucking did it again ive got the keys to the house fuck you”, “Im out the front cunt”, “Ya putrid maggot”, “I want to fucking talk to you”, and “Im choosen hate and destruction”.
A IPND-enquiry made on the 28th of February 2020, with regard to the phone number of [redacted] has established that this number is registered to the defendant commencing from the 1st of December 2013, through the telecommunications carrier Optus.”
[45] Exhibit R2, S12, page 54.
45. The Applicant was sentenced to a term of imprisonment of nine months to be served concurrently for this offence, before the Beenleigh Magistrates Court on 15 May 2020[46].
6 December 2019
[46] Exhibit G1, G6, page 41.
46. Queensland Police Service Court Briefs state that in early December 2019, the Applicant (subject of a temporary protection order at the time) was arrested for a contravention of that order at the home of the aggrieved named in the temporary protection order (Ms SR). The brief goes on to state the following facts in relation to the charge of contravention of domestic violence order[47]:
[47] Exhibit R2, S10, pages 44 and 45.
“Police were met outside the residence, which is occupied by the victim who was screaming that the defendant was inside the house.
Police entered the dwelling and conducted a search. Police located the defendant hiding under a child's bed in the rear bedroom. The defendant was arrested for Contravention of the Temporary Protection Order.
The defendant was questioned at the scene in relation to why he was at that address. The defendant made full admissions to breaching the Temporary Protection Order by being at that address. However, advised he has nowhere else to stay and the victim had welcomed him back and allowed him to be there.
The victim confirmed that she had invited the defendant to stay with her.
The victim said that at the time of the occurrence her [redacted, age of child] [redacted, age of child] year-old [redacted, sex of child] … her [redacted, age of child]-year-old [redacted, sex of child] and her friend [redacted] were present inside the dwelling.
The victim said the defendant was sleeping on her bed inside the bedroom. She had tried to wake him up, but he had become aggressive and started throwing items around the bedroom.
The victim stated that the defendant had a baseball bat in his hand and had stopped the victim from moving by putting his foot on top of her foot. The victim stated that she had been scared and had put her hands up to protect her face in case the defendant wanted to hit her.
The defendant then started throwing more items around and has hit the victims, [redacted, age of child] year-old [redacted, sex of child], on the forehead by throwing a cigarette butt at [the child]. [redacted name of child] was not injured but had started crying.
The defendant had then gone into the loungeroom holding a knife with a curved golden blade. He had continued yelling and screaming. The defendant had then told the victim to call the father of her children as she believes the defendant has issued with him.
The victim had then called her ex-partner while she was sitting on a sofa in the loungeroom. The defendant then grabbed the victim by the legs and had dragged her off the sofa while trying to take her mobile phone from her.
The victim refused to give the defendant her mobile phone and the defendant had then proceeded to lock the door of the dwelling, locking them inside. The defendant then unlocks the door and walks away inside. The victim had then walked out of the house and was met outside by Police.”
[Tribunal redactions]
47. When the Applicant was asked about this offending episode, and the facts as stated in the Queensland Police Service Court Brief, he denied the events as described. The Tribunal refers to the following exchange[48]:
“Respondent: What do you say is incorrect about these facts?
Applicant:A lot of it, like, the baseball bat, I never had a baseball bat. And then just looking at, “stopped the victim from moving by putting his foot on top of her foot,” I never – I tried to shut a door so she would leave me alone so I could pack my stuff and leave. I’ve got – I’ve even got video to this day where she was going ballistic at me. I’ve got a video of her throwing stuff at me, that’s the funny part, like, and of her golden blade, knife, I’ve never even owned a golden knife.”
[48] Transcript 8 February 2021, page 29, lines 3 to 10.
48. Despite offering an alternate version of events with respect to the offending episode, the Applicant agreed that he had pleaded guilty to this offence and had been hiding when police arrived[49].
[49] Transcript 8 February 2021, page 29, lines 34 to 41.
49. The Applicant was later convicted of this offence and received a sentence of three months imprisonment (along with convictions for numerous other offences) and was eligible for immediate parole[50]. The Tribunal refers to the sentencing remarks of their Honour K. O’Callaghan’s before the Beenleigh Magistrates Court on 7 February 2020[51]:
“I note the contravening – the domestic violence that was in December last year. The facts certainly do read quite serious in that it did involve some use of force and violence and apparently in the presence of children, so that is also serious offending…”
[50] Exhibit G1, G10, page 55.
[51] Exhibit G1, G10, page 54.
3 March 2020
50. A Queensland Police Court Brief states that the Applicant was at the house of his former partner Ms SR (with children present) in early March 2020, whist the subject of a protection order. The brief states the following[52]:
“The defendant and aggrieved have started to argue and the aggrieved has told the defendant to leave. The defendant has begun to whip the aggrieved with his shirt that he was holding in his hand. The defendant then thrown items at the aggrieved and has grabbed the aggrieved and has wrestled her onto the couch in the living room. The defendant has physically removed the house keys from the aggrieved and he has proceeded to lock all the doors in the dwelling.
The defendant has picked up a large hunting knife and has then told the aggrieved “If the police turn up while I’m here, I’m going to stab you, if I’m going back to jail it will be for something good.”
The aggrieved fearing for her safety and the safety of the children, has barricaded herself and the children in a bedroom at the house. The defendant forced the door to the bedroom open and has thrown the housekeys that he had earlier removed from the aggrieved into the room.
The defendant then went to a bedroom in the dwelling and he cut up roses that were in the room. The defendant then said “'I'll be back to get my stuff” before leaving the address.”
[Tribunal underline for emphasis]
[52] Exhibit R2, S12, page 55.
51. During the course of cross-examination, the facts of this offending were put to the Applicant, and the Tribunal refers to the following exchange[53]:
[53] Transcript 8 February 2021, page 31, lines 44 to 47; page 32, lines 1 to 25.
“Respondent: So is there anything that you wish to say about the facts of this charge?
Applicant:The shirt. I never whipped her with a shirt I’ve had in my hand. And she’s gone and grabbed off me and the I’ve just obviously grabbed it off her. And it may have whipped, but I never actually whipped her with it. Physically whipped her with it. And the whole wrestling her onto the couch thing, like, I don’t recall wrestling her onto the couch at all. Lock all the doors (indistinct). And yes, she wasn’t inside the house. She went outside the house. That’s what I don’t understand, like. And the hunting knife, well, like I did cut up the rose. I remember doing that.
Respondent: Okay. So these facts do suggest that you threatened the aggrieved, your ex partner, sorry, is that correct?
Applicant:I said I’d be back for my stuff.
Respondent: It also records you saying: If the police turn up while I’m here, I’m going to stab you. If I’m going back to gaol ...?
