Clark and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 810
•19 February 2024
Clark and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 810 (19 February 2024)
Division:GENERAL DIVISION
File Number:2023/8840
Re:Te Napi Clark
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member A. Julian-Armitage
Date of Decision: 19 February 2024
Date of Reasons: 18 April 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Respondent's delegate dated 24 November 2023 to not revoke the mandatory cancellation of the Applicant's visa.
............................[SGD]............................................
Member A. Julian-Armitage
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where the Applicant does not pass the character test – where the applicant has a substantial criminal record - whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 99 – where Applicant’s offending included property offences, vehicle offences and violent offences – where Applicant’s conduct included family violence - decision under review affirmed
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member A. Julian-Armitage
18 April 2024
INTRODUCTION
Mr Te Napi Clark (‘the Applicant’) is a New Zealand born 43-year-old man.[1] He initially arrived in Australia in August 1993. The Applicant has entered and departed Australia several times since then, but appears to have resided in Australia on a more permanent basis from December 2015.[2] He was last granted a Class TY Subclass 444 Special Category (Temporary) Visa (‘visa’) on 22 July 2017.[3]
[1] R1, p 2, para 3.
[2] R1, p 2, para 3.
[3] R1, p 2, para 3.
On 10 May 2023, the Department of Home Affairs notified the Applicant of the mandatory cancellation of his visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), as he did not pass the character test due to having been sentenced and serving a full-time custodial sentence.[4] On the same date, the Applicant made written representations to the Department of Home Affairs requesting revocation of the cancellation of the visa.[5]
[4] Tr1, G21, p 145-150.
[5] Tr1, G11, p 76. The Tribunal notes that the Respondent’s submissions stipulate that the Applicant made this request on 23 May 2023 (Exhibit R2, p 2, para 9), although the revocation request signed by the Applicant is dated 10 May 2023.
On 24 November 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) made a decision to not revoke the earlier mandatory cancellation.[6] This was delivered to the Applicant by hand on 27 November 2023.[7] On the same date, the Applicant lodged the instant application before this Tribunal seeking review of the non-revocation decision.[8] I am satisfied that this Tribunal has jurisdiction to review the non-revocation decision pursuant to subsection 500(1)(ba) of the Act.
[6] Tr1, G3, p 14.
[7] Tr1, G3, p 11.
[8] Tr1, G2, p 4-9.
The hearing of this application took place at Brisbane on 5 and 6 February 2024[9]. The Tribunal heard oral evidence from the Applicant and submissions from the representative for the Respondent, Mr Chris West of Sparke Helmore.
[9] The Tribunal notes that the proceedings on 5 February 2024 were adjourned to allow the Tribunal to accord with subsection 500(6J) of the Act, with respect to Exhibit A2.
The Tribunal also received written evidence with the totality of that material consolidated into an Exhibit Register, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. Relevantly, this provides that:
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.
I am satisfied that the Applicant made the representations required by subsection 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in subsection 501(6) of the Act. It stipulates that a person will not pass the character test if they have a ‘substantial criminal record’. In turn, a ‘substantial criminal record’ is where a person has been sentenced to a term of imprisonment of 12 months or more.[10]
[10] See ss 501(6)(a) and 501(7)(c) of the Act.
The Applicant does not pass the character test, due to him being sentenced to a term of imprisonment of 18 months in 2023.[11] Accordingly, I find that he does not pass the character test and cannot rely on subsection 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[11] Tr1, G4, p 37.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is bound by subsection 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[12]
[12] Direction No. 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision-maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
The Applicant commenced offending in his native New Zealand. His offending in that country commenced in 2000, when he was sentenced for a possession of Cannabis offence, disorderly behaviour – likely cause violence and a common assault offence.[13] Since then, the Applicant accumulated a further 8 criminal convictions in New Zealand, including fighting in a public place and two counts of demand intent to steal/extortion,[14] as well as five traffic convictions. The Applicant’s New Zealand criminal and traffic offending can be summarised in the below table:
[13] R1, p 2, para 4; Tr2, TB5, p 254-255.
[14] Tr2, TB5, p 254-255.
Court Date of conviction Offence Sentence Criminal Offences Tauranga District Court 26 October 2000 Common Assault Fine: $200.00
Non-Residential Periodic Detention: 2 months
Disorderly Behaviour – Likely Cause Violence Fine: $150.00 Possession Cannabis Convicted and Discharged 26 July 2001 Wilful Damage Fine: $250.00
Reparation: $65.00
New Plymouth District Court 6 June 2002 Unlawful Takes Motor Vehicle Non-Residential Periodic Detention: 5 months Failure to Answer Bail Non-Residential Periodic Detention: 5 months 26 August 2002 Fighting in a Public Place Fine: $150.00 Tauranga District Court 13 November 2002 Breach of Periodic Detention Community Work: 160 hours 14 May 2003 Fighting in a Public Place Fine: $250.00
Court costs: $130.00
Hamilton District Court 19 May 2011 Breach Conditions of Community Detention Convicted and Discharged 3 July 2012 2 x Demand Intent to Steal/Extortion For each charge, Community Work: 160 hours Traffic Offences Tauranga District Court 8 August 2001 Failed to Comply with Prohibition by Enforcement Officer Fine: $250.00 30 August 2001 Drove with Excess Blood Alcohol Content Fine: $350.00
Disqualified from driving: 6 months
Nelson District Court 6 June 2002 Breath Alcohol Level Over 400 Mcgs/Litre of Breath Non-Residential Periodic Detention: 5 months
Disqualified from driving: 1 year
Morrinsville District Court 15 March 2011 Drive With Excess Breath Alcohol Community Work: 200 hours
Supervision: 9 months
Community Detention: 3 months
Disqualified from driving: 1 year, 1 day.
