Cockin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 2802

Cockin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2802 (13 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3900

Re:Thomas Alexander Jack COCKIN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:13 August 2021

Place:Sydney

The decision under review is affirmed.

...................................[sgd].....................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Partner (Permanent) (Class BS) (Subclass 801) visa – where visa was cancelled under section 501(1) because applicant did not pass character test – substantial criminal record – domestic violence offences – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – choking to unconsciousness – family violence – best interests of minor children – expectations of the Australian community – other considerations – extent of impediments if removed – impact on victims – links to the Australian community – strength, nature and duration of ties to Australia – Impact on Australian business interests – decision under review affirmed

LEGISLATION

Migration Act 1958(Cth) ss 499, 500, 501, 501CA, 501E

CASES

Browne v Dunn (1893) 6 R 67
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Jones v Dunkel (1959) 101 CLR 298.

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

13 August 2021

1. In this matter, the Applicant is seeking review of a decision of the Respondent by their Delegate, dated 24 May 2021, to refuse to revoke cancellation of the Applicant's Partner (Permanent) (Class BS) (Subclass 801) visa (visa) under subsection 501(1) of the Migration Act 1958 (Cth) (the Act).

2.       The Applicant is a citizen of the United Kingdom and is approximately 37 years of age, arriving in Australia on 23 May 2010 at the age of 26. He has held various visas prior to obtaining his Partner visa. The Applicant married D in 2015, having met her in 2012. There is a female child of that union, born in 2018.

3.       The Applicant was convicted of a series of offences, all of which were of a domestically violent nature. The offences were committed during the course of one transaction on 7 June 2019 and the Applicant was sentenced in the District Court of New South Wales on 21 August 2020.

ISSUES

4.       The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

5.       The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

6.       Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

7.       In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

8.       Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

9.       The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

10.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

11.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));

(b)non-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 (paragraph 5.2(2));

(c)the 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 measureable risk of causing physical harm to the Australian community (paragraph 5.2(3));

(d)Australia 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. However, Australia may 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 (paragraph 5.2(4));

(e)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 8.4(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 5.2(5)).

12.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

13.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

14.     These principles are of course dependent upon the facts and circumstances of each case.

15.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

16.     The Tribunal must also take into account other considerations insofar as they are relevant.

17.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)   strength, nature and duration of ties to Australia;
ii)  impact on Australian business interests.

THE CHARACTER TEST

18.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

19.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

20.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

21.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

22.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

23.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

24.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences 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 (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(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 (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party 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).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

25.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

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.

Aspects of evidence

26.     Material before the Tribunal contains a statement by the Applicant's ex-wife describing earlier domestic violent behaviour by the Applicant. The Applicant did not call that witness nor, however, did the Respondent attempt to call the witness. The material before the Tribunal remains untested by examination-in-chief or cross-examination. The issues raised in the statement are such that without objective evidence, the Tribunal is, therefore, not prepared to accept those aspects of the ex-wife's statement that are not otherwise corroborated by objective evidence or any other form or some other form of corroborative material.

27.     The ex-wife has not been called to give evidence by either party. Although the Tribunal is not bound by the rules of evidence, it must of course act fairly. In an appropriate case, by reason of the fact that a relevant witness is not called by a party, certain inferences may be drawn about the quality of that witness’s evidence which would be adverse to a party to the proceedings. The Tribunal is satisfied that, in an appropriate case, the rules in Browne v Dunn[1] and Jones v Dunkel[2] may apply to assist in analysis of the evidence.

[1] Browne v Dunn (1893) 6 R 67.

[2] Jones v Dunkel (1959) 101 CLR 298.

28.     In this case, however, the Applicant is unrepresented. The Respondent, who is represented by a lawyer, had the opportunity to call the ex-wife to promote the Respondent’s case. As has been alluded to, that witness was not made available for examination-in-chief or cross-examination.

29.     The Tribunal is entirely satisfied that no inference should be drawn against the Applicant for a failure to call his ex-wife.

Seriousness of offending and future risk

30.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

31.     Since his arrival in Australia, the Applicant obtained tertiary qualifications and he worked apparently quite successfully in the area of cyber security.

