CRNL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2382
•21 June 2021
CRNL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2382 (21 June 2021)
Division:GENERAL DIVISION
File Number: 2021/2009
Re:CRNL
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:A G Melick AO SC, Deputy President
Date of decision: 21 June 2021
Date of written reasons: 19 July 2021
Place:Hobart
The decision under review is affirmed.
.....................[sgd]................................................
A G Melick AO SC, Deputy PresidentCatchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – domestic violence – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
A G Melick AO SC, Deputy President
19 July 2021
INTRODUCTION AND BACKGROUND
The Applicant is a 38-year-old New Zealand national. He first arrived in Australia in 2005 and on 1 February 2007, was granted a Class TY Subclass 444 Special Category (Temporary) visa.
On 3 December 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full time custodial sentence.[1] On 16 December 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[2] On 26 March 2021, the Respondent decided not to revoke the cancellation.[3]
[1] G-Documents, G14, 59.
[2] G-Documents, G15, 68.
[3] G-Documents, G3, 9.
The Applicant subsequently lodged an application for review in this Tribunal on 1 April 2021.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] G-Documents, G2, 3.
The application was heard by the Tribunal on 31 May and 1 June 2021. The Applicant was self-represented and appeared by MS Teams. A representative for the Respondent, Mr Papalia, also appeared by MS Teams. The Applicant called two witnesses who provided singed statements tendered in evidence and gave oral evidence before the Tribunal:
(a)The Applicant’s mother
(b)The Applicant’s current partner and victim, Ms B
The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Procedural History
The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on the 84th day relevant to this matter, 21 June 2021. In doing so, the Tribunal met the requirements of s 500(6)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs (2019) 271 FCR 326 (Khalil), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
LEGISLATIVE FRAMEWORK (s501CA(4))
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[5]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[6]
[5] [2018] FCAFC 151.
[6] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 16 July 2013, the Applicant was sentenced to a term of imprisonment of 15 months imprisonment on charges of threats to injure, endanger or harm any person; and threat/s to destroy, damage, endanger or harm property; wilfully and unlawfully destroy or damage property; depravation of liberty, and common assault in circumstances of aggravation.[7]
[7] G-documents, G
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The Applicant has made representations in accordance with s 501CA(4)(a) but has not satisfied me that he passes the character test. I have therefore considered whether I am satisfied that there is another reason why the mandatory visa cancellation decision should be revoked (s 501CA (4)(b)(ii)).
The following evidence was advanced on behalf of the Applicant:
(a)The Applicant submitted a statement and was cross-examined during the hearing. The Respondent questioned the Applicant with respect to his convictions and previous relationships.
(b)The Respondent cross-examined the Applicant on several incidents of violence involving himself and former intimate partners, referring throughout cross-examination to the Respondent’s tender bundle and accounts contained therein.
(c)The Applicant consistently failed to recall past relationships and events recorded by police in relation to these relationships. When details of those events were put to the Applicant, he often denied their accuracy or offered an alternate narrative.
(d)The Applicant also downplayed the nature of his offending, summarising physically and verbally abusive behaviour at various times as a “few bumps in [the] relationship,” a “rough breakup” or being “on a downward spiral.” He noted that at times he had been under the influence of alcohol and drugs when committing offences against intimate partners, and he appeared aware that his use of drugs and alcohol may have contributed to his behaviour.
(e)When questioned on his drug use, the Applicant asserted that he had not used methamphetamine for the past five years. The Respondent referred to one event during this period where the Applicant was found in possession of a glass smoking implement. The Applicant told the Tribunal this belonged to his cousin. When asked about his use of cannabis, the Applicant told the Tribunal that he had in the past used cannabis as his “after work beer”. While the Applicant suggested that he and his partner had cut down on cannabis use, this appeared to be a result of frequent drug tests at work and starting a family.[8] The Applicant did not suggest that he would abstain from smoking cannabis if he were able to.
(f)On multiple occasions, the Applicant suggested that his victims provoked his behaviour or made counter allegations of harassment or abuse against his victims. At times, he described victims fabricating events to seek revenge or his necessary retaliation in response to physical attacks from his victims.
(g)In total, the Respondent cross examined the Applicant on multiple incidents of physical and/or verbal assault with six different women.
(h)When asked about his pattern of behaviour, particularly with reference to his current partner, the Applicant responded: “I’ve got a thing for choosing broken women, and in the process of trying to fix myself and help them, it’s kind of an uphill battle”.[9]
(i)When asked about an incident where the Applicant’s step-daughter called the police to report her mother being abused by the Applicant, who was “grabbing her, dragging her around the house and throwing glasses at her”, the Applicant denied the truth of the report and stated:
For some reason as soon as they call the police, it gets over-glamourised and exaggerated and makes me out to be a bad person where I’m just doing what normal people would do when they have an altercation in their home, a disagreement, basically.[10]
[8] Transcript, 51.
