Corrigan and Minister for Home Affairs (Migration)
[2018] AATA 2873
•14 August 2018
Corrigan and Minister for Home Affairs (Migration) [2018] AATA 2873 (14 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2911
Re:Nathan Corrigan
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Antoinette Younes
Date:14 August 2018
Place:Sydney
The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
...............................[SGD].........................................
Senior Member Antoinette Younes
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – non-revocation – failure to pass the character test – Ministerial Direction No 65 – serious criminal convictions – domestic violence offences – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength nature and duration of ties – impact on victims – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
YMQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA.
UN General Assembly, 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, United Nations Treaty Series vol. 606 p 267, entered into force 4 October 1967.
UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Series vol. 1465 p. 85, 10 December 1984.
UN General Assembly, International Covenant on Civil or Political Rights and its Second Optional Protocol, entered into force 11 July 1991.REASONS FOR DECISION
Senior Member Antoinette Younes
14 August 2018
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 22 May 2018 not to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa. The delegate found that the applicant did not meet the character requirements of s 501 of the Migration Act 1958 (Cth) (the Act).
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be affirmed.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because that person has a substantial criminal record (s 501(6)(a)), and has been sentenced to a term of imprisonment of 12 months of more (s 501(7)(c)).
Section 501CA(4) of the Act provides that the Minister may revoke the original mandatory cancellation decision if the person makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test (as defined by s 501), or that there is another reason why the original decision should be revoked.
BACKGROUND
The applicant is 41 years old and is a national of New Zealand. He came to Australia in 1993, at the age of 16 years. He has not returned to New Zealand since 1999.
The applicant’s criminal history is extensive.[1] Since 1998 and until July 2017, the applicant has been before the Courts in relation to multiple offences. The following table summarises the applicant’s offending history.[2]
[1] Exhibit H – G Documents, AFP National Police Certificate, dated 26 August 2017, pp. 22-27.
[2] Ibid
Court date Offence Sentence 26 Jul 2017
Contravene prohibition/restriction in avo (domestic)
7. Imprisonment – 3 months commencing 13 March 2017
Contravene prohibition/restriction in avo (domestic) 8. Imprisonment – 3 months commencing 13 March 2017 Contravene prohibition/restriction in avo (domestic) 9. Imprisonment – 3 months commencing 13 March 2017 Contravene prohibition/restriction in avo (domestic) 10. Imprisonment – 18 months commencing 13 April 2017 -
non parole period 12 monthsContravene prohibition/restriction in avo (domestic) 11. Imprisonment – 12 months commencing 13 April 2017 Destroy or damage property (dv) 12. Imprisonment – 18 months commencing 13 April 2017 -
non parole period 12 monthsUse carriage service to menace/harass/offend Imprisonment – 12 months commencing 13 April 2017 Contravene prohibition/restriction in avo (domestic) 13. Imprisonment – 4 months commencing 13 April 2017 Use carriage service to menace/harass/offend 14. Imprisonment – 4 months commencing 13 April 2017 14 Mar 2017
Contravene prohibition/restriction in avo (domestic)
15. (call up) Imprisonment – 3 months commencing 13 March 2017
Contravene prohibition/restriction in avo (domestic) 16. Imprisonment – 3 months commencing 13 March 2017 Contravene prohibition/restriction in avo (domestic) 17. Imprisonment – 3 months commencing 13 March 2017 Contravene prohibition/restriction in avo (domestic) Imprisonment – 4 months commencing 13 April 2017 Use carriage service to menace/harass/offend 18. Imprisonment – 12 months commencing 13 April 2017 Contravene prohibition/restriction in avo (domestic) Imprisonment – 12 months commencing 13 April 2017 Enter inclosed land not presc premises w/o lawful excuse 19. s10a conviction with no other penalty Destroy or damage property (dv) Imprisonment – 18 months commencing 13 April 2017 -
non parole period 12 monthsContravene prohibition/restriction in avo (domestic) Imprisonment – 18 months commencing 13 April 2017 -
non parole period 12 monthsEnter inclosed land not presc premises w/o lawful excuse s10a conviction with no other penalty Use carriage service to menace/harass/offend Imprisonment – 4 months commencing 13 April 2017 -
non parole period 12 months07 Dec 2016
Fail to appear in accordance with Bail Granted acknowledgement
20. s10a conviction with no other penalty
Contravene prohibition/restriction in avo (domestic) bond s9: 12 months obey conditions of existing enforceable avo Possess prohibited drug fine: $200 – drug to be destroyed Fail to appear in accordance with Bail granted acknowledgement 21. s10a conviction with no other penalty Possess prohibited drug fine: $400 – drug to be destroyed 16 Sep 2016 Use offensive language in/near public place/school fine: $300 21 April 2016
Contravene prohibition/restriction in avo (domestic) s10a conviction with no other penalty 21 April 2016