Applicant:That’s what I’m saying, well, (indistinct) knife.
Respondent: Okay?
Applicant:Like, literally, she would have called the police anyway, and so like, the police are going to rock up and turn up. So if I was going to, you know what I mean? I don’t understand that part, like. Like a lot of these times she the one with the baseball bat, or she’s trying to hit me with it, like. I’ve got videos of it.
Respondent: But again, I understand that you pled guilty to this charge?
Applicant:Yes. I pled guilty to all of them.”
[Tribunal underline for emphasis]
52. During re-examination the Applicant disagreed with the threat made in the recorded facts which stated that, “The defendant has picked up a large hunting knife and has then told the aggrieved “If the police turn up while I’m here, I’m going to stab you, if I’m going back to jail it will be for something good…”. The Tribunal refers to the following exchange[54]:
[54] Transcript 8 February 2021, page 52, lines 21 to 34.
“Applicant’s Representative: Now, my understanding is your current incarceration is your first incarceration. Is that correct?
Applicant:Pardon?
Applicant’s Representative: That your current incarceration is your first period of incarceration. Is that correct?
Applicant:Correct.
Applicant’s Representative: So I might be wrong but it would make no sense for you to say if you’re going back to gaol it would be for something good, and you hadn’t previously been to gaol?
Applicant:I’ve never been to gaol before.
Applicant’s Representative: Yes. Is there any reason you would say something like that when you hadn’t been to gaol before?
Applicant:No, that’s why I don’t understand a lot of that – a lot of the stuff that’s said. As I said, she was high on methamphetamines and so was I, so…”
53. The Tribunal has already made findings with respect to disproving the underlying facts of prior convictions with reference to the decision of HZCP in earlier reasons. In this instance, the Tribunal has difficulty accepting the evidence of the Applicant in circumstances where the Applicant admitted to having possession of the hunting knife, when he stated, “And the hunting knife, well, like I did cut up the rose. I remember doing that”; at a time when a requirement of a domestic violence protection order then in place prohibited the Applicant from being near Ms SR and from, “possessing guns, ammunition, and weapons generally or a thing of the same type items prohibited under the Drugs Misuse Act for the duration of this order”[55].
[55] Exhibit R2, S27, page 140.
54. The Tribunal observes that domestic violence protection orders are still in place with respect to prohibiting the Applicant from being near Ms SR and her children. The Applicant was convicted of contravention of domestic violence order (aggravated offence) on 15 May 2020 before the Beenleigh Magistrates Court and was sentenced to a term of imprisonment of 15 months to be served concurrently alongside numerous other convictions carrying terms of imprisonment on that day.
7, 8 and 11 March 2020
55. Queensland Police Service Court Briefs state that on 7 March 2020, the Applicant had been sending threatening messages to his former partner Ms SR. The brief states the following[56]:
“At around 3:00am on the 7th of March 2020, the defendant has sent text messages to the aggrieved on her mobile phone number of [number redacted]. The text messages were sent from the phone number of [number redacted] stored under the name of [redacted, the Applicant] in the contact list on the aggrieves (sic) mobile phone.
The aggrieved was not home at the time of the text message and in one message which was a video file, the footage showed the defendant outside the dwelling at the aggrieves (sic) residential address.
The defendant in the footage, threatened to smash the windows of the dwelling. The aggrieved believed that the defendant was aware that she was not at her residential address at the time.
The defendant’s behaviour caused the aggrieved to fear for the safety of her and her children. The defendant’s behaviour has exposed the named children to domestic violence.”
[Tribunal redactions, underline for emphasis]
[56] Exhibit R2, S12, page 56.
56. A few days later the Queensland Police Service Court Brief states that on 8 March 2020 the Applicant again contravened a domestic violence protection order[57]:
“… the defendant has attended [redacted, address] the residential address of the aggrieved. The defendant was on foot at the time and was armed with a ball and chain.
The aggrieved was at the front yard of her property at the time being assisted by the witness, a male friend [name redacted] who was helping her to mow the lawns. The defendant has become aggressive towards the aggrieved and the witness, swinging the ball and chain while directing threats towards both persons.
The witness has armed himself with a wheel brace in self-defence and the after a verbal altercation with the witness, the defendant has decamped from the address prior to police attendance.”
[Tribunal redactions, underline for emphasis]
[57] Ibid.
57. Following this recorded incident, on 11 March 2020, the Applicant was again referred to in a Queensland Police Service Court Brief, which stated the Applicant had again contravened a domestic violence protection order[58]:
“On the 11:30am on the 11th of March 2020, the defendant has sent the aggrieved an email from the email address of [address redacted]. The email contained three photographic images of the defendant holding a rifle.
At 11:52am on the 11th of March 2020, the aggrieved received a phone call from a private number on her mobile phone number of [number redacted]. An answering the phone call the aggrieved heard a male’s voice who she immediately recognised to be that of the defendant.
The defendant said words to the effect of “I’ll see in five, I’m definitely going to shoot you.”
The aggrieved replied “Grow up, I will be out the front anyway mowing.” The aggrieved then terminated the phone call.
Between 11:53am and 12:10pm on that same day, the aggrieved received sixteen (16) calls to her mobile phone from a private number…
At 2:15pm on 11th of March 2020, police from the Beenleigh Police Station located the defendant at [address redacted] where he was apprehended under the authority of a Return to Prison Warrant. The defendant was conveyed to the Beenleigh Watchhouse and was issued with an notice to appear in relation to this matter.”
[sic, Tribunal redactions, underline for emphasis]
[58] Exhibit R2, S12, pages 56 and 57.
58. When the facts of these convictions were put to the Applicant during cross-examination, the Applicant had stated that with respect to the text messages, photos and videos, these were largely aimed at Ms SR’s former partner whom the Applicant stated was causing problems in their relationship. The Tribunal refers to the following exchange[59]:
“Respondent: And so if I understand it correctly, you’re saying that none of these happened?
Applicant:No, well, a lot of them texts towards her ex-partner. He was texting off her phone. Like, if I was - if I’d done all this stuff, then why would she be sending me money (indistinct) trying to a vary DV Order against me. Do you know what I mean, like? I’m not saying, like, I didn’t put – send the stuff to her phone but a lot of it was not aimed towards her. A lot of it was aimed towards her ex-partner. And that’s why originally we varied the DV order because of him because he was causing trouble with the relationship.”
[59] Transcript 8 February 2021, page 33, lines 39 to 47.
59. With respect to the incident where the Applicant had turned up at his former partner’s house with a ball and chain on 8 March 2020, the Tribunal refers to the Applicant’s evidence during cross-examination where he denies becoming aggressive towards Ms SR but that he and Ms SR’s former partner had “altercations out the front”, in addition to admitting being high on methamphetamines at the time[60]:
[60] Transcript 8 February 2021, page 34, lines 42 to 47; page 35, lines 1 to 14.