Hamilton District Court 3 December 2013 Operated a Vehicle Carelessly Fine: $300.00
Court Costs: $130.00
Furthermore, the Applicant has a significant and extensive criminal history in this country, featuring very serious offences committed in the Northern Territory and Queensland. In terms of sentencing episodes, the Applicant’s criminal history runs from January 2019 until February 2023 and appears to span some 81 offences. The Applicant’s offending history may be summarised as follows:
Court Date of conviction Offence Sentence Darwin Local Court 8 January 2019 Drive a Motor Vehicle while Unlicensed Fined (aggregate): $308.00
Drive Uninsured Motor Vehicle Drive Unregistered Motor Vehicle 15 April 2019 Escape from Lawful Custody Imprisonment: 1 month, cumulative Stealing Imprisonment: 6 months, cumulative Obtain Benefit by Deception Imprisonment: 1 month, cumulative Stealing Imprisonment: 1 month, cumulative 3 x Obtain Benefit by Deception On each count sentenced to imprisonment: 1 month, concurrent Stealing Imprisonment: 1 month, cumulative 2 x Obtain Benefit by Deception Imprisonment: 2 months Imprisonment: 14 days Stealing Imprisonment: 1 month Obtain Benefit by Deception Imprisonment: 1 month, concurrent 4 x Stealing Imprisonment: 1 month, concurrent Imprisonment: 1 month, concurrent Imprisonment: 3 months, cumulative Imprisonment: 1 month, concurrent 2 x Obtain Benefit by Deception
Imprisonment: 1 month, concurrent Imprisonment: 1 month (backdated) Trespass on Enclosed Premises Fine: $1500 Drive a Motor Vehicle While Unlicensed Drive Uninsured Motor Vehicle Drive Unregistered Motor Vehicle 9 December 2019 Breach of Order Suspending Sentence Fully restored sentence
Imprisonment: 4 months
22 September 2020 Trespass on Enclosed Premises Imprisonment: 1 month,
concurrent
3 x Stealing Imprisonment: 4 months (aggregate) 2 x Stealing Imprisonment: 1 month (aggregate) Stealing Imprisonment: 1 month 8 October 2021 Obtain Benefit by Deception Imprisonment: 1 month 15 October 2021 Possess a Thing for use in Administration of Dangerous Drugs Imprisonment: 7 days, suspended for 12 months, concurrent Possess Less Than Trafficable Quantity of Schedule 2 Dangerous Drug Behave Offensively in a Dwelling House Imprisonment: 3 months, concurrent Damage to Property Imprisonment: 2 months, suspended for 12 months, concurrent Aggravated Assault Imprisonment: 2 months (backdated) Imprisonment: 3 months, concurrent, suspended for 12 months Stealing Imprisonment: 1 month, concurrent 26 October 2021 Engage in Conduct that Contravenes DVO Imprisonment: 2 days (backdated) Breach of Order Suspending Sentence Proved and no action taken 24 December 2021 Breach of Order Suspending Sentence Imprisonment: 14 days (restored backdated sentence) Resist Police in Execution of Duty Fine: $300 3 x Engage in Conduct that Contravenes DVO Imprisonment: 7 days, cumulative Drive Uninsured Motor Vehicle Fine: $1570 Drive Unregistered Motor Vehicle Convicted Drive Motor Vehicle with Wrong No. Plates Fine: $400 Drive a Motor Vehicle while Unlicensed Convicted Drive Vehicle in a Manner Dangerous Fine: $300
Disqualified: 6 months
Proceed Beyond a Red Traffic Light Convicted without penalty Southport Magistrates Court 22 April 2022 3 x Trespass – Entering or Remaining in Dwelling or Yard Convicted and not further punished Possessing Dangerous Drugs For each offence, fine: $150.00 Fail to Properly Dispose of Needle and Syringe Possess Utensils or Pipes Etc that had been Used Evasion Offence Imprisonment: 50 days, concurrent
Parole release date: 14 May 2022
Disqualification period: 2 years
Dangerous Operation of a Vehicle and Adversely Affected by an Intoxicating Substance Imprisonment: 9 months, concurrent
Disqualification period: 6 months
27 January 2023 Wilful Damage Convicted and not further punished 3 x Fraud – Dishonestly make off without paying Attempted Enter Dwelling with Intent Imprisonment: 12 months, concurrent Unlawful Use of Motor Vehicle 6 x Enter Premises and Commit Indictable Offence Imprisonment: 2 years, concurrent
Parole eligibility date: 26 June 2023
3 x Burglary and Commit Indictable Offence Enter Premises with Intent to Commit Indictable Offence Enter Dwelling with Intent to Commit Indictable Offence Stealing Imprisonment: 3 months, concurrent Wilful Damage 2 x Wilful Damage by graffiti Imprisonment: 6 months, concurrent 10 February 2023 [Re-opening of sentence of 27 January 2023] Imprisonment: 18 months cumulative
Furthermore, the Applicant’s offending career also includes a not insignificant traffic history summarised in the below table:
Court Result Date Offence Penalty - 22 April 2022 Section 79B Unlicensed driving immediate suspend/disqualify - Southport Magistrates Court Fail to stop motor vehicle as soon as practicable Disqualification: 50 days - 27 January 2023
Immediate Suspend/Disqualify Unlicensed driving NTC - Southport Magistrates Court 7 x Disqualified driving Disqualification: 6 months
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a): the essence of this area of the Direction provides for the types of offences committed within the genre of sub-paragraph (i), (ii) or (iii) are viewed “very seriously” by the Australian Government and the Australian community. The Applicant’s offending in this country includes offences that engage this subparagraph. Specifically, the convictions of two counts of aggravated assault fall within sub-paragraphs (i) & (ii), and there are the four counts of engage in conduct that contravenes a Domestic Violence Protection Order. This therefore favours a finding that the Applicant’s offending has been "very serious”.