32.     The Applicant, in his material which is not contested by the Respondent, has demonstrated a history of anxiety, depression and earlier in his life, Attention Deficit Hyperactivity Disorder (ADHD). It appears probable that by the time of this hearing the Applicant may, in fact, have been misdiagnosed and appears to suffer from bi-polar disorder. The Applicant was diagnosed and treated for opiate use disorder and benzodiazepine use disorder. Those latter conditions seem to have existed at the time of the commission of offences on 7 June 2019.

33.     As to the commission of the four offences, the two most serious, intentionally choking being reckless as to render unconscious and assault occasioning actual bodily harm, were the basis of sentence. Two related offences were taken into account as Form 1 offences. The Tribunal regards all four offences as having been committed at substantially the same time during the course of a single incident.

34.     The Applicant has no other relevant criminal history for the purposes of these proceedings and submits that the offences are out-of-character. The Tribunal accepts this submission.

35.     The offences for which the Applicant was sentenced were extremely serious.

36.     The facts placed before the Court were in the form of an Agreed Statement of Facts, which the Learned Sentencing Judge recorded, and were signed as correct by the Applicant. The full details of the offences which the Tribunal takes into account are recorded at G Documents page 26 and following. They record particularly violent behaviour by the Applicant to his former wife and in the presence of his young child. These included a threat to ‘slice’ the victim with a samurai sword before physical violence took place. The Tribunal does not have regard to the video/audio recording of events in the bedroom, Exhibit B.

37.     The facts of these offences briefly stated are as follows:

38.     The Applicant had been away from the house for a number of hours and had been drinking. It is clear from the statement of facts that the Applicant was affected by alcohol.

39.     In the bedroom of the house where the young child had been sleeping, the Applicant apparently, on his evidence, attempted to take the child from the victim in the belief that the victim was not in any physical condition to look after the child, and grabbed her arm causing her to scream in pain. The victim attempted to protect herself by kicking out at the Applicant who mocked and taunted her and mimicked her screams of fear. Although the victim attempted to tell the offender to leave, he stood over her and punched her approximately 10 times, directly to the face and head, repeatedly demanding ‘give me my daughter now’. The child was screaming during the course of this assault. The Applicant then grabbed the victim in a chokehold as she was screaming and eventually, the restriction to the victim's breathing caused by the Applicant was such that the victim became unconscious. At that point, the Applicant took the child from her cot and left the room. The victim fled the house and eventually called a relative who contacted the police who later arrived and confronted the Applicant who was then arrested.

40.     The victim was taken to hospital with bruises to her forehead and her left side maxillary area and bruising to her lip and neck.

41.     There had been no disharmony in the relationship prior to this incident, according to the Applicant, although the Tribunal is not convinced on the evidence presented overall, including evidence by the Applicant concerning his ex-wife’s unfaithfulness. For reasons discussed elsewhere in this decision, the Tribunal does not act upon assertions by the ex-wife of earlier incidents of domestic violence.

42.     Not only was the physical assault by punching extremely serious in its own right but the strangulation to unconsciousness of the victim places this occasion of domestic violence into a category viewed by this Tribunal as being extremely serious. The Applicant's assertion that the mother was not properly looking after the child is simply no excuse whatsoever for this behaviour.

43.     Nor on all of the evidence does the Tribunal accept that there was any mental state experienced by the Applicant at that time which would have or does at the time of hearing diminish the seriousness of the Applicant's behaviour. The Tribunal is comfortably satisfied that whatever mental health issues the Applicant had, they did not operate at the time to diminish or excuse the Applicant's conduct.

44.     Although there is evidence of statements made by the victim about earlier and apparently alcohol-fuelled behaviour by the Applicant which would also be considered violent behaviour, the victim has not been called by either party and, in such circumstances, the Tribunal is not prepared to accept statements made to the police by the victim without further supporting material, and without an opportunity for the victim to have that evidence tested at hearing by either party.

45.     Consideration of this question involves the consideration of whether there is a risk by the Applicant to the Australian community, should the Applicant commit further offences or engage in other serious conduct. The sort of conduct in question is conduct of a domestic and/or violent nature.