“Respondent: Okay. So the final charge I just wanted to take you through is charge 9 and so that refers to you going to your ex-partner’s house with a ball and chain and it states that - - -?
Applicant:Yes.
Respondent: - - - you became aggressive towards your ex-partner and another witness and that at the time the children were also home. So is there anything you wish to say about this one?
Applicant:Well, there was no one out the front but the witness was actually supposed to be my friend. No excuses obviously but I was high on methamphetamines and he – she – well, she told me that [witness name redacted] was there or whatever and (indistinct) he was there and obviously drugs got the better of me and both me and him had an altercation out the front. There was no children outside at the time or anything. I wasn’t aggressive towards her at all.
Respondent: You still went to her house knowing that you weren’t meant to be there, is that right?
Applicant:Be able to walk past there anyway, yes, down (indistinct) road.
Respondent: You happened to be walking past with a ball and chain is what you’re saying. Is that right?
Applicant:No, I was walking past there and we had altercations out the front.”
60. The Applicant was later convicted for each of the offences which occurred on 7, 8 and 11 March 2020 (in addition to multiple other offences), and received a term of imprisonment of 15 months for each offence of contravention of domestic violence order (aggravated offence). The Tribunal refers to the sentencing remarks of their Honour Kelly with respect to the domestic violence offending which the Applicant was convicted of in the Beenleigh Magistrates Court on 15 May 2020[61]:
“It is very difficult for me to read that schedule of facts and not be quite sickened by the way that you treated [name redacted, Ms SR], and that situation is made even more bewildering when you read the content of the conversations that were recorded between yourself and [name redacted, Ms SR] once you were taken into custody. There is no way in the world that I would accept that someone who professes their love to someone else could not very recently before treat them in the way that you treated her. And she has three young [redacted, sex of children]. You yourself are a father. I am sure that you are a father figure to her [redacted, sex of children]. I am not – it is not clear to me how many or who were present at various point. I am assuming at least at some of those incidences the [redacted, sex of children] were present.
You are professing your love to the woman who you had treated so poorly, and I hope very much that the sentiments that you expressed to Ms Brehmer are true, that without ice on board and with some time away you have had a rethink and reset how you expect to carry yourself through the rest of your life. But I appreciate that relationships are very complicated, and there are a lot of factors which can influence how relationships travel, but at the end of the day if you love [name redacted, Ms SR], then there is no way that you should ever consider treating her in the way that you have previously no matter what is going on, no matter who is in your life or no matter what others stressors are operating at the same time.
Ultimately, the conduct that you engaged in was demeaning, aggressive, abusive, frightening, and in some cases serious threats were made. Whether or not you meant those threats is quite irrelevant. It is how they were perceived and accepted or received by [name redacted, Ms SR] that is important.”
[Tribunal redactions, underline and bold for emphasis]
[61] Exhibit G1, G11, pages 57 to 59.
(ii) Weapons related offending
61. The Applicant has received multiple convictions for weapons related offences which occurred in the period from December 2017 through to August 2019. The convictions of the Applicant with respect to these offences include:
(i)Possession of a knife in a public place or a school (with the offence occurring on 14 August 2019), the Applicant received a sentence of imprisonment of one month to be served concurrently before the Beenleigh Magistrates Court on 7 February 2020[62].
(ii)Authority required to possess explosives (with the offence occurring on 11 November 2018), the Applicant received a sentence of imprisonment of three months to be served concurrently before the Beenleigh Magistrates Court on 7 February 2020[63].
(iii)Unlawful possession of weapons category D/H/R weapon (with the offence occurring on 11 November 2018), the Applicant received a sentence of imprisonment of 12 months to be served concurrently before the Beenleigh Magistrates Court on 7 February 2020[64].
(iv)Possession of a knife in a public place or a school (with the offence occurring on 30 December 2017), the Applicant had no conviction recorded, and was fined [65].
[62] Exhibit G1, G6, page 42.
[63] Ibid.
[64] Ibid.
[65] Exhibit G1, G6, page 43.
62. The Tribunal observes the Queensland Police Service Sentencing Schedule, describing the incident relating to the two convictions for (1) authority required to possess explosives, and (2) unlawful possession of weapons category D/H/R weapon as follows[66]:
“Police observed the defendant crouched in the rear left of the fenced yard (facing from the easement), he was initially uncooperative with police repeatedly placing his hands in his pockets despite multiple request not to. He eventually complied with police. Police conducted a search of the yard where the defendant was located. During the search police located a mobile phone, black wallet/ pouch with a zipper opening at the top and a silver revolver style handgun where the defendant was hiding. The defendant stated that the items belonged to him.
Both the defendant and the male he was in company with were identified via police Qlite device. They were identified as Michael Donald CALVEY the suspect and [name redacted] and were identified as being wanted for questioning in relation to other matters.
The defendant was then issued his rights and cautions as per the Police Powers and Responsibilities Act (PPRA). Police searched the defendant and the black wallet locating two live rounds of ammunition and used clip seal bag. The defendant was questioned regarding the items, he stated that the gun was a cap gun and he was unaware of what was in the black wallet as he "had not opened it yet". He further stated that he had "found" the items in the garden at the Royal Hotel located in George Street, Beenleigh. He told police that he had knowingly then taken the items with him after finding them in the garden of the pub.
…
The handgun was cleared by police who located a single discharged round of ammunition in the single barrel of the modified handgun.”
[Tribunal redactions]
[66] Exhibit R2, S24, pages 122 and 123.
63. When the Applicant was asked under examination in chief as to the circumstances surrounding his conviction regarding the (1) authority required to possess explosives and (2) unlawful possession of weapons category D/H/R weapon, the Applicant stated the following[67]:
[67] Transcript 8 February 2021, page 13, lines 7 to 30.
“Applicant’s Representative: Yes, I suppose one of the more serious in terms of sentence of imprisonment imposed on you, one of the more serious offence is the unlawful possession of a weapon, which I believe was a gun, and that was in November 2018?
Applicant:Yes.
Applicant’s Representative: Could you tell the Tribunal the circumstances around that offence and how that (indistinct) ?
Applicant:So me and a friend were at the pub in Beenleigh. And I was at the back in the (indistinct)[68]. I was in the garden having a cigarette when I seen the gun, but it looked like a cap gun at the time. There was a little bag there, that I grabbed both of them, and then we left the pub, me and [name redacted – Applicant’s friend]. We then later, while I was walking to the (indistinct) in Beenleigh. And then later obviously we were walking, I’d seen the police and he’d seen the police. He started running and I started running because at the time I knew that I had (indistinct)[69] type of thing. I threw all the stuff out of me pockets and then that gun was found in the yard where I was found but at the time I didn’t realise it was actually what was in the little bag. I hadn’t gone through the bag or anything yet. And I didn’t realise it was an actual real gun because it did look like a cap gun or it was made from a cap gun.