[9] Transcript, 27.
[10] Transcript p 30-31.
The Applicant’s mother
The Applicant’s mother submitted a statement taken in evidence and gave oral evidence at the hearing. Her evidence can be summarised as follows:
(a)She explained that she is undergoing treatment for cancer and requires the Applicant’s assistance in running her catering business doing the heavy work. She explained the lack of other support, noting that her other son works remotely on a fly-in, fly-out basis. Since the Applicant has been imprisoned, she explained that business has been very quiet. She lives with her daughter who is wheelchair dependent and is the primary carer for four grandchildren aged 13, four, and two years old, and 10 months old. Her husband has taken leave from work to assist her in caring for her daughter and grandchildren while she recovers.
(b)She indicated that there is a unit adjacent to her business where the Applicant could reside should he be allowed to stay in Australia.
(c)During cross-examination, the Applicant’s mother showed some awareness of the Applicant’s prior offending. She understood that he had made threats to kill former partners and knew of the deprivation of liberty charge. The Applicant’s mother showed ultimate support for the Applicant although she disagreed with several events that had transpired.
(d)The Applicant’s mother was questioned about her opinion on the Applicant’s current intimate relationship. She described the Applicant and his partner as being “neither a good as – neither as bad as each other,” although she noted that she had seen the Applicant’s partner change. She suggested that they were both “working towards a better outcome” for their family. The Applicant’s mother indicated she would provide support to the Applicant’s partner and child if the Applicant was sent back to New Zealand.
The Applicant’s partner
The Applicant’s current partner, Ms B, submitted a statement dated 10 March 2021 tendered in evidence.[11] She also gave the following oral evidence at the hearing:
(a)The Applicant’s partner stressed the role that she had played in the Applicant’s offending. She spoke often about her own contribution to their arguments which she said was often omitted from the statements that she gave to police.[12] She explained that her own PTSD meant that her responses to the Applicant’s behaviour were often exaggerated or overly reactive. Despite this, she stated during cross-examination that the statements she had provided to police had been true. When questioned about the Applicant’s FVO, Ms B corroborated the Applicant’s version of events, suggesting that she desired and encouraged his contact despite having knowledge of the FVO in place.[13]
(b)She explained the important role the Applicant plays in parenting their child and his stepchildren, noting that his eldest stepdaughter had demonstrated a negative change in behaviour and attitude toward schooling and family since the Applicant had been imprisoned. She describes her daughter’s depression, anxiety, and failure to attend school, noting her own lack of authority in the absence of the Applicant.
(c)During cross-examination, Ms B was questioned on her awareness of the Applicant’s offending, she understood on limited terms the nature of the Applicant’s offending prior to his relationship with her. She gave evidence in relation to their intentions to undertake counselling. She explained that they had both sought counselling through services available to them however many of these were unsuitable due to their work or family commitments.[14]
[11] Exhibit 5.
[12] Transcript, 65.
[13] Transcript, 67.
[14] Transcript, 70
As I understand it, the evidence advanced by the Applicant can be summarised as follows:
(a)He considers that he can be a truly amazing father and partner and is apologetic for his past actions.
(b)His partner considers that she is responsible for, or has contributed significantly, to his offending and she has undertaken to change her behaviour.
(c)He will engage with and take advantage of the support offered by his family and other services within Australia.
(d)He has completed a “Life Skills” course and a “Reset Parenting” program.
(e)He will have employment and accommodation available to him if allowed to remain and he maintains it is changed his attitude behaviour and that he will not reoffend.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[15]
[15] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)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 measurable risk of causing physical harm to the Australian community.
(4)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.
(5)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 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[16]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[17]
[16] [2018] FCA 594.
[17] Ibid, [23].
BACKGROUND and offending
26.The following summary of the Applicant’s criminal history is incorporated from the Respondent’s statement of facts issues and contentions. The Applicant concedes the truth of this history unless otherwise indicated.
The applicant was first convicted of an offence in October 2000 (at the age of 18) in New Zealand (G6/36). His criminal history in New Zealand consists of traffic offences, wilful damage and failing to answer District Court bail. The applicant did not disclose these offences when he first travelled to Australia or subsequently (G12/54-55).