Sub-paragraph 8.1.1(1)(b): this area of the Direction refers to the types of crimes that may be considered serious by the Australian Government and the Australian community. Relevantly, the conviction for resist police in execution of duty is the type of offence that can comfortably be considered to engage subparagraph (ii), as an offence committed against government officials (in this case, the police), whilst in the performance of their duties. Therefore, this favours a finding that the Applicant’s offending has been “serious”.
Sub-paragraph 8.1.1(1)(c): in the application of this sub-paragraph, I am precluded from taking into consideration sentences imposed for:
(a)Any violent offending the Applicant may have committed against women or children[15];
(b)Acts of family violence;[16] and
(c)Conduct whereby the Applicant caused a person to enter into or become a party to a forced marriage.[17]
[15] Subparagraph 8.1.1(1)(a)(ii) of the Direction.
[16] Subparagraph 8.1.1(1)(a)(iii) of the Direction.
[17] Subparagraph 8.1.1(1)(b)(i) of the Direction.
Whilst the Applicant’s offending has not involved conduct causing a person to become a party to a forced marriage (see paragraph 8.1.1(1)(b)(i) of the Direction), the Applicant’s offending encompasses acts of family violence and violent offending against women. Accordingly, I will not consider the sentences imposed for any offences relating to acts of family violence and violence against women during my consideration of this part of the Direction.
Notwithstanding this, the balance of the Applicant’s criminal history still leaves a considerable number of convictions that fall within the ambit of this sub-paragraph. In particular, and of note is the sentence of 18 months’ imprisonment imposed on 27 January 2023 by the Southport Magistrates Court for the convictions for enter premises and commit indictable offence and burglary and commit indictable offence.[18] The serious nature of the Applicant’s offending is supported by the fact that the imposition of a custodial sentence is the last resort in the sentencing hierarchy.[19] Furthermore, on 22 April 2022, the Applicant was also sentenced by the Southport Magistrates Court to a term of imprisonment for nine months, to be served concurrently, for dangerous operation of a vehicle and adversely affected by an intoxicating substance, together with sentences for evasion, possess utensils or pipes etc that had been used, fail to properly dispose of needle and syringe, possessing dangerous drugs and trespass – entering or remaining in dwelling or yard.
[18] The Tribunal notes that the head sentence was initially for 2 years imprisonment. The sentence was re-opened on 10 February 2023 and the Court imposed a sentence of 18 months imprisonment with a parole eligibility date of 26 May 2023.
[19] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Sub-paragraph 8.1.1(1)(d): Two questions arise for consideration within this sub-paragraph. The first requires an assessment of the frequency of the Applicant’s offending. He has committed over 80 offences in Australia together with a traffic history comprising some 10 entries within a four year period which leads me to find that his offending has been frequent. The second question is whether the offending indicates a trend of increasing seriousness. In this regard the offending has gone from Drive a motor vehicle unlicensed and Trespass on enclosed premises, to Dangerous operation of vehicle and Burglary, alongside the numerous violent, drug-related and property-related offences that have resulted in lengthy periods of imprisonment. The Respondent has also noted that the majority of the Applicant’s offending has been committed whilst the Applicant was subject to either a suspended parole order or parole that had been cancelled.[20] Hence, I find that his offending clearly indicates an increased level of seriousness.
[20] Exhibit Tr1, G4, p 45; Exhibit R1, p 7, para 31.
Therefore, I find that the Applicant’s offending has been both frequent and with a pattern of increased seriousness.