Applicant’s Representative: What was that last thing you said, sorry?
Applicant:It was actually a cap gun that somebody had turned into a firing weapon so - - -
Applicant’s Representative: But you accept that you were in possession of that weapon at the relevant time?
Applicant:Yes, I did. I did have it. I can’t deny the fact that I did have it.”
[68] On listening to the audio of the hearing, the Tribunal has made out the following: “I was out the back in the garden, beer garden or garden having a cigarette”.
[69] On listening to the audio of the hearing, the Tribunal has made out the following “I had warrants out for me”.
64. The Tribunal refers to the sentencing remarks of their Honour K. O’Callaghan’s before the Beenleigh Magistrates Court on 7 February 2020[70]:
“Noting the number of offences and the seriousness particularly, as I say, of the possess weapons charge, you are very fortunate that it did not – it is not more serious than what you have been charged with, so that is a significant and serious offence. It is my view, and particularly in light of the fact that you clearly did not engage in probation, that a sentence of imprisonment is appropriate in relation to that possession charge, and I intend to impose it...”
[Tribunal underline for emphasis]
[70] Exhibit G1, G10, page 55.
65. With respect to the Applicant’s offending regarding the possession of a knife in a public place or a school in December 2017 for which the Applicant did not receive a conviction and was fined, the Tribunal refers to the Queensland Police Court Brief which stated[71]:
“Whilst detained, Police located the wooden handled cleaver in the vehicle being driven by the defendant. The metal blade cleaver was within easy reach and stored in the driver’s door pocket. The defendant stated he had the knife for protection, saying that people were after him…”.
[71] Exhibit R2, S2, page 9.
66. The Tribunal refers to the following exchange under examination in chief[72]:
[72] Transcript 8 February 2021, page 12, lines 6 to 28.
“Applicant’s Representative: The next offence in Australia is possession of a knife in a public place in late 2017. Were you using methamphetamine at the time of that offence?
Applicant:Yes, I was.
Applicant’s Representative: And how long do you think you were using methamphetamine prior to that offence?
Applicant:Maybe a month before then.
Applicant’s Representative: Okay. All right?
Applicant:Maybe a month and a bit, yes.
Applicant’s Representative: So roughly, you would have started using methamphetamine in November 2017?
Applicant:Yes.
Applicant’s Representative: Now, in terms of that possession of a knife in a public place charge, that first charge, could you tell the Tribunal what led to you being charged with that offence?
Applicant:It was actually New Year’s - I think, New Year’s Eve night. And I was driving to go pick someone up. And obviously, I’d been pulled up. I got pulled over for a drug and alcohol test. I think I failed the drug test at the time. And there was a knife found in my door guard, which I did read somewhere that it says that I said it was for protection and that, but I don’t recall saying that. Obviously, I was high on drugs as well at the time, so. Like, if anything, it would have been (indistinct) car stereo or something (indistinct).”
67. The Tribunal makes the general observation that there are multiple references to the Applicant being in possession of knives in various Queensland Police Court Briefs. Of concern to the Tribunal are the references to the Applicant possessing knives, during periods where the Applicant was subject to domestic violence protection orders, particularly as there is evidence before the Tribunal that reference domestic violence incidents involving the Applicant possessing weapons.
68. For example, the Tribunal refers to the instance which occurred on 3 March 2020, which the Queensland Police Court Brief stated, “… The defendant has picked up a large hunting knife and has then told the aggrieved “If the police turn up while I’m here, I’m going to stab you, if I’m going back to jail it will be for something good.” The aggrieved fearing for her safety and the safety of the children, has barricaded herself and the children in a bedroom at the house...”[73].
[73] Exhibit R2, S12, page 55.
69. The Tribunal observes that the Applicant was subject to a domestic violence protection order at the time which is currently in force from 13 January 2020 to 19 December 2024, containing a condition explicitly stating, “THE RESPONDENT IS PROHIBITED FROM POSSESSING, GUNS, AMMUNITION AND WEAPONS GENERALLY OR A THING OF THE SAME TYPE AND ITEMS PROHIBITED UNDER THE DRUGS MISUSE ACT FOR THE DURATION OF THIS ORDER”[74]. The Tribunal observes that the Applicant admitted to being in possession of a hunting knife at the time of this incident in earlier reasons of this decision.
(iii) Drug related offending
[74] Exhibit R2, S1, pages 1 and 2; S27, pages 140 and 141.
70. The Tribunal heard evidence from the Applicant that following the breakdown of his relationship with Ms JH from approximately November 2017 the Applicant developed a methamphetamine addiction which he claims was used as a way to cope with the emotional fall out regarding the dissolution of that relationship[75]. The Applicant also stated that he had never dealt with the death of his child in 2008 with Ms AG, and in his own words he was depressed[76]. The Applicant’s criminal offending history reveals a number of offences resulting in criminal convictions and sentences of imprisonment with respect to his prohibited drug use.
[75] Exhibit A2 (A1).
[76] Transcript 8 February 2021, page 11, lines 33 to 47; page 12, lines 1 to 5.
71. His criminal offending history shows five counts of possess utensils or pipes etc that had been used, between January 2018 to September 2019, four of which came with convictions, and three of these carried a sentence of a term of imprisonment for one month to be served concurrently[77].
[77] Exhibit G1, G6, pages 33 to 44.
72. Additionally, there are four counts of possessing dangerous drugs between February 2018 to August 2019.For each, convictions were recorded, and two counts carried a sentence of a term of imprisonment for three months to be served concurrently[78].
[78] Ibid.
73. With respect to the Applicant’s drug related offending, the Tribunal refers to the following exchange during examination in chief, where the Applicant accepted these offences[79]:
“Applicant’s Representative: Now, in your criminal history, which is in the G documents I won’t take you through it, I think you’ve seen it before. But Member, for reference it is at page 39 through 44 of the G documents. Michael, there’s a number of offences in there for possessing dangerous drugs. I’m not sure exactly how many, but there’s quite a number. Do you dispute any of those offences, or do you accept that you were possessing dangerous drugs on each of those occasions?
Applicant:No, I did. Like, I had possessed dangerous drugs.”
[79] Transcript 8 February 2021, page 12, lines 30 to 39.
74. In the material before the Tribunal are references to three further drug related offending episodes for which the Applicant appeared before lawful authority, including:
(i)Possess property suspected of having been used in connection with the commission of a drug offence, which occurred on 21 January 2018, the Applicant did not have a conviction recorded and was fined before the Beenleigh Magistrates Court on 28 February 2018.