The applicant was first convicted of an offence in Australia in August 2009 (being traffic offences) and has a consistent history of offending since that time relating to failure to comply with Court orders, assault (including family violence), traffic offences, drug related offences and disorderly behaviour (G4/29-32).
On 29 April 2007, the applicant committed the offence commit assault that causes harm-aggravated other-no weapon (for which he was convicted on 20 July 2010) (Summons bundle “SB” 447-448). The victim had reportedly been annoying the applicant’s girlfriend and would not desist, he went to push the applicant and the assault occurred. The applicant punched the victim to the face numerous times causing him to fall to the ground and the co-accused punched and kicked the victim on the ground (SB 455).
On 16 March 2009, the applicant committed the offence use or threaten unlawful violence (for which he was convicted on 20 July 2010) (SB 418). On that occasion CCTV footage showed the applicant punching another male to the head, chest and side area of his body whilst the male was cramped down to the ground. The applicant then kicked a dog and tackled a second male to the ground prior to punching him in the head, chest and back at least four times. The applicant then kicked the male in the stomach and left the area. The applicant attempted to hide from police before going towards an officer in an aggressive manner. Capsicum spay was used to subdue him (SB 439).
On 20 June 2012, the applicant committed the offences threats to injure, endanger or harm any person; and threat/s to destroy, damage, endanger or harm property; and wilfully and unlawfully destroy or damage property (for which he was convicted on 25 February 2013). The records reveal that (SB 90):
The applicant and his partner (Ashton Blake) had been living together for approximately seven months but she had ended the relationship approximately one day prior (G8/41; SB 90).
Ms Blake called the applicant and told him to leave her house. The applicant became enraged and began to threaten her stating “I’ll find you and I’ll split your face open”. The applicant also threatened to kill Ms Blake’s father and her family and stated that he would burn her house down.
The applicant began to damage the victim’s unit and property. He smashed two tables, a television, plates, cups, vases, wall photos and mirrors. He punched holes in the victim’s walls and kicked holes in the victim’s doors. He placed the victim’s paperwork and personal papers in the laundry and saturated them with water. He kicked the washing machine and dryer calling dents. He placed her photographs in the shower recess and saturated them with water and hair mousse. He also left a can of petrol in her living room.
On 30 June 2012, the applicant committed the offence depravation of liberty, wilfully and unlawfully destroy or damage property and common assault in circumstances of aggravation (for which he was sentenced on 25 February 2013 and 16 July 2013). He was remanded into custody from 19 November 2012 (G8/43) following an arrest warrant being issued on 4 October 2012 (SB 25). The sentencing remarks in relation to that offence (G8/40-45) revel that:
The applicant went to her unit (although subject to a violence restraining order (SB 72)) and when she was not there graffitied on the walls and ceiling of her bathroom including the words “Fuck Ashton Blake”, “slut” and drew a picture of a penis on her ceiling.
When Ms Blake arrived home the applicant was still in the unit, he ran towards her, grabbing her arms, was verbally abusive and grabbed her phone and car keys to prevent her from leaving.
A friend of the former couple (Ms Houston) then arrived and refused to leave Ms Blake alone with the applicant and the three of them drove to a motel. The applicant continued to abuse and threaten Ms Blake and made her text her family to say she was ok. Ms Blake’s sister suspected that she was in danger and called the police.
The next morning Ms Blake convinced the applicant that she wanted to be in a relationship with him in order to calm him down. The applicant was dropped off at his aunt’s house. The victim was then able to meet with detectives and made the complaint.
The applicant was imprisoned in Western Australia from 19 November 2012 to 19 February 2014 (SB 165).
The applicant has pending charges in Victoria (for which an arrest warrant has been issued) relating to conduct alleged to have taken place between 27 January 2015 and 12 March 2015. The conduct alleged is as follows:
On 27 January 2015, the applicant and his partner (Stephanie Champion), got into a verbal argument about over Ms Champion texting her ex-partner in relation to custody of their child. The applicant got aggressive and jealous, accused Ms Champion of cheating on him, stated “if your cheating on me, I’ll kill you” and threw things around the house. The incident was witnessed by Ms Champion’s child and a third party. Ms Champion’s phone rang and the applicant grabbed hold of her arm and a struggle ensued with the applicant trying to snatch the phone off her (SB 5-6). The police applied for a family violence safety notice following the incident (SB 11).
