Castle and Minister for Home Affairs (Migration)
[2020] AATA 1778
•12 May 2020
Castle and Minister for Home Affairs (Migration) [2020] AATA 1778 (12 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0956
Re:Tony Castle
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member N A Manetta
Date:12 May 2020
Date of written reasons: 11 June 2020
Place:Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the mandatory cancellation of the Applicant’s visa be revoked.
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Senior Member N A Manetta
MIGRATION – cancellation of applicant’s visa – applicant has substantial criminal record including most recently an assault against a woman – whether visa should be cancelled – interests of minor children – prospects of rehabilitation – decision set aside and visa reinstated
Legislation
Migration Act 1958 (Cth)
Cases
FBYR v. Minister for Home Affairs [2019] FFCA 185
QDWQ v. Minister for Home Affairs [2019] AATA 4622
Ung v. Minister for Immigration, Migrant Services and Mutlicultural Affairs [2020] AATA 112Secondary Materials
Direction 79- Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member N A Manetta
11 June 2020
1.After delivery of my oral reasons, I received a request for written reasons, which I now publish.
2.This is an application by Mr Tony Castle seeking a review of a discretionary decision of the respondent’s delegate not to revoke the mandatory cancellation of Mr Castle’s visa under the Migration Act, 1959 (“the Act”). The mandatory cancellation took effect because Mr Castle had been convicted of a serious offence involving violence against his former partner. This offence led to a sentence of imprisonment of more than 12 months, and, accordingly, Mr Castle failed the “character test” as that test is elaborated in the relevant provisions of the Act.
3.At the hearing before me, Mr Castle was represented by Ms Reddin, who is a qualified social worker, but who has no formal qualifications in law; the respondent, by Mr He. It was agreed that Mr Castle does, in fact, fail the character test. The only live question before the delegate was whether there was “another reason” – that is, a reason other than Mr Castle passing the character test – warranting the revocation of the cancellation decision. The delegate was required to apply a direction issued under section 499 of the Act; namely, “Direction 79”, so called.
4.Similarly, in my review, I must consider whether there is “another reason” for revoking the mandatory cancellation decision, and I must apply Direction 79. I must reach my decision on the basis of the evidence adduced before me. That is, my consideration of the matter is undertaken de novo on the merits. I need not find any legal error in the delegate’s decision before setting it aside. Equally, if the correct or preferable decision on the evidence before me is to affirm the delegate’s decision, I should do so irrespective of any error there may be in it.
STATEMENT OF CONCLUSION
5.I have decided to set aside the delegate’s decision and to substitute a decision that the mandatory cancellation of the applicant’s visa be revoked. My reasons for this conclusion follow. As neither Mr Castle nor Ms Reddin is legally qualified, and given also that I am delivering my decision orally, I shall express myself as plainly as I can without extensive quotation of statutory provisions.
BACKGROUND FACTS
6.I first set out the background facts, which is based on Mr Castle’s evidence to me. Mr Castle was born in the Solomon Islands in 1974. He undertook his primary and secondary education there and left school at the equivalent of year 10. He obtained a scholarship to commence a bachelor’s degree in Marine Science, and, as I understand his evidence, he commenced the degree in 1997. He could not finish the degree, however, because of civil unrest in the country. He worked for a short time with the Fisheries Department.
7.He had joined a church group in the Solomon Islands and was sent to Australia to attend a conference. He met his future wife in Australia in 2001. He returned to the Solomon Islands, where she joined him in 2004, as I understood Mr Castle’s evidence. They married in 2004 in the Solomon Islands, and in 2005 the couple came to Australia.
8.They have a child, named Cullen, who was born to them on April 24, 2008. At the time of my decision, he is twelve years of age. Mr Castle gave evidence that Cullen’s birth was a worrying time as his wife’s labour was prolonged, but it was also a time of great joy. He took an active interest in his son’s education and helped out at the school and at school sports days and the like. He also assisted with the soccer team. Father and son enjoyed their time together. He communicates with his son even from immigration detention via his mobile phone.
9.In 2017, Mr Castle and his wife divorced. He had earlier left the marital home, in 2016. He was still working at that time as a driver with the Sydney City Council. He had been working there for some ten years. On leaving the marital home, Mr Castle became homeless during the period March to June 2016. He lived at the Central Station in Sydney but was still going to work. Mr Castle gave evidence, which I accept, that his wife had asked him to leave in March following serious arguments. In June 2016, the separation became definitive, and he was asked not to return to the family home. He was drinking heavily at this time and had an argument with his wife that led to an assault. I shall refer to that matter later. I note also that Mr Castle had damaged property in the home in the course of the marriage and was fined for that offence.