(ii)Possessing property suspected of having been used in connection with the commission of a drug offence, which occurred on 24 February 2018, for which the Applicant received a conviction and was fined on 7 February 2020 before the Beenleigh Magistrates Court.
(iii)Possessing anything for use in the commission of a crime defined in Part 2, which occurred on 1 June 2018, the Applicant received a conviction and was fined on 7 February 2020 before the Beenleigh Magistrates Court.
75. Queensland Police Court Briefs state that the facts relating to the possess property suspected of having been used in connection with the commission of a drug offence in January 2018 was in relation to police locating, “… a set of electronic scales contained within the black pouch. The scales were designed to resemble a vehicle remote locking fob. The defendant told police he used the scales to weigh his personal drugs…”[80].
[80] Exhibit R2, S3, page 15.
76. Similarly, a Queensland Police Court Brief states, in relation to the possessing property suspected of having been used in connection with the commission of a drug offence in February 2018, that, “Police detained the occupants for the purpose of a search, within a bag in the rear of the vehicle police located a green toiletries case within the case police located a set of digital scales”[81].
[81] Exhibit R2, S21, page 101.
77. In relation to these drug offences, the Applicant’s representative submitted the following in closing submissions[82]:
“In the applicant’s evidence he commenced using methamphetamine in about November 2017 and the vast majority of the applicant’s criminal offending occurs from there and with a clear contribution of methamphetamine use as well. But in terms of looking at the methamphetamine use in isolation, I think it’s important to note that the applicant’s methamphetamine or offending relating to methamphetamine did not include any supply, distribution or trafficking of that drug.
I think that’s important to note because as the tribunal knows, dealing with many of these matters on a consistent basis, the use and distribution of methamphetamine to the community, and in this case the applicant himself, stands as a good example of it, is that it can complete ravage lives and, you know, turn people’s lives in turn – well, the lives of many people in the community upside down and leaves the kind of dysfunction and criminal – bad decision-making that’s landed the applicant in the situation he’s in.
Obviously that was – well, not taking away from the applicant’s agency, it was facilitated by the supply and distribution of methamphetamine in the community and I think it’s important to note that the applicant, notwithstanding that he clearly had a fairly significant methamphetamine addiction, there’s no allegation he resorted to the supply, distribution or trafficking of methamphetamine in the community...”
[82] Transcript 8 February 2021, page 69, lines 10 to 31.
78. The Tribunal further observes that the Applicant accepted that he committed all of the drug related convictions contained within his criminal history[83]. The Tribunal refers to the following exchange[84]:
“Applicant’s Representative: Yes. Now, I should have said there’s also some drug related offences, possessing utensils, possessing property associated with drug use, and things like that. Do you accept that all those offences were committed by you?
Applicant:Yes. Yes, they were.”
[83] Exhibit G1, G6, pages 39 to 44.
[84] Transcript 8 February 2021, page 13, lines 1 to 5.
(iv) Other offending
Offences against police officers
79. There are instances in the Applicant’s criminal record involving offences committed against police officers performing their duties.
80. The first conviction related to an offence of obstruct police officer which occurred on 17 October 2018, for which the Applicant was sentenced before the Beenleigh Magistrates Court on 7 February 2020 and received a sentence of imprisonment of one month to be served concurrently. A Queensland Police Court Brief states that this offence occurred when[85]:
“The defendant ignored police at which time he was advised that he was being placed under arrest. The defendant has then immediately turned around towards the police officer with his arm extended and appeared to be throwing a haymaker style punch at the officer. The police officer has immediately taken hold of the defendant and taken him to ground.
A struggle has then ensued on the ground. The defendant was directed to stop resisting arrest as tensed his arms and refused to give police his arms to place in handcuffs. A QAS paramedic and a witness assisted police in restraining the defendant and he was placed in handcuffs.”
[85] Exhibit R2, S24, pages 117 and 118.
81. During the course of the hearing when these facts were put to the Applicant, the Applicant stated the following[86]:
“Respondent: Now, in this same sentencing schedule it provides details about your second obstruct police offence that you were convicted of from the same date and it says at the bottom of paragraph 117 and over the page as well, it says that you did not comply with the police directions. You subsequently had to be taken to the ground by the police officer after appearing to be throwing a haymaker style punch. Are those facts correct?
Applicant:I didn’t throw a haymaker punch. I had car keys in my hand and I went to throw the car keys. No one questioned me about any of this when it happened as I was under the influence of drugs. But I meant to throw the car keys and I went to throw the car keys the police officer has grabbed me around – well, around under the neck like that. So I was never actually going to punch the officer. I was throwing a set of car keys and obviously he (indistinct) but I was throwing car keys and then he’s grabbed me and so punching as I was getting pushed to the ground. And I was trying to (indistinct) anyone if they were watching it because I was obviously not just going with him, I was resisting arrest.
Respondent: But I suppose you could understand from making that action why the police might think that you were trying to throw a punch even if that was not your intention?
Applicant:The police officer was beside me, he wasn’t even in front of me when I threw it, and he came around the back. Yes, it just - - -.”
[86] Transcript 8 February 2021, page 24, lines 42 to 47; page 25, lines 1 to 14.
82. On 3 March 2020, the Applicant committed a further offence relating to obstruct police officer for which the Applicant was sentenced before the Beenleigh Magistrates Court on 15 May 2020 and received a term of imprisonment of three months to be served concurrently. A Queensland Police Court Brief states that the circumstances of this offence involved the Applicant running away from police on foot after he was told he was under arrest in relation to contravening a domestic violence protection order[87].
Breach of conditions imposed by Court
[87] Exhibit R2, S11, pages 48 and 49.
83. The Tribunal has reviewed the Applicant’s criminal offending history as contained in the submissions, and has tallied the following[88]:
(i)Three counts of breach of/application against order imposed with the date of the offence recorded as 28 February 2018, for which the Applicant appeared before the Richlands Magistrates Court on 4 June 2018, and received a sentence of recognisance forfeited and was required to pay a fine for each offence.
(ii)Seven counts of breach of bail during the period of October 2018 to February 2019, for which the Applicant appeared before the Beenleigh Magistrates Court on 7 February 2020 and was sentenced to a term of imprisonment for each count of one month, to be served concurrently.
226. Sub-paragraph (e) of paragraph 13.2(4) of the Direction requires decision makers to consider whether there are other persons who already fulfil a parental role in relation to the children.
Child 1 – Ms AG and the Applicant
227. Based on the evidence before the Tribunal and the Applicant’s admissions regarding his absence from the life of Child 1, Ms AG has been fulfilling the parental role in relation to the care of Child 1.