On 12 March 2015, the applicant was looking at the Facebook page of his partner and demanded that she delete a man who had commented on one of her photographs. Ms Champion refused and an argument ensued in which the applicant grabbed her around the throat for 5-10 seconds and strangled her and stated “she was lucky he didn’t punch her as he would have killed her”. The pair later got into a further argument where the applicant accused her of cheating on him and threw her laptop and iPhone. Ms Champion agreed to drive the applicant home and he continued to abuse her, calling her a “slut, dog, mutt, whore, cunt and bitch” and stated that when they got to the house he was going to assault her. Ms Champion pulled into a petrol station and refused to take the applicant any further and he pulled out another key to the car (which she was not aware he had) and took the car without her permission (SB 2-3).
On 25 April 2016, the applicant committed the offence aggravated assault occasioning bodily harm (for which he was convicted on 7 September 2019) (SB 220). The applicant was having an argument with his girlfriend at the time (Monique Pharoutos) when he suddenly pushed her causing her to fall and hit the side of her face on the bed (SB 373).
The applicant was remanded in custody from 1 May 2016 to 7 September 2016 (SB 219; SB 221-222).
On 23 September 2019, the applicant committed the offence common assault in circumstances of aggravation (for which he was convicted on 30 April 2020). That offence related to the applicant and his current partner (Cheryne Lee Burns) entering into a verbal altercation after he damaged her phone. Ms Burns exited with their children (a four week old and 4 year old) towards their neighbour’s house and the applicant approached her and punched her three times to her right eye. Ms Burns fell dropping the capsule holding the baby. The applicant then grabbed her by the neck, forcefully pulled her away from the baby and dragged her four meters across the grass into a bush. Ms Burns ran into the road and flagged down a member of the public who called police (SB 172-173; SB 358).
On 6 February 2020, the applicant committed the offence breach of protective bail conditions (for which he was convicted on 30 April 2020). The applicant returned to the house of Ms Burns, sculled cans of alcohol and was yelling outside. The children Arvil, Jasmine and Anthony were present at the time. Avril told Ms Burns that the applicant was talking about Jasmine’s father. Ms Burns asked whether the applicant had a problem with their father sending them a birthday present and the applicant began screaming at her, he then locked her out of the house with one of the children still inside. She asked a neighbour to call the police (SB 212-215).
The applicant was remanded in custody from 7 February 2020 to 30 April 2020 (SB 178; 196). The police applied for a family violence restraining order (SB 211) which was personally served on the applicant on 25 July 2020 (SB 352).
On 16 November 2020, the applicant was sentenced in relation to seven counts of breached a family violence restraining order as well as breach of suspended imprisonment order (which had been imposed on 30 April 2020) (G4/29-30). The applicant was sentenced to seven months imprisonment (concurrent) in relation to each of those offences (G9/47). The victim of those offences, Ms Burns, has stated that the incidents were “annoying but not violent acts” and consisted mainly of the applicant calling or messaging her phone (G17/90). The records indicate that:
Between 25 July 2020 and 18 August 2020, the applicant sent Ms Burns 199 text messages, attempted to make 14 phone calls and sent over 100 Facebook messages to her (SB 353).
On 16 August 2020, the applicant drove to Ms Burns’ house and parked on the front verge (SB 344).
On 16 August 2020, the accused attended a store to speak to Ms Burns’ mother. Upon arrival he sighted Ms Burns and they get into a verbal argument and then a physical altercation. The applicant reached into Ms Burns’ handbag and removed her mobile phone as he believed her to be in possession of his phone and stated that he would not return it unless she returned his. Ms Burns left the scene (SB 351).
On 17 August 2020, the applicant was driving when he sighted Ms Burns. He got within 5 meters of her and yelled out “you fucking bitch”. He then did a u-turn and started driving back towards her. Ms Burns called “000” (SB 352).
The applicant was returned to custody on 19 August 2020 (SB 178).
Between 19 August 2020 and 21 September 2020 (whilst in custody in remand) the applicant contacted Ms Burns by telephone on 81 separate occasions (SB 346). Records indicate that the applicant repeatedly intimidated Ms Burns by making coercive and suggestive comments, manipulating her emotionally and psychologically (SB 348).
Between 19 August and 21 September 2020 (whilst in custody on remand), the applicant contacted his child by telephone on 42 separate occasions (SB 347).
On 21 September 2020, Ms Burns had the family violence restraining order revoked (SB 346).
The Applicant was asked to note any parts of the above summary he disagreed with, he commented on the following paragraphs:
(a)In relation to the offence of commit assault that causes harm-aggravated other-no weapon, the Applicant adds that he intervened in circumstances where a third party was physically assaulting his then-partner by grabbing her by the vagina. He asserts that he intervened for her safety.