Sub-paragraph 8.1.1(1)(e): a number of cumulative effects can be gleaned from the Applicant’s offending. The most significant effect can, without a doubt be ascertained from his domestically violent conduct towards his ex-girlfriend as detailed in her Statutory Declaration,[21] and her victim impact statement that forms part of the materials.[22] The violent conduct as therein specified includes the Applicant “whipping a dog chain around [his ex-girlfriend’s] legs which caused bruising”[23], which can only be characterised as brutal, demeaning and utterly devoid of any compassion. It is unnecessary to recount the dreadful aspects of this type of offending which can only be characterised as appalling in nature.
[21] Exhibit Tr2, TB5, p 288.
[22] Exhibit Tr2, TB5, p 294-295.
[23] Ibid.
I am of the view that the cumulative effects discernible from the Applicant’s offending, cumulatively favours a finding that his unlawful conduct in Australia has been serious in the extreme.
Sub-paragraph 8.1.1(1)(f): As mentioned above, the Applicant first came to Australia in August 1993 and has since entered and departed Australia several times. However, he did not settle here on a permanent basis until December 2015.[24] As far as I understand the material, there is nothing before me about whether or not the Applicant has failed to declare his criminal history on any inbound passenger cards nor has the Respondent agitated any submissions with respect to this. Hence, I make no finding in relation to this sub-paragraph.
[24] Exhibit R1, p 2, para 3.
Sub-paragraph 8.1.1(1)(g): from my understanding of the material, there is no reference to any prior written formal warning about the consequences of the Applicant committing any further offences relevant to his visa status allowing him to remain in the country. Therefore, this sub-paragraph holds no relevance.
Sub-paragraph 8.1.1(1)(h): As previously mentioned, the Applicant’s offending commenced in his native New Zealand. The convictions in the Hamilton District Court are for violent offending, as well as fraud-related conduct for which he was convicted in 2012 and were for demand intent to steal/extortion. These offences are unquestionably classified as offences in Australia.
Conclusion about the nature and seriousness of the Applicant’s conduct
On applying each of the relevant sub-paragraphs contained in sub-paragraph 8.1.1(1) of the Direction to the evidence, I am satisfied that the evidence before me safely leads me to the conclusion that the totality of the Applicant’s unlawful conduct in this country has been “very serious” and I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
It is clear from the nature of the Applicant’s offending that were he to engage in further criminal offending of the nature of his past criminal history, or any other serious conduct within the realms of his previous offending, there is little doubt that such conduct would expose the Australian community to serious physical, psychological and financial harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I have considered all of the Applicant’s rehabilitation attempts furnished in this matter and summarised in the table below in these reasons, together with the Applicant’s oral and written submissions on the subject.[25]
[25] Exhibit A1; Exhibit A2.
Whilst I do give credit for the Applicant’s attempts at rehabilitation, there is no clinical evidence before me in relation to recidivism or the level of rehabilitation the Applicant has achieved. It is concerning that the Applicant’s own evidence is that he has managed his grief in the past by turning to alcohol and illicit drugs from as early as when he was merely 16 years old. He recounted how he did this upon his father’s death in 2019. It is worrisome that of all the rehabilitation attempts the Applicant has made, it does not clearly demonstrate that the underlying and particular factors that gave rise to him going off the rails have not been addressed, such as the grief of losing his father.
It is also concerning that the Applicant has been the subject of non-custodial sentences[26] allowing him to return to the community, only to see a pattern of him continuing to offend soon after release with a number of offences taking place when he was on parole.[27]
[26] Exhibit Tr1, G5, p 46.
[27] Exhibit Tr1, G7, p 45-46, 61.
The Tribunal is in receipt of a character assessment report completed by a clinical practitioner at the Borallon Training and Correctional Centre, dated 23 May 2023.[28] This report confirms nil recorded breaches or incidents whilst the Applicant was incarcerated at that correctional centre, whilst also providing the following information with respect to the Applicant’s employment and rehabilitative efforts:
CLARK has completed two AEVET courses (Prepare to work safely in the construction industry and Use hygienic practices for food safety) in 2022 and 2023, and Short Substance Intervention AOD awareness program in 2023.
…
CLARK has been consistently employed in various roles, such as Logistics Worker, Senior Maintenance Worker, Stores Clerk and most recently Stores Team Leader since November 2022 to present time.
[28] Exhibit Tr1, G10, p 71.
However, at the hearing the Applicant gave evidence that whilst he was completing rehabilitative courses, he was using buprenorphine illicitly. The Respondent argues that consequently, the Tribunal cannot be confident in the Applicant’s rehabilitative efforts and their effectiveness in the community, given that the Applicant’s abuse of opioids has continued on a daily basis both in prison and in detention.[29] This view is supported by the IHMS records filed by the Applicant which stipulate that he suffers from opioid dependence.[30] It is difficult to dispel with this proposition.
[29] Exhibit R2, p 9, para 36.3.
[30] Exhibit A1, p 15.
I acknowledge and recognise that the Applicant has made attempts to rehabilitate, however, the measures below have not been tested whilst he has been in the community nor does this Tribunal have the benefit of a clinical assessment in relation to the risk or otherwise the Australian community could face.