228. The Tribunal has already found that it is reasonable to expect the Applicant to play a role in the parenting of Child 1 into the future until they obtain the age of 18 years, should he be allowed to remain in Australia.
Child 1 and Child 2 – Ms JH and the Applicant
229. Based on the state of the evidence before the Tribunal, it is clear that Ms JH has been fulfilling the parental role of Child 1 and Child 2. The Tribunal has established that it is reasonable to expect the Applicant to have a role in the future lives of these children should he be allowed to remain in Australia.
230. Having regard to the evidence before it, the Tribunal finds sub-paragraph (e) of paragraph 13.2(4) of the Direction is of moderate weight in favour of a finding that it is in the best interests of the Applicant’s biological children, for the Applicant to be allowed to remain in Australia.
231. Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires decision makers to consider any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
232. In circumstances where the Tribunal does not have the views of the Applicant’s biological children before it, the Tribunal is unable to afford sub-paragraph (f) of paragraph 13.2(4) of the Direction any measure of weight.
233. Sub-paragraph (g) of paragraph 13.2(4) of the Direction requires decision makers to consider any evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect.
234. The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraph (g) of paragraph 13.2(4) of the Direction. This factor has no weight and is not determinative of any finding about Primary Consideration B.
235. Sub-paragraph (h) of paragraph 13.2(4) of the Direction requires decision makers to look for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
236. In the absence of independent and expert evidence detailing any physical or emotional trauma suffered by the Applicant’s biological children as a result of the Applicant’s offending, the Tribunal is of the view that this sub-paragraph (h) of paragraph 13.2(4) of the Direction is of no weight and is not determinative of any finding about this Primary Consideration B.
237.
Conclusion: Primary Consideration B
238. The Tribunal refers to the following findings:
(i)the evidence of the Applicant, and submissions before the Tribunal with respect to the relationship the Applicant has with his biological children, and that such a relationship may be resumed (in a physical and present sense) should the Applicant be allowed to remain in Australia;
(ii)the interrupted role the Applicant has played in the life of his biological children, and his complete absence from their lives as a result of his more recent criminal offending and subsequent incarceration;
(iii)the reality that the Applicant’s biological children are cared for by their respective mothers;
(iv)the absence of any independent or expert evidence about the adverse impact upon the Applicant’s biological children as a result of the Applicant’s current or possible future absence from their lives;
(v)the Applicant’s capacity to maintain contact with his biological children via digital platforms from a foreign location;
(vi)the moderate measure of weight the Tribunal has attributed to sub-paragraphs (a), (b), (d), and (e) of paragraph 13.2(4) of the Direction.
(vii)the neutral position the Tribunal has taken in relation to factor (c) of paragraph 13.2(4) of the Direction; and
(viii)factors (f), (g), and (h) carry no weight and are not determinative of any finding about this Primary Consideration B.
239. The Tribunal is of the view that the best interests of the relevant minor children overall weighs moderately in favour of revocation of the decision to cancel the Applicant’s Visa.
240. The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to Primary Consideration B is of a moderate weight only, and does not in any way, outweigh the very heavy and determinative[150] weight the Tribunal has attributed to Primary Consideration A.
[150] Refer to s8(5) of the Direction.
(i)
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
241. Paragraph 13.3(1) of the Direction requires decision makers to consider whether the non‑citizen:
(i)obeyed Australian laws whist in Australia;
(ii)has breached Australian laws whilst in Australia;
(iii)is an unacceptable risk and that they will again breach trust;
(iv)has been convicted of offences in Australia or elsewhere; and that
it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non‑revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should now hold a visa. Paragraph 13.3(1) of the Direction stipulates that decision makers should have due regard to the Government’s views in this respect.
Circumstances relevant to the application of Primary Consideration C
242. The Tribunal will outline the factual circumstances of the matter before it when assessing the weight attributable to Primary Consideration C:
a) The Applicant is a 33 year old male citizen of New Zealand, having first arrived in Australia as a six month old infant in July 1988 and having largely resided in Australia since, aside from a period just short of four years, where the Applicant returned to New Zealand to live (from the ages of 17 to 21).
b) The Applicant has three biological children in Australia ages 11, seven, and six, and has largely been absent from their lives in recent years. The Applicant has since resumed contact with Child 1, whom he shares with Ms AG. Should the Applicant be allowed to remain in Australia, and there is successful mediation to establish formal parenting orders between the Applicant and Ms JH, the Applicant could be expected to resume a role in the lives of Child 1 and Child 2, whom they both share. The Tribunal observes that whilst the Applicant had resided in New Zealand he lost a child whom he shared with Ms AG, in tragic circumstances.
c) The Applicant has many family and friends who reside in Australia, some of whom have provided letters supporting the Applicant to remain in Australia.
d) The Applicant has a criminal offending record from the time he spent in New Zealand. This record indicates six appearances before lawful authority in relation to seven offences, of note these included behave threateningly (manual), disorderly behaviour – likely cause violence, wilful damage, common assault, breaches of community work, and driving under the influence of alcohol.
e) The Applicant’s first recorded entry in their criminal offending record in Australia was in October 2009, regarding an offence for unlawful use of a motor vehicles aircraft or vessels which was committed in October 2004, when the Applicant was 16 years of age (with the Applicant receiving no conviction recorded and a fine).
f) There is evidence before the Tribunal that the Applicant has been the subject of numerous domestic violence protection orders taken out against him from multiple partners, dating as far back as from February 2005.
g) In the period following the Applicant’s return from New Zealand to live in Australia, he has largely been employed.
h) Following the dissolution of the Applicant’s relationship with Ms JH in early 2017, the Applicant states he developed a methamphetamine addiction from November 2017.
i) From the end of 2017 to early 2020, the Applicant engaged in very serious criminal offending which included:
(i)convictions for 25 domestic violence order contraventions (21 of which are a contravention of a domestic violence order (aggravated offence));
(ii)weapons related offending, the most serious of which was unlawful possession of weapons category D/H/R, which carried a conviction with a sentence of imprisonment of 12 months to be served concurrently;
(iii)numerous drug related offences, many of which carried convictions with a sentence of imprisonment;
(iv)offences against police officers,
(v)numerous breaches of conditions imposed by Courts, many that came with convictions and a sentence of imprisonment; and
(vi)traffic related offences including driving under the influence of relevant drugs and alcohol.
j) There is evidence the Applicant has continued to offend whilst incarcerated, through the continuation of contact with his former partner, despite there being a domestic violence protection order in place against the Applicant. The Applicant was convicted of false and misleading information by prisoner, and for 16 counts of contravention of domestic violence order (aggravated offence), all of which carried convictions and terms and sentences involving terms of imprisonment.