(b)In relation to the offence of threats to injure, endanger or harm any person; and threat/s to destroy, damage, endanger or harm property; and wilfully and unlawfully destroy or damage property, the Applicant contends that he did not threaten to kill the victim’s father and her family, nor threaten to burn their house down.
(c)In relation to the above offence, the Applicant also contends that he did not damage the victim’s unit but acknowledges that the evidence makes it look like he was responsible. He claims to have taken responsibility even though he was not responsible.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITYIn considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
When considering the nature and seriousness of the Applicant's conduct I have taken into account the history set out at [26] above as well as the following matters:
(a)When sentencing the Applicant for the offences that occurred on 30 June 2012, including deprivation of liberty and common assault in circumstances of aggravation, the sentencing judge had no doubt that the victim felt terrified and compromised during her ordeal.
(b)The sentencing remarks also indicated that the Applicant's first relationship (the ones which the charges related being his second ‘significant’ relationship) had also ended in a distressing and hostile manner and that that partner returned to New Zealand taking the children with her.
(c)Her Honour accepted the victim would be very fearful and that the charges were too serious not to warrant a term of immediate imprisonment.
(d)When been sentenced on 16 November 2024 multiple counts of breaching a Family Violence Restraining Order the magistrate noted the Applicant's assertion that is going through a hard time with his partner and just try to keep his family together. The Magistrate also noted that the Applicant had failed to comply with the conditions of a previous suspended sentence imposed in relation to the same victim in April 2020.
(e)Predominant amongst the victims of the Applicant's violent offending have been his female partners. Such behaviour is viewed very seriously by the Australian government and the Australian community regardless of sentence imposed.
In view of the Applicant’s sustained offences against female partners and breaches of apprehended violence orders, I consider his behaviour extremely serious and am very concerned that whatever remorse he alleges is more than offset by his attempts to apportion blame for his offending to his female partners.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
As noted at [22] in PNLB and Minister for Immigration and Border Protection [2018] AATA 162, sentences involving terms imprisonment are the last resort in the sentencing hierarchy and the Applicant has been sentenced to terms of imprisonment on more than one occasion.
The seriousness of some of the Applicant's behaviour as reflected by the imposition of terms of imprisonment is also emphasised by the sentencing comments referred to in paragraphs [32] above. I find his behaviour to be very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant has been convicted of over 50 offences over the past 12 years, has received terms of imprisonment on at least two occasions and has been held in custody on other occasions. He has not taken advantages of conditional orders and has continued to offend whilst in custody. The cumulative effect has had a deleterious impact on the Australian community and prior to his latest incarceration the Applicant had shown no indication of abating his behaviour.
I find the frequency of the Applicant's offending and the associated effects to be very serious.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant had a criminal record in New Zealand involving a term of imprisonment but declared that he had no criminal convictions when completing incoming passenger cards to Australia in 2005 and 2007.
I regard such a failure to declare a criminal record as serious.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no conclusive evidence that the Applicant was formally warned about the consequences of his migration status should he further offend and accordingly this part of the direction is not relevant.
I do not consider factors (b) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(f)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(g)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; and
(h)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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
I consider it appropriate to take into account, when considering the applicant's risk of reoffending, both contributing and mitigating factors relevant to his criminal offending.
When sentenced on 16 July 2013 for the deprivation of liberty charge referred to at [26] above, Her Honour noted that the Applicant had a very difficult upbringing including a father who was violent towards his mother and his siblings. Both his parents abused alcohol and drugs and separated when the Applicant was four years old. The Applicant chose to live with his father who remarried three times and appeared not to have a good relationship with his partners.[18]
[18] G-Documents, G8, 43.
Her Honour also indicated the Applicant had abused amphetamine, cannabis and alcohol and that he acknowledged that those substances caused him to be paranoid and suffer from fluctuating mood.[19] He did not see them as playing a part of his offending but psychologist, Ms Hassan, opined the presence of depressive, antisocial and passive-aggressive personality traits as well as indications of depression.[20]
[19] Ibid.
[20] Ibid 44.
Ms Hassan recommended that the Applicant attend a domestic violence program and was concerned that the Applicant had no victim empathy,[21] a concern which I share noting that the Applicant still regards his victims as contributing towards his offending.
[21] Ibid.
A presentence report opined that domestic violence, substance abuse, difficulties managing emotions, limited conflict resolution skills and not taking personal responsibility were matters that the Applicant needed to address.[22] The author of the report recommended that the applicant undergo professional intervention such as counselling, but the Applicant does not seem to have sought such assistance.
[22] Ibid.