Information and evidence on the risk of the non-citizen re-offending including evidence of rehabilitation
As previously mentioned, and based on the materials before the Tribunal, the Applicant appears to have sought out, and completed, a range of courses aimed at addressing drug, alcohol and mental health related issues. These efforts have been summarised in the table below. Where relevant, I will consider these more fulsomely in the reasons that follow.
Date(s) Organisation/Program Engagement Type Activity Details Outcome/Result July 2023 – August 2023 Lives Lived Well Drug/alcohol rehabilitative program Applicant self-referred on 3 July 2023
Applicant completed intake on 11 July 2023
Applicant completed two sessions on 26 July 2023 and 8 August 2023.
Sessions with case manager more generally referred to in support letter (Tr1, G17, p 120)
Referral, intake, and completion of sessions August 2023 – October 2023 Universal Class Online drug/alcohol rehabilitative course program “Drug and Alcohol Abuse 101” course – completed 7 August 2023
“Anger Management 101” course – completed 25 October 2023
October 2023 DoFoodSafely, Department of Health Training/Education Education/training assessment activities Completion of assessment with 90% grade – 4 October 2023 August 2023 – November 2023 Drug ARM, “Community and Family Support Service Program” Drug/alcohol rehabilitative program Intake completed on 28 June 2023
About 11 counselling sessions from August 2023 – November 2023 (Tr1, G18, p 138)
Completion of discharge form outlining triggers, challenges and coping strategies.
Completion of rehabilitative episodes and sessions, including Strengths Exploration activity
Correspondence with Applicant regarding completion of evidences (Tr1, G18, 134-135)
Discharge form completed 13 November 2023
Certificate of completion on 13 November 2023 acknowledging completion of program
Reference to further session on 22 January 2024 (A1, p 6)
Assessment of recidivist risk
As mentioned above, the Applicant has made some progress in relation to his rehabilitation which is to be commended. However, at the forefront of this area of this consideration is the risk to the Australian community in the event that the Applicant re-offends. As I have mentioned there is little to provide comfort that the community can be assured that there is a low level of risk that the Applicant will re-offend. This is particularly so as there is little evidence of the rehabilitation attempts addressing the underlying issues he has had to deal with, such as grief which in the past had led him back to drug and alcohol use. Thus, I think that an assessment of the Applicant’s recidivistic risk can therefore be best described as an unresolved risk due to the paucity of clinical opinions and his previous relapses.
Accordingly, I find that the Applicant represents an unresolved and otherwise unknown level of risk which leads me to a conclusion that his level of recidivistic risk is unacceptable.
Conclusion: Primary Consideration 1
With respect to the weight attributable to this Primary Consideration 1, I find:
(1)The nature and seriousness of the totality of the Applicant’s conduct to date to have been very serious;
(2)That were the Applicant to re-offend in any aspect of his history, it could give rise to very serious physical, psychological and potentially financial harm with the real possibility of fatal results; and
(3)That I have found, in respect of recidivist risk, that the Applicant represents an unacceptable recidivistic risk.
On my consideration and analysis of all the material, I am led to the finding that this Primary Consideration 1 confers a heavy level of weight against the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
Sub-paragraph 4(1) of Direction 99 defines family violence to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Sub-paragraph 4(1)(b) of Direction 99 provides examples of family violence relevantly including sexual assault or other sexually abusive behaviour.
The victim in relation to family violence was his ex-girlfriend with whom the Applicant had been in an intimate relationship for some 18 months[31].
[31] Exhibit Tr2, TB5, p 287.
I will now address each of the factors in the relevant sub-paragraphs in paragraph 8.2(3) in turn.
Paragraph 8.2(3)(a) requires me to consider the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness to it. Prior to the convictions for family violence offending as addressed above, the Applicant had breached domestic violence orders and had been convicted on four occasions for non-violent contraventions, as well as the two aggravated assault (domestic violence) offences.[32]
[32] Exhibit Tr1, G7, p 62.
Paragraph 8.2(3)(b) requires me to address the cumulative effect of repeated acts of family violence. As mentioned above, there have been repeated acts of family violence attested to by the Applicant’s victim in the Statutory Declaration form which speaks of both violent and non-violent acts including assaulting his victim with what appeared to be a dog chain which wrapped around his victim’s leg, causing a great deal of pain, in addition to breaking into the victim’s home and causing upheaval to her property.
Paragraph 8.2(3)(c) requires me to consider the nature and extent of rehabilitation achieved by the time of my decision since the Applicant’s last known act of family violence. As I understand the material provided by the Applicant, I have not been able to see any evidence of rehabilitation directed specifically to addressing the issue of family violence.
Conclusion: Primary Consideration 2
I find that this Primary Consideration 2 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa, particularly as there is no evidence of addressing this aspect of his offending with rehabilitation attempts.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.
On the evidence before me, it appears that the Applicant’s immediate family for the purposes of Primary Consideration 3, as well as minor children to be considered for the purposes of Primary Consideration 4, are as follows:
Immediate family members:
·Donna Sudana (Applicant’s mother);
·Aimee Stoddart (Applicant’s current partner);
·Rangituroa Clark (Applicant’s brother);
·Bronson Vincent (Applicant’s brother);
·TZ (Applicant’s former partner, and mother of his minor biological son AX); and
·AX (Applicant’s minor biological son).