10.As I have said, Mr Castle was heavily drinking at the time of his separation. The stress of separation and of his general circumstances led him to seek counselling that was offered through the Sydney City Council. The counselling sessions gave him an opportunity to unburden himself but, generally speaking, they did not lead to any particular improvement in his mental health; nor did they assist him to address his underlying difficulties.
11.In September 2016, while still living on the streets, Mr Castle met a Ms Mellisa Styman at the Liverpool Railway Hotel. Having informed her he was homeless, she suggested that he stay with her, and Mr Castle gave evidence that he moved in with her as her boyfriend and sexual partner. He gave evidence, which I accept, that during the first two months things went well between them, but drinking led inevitably to arguments. He gave evidence, which I also accept, that after they had been drinking together, arguments would ensue, in which she would question his integrity and fidelity.
12.Mr Castle found himself stressed by his circumstances overall and made what seems to me the very unwise decision of resigning from his council job on 12 January 2017. He also decided to leave his partner, Ms Styman. He was then homeless for a further three months during which time he located himself amongst other homeless people in Martin Place in the city centre. In the middle of 2017, he received approval for a flat in Waterloo. At this point, his personal circumstances were very difficult: his relationship with his wife had ended, and his unhappy relationship with Ms Styman had also broken down. He had resigned his job and had only recently been able to secure accommodation.
13.In 2018 Ms Styman rang Mr Castle for help. She had fallen pregnant to a new partner (who had, however, left her). He went to assist her that night as she was nauseated and could not prepare food for her daughter. He stayed overnight, sleeping in the living room, and on his departure, he forgot to take his phone. The phone was important to Mr Castle because it was his way of keeping in contact with his son and former wife. After several attempts to contact Ms Styman and having been stood up by her when he had returned to retrieve his phone, he finally met her at her house one afternoon. He discovered that in the interim Ms Styman had deleted all photos from his phone, and these included family photos that were important to him.
14.I accept that an argument ensued. I accept that Ms Styman argued with Mr Castle over the mobile phone and I am prepared to accept his evidence that she first hit him and caused him to collide with the door. At that point, as he put it in his evidence to me, he “lost it”. In the rage that ensued, he assaulted Ms Styman repeatedly. The assault was very serious and involved Mr Castle pulling Ms Styman’s hair, kneeing her to the chest area and kicking her repeatedly while she lay on the floor. He knew, of course, that she was pregnant. Mr Castle denied that he hit Ms Styman with a curtain rod he had detached from the wall. He admitted that he had grabbed the rod but said he had thought better of using it, and he explained that Ms Castle mistook his kicks for a beating with the rod. I do not need to decide whether that is or is not true. It seems to me that it makes little difference whether Mr Castle chose to beat Ms Styman or kick her. The acts are equally reprehensible. I am prepared to assume, however, that Mr Castle was seeking in his evidence to me to wrongly minimise his attack upon Ms Styman as he did in his evidence concerning the assault upon his wife, to which I shall refer.
15.In due course Mr Castle was convicted of a number of offences concerning the assault upon Ms Styman. I shall not set out in these oral reasons the salient parts of the sentencing remarks and the sentence imposed but I have had regard to them as well as to Mr Castle’s entire criminal history.[1] The mandatory cancellation of his visa was an inevitable consequence of his conviction and sentence.
[1] Ex R1, pp 30ff and pp 25-26 respectively.
16.Mr Castle applied for the revocation of the cancellation decision. The delegate declined to revoke the decision.[2] As I have indicated, hearing the matter afresh on the evidence before me, I must decide whether I should revoke the cancellation decision.
[2] Ex R1, pp 15ff.
17.I must take into account and be guided by Direction 79. In earlier cases (for example those of QDWQ[3] and Ung[4]) I summarised certain salient features of Direction 79. I refer to that analysis without quoting it in the course of these oral reasons.
[3] QDWQ v. Minister for Home Affairs [2019] AATA 4622
[4] Ung v. Minister for Immigration, Migrant Services and Mutlicultural Affairs [2020] AATA 112
RE-EXERCISE OF THE DISCRETION UNDER DIRECTION 79
18.I must consider the protection of the Australian community and the nature and seriousness of Mr Castle’s conduct to date.[5] I note that without limiting the range of offences that may be considered serious, violent and sexual crimes are regarded very seriously particularly when they involve a woman and irrespective of any sentence imposed.[6]
[5] Direction 79, Paragraph 13.1.