k) The impression to be taken from the Applicant’s offending is that it was of a very frequent nature, clearly increasing in its level of seriousness over time, and that it was of a very serious nature involving, most concerningly, threats of violence, contraventions of domestic violence protection orders, weapons related offences, and drug related offences.
l) The Applicant’s criminal offending in Australia has culminated in the sentencing of custodial terms totalling more than 28 years, which is almost equivalent to the entire time the Applicant has lived in Australia.
m) The offending history of the Applicant in Australia involves some seven sentencing episodes, dealing with some 60 offences. Notably, nearly three-quarters of these offences attracted a sentence involving a term of imprisonment.
n) The Applicant’s offending has had a cumulative effect, with significant and increasing community resourcing required to bring the Applicant to account for their actions, in addition to the adverse impact of the Applicant’s frequent offending on the community and his victims.
o) An assessment undertaken by Queensland Correct Services regarding the Applicant’s rehabilitation needs, identified that the Applicant must seek to rehabilitate issues pertaining to substance abuse, family and domestic violence (perpetrator), and rehabilitation for pro-criminal attitudes.
p) A Queensland Corrective Services report from March 2020 contained advice where police considered the Applicant a, “high risk domestic violence perpetrator”, as well as a, “significant lethal risk”.
q) The Tribunal has found that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation.
r) There is no evidence before the Tribunal from a suitably qualified clinician, which states that the factors predisposing the Applicant to their offending have been identified, addressed and are under remedial management and control, such that the likelihood of the Applicant’s recidivism has been reduced to an acceptable risk.
Applying “Expectations of the Australian Community”
243. The Tribunal refers to the leading authority in the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (herein referred to as ‘FYBR’)[151]. Her Honour Justice Charlesworth stated the following with respect to the use of “Expectations of the Australian community”:
[151] [2019] FCFA 185. Whilst this case concerns Direction No. 65 with reference to paras 6, 8 and 11.3, the text of the relevant provisions in this Direction is largely unchanged in Direction No 79 which came inter operative effect from 28 February 2019. The Tribunal considers that the FCFA consideration of “community expectations” is directly applicable to paras 6, 8 and 13.3 of Direction 79, and is relevant to this application. Further, the Tribunal observes that special leave was sought to appeal the decision in FYBR (FC), which was refused by the High Court on 24 April 2020 per Kiefel CJ and Keane J (see HCA Trans p 56).
“67... I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter…
73....The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.”
[Tribunal underling for emphasis]
244. His Honour Justice Steward similarly stated that[152]:
[152] Ibid.
“89. It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90. However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91. The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.”
245. Having regard to these authorities, the Tribunal is of the view that the Applicant’s criminal offending is very serious offending, and the Australian community would reasonably expect that he should not hold a visa.
246. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa. In this regard, the Tribunal notes that the principle in paragraph 6.3(2) of Direction No 79 is applicable. The principle stipulates that, “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”.
247. The Tribunal has considered the primary consideration of the protection of the Australian community which includes the serious nature of the offences committed by the Applicant and the unacceptable risk if they were to be repeated.
248. In determining the weight attributable to Primary Consideration C, the Tribunal refers to the following relevant factors:
(i)The Applicant has lived in the Australian community for most of his life, aside from a period of four years where he resided in New Zealand, and he has contributed to the Australian community through his employment.
(ii)The impact of the Applicant’s removal would have on his biological children, family, and friends.
(iii)The very serious offending of the Applicant and its impact on members of the Australian community.
(iv)Having regard to the state of the evidence before the Tribunal, the Tribunal finds that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation with respect to the factors leading to recidivism.
(v)The Tribunal is of the view that given the Applicant’s past propensity towards committing acts of domestic violence combined with his past history for weapons and drug related offences, is conduct that, if repeated, poses a significant risk to a member or members of the Australian community – especially to women – and children that are on the periphery of this offending.
(vi)This conduct if repeated in the future, could result in very serious psychological harm and/or physical harm to members of the Australian community. Its level of seriousness (in the Tribunal’s view) would not preclude the risk of catastrophic harm to any future victim. In the Tribunal’s view, such a risk is not acceptable to the broader Australian community.
Conclusion: Primary Consideration C
249. The Tribunal is of the view that the above factors, read as a whole in the context of this case, weighs very heavily in favour of not revoking the cancellation of the Applicant’s Visa.
250. The Tribunal accordingly finds that Primary Consideration C is of a very heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
251. It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
252. Paragraph 14.1 of the Direction directs decision makers to consider international non‑refoulement obligations.
253. It was submitted on behalf of the Applicant that there were no “allegations about international non-refoulement obligations”[153].
[153] Transcript 8 February 2021, page 75, lines 10 to 11.
254. The Tribunal has had regard to the requirements of paragraph 14.1 of the Direction and is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
(b) Strength, nature and duration of ties
255. Paragraph 14.2 of the Direction directs decision makers to consider the strength, nature and duration of ties to Australia, whilst reflecting the principles at paragraph 6.3.
256. Decision makers must have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
257. Decision makers are also required to have given consideration to 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 in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
258. In earlier reasons, the Tribunal has already outlined that the Applicant is a 33 year old male citizen of New Zealand, having first arrived in Australia as a six month old infant in July 1988 and having largely resided in Australia since, aside from a period just short of four years, where the Applicant returned to New Zealand to live (from the ages of 17 to 21).
259. The Applicant has three biological children in Australia ages 11, seven, and six and despite largely having been absent from their lives in recent years, the Tribunal has found that should the Applicant be allowed to remain in Australia he could be expected to resume a role in their lives.
260. The Tribunal observes that whilst the Applicant had resided in the New Zealand, he lost a child whom he shared with Ms AG, in tragic circumstances, and suffers emotional trauma from this event, and accepts that they may have negative associations with New Zealand.
261. In submissions to the Tribunal, the Applicant disclosed close family members who reside in Australia, including his father and his brothers, in addition to aunties, uncles, cousins and a grandmother[154]. Of the Applicant’s family members the Tribunal observes that many are persons who have a right to reside in Australia indefinitely and/or permanently.
[154] Exhibit G1, G17, page 92.
262. Additionally, the Applicant has referred to his network of friends who reside in Australia. The Tribunal has had regard to the statements and letters of support seeking that the Applicant be allowed to remain in Australia, submitted from his father, and former partners Ms AG and MS JH, as well as character references from friends. Notably, a character reference from Ms LP stating that the Applicant had resided with her for a period of time and assisted in helping their family[155].
[155] Exhibit G1, G24, page 105.
263. Additionally, the Tribunal has had regard to the evidence of the Applicant’s father who appeared as a witness, describing the impact the Applicant’s removal would have upon him, particularly with respect to maintaining a regular presence in the lives of the Applicant’s children.