With respect to other family members, the Applicant has claimed several relatives who reside in Australia, numbering some 10 uncles, 12 nephews (some of whom are purportedly minors) and five cousins.[33] The Applicant has also listed JX, KX and SR as other children who are in his life,[34] and they are the biological children of the Applicant’s partner Ms Stoddart.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[33] Exhibit Tr1, G12, p 90.
[34] Exhibit Tr1, G12, p 88-89. The Tribunal notes that the date of birth that the Applicant has written for SR in the materials confirms that SR is over the age of 18. The Applicant appears to have listed SR in the minor child category in his PCF, but the materials before the Tribunal make it clear that Ms Stoddart has two minor children (see Exhibit R1, p 13, para 49).
The first requirement here is to identify the Applicant’s immediate family in Australia who are citizens, permanent residents or persons who have the right to remain indefinitely in Australia. These people appear to be the Applicant’s mother, who is a New Zealand citizen,[35] and two brothers, about whom I am unable to determine their visa status situation as there is no definitive material before me in this respect.[36] In addition, there is the Applicant’s current partner Ms Stoddart, who gave evidence at the hearing, and the Applicant’s biological son AX.
[35] Exhibit Tr1, G12, p 82.
[36] The Applicant has stated that his brothers’ nationality is “Māori” and their residence is in Australia (see G12, p 90), although their citizenship and/or visa status was not specifically provided.
The only member of the Applicant’s immediate family who gave oral evidence during the hearing was Ms Stoddart, who had also provided a written statement. Beyond this, the Tribunal was also in receipt of a statement from the Applicant’s mother and each of his two brothers who all provided statements in support of the Applicant being able to remain here in Australia.
As to the evidence of the Applicant’s current partner, she told this Tribunal that she and the Applicant enjoy a strong relationship with future plans that could not be realised should the Applicant be required to leave Australia.[37] I acknowledge that it may well be so.
[37] Exhibit Tr1, G17, p 144-145.
As I understand the evidence, for the purposes of this paragraph 8.3(1), the Applicant’s mother, minor son, and two brothers comprise “immediate family in Australia”.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
This element in Primary Consideration 3 requires a determination of whether more weight should be given to the Applicant’s ties to Australia where he has Australian citizen biological children. As previously mentioned, the Applicant has an Australian-born child who I will deal with below.
Paragraph 8.3(3): Strength, nature, and duration of ties with any family or social links generally
This paragraph deals with the strength, nature and duration of the ties the Applicant may have with other family members not elsewise dealt with, and the social links the Applicant may have in Australia. These ties must be to persons who are Australian citizens, permanent residents or persons who have the right to remain in Australia indefinitely. Whilst the Direction is silent as to how weight is to be allocated to these ties, I will deal with the Applicant’s ties and allocate weight in his favour in accordance with the strength, nature and duration of those ties.
As mentioned above, the Applicant claims some 10 uncles, 12 nephews and five cousins. The Tribunal does not appear to have been provided with any witness statements from any of these parties. The Applicant has stated that he would be removed from their lives in the event that his visa cancellation is not revoked.[38] It is difficult to make a finding on the impact the Applicant’s departure from Australia would have on these relatives. Therefore, I give neutral weight to these persons.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
[38] Exhibit Tr1, G12, p 90.
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years.
The Applicant first came to Australia in August 1993, and has been residing on an essentially permanent basis since December 2015, when he was 35 years old. He is currently 43 years old. Therefore, it cannot be said by any stretch of the imagination that the Applicant spent his formative years in Australia.
(b)whether the Applicant has positively contributed to the Australian community during his time here.
Whilst there is some evidence before the Tribunal in relation to the Applicant’s employment and related activities in the Northern Territory, there is little evidence to support his work history in Queensland. It is acknowledged that the Applicant has been a “rugby league club volunteer” and a “Tugun Rugby League club cook”.[39]
(c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?
In the present case, and given that the Applicant settled in Australia as a person in the midst of adulthood, it is difficult to attribute any positive weight to the Applicant pursuant to this sub-paragraph.
[39] Exhibit Tr1, G12, p 93.
I am, therefore, of the view, and find, that based on my analysis of the material and evidence, sub-paragraphs 8.3(4)(a)(i) to (iii) of the Direction affords the Applicant a moderate but not determinative amount of weight in favour of revocation of the mandatory cancellation of his visa.
Conclusion: Primary Consideration 3
In applying the relevant components of Primary Consideration 3, I find that the evidence in its totality points to a finding that this Primary Consideration 3 is of moderate but not determinative weight in favour of this Tribunal exercising its power to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
I must determine whether the non-revocation of the Applicant’s visa would be in the best interests of minor children in Australia that would be affected by the decision (per paragraph 8.4(1) of Direction 99). This primary consideration only applies with respect to children under the age of 18 years at the time of the decision (paragraph 8.4(2) of Direction 99).