[6] Ibid, paragraph 13.1.1(1)(b).
19.In this connection, I note that I must regard the most recent assault of Ms Styman very seriously. I bear in mind that Ms Styman was also in a position of particular vulnerability as she was pregnant. Mr Castle did not offer any mitigating circumstances in relation to his commission of this offence. I think that was appropriate. Ms Reddin pressed me with a submission that the assault was provoked by Ms Styman’s behaviour. In my opinion, however, it is wrong to say that the assault was “provoked”. I do not doubt that the deletion of the photos hurt Mr Castle and took from him something that was very important to him. I am also prepared to accept that he was assaulted by Ms Styman and that as a consequence he injured his eye on the door.
20.But the retaliation which followed Ms Styman’s behaviour was out of all proportion to both the emotional hurt that had been inflicted and the physical assault. Mr Castle’s own evidence was that he had “lost it”; namely, that he had become so enraged that he was no longer able to control himself. I think it is clear that Mr Castle has very serious issues to address in respect of his inability to control anger. I do not see any mitigating circumstances in the commission of this offence.
21.Earlier I indicated that I would return to a particular assault that had occurred in respect of Mr Castle’s former wife. I do so now. This involved an assault at a train station in Sydney. In an argument Mr Castle punched his wife in the mouth before she was able to drive away in a car. He went back to the home where she was living and was arrested by police in a nearby park a short while later. This was a serious assault in my opinion that also needs to be taken into account.
22.I was not impressed by Mr Castle’s seeking to downplay the assault of his wife by saying that his hand had slipped in a struggle and that he had accidentally hit her in the mouth with an open hand and not with a clenched fist. I do not accept that evidence. I believe Mr Castle sought to downplay the significance of that event deliberately. But I do balance his evidence in this regard against his frank statement that he offered no excuses for his behaviour in general and accepted its overall seriousness. I repeat this observation in relation to the attempted downplaying of his assault on Ms Styman, where he denied using a curtain rod.[7]
[7] I have assumed adversely to Mr Castle that he deliberately sought to downplay the assault: see [14] above.
23.I must have regard to the frequency of offending and whether there is any trend of increasing seriousness.[8] Mr Castle does have a significant history of violence against two partners now, and I regard the most recent assault of Ms Styman as particularly serious in all the circumstances. There have been a number of events involving Mr Castle and his female partners, and there is a serious risk to any future female partner he might have. In this connection, I would refer to the evidence of Mr Castle’s ex-wife who indicated that he had never assaulted her “in front of the children”, which I took to be an implicit admission that there had been significant violence in the relationship.
[8] Ibid, para (e).
24.All in all, I believe that Mr Castle is a person who has demonstrated a serious tendency towards violence against women. In the course of his evidence, Mr Castle referred to the troubled childhood he had which he said involved physical and sexual abuse. I accept that evidence and believe that there are issues arising from Mr Castle’s early life that need to be addressed.
25.That said, it is not appropriate for me, I believe, to assume that the troubles Mr Castle has had in his early life explain or have influenced his behaviour to his female partners. That evidence was lacking before me. Moreover, the potential relevance of any such evidence is not immediately apparent to me as my prime task is to assess Mr Castle’s future risk to the Australian community rather than examine any circumstances that bear on his moral culpability as such, which was the responsibility of the sentencing judge.
26.I must also take into account the risks to the Australian community should Mr Castle commit further offences or engage in other serious misconduct.[9] In this regard I note that alcohol has lain at the root of much of Mr Castle’s improper conduct.
[9] Ibid, paragraph 13.1.2.
27.I think that Mr Castle has a serious problem with alcohol. I note that he has been jailed and has also spent some considerable time in immigration detention, where no alcohol has been available to him. Any physical dependence on alcohol is ended, but a relapse into heavy drinking is possible given Mr Castle’s past. If he were to drink again, I believe Mr Castle would be at risk of further offending in respect of any partner he might have.
28.Mr Castle does pose a serious risk to the Australian community at the present time in my opinion. In this regard, Mr Castle pressed me with a submission that is prepared to undertake whatever courses are necessary and has done so in the past. Unfortunately, and I do not blame him for this, the counselling sessions organised through the Sydney City Council were discontinued by him when he became homeless and became embarrassed about his personal circumstances. They were of limited assistance in any event. In my opinion, Mr Castle will require one-on-one therapy over a considerable period of time to overcome his tendency to violence. He will also need to abjure alcohol permanently and completely.