Destroy or damage property (dv) fine: $600 bond s9: 12 months supv prob service for counselling, educational development or drug and alcohol rehabilitation Common assault-t2 (call up) intensive correction order: 7 months commencing 21 April 2015 Contravene prohibition/restriction in avo (domestic)
(call up) intensive correction order:12 months commencing 21 April 2015 Resist officer in execution of duty-t2 (call up) bond s9: 12 months supv prob service for counselling, educational development or drug and alcohol rehabilitation Possess prohibited drug fine: $400 19 Mar 2014 Destroy or damage property fine: $500 compensation: $200 Destroy or damage property fine: $500 Destroy or damage property fine: $500 Contravene prohibition/restriction in avo (domestic) Imprisonment: 12 months suspended on enter bond s12: 12 months Resist officer in execution of duty-t2 fine: $500 bond s 9: 12 months Common assault-t2 Imprisonment: 7 months suspended on enter bond s12: 7 months 20 June 2013 Contravene prohibition/restriction in avo (domestic) bond s9: 9 months supv nsw prob service upon release from prison Destroy or damage property <=$2000- t2 bond s9: 12 months supv nsw prob service upon release from prison 02 Apr 2013 Contravene prohibition/restriction in avo (domestic) s10a conviction with no other penalty 09 Jul 2012 Obstructing public officers fine: $900 Willfully and unlawfully destroy or damage property fine: $700 20 Jul 2011 Breach of cbo (order of 27/5/10) Imprisonment: 7 months concurrent from 20 July 2011 Breach of cbo (order of 27/5/10) Imprisonment: 7 months concurrent from 20 July 2011 Breach of cbo (order of 27/5/10) Imprisonment: 7 months concurrent from 20 July 2011 Breach of cbo (order of 27/5/10) Imprisonment: 7 months concurrent from 20 July 2011 17 Feb 2011 Breach of protective Bail Granted conditions; Bail Granted ACT imprisonment: 10 months imp conc from 20 February 2011 Unlawfully assaulted with circumstances of aggravation imprisonment: 10 months imp conc from 20 February 2011 17 Feb 2011 Reckless driving- dangerous to the public or any person fine: $750; mdl disqualified: 9 mths Fail to stop when called upon fine: $400 Fail to stop when called upon fine: $400 Fail to stop when called upon fine: $400 27 May 2010 Willfully & unlawfully destroy or damage property comm based order based order: 15 months concurrent from 27 May 2010 Stealing fine: $500 Possess a smoking utensil used for smoking prohibited drug fine: $250 Willfully & unlawfully destroy or damage property comm based order: 15 months concurrent from 27 May 2010 Possess a prohibited drug (cannabis) fine: $250 Pursued another person in a manner to intimidate with circumstance of aggravation comm based order: 15 months concurrent from 27 May 2010 Trespass comm based order: 15 months concurrent from 27 May 2010 17 Aug 2009 Breach of Violence Restraining Order fine: $800 26 Mar 2004 Possess smoking implement fine: $100 28 Oct 2003 No motor drivers license – under suspension fine: $750; mdl disq 12 Months cum 02 Jul 2003 Driving under the influence fine: $800: 1ST offence – mdl disq six months 09 Apr 2003 Possess prohibited drug fine: $200 31 Jan 2003 Damage fine: $200 27 May 2002 Breach of violence restraining order 6 Months cro (adult) $600 21 Jan 1998 Possess smoking implement fine: $100 Cannabis possess fine: $300
The applicant does not dispute the above records. On the evidence before it, the Tribunal finds that the applicant has a substantial criminal record as defined in s 501(7)(c), because he has been sentenced to (multiple) terms of imprisonment of 12 months or more.
Having made those findings, the Tribunal needs to consider the principles in Ministerial Direction No. 65.
MINISTERIAL DIRECTION NO. 65
On 22 December 2014, under s 499 of the Act, the Minister issued Ministerial Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65/Direction). The Direction is binding on decision-makers performing functions and exercising powers under s 501. The Direction requires the Tribunal to take into account specified primary and other considerations.
Part C of the Direction 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.
In its Preamble, the Direction articulates some of the objectives of the Act which includes the regulation that, “in the national interest, the coming into, and presence in, Australia of non-citizens…a non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision maker that they pass the character test.”[3]
[3] Ministerial Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, at 6.1(1) and (2).
Under the headings General Guidance and Principles, the Direction refers to a number of guiding matters, including:
·The Government’s commitment to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Australia has a low tolerance of any criminal or other serious conduct by visa applicants reflecting that “there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.”[4]
·Being able to come to, and remain in Australia is a privilege. Australia has a right as a sovereign nation to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.[5]
·The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.[6]
·A non-citizen who commits a serious crime, including one of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.[7]
·Australia has a low tolerance of any criminal or other serious conduct by non-citizens, especially in cases where the criminal conduct is so serious that any risk of similar conduct in the future is unacceptable.[8]
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the visa should be cancelled or refused.[9]
[4] Ibid at 6.3(6).
[5] Ibid at 6.3(1).
[6] Ibid at 6.3(2).