264. There is evidence the Applicant has maintained employment during periods of his adulthood where he wasn’t offending, and there is letter of offer for further employment when he is released from prison and should he be allowed to remain in Australia[156].
[156] Exhibit A2(A5).
265. With respect to the application of paragraph 14.2(1)(a)(i) of the Direction, the Tribunal has not applied adverse weight against the Applicant in circumstances where he has resided in Australia for most of his adult life after coming as a six month old; given his offending began in his late teenage years.
266. The Tribunal is of the view that a slight measure of weight should be afforded to the Applicant in terms of applying paragraph 14.2(1)(a)(ii) of the Direction on the basis of the Applicant’s work history.
267. In applying paragraph 14.2(1)(b) of the Direction, the Tribunal has regard to the Applicant’s biological children who would be impacted by the Applicant’s removal, in addition to the emotional impact the Applicant’s removal will have on his family and friends. The Tribunal is of the view that this Other Consideration attracts a heavy weight in favour of the Applicant.
268. Overall, in applying paragraph 14.2 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration (b) weighs heavily in favour of revocation for the Applicant.
269. Whilst the Tribunal has applied a heavy weight to this Other Consideration (b), it is by far outweighed by the combined very heavy, and determinative weight the Tribunal has given to both Primary Consideration A and Primary Consideration C, both of which weigh very heavily in favour of non-revocation.
(c) Impact on Australian business interests
270. Paragraph 14.3 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that 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.
271. The Applicant has submitted that this Other Consideration is not relevant to the determination of the Applicant’s request for revocation of the Visa decision[157].
[157] Exhibit A1, page 11, paragraph 46.
272. The Tribunal has had regard to the directions outlined in paragraph 14.3 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims
273. Paragraph 14.4 of the Direction requires decision makers to take into account the impact that a decision not to revoke the Applicant’s Visa would have 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.
274. In the absence of any evidence submitted to the Tribunal for consideration with respect to the Applicant’s impact on their victims from their offending, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is neutral.
(e) Extent of impediments if removed
275. Paragraph 14.5 of the Direction directs decision makers to take into account 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:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
276. The Applicant has made the following submission to the Tribunal[158]:
[158] Exhibit A1, page 11, paragraph 49 and 50.
“49. The Applicant does not submit that he will face severe impediments if he were forced to relocate to New Zealand. However, the Applicant does submit that he would face some significant emotional and psychological impediments, including:
a) geographic separation from his children and close immediate family members;
b) having to return to the place that his youngest [redacted, sex of child] passed away (noting that the Applicant left New Zealand after that event.
50. In the premises, we submit that this consideration weighs somewhat in favour of revocation.”
[Tribunal redactions]
277. The Tribunal accepts the difficulties the Applicant would face with respect to establishing and maintaining a relationship with his biological children should he be deported to New Zealand, particularly with refence to Child 1 (whom he shares with Ms AG), referred to in earlier reasons of this decision.
278. The Tribunal is willing to accept the resulting trauma and difficulties the Applicant has experienced from the passing of his child when last in New Zealand, and how this may impact his feelings towards deportation to New Zealand.
279. The Applicant has declared that they are currently on “Ritalin” for treatment of their “ADHD”[159]. The Tribunal notes the Applicant has not tendered any independent medical evidence that outlines any significant health concerns. The Tribunal is of the view that, should the Applicant be deported to New Zealand, they would be able to have similar access to:
[159] Exhibit G1, G17, page 95.
(i)comparable health care to that in Australia; and
(ii)comparable support for rehabilitation services to that in Australia.
280. The Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection[160], where Senior Member Kelly stated the following:
[160] [2016] AATA 301 [at 101].
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
281. The Tribunal observes that the Applicant has previously resided in New Zealand and is at least familiar with the country. The Tribunal is of the view that should the Applicant be deported to New Zealand he would suffer no language or other cultural barriers, given the similarities between New Zealand and Australia. Any hardships the Applicant may face with resettlement would likely be temporary, until he is able to establish himself.
282. In view of the reasons outlined by the Tribunal with respect to the extent of any impediments a non-citizen may face if removed from Australia to New Zealand, it is the Tribunal’s view that paragraph 14.5 of the Direction weighs moderately in favour of revocation. However, the Tribunal is of the view that the weight of this factor does not outweigh the very heavy and determinative weight the Tribunal has found for when combining Primary Consideration A and Primary Consideration C.
283.
Summary: Other Considerations
284. The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a) International non-refoulement obligations, are not engaged in relation to the Applicant.
(b) Strength nature and duration of ties, are heavily in favour of revocation of the mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests, is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims, is of a neutral weight.
(e) Extent of impediments if removed, a moderate measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
285. The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision (even when combined with each other and/or Primary Consideration B); they are by far outweighed by combined weight of both Primary Consideration A and Primary Consideration C, which weigh very heavily and determinatively in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
286. As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
287. As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
288. The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
289. In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:
(i)Primary Consideration A weighs very heavily in favour of non-revocation.
(ii)Primary Consideration C weighs very heavily in favour of non-revocation.
(iii)Primary Consideration B weighs moderately in favour of revocation.
290. The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and Primary Consideration B), does not in any way outweigh the very significant and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.
291. The Tribunal makes this finding with reference to paragraph 8(4) of the Direction which provides that, “Primary considerations should generally be given greater weight than the other considerations”. In the Tribunal’s mind, both Primary Consideration A and Primary Consideration C have been the determinative considerations in this matter.
292. It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
293. Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
294.
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 November 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 294 (two hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola
..................................[SGD]......................................
Associate
Dated: 18 February 2021
Date of hearing:
8 February 2021
Applicant:
Solicitor for the Applicant:
Mr Michael Donald Calvey
Mr Joel McComber (pro-bono)
Sentry Law
Solicitor for the Respondent:
Ms Charlotte Saunders
Minter Ellison
“ANNEXURE 1 – EXHIBIT REGISTER”
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
G Documents (pages 1 to 139)
-
22 December 2020
R1
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 9)
1 February 2021
1 February 2021
R2
Respondent’s Supplementary Documents (pages 1 to 141)
-
1 February 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 12)
21 January 2021
21 January 2021
A2
Applicant’s Bundle of Documents (pages 1 to 13)
· A1: Applicant’s statement, undated (pages 2 to 6)
· A2: Statement of the Applicant’s father, undated (pages 7 to 9)
· A3: Statement of Ms AG, dated 1 February 2021 (pages 10 to 11)
· A4: Statement of Ms JH, dated 1 February 2021 (page 12)
· A5: Letter re offer of, dated 19 January 2021 (page 13)
-
3 February 2021
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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