29.Whether he does so remains of course to be seen; but I do believe, on the basis of the evidence before me, that there is a reasonable chance that Mr Castle will indeed take the positive steps of abjuring alcohol and seeking appropriate long-term counselling. I believe that he is sincere in that expression of intent. I bear in mind that he has had the very chastening experience of jail and immigration detention coupled with the prospect of an imminent deportation to the Solomon Islands, which will mean the loss of one-on-one contact with his son.
30.Nevertheless, so far as the primary considerations are concerned, I must proceed on the basis that Mr Castle poses presently a real and substantial risk to the Australian community (that is, to women with whom he develops a relationship). In this connection, I would note that I would reject the suggestion by Mr Reddin that Mr Castle’s difficulties in his relationship have been the result of a poor choice by him of female partners. I must say I was rather surprised that this submission was made by Ms Reddin given her expertise in social work. It seems to me that this submission fails to accord serious weight to Mr Castle’s problems in relation to alcohol misuse and in his use of violence as a means of harming women who have annoyed or hurt him in some way.
31.I must also consider the expectations of the Australian community in this regard.[10] I note that as a result of recent Federal Court authority[11] I am not to evaluate these for myself but must proceed on the basis that the Australian community has a low tolerance for behaviour of the type displayed by Mr Castle and that the expectations of the Australian community favour a cancellation of his visa.
[10] Ibid, paragraph 13.3.
[11] FBYR v. Minister for Home Affairs [2019] FFCA 185
32.All in all, I conclude that the two primary considerations to which I have referred count strongly against Mr Castle.
33.I must also consider the interests of minor children as a primary consideration.[12] In this regard, I place considerable reliance on the evidence of Mr Castle’s former wife, Ms Dennis-Ikhinmwin. She gave frank evidence on which I believe I should act. First, I accept that she is at the present time financially stable and does not hope for future financial support from Mr Castle. I do not believe, therefore, she was fabricating a more positive view so as to secure for herself financial support in the future from Mr Castle’s continued presence in Australia.
[12] Direction 79, paragraph 13(2)(b).
34.Moreover, in light of the unhappy domestic experience that she had with him, she had no reason to support his continued presence in Australia. Nevertheless, she was clear that the interests of her son Cullen favour Mr Castle’s remaining in Australia. She gave evidence that she would be happy to have Mr Castle involved on a daily basis in the raising of her son. When questioned by me as to whether this was literally true, she answered affirmatively. The son misses his father very much, she said. She gave evidence that Cullen has difficulties with her new partner. Mr Castle alluded to these himself in his evidence and has, commendably, counselled his son to co-operate with his mother’s new partner. Mr Castle’s former wife gave evidence that the son has begun to lash out at her physically. Mr Castle has disappeared from Cullen’s life. This has caused him, understandably, a great deal of sorrow and stress.
35.It would appear that Ms Dennis-Ikhinmwin has not explained to Cullen that his father was in jail and is now in immigration detention. In relation to questions from Mr He, she explained that she did not believe it was in Cullen’s best interests to know the truth at this stage and that, culturally, she felt this was a matter between father and son. I accept that evidence. Mr He put to me that if the son had only known what had become of his father, at least some of his current problems would have been averted, but this submission seems to me to be somewhat speculative. I accept that the mother is seeking to act in the best interests of the child and that her decision not to reveal why the boy’s father was no longer able to visit is not an inappropriate one.
36.I have concluded that Cullen, as a 12-year-old boy, places a particular challenge from the absence of his father. In circumstances where the alternative father figure, Ms Dennis-Ikhinmwin’s new partner, is not accepted and where there are serious difficulties with the mother herself, and where the mother has assured me that the biological father plays a significant and important role in her son’s development, I believe I should attach significant weight to the continued presence of Mr Castle in Australia.
37.I must consider other matters under the Direction[13] and I acknowledge expressly that these are, generally speaking, to receive less weight than the primary considerations. I do not attach much significance to the fact that Mr Castle will have to resettle in his former homeland where there are, generally speaking, lower standards of living and fewer opportunities for him. I do accept that he has ties to Australia, and that he is serious in his wish to maintain continued one-on-one contact with his son. At one point in his evidence, Mr Castle indicated that it was the interests of his son that had prompted him to make his application to the tribunal. His sincerity in giving that evidence was apparent to me.