46.     It seems to the Tribunal that the Applicant's behaviour is situational, in the sense that it relates to the particular unhappy relationship between the victim and the Applicant.

47.     The Applicant has expressed remorse for his behaviour, although in material before the Tribunal and during the hearing itself, it appears that the Applicant was, as at the time of the District Court sentence, attempting to shift some blame, at least to the victim. This demonstrates some lack of insight into the very serious offending that the Applicant engaged in and diminishes somewhat the value of remorse.

48.     There are some matters which suggest an attempt at reform by the Applicant and the Tribunal takes these into account.

49.     Approximately 14 months after the incident in June 2019, the Applicant first made contact with a psychiatrist and in July, the Applicant checked himself into psychiatric treatment which the Tribunal is prepared to infer was in recognition of his bad behaviour and an attempt to make both amends for it and an attempt at reform. Furthermore, the Applicant pursued a course of treatment of psychological therapy with Enough is Enough, which dealt with stress and anger management. It appears that the Applicant attempted to successfully pursue that and other similar programs, including group therapy for re-offending. The Applicant was unsuitable for prison-based rehabilitative programs, like the EQUIPS course, because of his classification as a low-risk offender. The Tribunal takes those matters into account as evidence of a determination by the Applicant to reform his behaviour and take some practical steps in doing so. The low-risk prison classification and his commendable behaviour whilst in custody weigh in the Applicant’s favour. These factors are to the Applicant's benefit in the consideration of the question of future risk.

50.     There is other evidence that the Applicant has sought treatment and/or has been treated whilst in custody. The letter and evidence of Doctor Gaudry is evidence the Tribunal takes into account to the effect that the Applicant has voluntarily sought out treatment for what, in other material before the Tribunal, discloses various mental health issues, some or all of which the Tribunal is prepared to accept have affected the Applicant's behaviour, although not, as has been said stated above, his complete responsibility for his actions on 7 June 2019.

51.     The Applicant has provided a number of acceptable references from those who knew him and those with whom he worked. The Tribunal accepts those references as genuine and as a reflection of how he was regarded by those who provided the references. That is some evidence that the Applicant can behave well, properly, honestly and deal with people in an appropriate social way.

52.     There is no suggestion, therefore, on all the material, in the Tribunal's opinion, that the Applicant is irredeemable in his violent conduct. However, the plain fact is that the Applicant has been in custody since sentence. He has not been out in the community nor had the opportunity to interact with others in the community. On the material before the Tribunal, the Tribunal is satisfied that although there has been some very limited contact with his ex-wife and child, it is highly unlikely that any affectionate relationship will be resumed between the victim and the Applicant.

53.     In submissions, the Applicant accepted that he had not shown remorse publicly and significantly, stated that he was originally ‘bitter’ at the Victim Impact Statement rather than expressing concern as to the impact of his behaviour on the victim, the probable result of a deal of confusing evidence and cross-examination of the Applicant is that he regards details of prior misconduct in that statement as being untrue.

54.     The Applicant, both in evidence and submissions, appears to regard his behaviour as attributable to untreated bi-polar disorder. The Tribunal notes that the objective facts are that the Applicant did not see a psychiatrist until 14 months after the offences. The explanation for such delay provided by the Applicant is, in the Tribunal’s view, fanciful and not acceptable.

55.     By contrast to this submission, early in the Applicant’s cross-examination, he described his condition at the time of offending as being ‘intoxicated on pharmaceuticals’.

56.     The Tribunal regards as significant an acceptance by the Applicant, in submissions, that he would be no risk to the community if he was medicated. This raises an issue, obviously, as to risk, should the Applicant fail to maintain a properly medicated state.

57.     The Applicant has a job to go to upon release from prison, although often regarded as a protective factor, having regard to the offending, the Applicant’s being in work at the time does not appear to have had any impact on his offending behaviour.

58.     The Applicant had, by agreement, terms of the Apprehended Violence Order (AVO) varied in order for him to facilitate contact with his child through his ex-wife. This is some evidence that the ex-wife has less concern for the Applicant as a risk of future violent conduct to her.