[7] Ibid at 6.3(3).
[8] Ibid at 6.3(4).
[9] Ibid at 6.3(7).
The Direction requires the decision-maker to take into account primary and other considerations relevant to an individual case including a differentiation between refusal of a visa and a cancellation, whereby the latter recognises that non-citizens holding substantive visas would generally have an expectation of being allowed to remain in Australia, whereas the former should have no expectation that the visa application would be approved in the event of a character concern.
Of particular relevance to the exercise of discretion is the statement in the Direction that “primary considerations should generally be given greater weight than other considerations”.[10]
THE PRIMARY CONSIDERATIONS:
[10] Ibid at 8(4).
a) Protection of the Australian community from criminal or other serious conduct:
Paragraph 13.1.2 of Direction 65 states:
1In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
2In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In his request for revocation[11] and in an undated letter (received by Department of Home Affairs on 11 April 2018)[12], the applicant stated:
·He was 16 when he started working in shearing. After 1999, he never returned to New Zealand. After shearing, he started working in construction and he has remained in that employment ever since. He has two Australian Citizen children upon whom he has had a “strong impact”. He provides for his children.[13]
·He has lived in Australia since 1993 without much support from his family who still reside in New Zealand. He has had minor offences until the ultimate breakdown of his relationship with Ms M, the mother of his two children, a son aged 13 years and a daughter aged 10 years. In the past years, he has struggled to balance his life with his “emotional failures, work and lifestyle”.[14] One of his biggest problems is alcohol but he is “proud” that he has overcome the addiction, although it has taken six years. He has been sober for four years but “when faced with situations when I have no control, I turn to alcohol because of my past and it blocks out having to deal with the situation at hand…It really is a no-win, [sic] and I need help and positive people around me to get my head around this…”.[15]
·Since the split up with Ms M in 2007, there has been a pattern of troubled behaviour. He has been involved with Ms B who has an eight year old daughter. Although there is an AVO in place, they were engaged. He came to NSW from WA to be with Ms B. They have split up but Ms B is scared that he might lose contact with her daughter.
·He regrets not seeking professional help during the split up with his family. He cannot change what has happened. He can only write his future and where to go from here. The last twelve months have been confronting and he has had time to reflect on his poor decisions.
·His two children live with their mother in Perth. The children are not aware of his criminal records or that he has served time in custody. They ask when he is coming home but he cannot answer honestly. Both children are doing well at school but it is difficult for Ms M who is as a single mother. Ms M also has another child who is six years old. This child has no relation to the applicant. His mother recently had to pay $400 for dancing lessons which he has to repay. He continues to help Ms M and he would anything for his children. He writes every two weeks and calls every weekend. If not for his children, he would return to New Zealand. The children need a father figure.
·His parole transfer to WA has been approved. He has always been employed and has been a taxpayer for 23 years. He would have no problems in gaining employment in WA which would allow him to save money and establish a stable future for himself and the children as well as supporting Ms M on regular basis. He is hardworking and has worked in major projects in WA and NSW. His work “tickets” are based on Australian assessments and may not be accepted in New Zealand. His qualifications may not be recognised in New Zealand.
·He has completed four TAFE courses whilst in St Heliers Correctional Facility and for five months, he participated in Narcotics Anonymous (NA). He understands that on paper, his “history is shocking so to speak” but asks for the cancellation to be revoked. He is not going to reoffend as this has been a massive wake-up call. He has lived most of his life in Australia and his children are his life. He has strong connections with people and work in WA. He has completed a number of courses including domestic violence, attended NA and Alcoholics Anonymous (AA) as well as counselling.
[11] Exhibit H – G Documents, pp. 91-107.
[12] Exhibit H – G Documents, pp. 115-118.
[13] Exhibit H – G Documents, p. 93.
[14] Exhibit H – G Documents, p. 116.
[15] Exhibit H – G Documents, p. 102.
In oral evidence, the applicant stated that his parents split up when he was about 10 years old. He explained that when he was about 15 years old, he was the driver of a car that was involved in an accident which led to the death of his best friend. When he came to Australia, he began working as a shearer in an environment that encouraged the high consumption of alcohol. He stopped working as a shearer in 1998 and subsequently commenced work in construction, including scaffolding where he excelled and was involved in training others. He stated that despite scaffolding being a high-risk work industry, he never had a person die, and this was due to his care and skills. He has been using cannabis since the age of 15 years, and although he smoked cannabis regularly, he never did so during work hours. He explained that drug testing was not introduced in WA until 2007 or 2008.
The applicant talked about his previous relationships and advised that he and Ms M never married. He explained that he and Ms M separated and she met another person in 2010.