[13] Paragraph 14.
38.I note that I have, of course, already considered Mr Castle’s relationship with his boy from the boy’s perspective as a primary consideration, and I do not “double-count” that factor so to speak.
39.I do not have any evidence before concerning the impact of my decision on Ms Styman (a victim) and so I do not take that matter into account one way or the other. I take into account the fact that Mr Castle’s former wife, also a victim, has spoken very positively about the influence of Mr Castle on her household and that she wishes him to be involved actively in the raising of their son Cullen.
40.I would also note here what I consider to be a very positive feature of Mr Castle’s life. I note that he has become involved in his local and church communities. The church community has actively helped the homeless in Sydney. For some considerable time he has become involved in the physical tasks of preparing and distributing food to assist the homeless in Sydney. He has also shown himself to be a valuable contributor to his local community. Evidence was given by a number of people who spoke very highly of Mr Castle’s contribution to a community garden in the block of flats where he is living. They also spoke positively of his character.
41.In his submissions, Mr He made the point that these people did not have before them the full facts of Mr Castle’s criminal history. That is undoubtedly true. But my reliance on their evidence is not based on their overall appreciation of his character. Rather, their evidence is relevant because it speaks to a different facet of Mr Castle’s character that is emerging. The help with the homeless in Sydney was apparently prompted by his own homelessness. In my opinion, Mr Castle has shown himself to be willing to look beyond himself, so to speak. Even though he was in a very difficult situation, he was considerate enough to reach out to others he regarded as in an equally bad or worse situation.
42.That aspect of Mr Castle’s character has given me cause to consider more positively the chances that Mr Castle will finally abjure alcohol and renounce sexual relationships with women until he has addressed successfully the issues of violence. It seems to me that although I must have due regard to the present risk Mr Castle poses to the community and in particular to any woman with whom he forms a relationship, I should also take into account the significant element of goodwill Mr Castle has demonstrated in the wider community. If he takes the decision not to resume the consumption of alcohol, and to address his violence, he will be able to become an effective member of the community who has a positive role to play in his son’s life.
43.This case has been a particularly difficult one. I do not underestimate for one moment the vicious violence directed towards Ms Styman. I do not downplay either the significance of the history of domestic violence that Mr Castle has shown in his earlier marital relationship. I also have regard to the fact that two of the three primary considerations to which I must have regard favour Mr Castle’s deportation to Solomon Islands.
44.On the other hand, there are the very strong interests of Cullen to consider. His prospects of developing into a balanced young Australian of Aboriginal heritage may be affected substantially by the physical absence of Mr Castle in the Solomon Islands. Of course, contact via Facebook or Facetime is not precluded and there may be an opportunity in the future for Cullen to travel to the Solomon Islands to see his father; but realistically the necessary one-on-one physical contact that nurtures a father-son relationship at critical points will be absent if Mr Castle leaves.
45.Notwithstanding that factor, I would not have decided to allow Mr Castle to remain in Australia were it not for the positive contribution he has made so far to the homeless in Australia. I wish to be clear as to how I have taken this factor into account. The contribution indicates in my opinion a genuine willingness to go beyond self-interest and to assist the Australian community. I do not believe this step would have been taken by Mr Castle unless he had resolved seriously to improve himself, to take steps to make amends for past behaviour, and to commit himself to a community life that will avoid future violence. His contributions have occurred in the context of a church community (with a strong moral ethic) and in the company of other like-minded individuals. The risk of further offending remains; but there is a reason for some optimism.
46.In these circumstances, although I believe the situation is very finely balanced, I think it is appropriate to set aside the decision under review and to substitute a decision that there is “another reason” for the revocation of the mandatory cancellation decision.
47.Finally, I wish to be clear that I have not relied on the psychosocial report authored by Ms Reddin, and which was tendered at the hearing.[14] In her evidence, Ms Reddin indicated she was unaware of the significant conflict of interest that her representation of Mr Castle caused in the circumstances. I do not believe her report is a balanced one on which I should rely, and I have not done so.
[14] Ex A4.
48.I shall issue a formal written decision in the terms mentioned in paragraph [5] above.
I certify that the preceding fort-eight (48) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta.
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Administrative Assistant Legal
Dated: 11 June 2020
Date of hearing: 6, 7 & 8 May 2020 Representative for the Applicant:
Ms R Reddin Representative for the Respondent: Mr Z F He
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