On 16 November 2020, when the Magistrate imposed concurrent terms of imprisonment on the Applicant, he urged him to reflect on his past transgressions and to make the right decisions from thereon. The Applicant had explained that the time of the offending he was going through a hard time and he thought he was doing the right thing by trying to keep his family together.[23]
[23] G-Documents, G9, 47.
The Applicant also stated that he had struggled with communication and any fears losing relationships which allows as a motion to affect his decision-making. He noted that he and his partner were not good at compromising, but they were learning because was not worth fighting and losing each other.[24] Although not before the Magistrate, his partner's evidence referred to in paragraph [17] above is consistent with the above statement.
[24] Transcript 31.
The Applicant's performance whilst in prison in 2013 was mixed. An immigration report dated 23 January 2014 indicated that the Applicant was generally polite and respectful towards staff and other inmates and that he followed unit rules. However, he was dismissed from working in the carpentry workshop due to poor attitude and repeated absences.[25]
[25] G-Documents, G10, 52.
Whilst in prison, the Applicant was involved in fighting, used cannabis and chose to possess a tattoo gun.[26] It was recommended that he participate in violent offending, substance use and cognitive skills related programs but they were not made available to him prior to his release in 2014.[27] However, there was no evidence to suggest that he availed himself of such courses upon his release from prison.
[26] Ibid.
[27] Ibid.
Upon his most recent term of imprisonment the Applicant received positive comments from his superiors, but he continued to breach a family violence restraining order by contacting his partner on 81 occasions and his child on 42 occasions between 19 August 2020 and 21 September 2020. The order was revoked by the Applicant's partner on 21 September 2020.
The Applicant seems to have a good relationship with mother who is suffering from cancer and needs his help in running her business. She is also prepared to provide him with accommodation.
The Applicant's partner maintained that she contributed to their arguments and that her PTSD meant that her responses to the Applicant's behaviour were often exaggerated or overly reactive. However, she conceded in cross-examination that the statements she provided to police had always been true. She corroborated his assertions that the breaches of the family violence order whilst in prison had been desired by her.
I very concerned about, and place considerable weight on, the Applicant’s continued demonstration of insufficient remorse or insight into his behaviour. I note that he, on multiple occasions, suggested his victims provoked his behaviour or that they harassed or abused him.
Of particular concern is that when the Applicant was cross examined about multiple incidents of physical and/or verbal assaults involving six different women, he made the following remarks:
“I've got a thing for choosing broken women, and in the process of trying to fix myself and help them, it's kind of an uphill battle”.[28]
“I do choose treacherous women - yes, I do choose angry women, broken women, they seem to - I seem to be attracted to women that have a high risk for myself.”[29]
[28] Transcript, 27.
[29] Transcript, 83.
The Applicant's past behaviour has involved physical and mental trauma former partners and his current partner.
I find the nature of the harm that would be caused if the Applicant reoffended to be so serious that any risk that it may be repeated may be unacceptable, bearing in mind that paragraph 5.2(5) of the Direction provides that the inherent nature of conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances.
Likelihood of engaging in further criminal or other serious conduct
The Applicant's past behaviour has involved physical and mental trauma former partners and his current partner.
In combination with the information above, I have considered mitigating factors such as the Applicant’s substance abuse, difficult upbringing and the offer of employment and accommodation should the decision to cancel his visa be revoked.
It appears that his motivation not to reoffend is stronger than ever bearing in mind his desire to be with his children and his partner. I note that his partner blames herself for many of his problems and wishes to be reunited with him, but I note that, unfortunately, such feelings and attitudes are not uncommon amongst the victims of domestic violence.
The Applicant has had many chances to reform in the past including non-custodial sentences and the opportunity to participate in treatment or community programs. I acknowledge that he has not had the opportunity since his most recent incarceration, but there is no evidence of any previous rehabilitation being undertaken by the Applicant despite the fact that Her Honour, in October 2013, noted the Applicant had treatment needs for domestic violence and substance abuse.[30]
[30] G-Documents, G8, 44.
Department of Justice records state the Applicant is ‘loathe to be involved in treatment and note he minimises and/or denies as a defensive strategy’.[31]
[31] Respondent’s Tender Bundle, 131.
In his interview, the purpose of the presentence report is recorded as ‘blames the victim’. He states that he has the view that women are to blame for having domestic violence perpetrated against them due to pushing behaviours which upset or annoying men.[32]
[32] Ibid, 90.
I consider that the Applicant's persistent repeat offending which includes breaches of restraining and/or protection orders demonstrate a complete disregard of the court's authority and the laws enacted to protect vulnerable family members.