The Applicant’s Criminal History
In the course of the hearing, the applicant was questioned extensively about his criminal history. The applicant did not recall some of the reported facts surrounding the offences but for many of them, he stated that they occurred when he was under the influence of alcohol and/or drugs. He also stated that in some instances, there were different versions of events due to plea-bargaining on legal advice. For example, in relation to an incident on 11 March 2013, the applicant stated that the Agreed Amended Facts occurred as a result of plea-bargaining.[16] The applicant made a number of comments concerning police conduct, claiming that there were times when the police acted inappropriately but he did not complain. He stated that in some instances he did not tell the police his version of the events because the police did not want to “deal with it”.
[16] Exhibit G, Tender Bundle, Vol. 2, pp.678-681.
The Tribunal observes that a number of the applicant’s convictions relate to breach of violence restraining orders, apprehended violence orders, destroying or damaging property, possessing prohibited drugs, driving under the influence, and driving while disqualified. The Tribunal considers a number of those offences to be serious as they involve violence. In relation to the offence of damage which was before the Court on 31 January 2003, this involved the smashing of a car windscreen.[17] In relation to the offence of breach of violence restraining order which was before the Court on 17 August 2009 concerning Ms F, who was a former girlfriend of the applicant, the applicant ran away from the police who were unable to interview him due to intoxication.[18] There were further incidents concerning Ms F. On 2 November 2009 (matters heard on 27 May 2010), the applicant committed the offences of (which he was later convicted of) pursued another person in a manner to intimidate with circumstance of aggravation, trespass, criminal damage, and stealing. It is noted in the Statement of Material Facts that the applicant was “responsible for several incidents which involved intimidating behaviour towards the complainant…The accused picked up a brick from the front of the premises and thrown [sic] it at the complainant’s (male friend’s) vehicle, which was parked on the front lawn. As a result, the vehicle’s windscreen smashed, and the brick came to rest on the vehicle’s roof, causing further panel damage. The accused then fled the scene on foot, and returned to his vehicle which was parked a short distance away. The accused stayed with his vehicle for approximately half an hour, during which time he consumed 2 – 3 stubbies of beer… The accused returned to the complainant’s home address, and climbed over the side gate into the rear yard of the premises… The accused removed various articles of the complainant’s clothing from the washing line… and climbed over the side gate with the stolen items”.[19] The applicant returned at about 11 PM on 3 November 2009 and threw rocks and lemons onto the roof of the house.[20] The applicant explained to the Tribunal that he was “unfortunately drunk”.
[17]Ibid, p. 988.
[18] Ibid, p. 994.
[19] Exhibit G, Tender Bundle, Vol. 2, p. 1002-1003.
[20] Ibid, p.1004
The Tribunal notes that the applicant was charged with the offence of Aggravated Sexual Penetration Without Consent in relation to a claimed incident on 29 March 2010.[21] This charge does not appear in the applicant’s criminal records. The applicant explained that the charge was dropped. The Tribunal has not drawn any adverse conclusions on the basis of that charge.
[21] Ibid, pp.1008-1010.
On 9 July 2012, the applicant was convicted of the offences of Obstructing Public Officers and Wilfully and Unlawfully Destroy or Damage Property. The Statement of Material Facts associated with those offences refers, amongst other things, to the applicant punching a bedroom window and causing it to smash.[22] It records his explanation that he believed there was a paedophile in the house. The applicant’s conduct in relation to police officers during that incident included swearing at the police, threatening to “kick” their heads and struggling violently. He also referred to the police as “f…dogs” in another incident which occurred on 11 April 2016.[23]
[22] Ibid, pp. 1040-1041.
[23] Exhibit G, Tender Bundle, Vol. 1 p. 571.
A significant incident occurred in March 2017 when the applicant threw a rock at a window causing it to smash and the glass spread throughout the lounge room.[24] The applicant stated that he should not have agreed to a lot of the facts. In oral evidence, he stated that he did not throw the brick but “lopped” it. The offence was aggravated by the fact of the presence of the victim’s five-year-old daughter who was sitting in the lounge room watching television when the brick came through the window and broke it. The applicant claimed that he did not see the little girl. The offence was proven and the applicant was convicted. Her Honour Magistrate Swain referred to the incident and noted that the applicant had been subject to “s 9 bonds, suspended sentences, intensive corrections orders, all in relation to domestic violence” against the same victim.[25]
[24] Ibid, pp. 212-218.
[25] Exhibit H, G Documents, p. 35.
Parole Assessment and Pre-Sentencing Reports
Parole assessment and pre-sentencing reports do not describe the applicant in a positive manner. Recent reports highlight the risk of the applicant’s reoffending. The pre-sentence report dated 14 March 2017[26] refers to the applicant’s major offending contributing factor as being “his lack of regard for the law, choosing to ignore the requirements of an ADVO, despite being arrested and charged with contravention of this order on two previous occasions in recent months prior to being refused bail on 12.03.17… The offender admitted to being under the influence of alcohol at the time that he threw the brick through the window, however focused much his discussion on those offences on blaming the victim”.[27]
[26] Exhibit G, Tender Bundle, Vol. 1, pp 126-127.
[27] Ibid, p.127.