59.     Ultimately, the Tribunal is left in a state of doubt as to whether the Applicant will not be a risk in the future taking his past conduct into account as well as those positive features which can be said in his favour, including rehabilitation and good references and the expressions of remorse that the Applicant has already made.

60.     There is, on all the evidence, particularly in the behaviour on 7 June 2019, at least some likelihood the Applicant may be a risk of committing future offences. To use the phraseology of the Sentencing Judge, with whom I respectfully agree, although my view has been formed independently, one must be ‘guarded’ about future prospects of rehabilitation by the Applicant.

61.     What assumes the most significant issue to the Tribunal's mind is the extremely violent level of behaviour, including choking to unconsciousness, that the Applicant indulged in on 7 June 2019. That behaviour is so serious that even assuming there was no risk to the Australian community for future conduct of that kind by the Applicant, the Tribunal is in no doubt that the seriousness of the Applicant's original conduct should count particularly heavily against him and, therefore, this consideration weighs heavily against the Applicant.

Primary Consideration 2 – Family violence committed by the non-citizen

62.     Paragraph 8.2(1) of Direction No. 90 provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.

63.     Paragraph 4(1) 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’.

64.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

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 (sub-paragraph 8.2(2)(a)); 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 has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

65.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of 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 in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

66.     Many of the factual considerations discussed above are relevant also to this consideration.

67.     The Tribunal recognises that the offences that relate to family violence occurred on one occasion on 7 June 2019. Although there was clearly disharmony in the relationship prior to that time, the Tribunal does not act upon the statements of the Applicant’s ex-wife in relation to other violence for the reasons discussed above.

68.     Undoubtedly, the events of 7 June 2019 were terrifying for the victim, a view formed by the Tribunal on the objective facts of the offending itself.

69.     The Tribunal notes that during the course of the transaction, the violence level increased from assault by punching to choking to unconsciousness.

70.     The Applicant expressed remorse for his actions and continues to do so, although collaterally with that remorse, the Applicant has attempted to shift some blame to his ex-wife for her parenting of the child. The Tribunal notes the Applicant's explanation for his behaviour as an attempt to protect the child from the victim’s inability to properly care for the child.

71.     During the course of the incident itself, the child was present and screamed. There is no acceptable evidence that the Applicant deliberately or inadvertently occasioned any physical harm directly to the child. This conclusion, by the Tribunal, is based upon the Agreed Statement of Facts tendered at sentencing proceedings.

72.     As to the question of rehabilitation and contrition, as discussed above, there is some evidence, which the Tribunal accepts, that the Applicant sought medical treatment for his mental health and attended a hospital shortly after the incident, and sought out and completed courses designed to assist anger management, as well as efforts to deal with his abuse disorders of drugs and use of alcohol. The Tribunal accepts those attempts as genuine if it is to rehabilitate and reform, although the Tribunal is unable to determine what level of success, in that regard, the Applicant has achieved.

73.     Overall, however, because the Australian Government has serious concerns about non-citizens who engage in family violence remaining in Australia, and the concerns are proportionate to the seriousness of the family violence, in this matter, because the view formed by the Tribunal is that the level of violence was particularly serious, this consideration must weigh against the Applicant.

Primary Consideration 3 – Best interests of minor children in Australia

74.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

75.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

76.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

77.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

78.     The Applicant is the father of a child, S, born in 2018 and who is now approximately three years of age.

79.     The Tribunal recognises that during the course of the Applicant's offending conduct on 7 June 2019, the child was present in the room when the Applicant committed the offences against the child's mother. There is no acceptable evidence before the Tribunal that the child was physically harmed during this transaction although the child was present and apparently upset.

80.     Furthermore, the Tribunal notes that the Applicant's explanation for his offending involved his stated determination to protect the child from his perceived view of the mother’s inability to care for the child.

81.     Although in the Tribunal's opinion this behaviour is undoubtedly unacceptable, it does not diminish the relationship between father and child.

82.     There is some evidence which the Tribunal accepts that the mother has facilitated some connection between the Applicant and child by way of gifts and photographs. It appears, at present, that there are ongoing Family Court proceedings concerning contact between the Applicant and his daughter.