The Applicant’s biological son, AX, is two years old and lives with his mother in Darwin.[40] As noted above, other minor children, who are relevant with respect to this Primary Consideration 4, are Ms Stoddart’s minor children JX (who is seven years of age) and KX (who is 11 years of age).[41] Furthermore, the Applicant has listed several nephews as part of his extended family but there is little evidence before me to indicate the relationship if any the Applicant has with these children.
[40] Exhibit Tr1, G12, p 79; Exhibit R1, p 12, para 48.
[41] Exhibit Tr1, G12, p 88; Exhibit R2, p 14, para 52.
In relation to the Applicant’s biological child who is two years old and lives with his mother in Darwin, it is obvious that the best interests of this child would be that a revocation decision be made. However, I agree with the Minister that lesser weight can be contemplated in relation to this child as the Applicant’s relationship has been largely hampered by lengthy terms of incarceration and detention as well as the Applicant residing in a different State to that of the child and his mother. In addition, and if the Applicant were to have his visa cancellation revoked, he may well decide to remain in Queensland where his current partner lives which would prevent the Applicant’s physical presence in his life going forward. He can, however, still maintain a relationship with his son electronically from New Zealand. This child is being raised by his mother and supported by his grandparents in Darwin.[42] Furthermore, there is no evidence before me that the Applicant would relocate there should he be able to remain in Australia.
[42] The Tribunal notes the Respondent’s erroneous submission have referred to AX residing in Adelaide, rather than Darwin.
In considering this Primary Consideration 4, the role the Applicant has played in parenting his child, and his relationship with Ms Stoddart’s minor children, has to be viewed against a backdrop of the relatively short term of the relationships, the children’s relatively very young age and the Applicant having either been incarcerated or detained during the time he has been with their mother. Furthermore, in the case of Ms Stoddart’s children specifically, these children maintain a relationship with their biological father and presumably will continue to do so. There is no evidence that the Applicant has ever played a parental role in these children’s lives.
Findings regarding biological child
I have sought to apply the relevant sub-paragraphs at 8.4(4) of the Direction to the evidence before me as it concerns the Applicant’s child, AX. Whilst ordinarily the best interests of a minor biological child would best be served with the presence of a father, in the circumstances and for the reasons above, in this case it is not determinative.
Findings on other relevant minor children
The Applicant’s circumstances, including his incarceration, detention and the fact that he does not play a parental role in the lives of the Ms Stoddart’s children, as transposed in the above paragraphs, has led me to the finding that there should be some, but not determinative weight allocated in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
As noted above, the Applicant has listed several other family members as minor children, and has declared four minor nephews,[43] three of whom are the children the Applicant’s brother Bronson and reside in Western Australia.[44] The fourth nephew resides with the Applicant’s other brother Tosh on the Sunshine Coast. It is clear from the materials before the Tribunal, and the evidence proffered by the Applicant at the hearing, that his relationship with these children is limited, that he has not seen them for sometimes extensive periods of time, and that his brothers, not him, play the parental role with respect to their upbringing. Therefore, neutral weight is given with respect to the consideration of these minor children.
[43] Exhibit Tr1, G15, p 104.
[44] Exhibit R2, p 14, para 53.
Conclusion: Primary Consideration 4
The cumulative best interests of the minor children, including AX and Ms Stoddard’s minor children, viewed in light of the provisions in sub-paragraph 8.4(4) of the Direction, have led me to the finding that this Primary Consideration 4 is of moderate but not determinative weight in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[45] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[46]
[45] Sub-paragraph 8.5(3) of the Direction.
[46] Sub-paragraph 8.5(4) of the Direction. Sub-paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to
non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[47]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[47] Paragraph 8.5(2) of the Direction.
I have previously found that the Applicant has committed offences that engage the operative effect of sub-paragraph (a), having been convicted for acts of family violence (four counts of contravene a Domestic Violence Protection Order and two counts of aggravated assault) and (d) commission of offences against government representatives, namely police in the performance of their lawful duties (noting the conviction for resist police in execution of duty). The commission of these offences clearly mean that the Australian community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[48]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[49]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[50] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[48] Paragraph 5.2(4) of the Direction.
[49] Paragraph 5.2(5) of the Direction.
[50] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) above, the term “limited stay” is not defined in the Act. In the present case, whilst the Applicant has been back and forth from New Zealand since 1993, it appears that he returned to Australia in December 2015 with the intention of residing here on a permanent basis on a Subclass 444 Special Category visa. This visa permits a New Zealand resident to remain in Australia without any limit on the duration of stay[51]. Therefore, the Applicant did not hold a visa that can be classified as a limited stay visa. Hence, this sub-paragraph is not relevant to this Applicant.
[51] Reg. 444.511 of the Migration Regulations 1994 (Cth).
With respect to sub-paragraph (b) above, the Applicant has resided in Australia on a more permanent and consistent basis since December 2015, when he was in his mid-30s. He is now 43 years old and has been here for 9 years since then. He has a work history mainly in the Northern Territory and has fathered a biological child, now aged 2. Whatever participation and contribution he may have made to the Australian community whilst he has resided here can safely be classified as short. Hence, the Australian community’s tolerance would not be lowered by this area of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) above, as previously mentioned, the Applicant has been in Australia effectively on a permanent basis since he was about 35 years old. He is now 43 years old which means that the Australian community’s tolerance of his offending or other serious conduct would not be lowered by this part of the principles.