A subsequent pre-sentence report dated 30 May 2017[28], described the applicant as having a “significant history of domestic violence related offending, both in New South Wales and in Western Australia. In discussing the numerous breaches of domestic violence orders and assault offences, the offender blamed his excessive alcohol consumption as justification for his behaviour… Mr Corrigan’s attitude to his offending behaviour can only be described as poor. Whilst he was able to acknowledge that his actions were wrong, there appears to be some continual blame apportioned to the victim of the offences as well as a superficial acknowledgement of guilt. The offender continues to believe that his behaviour in domestic relationships is not threatening and also appears to be unable to grasp the concept of an apprehended violence order and the constraints therein; evidenced by the number of contravention convictions currently and historically”.[29] The report provided an assessment of risk level as being “low/medium risk of reoffending...the criminogenic needs are: family/marital, accommodation, alcohol/drug problems, attitude/orientation.”[30]
[28] Exhibit G, Tender Bundle, Vol. 1 pp 254-257.
[29] Ibid, p 256.
[30] Ibid, p.257.
In a pre-sentence report of 23 August 2016, the risk level was assessed as being “low/medium [risk of reoffending]...the criminogenic needs are: family/marital, alcohol/drug problems”.[31] In an assessment report dated 16 April 2015, the risk of reoffending was assessed as being “medium…the criminogenic needs are: family/marital, alcohol/drug problems, attitude/orientation”.[32] In a pre-sentence report of 17 March 2014, the risk level was assessed as being “low/medium [risk of reoffending]...the criminogenic needs are: family/marital.”[33]
[31] Exhibit G, Tender Bundle, Vol. 2 p. 761.
[32] Ibid, p. 766.
[33] Ibid, p. 749.
In a Parole Assessment Report dated 6 July 2011, the applicant’s likelihood of reoffending was assessed as being high given the applicant’s ongoing offending behaviour despite being subject to a community disposition.[34] The report identified issues that may impact order completion and compromise community safety, including the applicant’s anger management, emotional regulation, poor consequential thinking, poor decision-making, and poor problem-solving skills. The report noted that the “triggers that underpin his offending behaviour relate to his inability to cope and manage emotional stress, poor communication skills and poor consequential thinking skills”.[35] The applicant gave evidence that he has done anger management courses.
[34] Exhibit G, Tender Bundle, Vol. 1 pp. 374-378.
[35] Ibid, p. 377.
The Tribunal is satisfied on the evidence before it that the applicant has an extensive and significant criminal history which involves violence, breach of apprehended domestic violence orders, property damage, drug possession, and harassment. The Tribunal gives significant weight to the pre-sentencing and parole reports discussed above which over the years have identified the risk of the applicant’s reoffending as being essentially low to medium. The evidence supports those assessments as the applicant has continued to reoffend for many years. Although in the course of the hearing the applicant showed a degree of remorse, the Tribunal is satisfied that overall he lacked insight into his offending and was keen to apportion blame on others, particularly women with whom he has had relationships. The Tribunal notes that the majority of the applicant’s offences have been committed against his former partners. On 17 February 2011, he was convicted of unlawful assault with circumstances of aggravation and breach of protective bail. He had confronted a former partner outside her workplace and forcibly took hold of her handbag, causing her to fall to the ground and suffer bruising.[36] As outlined above, on 19 March 2014, he was convicted of common assault, three counts of destroy or damage property, and contravene prohibition/restriction in avo (domestic). Those offences occurred when the applicant entered his former partners home while she was asleep. He jumped on top of her, pinned her down on the bed, and covered her mouth with one hand to stop her screaming.[37] As discussed above, on 14 March 2017, the applicant was convicted of various offences as a result of attending a former partner’s home, including throwing a brick through the front window of her house while her young daughter was sitting closely to where the brick had landed. These are serious and significant offences.
[36] Exhibit G, Tender Bundle, Vol. 1 p. 385.
[37] Exhibit H, G Documents, p. 44.
The seriousness of the applicant’s offending is reflected in the escalation of the custodial sentences imposed on the applicant. Severity of the sentences has increased from fines, to good behaviour bonds, to suspended sentences and lastly to multiple terms of imprisonment of 12 months or more. This reflects the escalating seriousness of the applicant’s offending conduct. The applicant’s offending conduct began with drug possession in 1998 when he was about 20 years old, and by 2017, he had committed a significant number of serious offences that resulted in his incarceration. As Her Honour Magistrate Swain concluded on 14 March 2017 “I am satisfied that the only appropriate sentence in respect of all the matters before the Court is one of imprisonment.”[38]
[38] Exhibit H, G Documents, p. 35.
The Tribunal is satisfied on the evidence before it that the applicant’s offending has escalated over the years in terms of seriousness, indicating that there remains a significant risk of the applicant reoffending. The Tribunal is satisfied that the evidence supports a finding that the applicant has shown a significant degree of disregard for the law and the police. The applicant has sworn at the police and used highly offensive language. The Tribunal is concerned about the applicant’s conduct towards police officers in the performance of their duty.