83.     In the Tribunal's opinion, despite the Applicant's behaviour during the events of 7 June 2019, it cannot be confidently asserted that this would disentitle him to have at least some form of contact with his daughter. It is impossible to know at the time of hearing precisely what form of contact the father and child would have with each other, but it would be based upon principles of what is in the child's best interests. The Tribunal is prepared to act upon the basis that there is likely to be some form of contact between the father and child.

84.     Despite the submissions made by the Respondent as to the value of the relationship between the Applicant and the child and taking into account the fact that the Applicant, should he be returned to the United Kingdom would be able to have contact with the child by means of social media platforms, the Tribunal is of the opinion that real physical contact between the Applicant and his child is by far the best form of contact. In this case, the Applicant, by remaining in Australia, would be able to promote proper and suitable contact with his daughter depending upon any orders made by the Family Court.

85.     Despite the uncertainties about the nature of contact and the attitude of the mother to contact between the child and the Applicant, in the Tribunal’s view, the Applicant, by remaining in Australia, would be able to promote the best form of contact with the child. It follows, therefore, that the best interests of the child would be promoted by the Applicant not being returned to the United Kingdom.

86.     In the Tribunal’s view, this consideration weighs strongly in the Applicant's favour.

Primary Consideration 4 – Expectations of the Australian community

87.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

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 not to allow such a non- citizen to enter or remain in Australia.

88.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is 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:

(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.

89.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

90.     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 above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

91.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

92.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

93.     Although the Applicant has lived for a number of years in Australia since he was 26 years of age, nonetheless, the circumstances of the commission of the offences in June 2019 and the violent behaviour attendant upon the commission of those offences, lead to a conclusion that the expectations of the Australian community weigh strongly against revocation.

OTHER CONSIDERATIONS

94.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

95.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

96.     The Applicant, in submissions dated 16 September 2020, claimed that he feared religious persecution in the United Kingdom ‘for reverting to Islam’. Assuming that the Applicant is genuine in his identification as a Muslim, the Tribunal is not satisfied on this mere assertion, with no acceptable supporting evidence, that the principles relating to Australia's international non-refoulement obligations are engaged. Therefore, this consideration bears no weight in the Tribunal’s overall considerations under this consideration.

97.     Accepting, however, that the Applicant's concerns are genuine, this matter is a relevant consideration under impediments to removal discussed below.

Extent of impediments if removed

98.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

99.     The Applicant arrived in Australia from the United Kingdom at 26 years of age and would therefore have no language or cultural difficulties should he be returned to that country.

100.    The Applicant, the Tribunal finds, would suffer the loss of contact with his young daughter, which is a matter the Tribunal takes into account, separate from the considerations relevant to the interests of the minor child in Primary Consideration 3 discussed above.

101.    The Applicant's family members in Australia, cousins, aunt and uncle, and friends of whom he has a number and who support him by way of character references and the like, would no doubt sense his loss should he be returned to the United Kingdom. The same may also confidently be said about the Applicant’s own loss of his family and friends in Australia.

102.    The loss to the Applicant of physical and personal contact with his daughter may be assuaged, to some extent, by social media and other electronic forms of contact but the Tribunal recognises that this is a poor substitute for face-to-face contact.

103.    The Tribunal notes that even although there are no consent orders or informal arrangements for the Applicant to have contact with his child, there is, at least, a likelihood that proceedings before the Family Court would give him some form of contact with his daughter even given his past behaviour and circumstances.

104.    The Applicant is presently, or at least intends to pursue, further mental health assistance in Australia. Although it would mean dislocation from mental health services in Australia should he be returned to the United Kingdom, nonetheless, there is no evidence to suggest that the Applicant would not be able to access suitable mental health assistance in that country.

105.    The Applicant claims concerns about his return to the United Kingdom and identifying or being identified there as a Muslim. Although the Tribunal accepts that the Applicant has some genuine concerns in this regard, those are merely subjective and there is no objective evidence before the Tribunal that these concerns have any basis in reality. Therefore, although the Applicant’s subject concerns are a matter that the Tribunal takes into account, it does not, however, bear any extra weight in this consideration.