Those factors, together with the attitude displayed in the above-mentioned reports and his record of offending, cause me to find that there is a significant likelihood of the Applicant reoffending and such reoffending is likely to cause significant mental and/or physical harm to members of the Australian community.
I find that this primary consideration mitigates heavily against the revocation sought.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
As set out at [26] above the Applicant has continually and frequently perpetrated violence against his domestic partners, apart from the matters leading to convictions in 2013 and 2020, including the following as set out in the Respondent's statement of facts, issues and contentions:[33]
[33] Respondent’s statement of facts, issues and contentions, [51].
On 12 June 2011, police were called after the applicant and his partner of 18 months had an argument. The applicant left the house and upon returning the argument continued and he punched his partner in the face causing bruising and swelling to her face. The applicant then self-harmed and was taken to hospital (SB 504-507).
As set out at paragraph [13] above, the applicant has outstanding charges in Victoria relating to conduct directed to his partner in January and March 2015.
On 20 February 2016, police were called by the applicant’s ex-partner (Maureen Bell) who stated that over the last 48 hours the applicant had become aggressive and very jealous. Ms Bell stated that after a fight the evening before the applicant became aggressive, put his forehead on hers and started shouting abuse at her. They both started shouting and the applicant tried to bite her on the cheek. As he went to leave the applicant stated “I have bullets, and I’m going to kill you” (SB 339).
On 13 October 2017, a neighbour called police after hearing Ms Burns being assaulted. Ms Burns told police that a verbal altercation ensued with the applicant after he tried to tell off one of her children and he then started yelling and kicked a heater. Ms Burns stated that the applicant then stood over her and yelled, she ran towards the back yard screaming for help and tried to jump over a bamboo fence when the applicant followed her, pulled her down and held her down. A 72 hour police order was issued (SB 326-327).
On 23 December 2017, a member of the public called police after the applicant became jealous regarding male attention/interaction via social media/mobile phone. The applicant grabbed Ms Burns and put his arm around her neck, she was dropped to the floor and there was further grabbing before the children Avril and Jasmine ran out of the house to seek help (SB 322).
On 12 August 2018, the child Avril called police stating that her mother was being abused by the applicant who was grabbing her, dragging her around the house and throwing glasses at her. Ms Burns confirmed that the applicant had grabbed her and thrown a bowl on the floor. The applicant denied any physical violence however a 24 hour police order was issued (SB 315).
A family violence restraining order was issued on 24 August 2020 to protect Delphine Oakley (SB 377).
The applicant’s behaviour is demonstrative of frequent and prolonged family violence with a trend of increasing seriousness.
The records suggest that the applicant’s family violence caused his various partners to fear for their safety. For example:
(a) The police records indicate that Ms Champion was “shaking as a result and stated that she is in fear of the safety to herself and her child when he is around. Police share concerns for the safety of [Ms Champion] and her child due to the behaviour of [the applicant]” (SB 5-6).
(b) Ms Burns made a statement to police on 6 February 2020 in which she stated “I felt scared as soon as he started screaming at me…I was scared for Avril and my safety” (SB 241-215).
(c) Ms Burns reported being frightened in relation to the incidents on 13 October 2017 (SB 326) and 23 December 2017 (SB 322).
(d) Ms Bell reported being frightened in relation to the indecent on 20 February 2016 (SB 399).
Conclusion: Primary Consideration 2
I find that this primary consideration weighs very heavily against revocation.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. 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);
· the extent to which the non-citizen 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;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has four children, two of whom are biological. Child A is 16 years old and is the Applicant’s first-born biological child. Child A resides in New Zealand with his mother, who is a former partner of the Applicant. Child B is 15 years old and the Applicant’s stepdaughter. Child B’s biological father is not stated on her birth certificate. Child C is five years old and the Applicant’s stepdaughter. Child C has limited contact with her biological father. Child D is one year and nine months old and is the Applicant’s biological child. Child D’s mother is the Applicant’s current partner, and Child D resides with Child B and Child D in Western Australia with the Applicant’s current partner.
Although the detrimental effect of the Applicant's conduct, which has sometimes occurred in the presence of his children is considered, I'm satisfied of the following upon the evidence:
(a)The Applicant loves to be a father to his children and spends considerable time with them when not in custody.
(b)He has a genuine concern as to the negative impact upon his children should the cancellation not be revoked.
(c)On balance, his children would be better cared for if the Applicant was allowed to remain in Australia and intends to live with them if allowed to remain.
(d)There is no evidence of violent or inappropriate behaviour towards his children. They may wish to have the Applicant in their lives.
(e)His partner also desires to have the Applicant back as part of the family.