The evidence before the Tribunal indicates that the applicant has had a substance and alcohol abuse problem. In the course of the hearing, he was questioned extensively about his alcohol and substance abuse. In the Tribunal’s view, the applicant attempted to underestimate the extent of the problem. However, he said he has been trying to address it, including going to Alcoholics Anonymous (AA) and Narcotics Anonymous (NA). It is the Tribunal’s finding that he showed limited understanding of those programs. The applicant was assessed by a psychologist who provided a report dated 10 July 2017. In that report, the clinical psychologist referred to the applicant’s substance abuse history. The psychologist concluded that the applicant met the criteria for the diagnosis of Cannabis Use Disorder.[39] The Tribunal is satisfied that there is limited evidence that the applicant has addressed fundamental issues, particularly the alcohol and substance abuse, which on his own evidence have made a significant contribution to his offending behaviour.
[39] Exhibit G, Tender Bundle, Vol. 1 pp. 262-263.
The cumulative evidence indicates that the applicant has been out of control for many years and that he has little or no respect for the law. The applicant has engaged in conduct which the Tribunal views as violent, serious and relevant to the consideration of the risk to the Australian community should he display the same pattern again. The applicant’s long history of offending despite multiple Court outcomes means that the Tribunal is not satisfied that the applicant would not reoffend. Consistent with paragraph 13.1.2 of Direction No. 65, the Tribunal is satisfied that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Looking at the applicant’s circumstances as a whole, the Tribunal is satisfied that there is a risk that the applicant would reoffend and consistent with paragraph 6.3(4) of Direction No. 65, “In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable”. The Tribunal is satisfied that the risk is unacceptable and for the stated reasons, the consideration of the protection of the Australian community weighs heavily against revocation.
b) The best interests of minor children in Australia:
Direction No. 65 sets out a number of factors to be considered in assessing the best interests of minor children in Australia, including the nature and duration of the relationship, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, and whether there are any other people who fulfil parental roles with the child.
The applicant has two children, a son aged 13 years and a daughter aged 10 years, who are Australian citizens. He originally made submissions relating to a step-child (K) who is the child of a former partner. He no longer pressed those submissions as his relationship with K’s mother has ceased.
The applicant has made submissions both orally and in writing that the non-revocation of the cancellation of his visa would have a significant impact on his two children. The applicant and Ms M separated in approximately 2007, and both children have lived with their mother in Perth since that time. The applicant contended that he writes to, and telephones his children regularly. The evidence before the Tribunal indicates that during his relationship with Ms M, the applicant was convicted of several breaches of apprehended violence restraining orders relating to her. Ms M gave evidence in the course of the hearing and provided a letter in support of the applicant. She indicated that the applicant has not seen the children since around 2012 due to work and other issues, although she confirmed that he has maintained telephone and written correspondence with the children. She explained that her son is very angry because the applicant has not returned to Perth as promised. She stated that her son craves his father and that he has been acting out at school and with his sister.
Both the applicant and Ms M confirmed that the children are not aware of the applicant’s criminal history (including his imprisonments) because Ms M has not been supportive of the applicant’s disclosure of this information to their two children. She stated that she and the applicant do not see eye to eye on a number of things and that she believes that now might be the time to tell the children about those matters. Ms M referred to the regular financial support which the applicant has provided. Essentially, Ms M stated that the applicant would provide financial assistance whenever she asked.
In relation to the applicant’s criminal history, Ms M gave evidence that she was aware of offences relating to driving, break and enter, drinking and “about a girl or something”. She stated that she really did not want to know as she did not consider it to be her business. She confirmed that in an “extreme moment”, she and her mother had taken out apprehended violence orders against the applicant. She explained that this was due to the influence of her mother.
She gave evidence that the applicant had never threatened her. When those assertions were challenged by the respondent’s representative, she confirmed that there was an incident in 2009. In relation to this incident, the Statement of Material Facts indicates that in October 2009, the applicant attended the home where she and the two children were living and he “began verbally abusing the victim [Ms M], before grabbing her sunglasses from her head. In the process the accused has caught a clump of the victim’s hair and ripped it out of her scalp. The accused has proceeded to snap the sunglasses. The children of the two parties were present during the altercation and were extremely distressed by the situation. The victim attempted to comfort one of her children and the accused intervened and pushed the child away and continued to verbally abuse the victim…”.[40]
[40] Exhibit G, Tender Bundle, Vol. 2 p. 999.
The Tribunal accepts that since his move to New South Wales in 2012, the applicant has not physically seen his two children. However, he has continued contact with the children via telephone and correspondence. The Tribunal does not doubt the applicant’s genuine feelings for his children. The Tribunal has noted the letter from the applicant’s daughter in which she expresses her love for the applicant and states that she misses him.[41]
[41] Exhibit H, G Documents, p.121.
The Tribunal acknowledges and gives weight to the applicant’s submissions that it is in the best interest of his children to revoke the cancellation. The Tribunal acknowledges that having the minor children weighs in favour of the applicant and the Tribunal has given this aspect weight.