106.    The Applicant has claimed concern about contracting COVID-19 should he be returned to the United Kingdom. It is sufficient to say that it is notorious that this virus is everywhere around the world and the Tribunal does not consider the Applicant’s return to the United Kingdom under these circumstances as a concern carrying any real weight.

107.    It is accepted that the Applicant has tertiary education and has worked in Australia. There is no reason to suppose that he would not be able to obtain similar work in the United Kingdom. His family live in the United Kingdom, including his mother, two siblings and grandmother, although on the evidence, the Applicant says that he is estranged from his mother and grandmother and only has contact with one brother and will attempt to resume a relationship with his second brother. Nonetheless, the tribunal is satisfied that the Applicant would have no difficulty finding some form of initial accommodation with his brother.

108.    This consideration, however, weighs in the Applicant’s favour but does not, overall, in the Tribunal’s view, carry determinative weight.

Impact on victims

109.    Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

110.    The material contains a Victim Impact Statement from the Applicant’s ex-wife. The witness was not available for cross-examination. The Applicant challenged important aspects of that statement.

111.    The Tribunal does not have regard to that statement and therefore, this consideration is neutral in its weight.

Links to the Australian community

112.    Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

113.    The Applicant has resided in Australia since he was 26 years of age and following studies, has worked as a cyber security expert and has been gainfully employed. The Respondent accepts, and the Tribunal agrees, that the Applicant has positively contributed to the Australian community and has paid taxes. Furthermore, there is evidence that the Applicant has undertaken various volunteer activities.

114.    The Applicant has established substantial business interests in collaboration with other recognised business organisations. The Applicant has commendably devoted part of his business activities to charitable purposes, including education for those who would be assisted in furthering their understanding of information technology.

115.    The Applicant’s ex-wife, the victim of his offences, and his daughter, live in Australia, as do his aunt and uncle and two adult cousins.

116.    There is evidence from his uncle, who has provided a character reference, stating that the Applicant has become closer to his relatives since arriving in Australia.

117.    There are a number of other people whom the Applicant knows and has worked with who have provided character references which attest to their view that he is a person of good character, and is loyal and trustworthy.

118.    The Tribunal does not accept that, according to the Respondent, the available evidence indicates the Applicant lacks any meaningful or enduring personal ties to Australia since the breakdown of his relationship with his ex-wife.

119.    The Applicant’s ties to Australia through work and with family connections, including his daughter, are significant ties and the Tribunal, therefore, considers that this consideration weighs in favour of the Applicant and in favour of revocation.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

120.    The Tribunal considers the matters discussed below are properly relevant to this consideration.

121.    The Applicant has set up businesses in Australia, including businesses which have charitable functions. The Tribunal accepts that there will be a significant loss to the Applicant in business and financial terms should the Applicant be removed from Australia, including the inability to deliver face-to-face education. There is some evidence that aspects of those businesses could survive were he removed from Australia. The Applicant would be able to carry on his business interests but to a quite limited degree. The Tribunal regards this as an impediment to removal.

122.    This consideration weighs in the Applicant’s favour.

CONCLUSION

123.    There are matters raised in this hearing which support reversal of the decision by the Respondent in the Applicant's favour. Those matters include but are not limited to the best interests of his young child, his associations with the Australian community in which he has lived for approximately 11 years, and his attempts at rehabilitation and expressions of remorse.

124.    However, in this matter, the Tribunal views, as a fundamental feature of its considerations, that the extreme violence perpetrated upon his ex-wife on 7 June 2019, together with the expectations of the Australian community concerning that behaviour is so serious and provide such weight as to outweigh any other factors in the Applicant's favour. In the Tribunals opinion, the non-revocation of the Applicant’s Partner visa should be upheld.

ORDER

125.    The decision under review is affirmed.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.....................................[sgd]...................................

Associate

Dated: 12 August 2021

Date(s) of hearing:	5 August 2021
Applicant:	Self-Represented
Solicitors for the Respondent:	Ms S. Roberts, Mills Oakley Lawyers