With respect to sub-paragraph (d) above, the Applicant came to Australia well after his formative years as previously stated and cannot be assisted by the principles in this subparagraph.
In relation to sub-paragraph (e) above, I am of the view that the harm that could be caused by the Applicant re-offending along the domestic violence lines are so serious in magnitude that would dispel any countervailing considerations.
In these circumstances, and for the reasons above, I am of the view that the Australian community’s expectations are not modified to the extent that the community does not have a higher than usual tolerance of the Applicant’s criminal conduct. Due to the serious nature of the Applicant’s offending, I am of the view that this Primary Consideration 5 weighs heavily against the Applicant.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal not exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
As best as I understand the parties’ position, neither party has raised any issues that may be applicable to this Other Consideration (a). For the sake of completeness, I note (and the Respondent concedes) that in the event of a non-revocation decision, the Applicant will be liable to removal from Australia as soon as reasonably practicable and will not be able to apply for another visa while in Australia (with the exception of a protection visa).[52] The Respondent submits that this legal consequence weighs neither for nor against the Applicant, and the Applicant does not appear to have raised anything of note with respect to the same. Accordingly, I allocate neutral weight to it.
[52] Ss 189, 198 and 501E of the Act, Exhibit R1, p 14-15, para 56-59.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Sub-paragraph 9.2(1)(a): The Applicant is 43 years old and had not declared any medical or psychological conditions in his PCF.[53] Notwithstanding this, the Applicant filed IHMS records as part of his material[54] which state that he has previously suffered from a breathing issue, a hepatis C infection and seizures. However, the Applicant’s evidence at the hearing was that he is no longer suffering from these conditions. In any event, and should the need arise for the Applicant to receive medical or other support for these or other conditions, New Zealand enjoys a similar standard of services to those in Australia.
[53] Exhibit Tr1, G12, p 93.
[54] Exhibit A1, p 10-176; Exhibit R2, p 17, para 66.
Sub-paragraph 9.2(1)(b): the evidence does not disclose any substantial language barriers impeding the Applicant’s re-settlement in New Zealand. This Tribunal has previously found that “New Zealand is culturally and linguistically similar to Australia”.[55] The Applicant has spent the majority of the first 34 years of his life in New Zealand and the Applicant’s own statements (as per the IHMS report) are that he is “ready to go back to NZ and if this happens he is OK with that outcome too.”[56]
[55] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301, at [101].
[56] Exhibit A1, p 75; Exhibit R2, p 18, para 68.
Sub-paragraph 9.2(1)(c): this component deals with any social, medical and/or economic support available to the Applicant in New Zealand. To the extent he may require medical support, he will be able to access such support which will be available to him publicly just like it is available to other New Zealand citizens and residents. In addition, and as he has spent considerable parts of his life in New Zealand as an adult, it is safe to assume that he will be able to access social support and work in future.
Findings on impediments
I am of the view that this Other Consideration (b) confers very little weight in the Applicant’s favour with respect to the revocation of the mandatory cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Neither party has agitated the relevance of this Other Consideration (c). I do not view it as relevant and treat it neutrally.
Other Consideration (d): Impact on Australian business interests
Again, neither party has raised this as a live issue of any relevance. Hence, it attracts a neutral weight.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of very little weight in favour of revocation of the mandatory cancellation;
(c)impact on victims: is of neutral weight; and
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Pursuant to subsection 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether I am satisfied if there is another reason to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: weighs heavily against revocation of the mandatory cancellation.
·Primary Consideration 2: weighs heavily against revocation of the mandatory cancellation.
·Primary Consideration 3: weighs moderately, but not determinatively, in favour of revocation of the mandatory cancellation.
·Primary Consideration 4: weighs moderately, but not determinatively, in favour of revocation of the mandatory cancellation.
·Primary Consideration 5: weighs heavily against revocation of the mandatory cancellation.
I have found that the combined weights I have allocated to Primary Considerations 1, 2 and 5 respectively, are sufficient to outweigh the combined weights I have allocated to Primary Considerations 2 and 3, and Other Consideration (b).
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirming the Respondent’s decision under review made on 24 November 2023.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Respondent's delegate dated 24 November 2023 to not revoke the mandatory cancellation of the Applicant's visa.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Member A. Julian-Armitage.
.................[SGD]......................
Associate
Dated: 18 April 2024
Date of Decision: 19 February 2024
Date of Hearing: 5 February 2024
6 February 2024
Representative for the Applicant: Self-represented
Solicitor for the Respondent: Chris West, Sparke Helmore
“ANNEXURE A”
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED R1. Respondent Statement of Facts, Issues and Contentions R 29.01.2024 R2. Respondent Closing Submissions R 16.02.2024 A1. Applicant First Bundle of Materials A - A2. Applicant Second Bundle of Materials A - 31.01.2024 A3. Applicant Closing Submissions A 13.02.2023 13.02.2023 Tr1. Section 37 G-Documents R - 15.12.2023 Tr2. Tender Bundle R - 29.01.2024
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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