Although it would be in the best interest of the applicant’s children for the cancellation to be revoked, the Tribunal is satisfied that the nature of the relationship that the applicant has with his children is limited. Although the applicant has maintained contact by telephone and correspondence with his children, he has not seen his children for many years, nor has he been the primary carer for the children or had any day-to-day responsibilities for their upbringing. Although he has provided financial support, the specifics and extent of this could not be ascertained from either the applicant or Ms M. The evidence before the Tribunal indicates that the applicant has not assumed or accepted parental responsibilities for his children who have always lived with their mother. The children do not know fundamental aspects about the applicant and it is difficult to take into account their future responses in this regard. The Tribunal heard evidence that the applicant’s son is an angry young man and the Tribunal is concerned about the son’s potential response when and if he were to discover the truth about his father.
The evidence before the Tribunal indicates that the applicant has been in a number of relationships marked by incidents of domestic violence and the Tribunal doubts his current ability to form healthy relationships. As discussed earlier, the children have witnessed the applicant being violent towards their mother, which would have been very upsetting for the children. Ms M acknowledged that she had previously taken out a domestic violence order against the applicant, but she stated she was very much influenced by her mother. The evidence before the Tribunal is that Ms M and the applicant had a turbulent and somewhat violent relationship. On the evidence before it, the Tribunal is not satisfied that Ms M and the applicant could have a healthy relationship (not suggesting as a couple) that could be conducive to the applicant having a positive and healthy relationship with his children. The impression that the Tribunal received is that there is a significant issue of contention between the applicant and Ms M that relates to the disclosure of his imprisonments and criminal history. The Tribunal is of the view that this could be a volatile issue which could lead to a significant conflict between the applicant and Ms M. Given the Tribunal’s findings in relation to the risk of reoffending, the Tribunal is satisfied that there is a real potential for domestic violence in relation to any such relationship. The Tribunal is satisfied that this would clearly have a negative impact on the children, could create instability and have an adverse impact on the hard work of Ms M who has been the primary carer for the children. The evidence before the Tribunal indicates that the applicant has not resolved many issues, including those relating to illicit drugs and alcohol. As a result, the Tribunal does not have confidence that the applicant would play a positive parental role in the future.
The Tribunal appreciates the applicant’s sentiments and wishes to be with his children. However, given the applicant’s significant criminal history, substance and alcohol abuse and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant would play a positive parental role in the future or that he would have a role to mean that the visa should not be revoked. The Tribunal is satisfied that the totality of the evidence indicates that the applicant has not had a close and strong relationship with his children. The Tribunal is satisfied that the totality of the evidence indicates that the applicant has not had a meaningful and positive relationship with his children to weigh in favour of revocation of the visa cancellation. Moreover, it is reasonable to suggest that the applicant could maintain a similar level of contact, namely by telephone and correspondence, irrespective of his location and/or whether the visa cancellation is revoked.
Given the nature and extent of the relationship the applicant has with his children, the Tribunal gives this consideration limited weight.
c) Expectations of the Australian Community:
The Direction states at paragraph 13.3(1) that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the government’s view in this respect.”
In the Statement of Facts, Issues and Contentions, the respondent’s representative referred to the decision of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 where her Honour Justice Mortimer noted that this consideration is linked to the factor of protection of the community and “in substance…is adverse to any applicant”.[42] These “… are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes” (at [76]). Her Honour went on to say:
[76] …the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[42] Exhibit F, p. 12.
Direction No. 65 makes it clear 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. Moreover, the Direction at paragraph 6.3 states that the right of a non-citizen to come to or remain in Australia is a privilege conferred in expectation that the person will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[43]
[43] Direction No. 65 op cit. 6.3(1).
The Tribunal is of the view that given the applicant’s conduct and seriousness of his continued offending, it is reasonable to suggest that the Australian community would not expect that the cancellation of his visa would be revoked. Consistent with paragraph 13.3 of the Direction and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, the Tribunal is satisfied that given the seriousness and long history of the applicant’s offending behaviour, the Australian community would expect that the applicant would not continue to hold a visa. The Tribunal is of the view that the Australian community would have an unfavourable perception of the applicant’s conduct, particularly towards vulnerable persons (women) and police upon whom the community relies for protection. It is reasonable to suggest that the community would not hold a favourable view of someone who has shown such a degree of disregard to the law.
The Tribunal is satisfied that this consideration weighs heavily against the applicant.
OTHER CONSIDERATIONS:
a) International non-refoulement obligations
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. These include the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Direction No. 65 states that the “existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists”.[44]
[44] Direction No. 65 at paragraph 14.1(2).