Accordingly, I find is the best interests of the Applicant's children to have the cancellation order revoked.
Conclusion: Primary Consideration 3
I place significant weight upon this consideration.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(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.
Paragraph 8.4(3) of the Direction provides that 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.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[34]
[34] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, I have regard to the following matters:
(a)The Applicant has breached the trust of the Australian community by committing several acts of domestic violence and multiple other offences.
(b)There is strong emphasis in Australia today decrying family violence and, in view of the matters set out above, I can only conclude that the Australian community would not expect the Applicant to hold a visa.
Conclusion: Primary Consideration 4
I consider this primary consideration weighs heavily against the revocation sought.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is now 38 years of age and has resided in Australia for over 16 years since his arrival on 27 June 2005.
He has issues with anxiety, PTSD and depression but his physical health seems to be reasonable. He takes medication for his mental health issues and such medication would be available in New Zealand.
Apart from his father, his entire extended family seems to be living in Australia but there should be no cultural or language barriers bearing in mind he lived in New Zealand until he was 22 years of age.
The Applicant's evidence is that the only relation he has remaining in New Zealand is his father with whom he does not have a good relationship and that he could end up homeless if forced to return to New Zealand.
There was no evidence of any particular social or medical disadvantage should he return to New Zealand, but the Applicant may find it difficult to gain employment in view of his criminal record. However, the Applicant has been employed in various roles between 2016 and 2020 is no suggestion that any skills developed would not be transferable to New Zealand.[35]
[35] G-documents, G16, 82.
I consider that this factors to be of moderate weight supporting revocation.
(c) Impact on victims
This Other Consideration (c) requires that 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, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There was no evidence as to the impact on victims other than that of the Applicant's current partner should be Applicant be allowed to remain in Australia.
The Applicant's partner gave persuasive evidence that she wishes the Applicant to remain in help with their children's upbringing.
Accordingly, I considered this factor to be of moderate weight supporting revocation.
Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
I agree with the Respondent's submission that non-revocation may have an adverse effect on members of the Applicant's immediate family in Australia, namely, his mother, children, partner stepfather, brother, three sisters and various extended family members. I also note that his mother gave evidence to the effect that she needs assistance because of her cancer and that such assistance from her other son is limited because he operates as a ‘fly in fly out’ worker.
Although the Applicant completed his secondary education in New Zealand has obtained a Certificate III in mechanics and further qualifications in the mining sector whilst a resident in Australia.
Despite his extensive criminal history, he has, at times, made a positive contribution to the Australian community through his work endeavours and in support for local charities, church and sporting groups.
I am satisfied that he has a genuine love and affection for his three children and wishes to play a positive role in their future upbringing.
I find that it is in the best interests of the Applicant's three children that his visa cancellation be revoked.
Despite the fact the Applicant has offended within Australia shortly after his arrival I place moderate weight upon this consideration.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: no weight;
(b)extent of impediments if removed: moderate weight;
(c)impact on victims: moderate weight; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia; moderate weight; and the impact on Australian business interests; no weight.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction:
(a)Primary consideration 1: protection of the Australian community
For the reasons outlined above, I place considerable weight upon this consideration mitigating against revocation.
(b)Primary consideration 2: family violence
I also place considerable weight upon this consideration weighing against revocation because of the nature of the family violence offences committed against both his current partner and at least one former partner, including breaching the conditions of FVOs.
(c)Primary consideration 3: the best interests of minor children in Australia
I have found the revocation would be in the best interests of the Applicant’s children, and I place significant weight upon this consideration.
(d)Primary consideration 4: the expectations of the Australian community
For the reasons outlined above I find this consideration weighs strongly against revocation especially bearing in mind the community’s attitude towards those who commit offences involving domestic violence.The Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
............................[sgd]............................................
Associate
Dated 19 July 2021 Date of hearing: 31 May - 1 June 2021 Applicant:
Self-represented
Solicitor for the Respondent Ms Elle Tattersall
Sparke Helmore Lawyers
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
1 Respondent Tender Bundle Respondent Various 31 May 2021 2 G-documents Respondent Various 16 April 2021 3 Statement of the Applicant Applicant Undated 20 May 2021 4 Statement of the Applicant’s mother Applicant 13 April 2021 13 April 2021 5 Statement of the Applicant’s former partner Applicant 10 April 2021 13 April 2021 Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
No: 2021/2009
General Division
Re: CRNL
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: A G Melick AO SC, Deputy President
DATE: 21 June 2021
PLACE: Hobart
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 March 2021 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
........................[sgd]..................................
A G Melick AO SC, Deputy President
1