The applicant has not claimed any non-refoulement obligations, and there is no evidence that there are non-refoulement obligations to be considered in the current application. Consequently the Tribunal places no weight on this consideration.
b) Strength, nature and duration of ties
The applicant arrived in Australia as a teenager. He is not currently in a relationship and he has two biological children who live in WA with their mother. He has not lived with his children or seen them since 2012 and there is no evidence or suggestion that the applicant and Ms M would reunite. In case of the applicant’s departure from Australia and return to New Zealand, the children could still visit their father. The Tribunal however recognises that there are travel and other costs which may present challenges.
The applicant has provided a significant number of letters of support from friends, former employers/workmates and other acquaintances. Witnesses, including Ms M, gave evidence in support of the applicant. The letters of support spoke highly of the applicant and made favourable comments referring, amongst other things, to the applicant being a loving father who is honest, reliable, trustworthy, and hard-working. The witnesses who gave evidence and spoke very positively of the applicant were not aware of the nature and full extent of the applicant’s criminal history. One proposed witnessed declined to give oral evidence. The Tribunal treats the oral evidence of the witnesses with caution because of their limited knowledge of the applicant’s criminal history.
The Tribunal is satisfied that the applicant has ties with Australia and the Tribunal gives this consideration weight in favour of the applicant.
c) Impact on Australian business interests
There is no evidence to indicate that this consideration is relevant.
d) Impact on victims
The evidence before the Tribunal indicates that the applicant’s offending conduct has resulted in former partners being victims of domestic violence. As outlined above, Ms M herself was the victim during an incident. Although one can speculate, there is no direct evidence of the impact on victims of a decision not to revoke the cancellation. Therefore, the Tribunal gives limited weight to this consideration.
e) Extent of impediments if removed
Paragraph 14.5(1) of Direction No. 65 requires, amongst other things, the Tribunal to give regard to the extent of any impediments that the non-citizen may face if removed from Australia to their home country.
The applicant is now in his early 40s. He gave evidence that he is currently suffering from various medical conditions, and that he has drug and alcohol issues. He otherwise appears to be in good health. The applicant has family in New Zealand.
Direction No. 65 at paragraph 14.5(1) states that the extent of any impediments that the applicant may face in establishing themselves and maintaining basic living standards in their home country is to be considered in the context of what is generally available to other citizens of that country. There is no evidence before the Tribunal that the applicant would be unable to access the same level of services medical or otherwise, available to other citizens of New Zealand.
The applicant gave evidence that he had been a victim of abuse as a young child, a matter which he had not previously disclosed. The Tribunal acknowledges the applicant’s evidence in this regard and as discussed in the course of the hearing, given the applicant’s age now, there is no reason for him to contemplate living anywhere near the alleged perpetrator, with which the applicant agreed.
The Tribunal acknowledges that in case of his return to New Zealand, the applicant may face some practical difficulties including finding employment, accommodation and generally establishing himself in New Zealand. The Tribunal has noted the applicant’s contentions that he is concerned that his qualifications in Australia may not be recognised in New Zealand, and that salaries in New Zealand are not as high as Australian salaries. The Applicant claimed this would impact on his ability to support his children and Ms M in Australia. As previously outlined, although the Tribunal accepted that the applicant does provide a level of financial contribution to Ms M, the specific details of that contribution were unclear. Ms M essentially gave evidence that the applicant would give her money whenever she asked. On the evidence before it, the Tribunal is not satisfied that the financial contribution that the applicant makes to Ms M and his children in Australia presents an impediment to removal. The applicant has claimed, and the Tribunal accepts, that the applicant is skilled and although there could be some difficulties in relation to recognition of his qualifications, on the evidence before it, the Tribunal is not satisfied that those difficulties present an impediment.
Although the Tribunal has given some weight in favour of the applicant in relation to this consideration, on balance, the Tribunal is not satisfied that this consideration outweighs other considerations.
Cumulative considerations
The Tribunal has carefully considered relevant matters in Direction No. 65. The aspects that weigh heavily against the applicant relate to Primary Considerations and the Tribunal has given those considerations significant weight. In relation to the Primary Considerations, Protection of the Australian Community and Expectations of the Australian Community, the Tribunal is satisfied and for the stated reasons that those considerations weigh heavily against revocation of the mandatory cancellation of the applicant’s visa.
The principles in Direction No. 65 require a decision-maker, such as the Tribunal to undertake a balancing exercise which involves consideration of all relevant matters and to accord them proportionate weight. The Tribunal is satisfied that it has given regard to all relevant matters, individually and cumulatively, and given them weight which the Tribunal considers to be appropriate in the circumstances.
For the stated reasons, the Tribunal finds that the applicant does not meet the character test as defined in s 501 of the Act. In consideration of the evidence as a whole and given the Tribunal’s assessments of the Primary and Other Considerations in Direction No. 65, the Tribunal has decided to affirm the decision not to revoke the cancellation of the applicant’s visa Class TY Subclass 444 Special Category (Temporary) visa.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes
.............................[SGD]...........................................
Associate
Dated: 14 August 2018
Date(s) of hearing: 31 July 2018 and 1 August 2018 Applicant: In person Solicitors for the Respondent: A Keevers - Sparke Helmore Lawyers
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