Cruckshank and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2024] AATA 1782
•7 June 2024
Cruckshank and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 1782 (7 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1619
Re:Yoel Villa Cruckshank
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr N A Manetta
Date:7 June 2024
Date of written reasons: 17 June 2024
Place:Adelaide
The Tribunal affirms the decision under review.
.....................[sgnd]...................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – discretionary cancellation of visa under Migration Act 1958 – whether applicant fails ‘character test’ – if so, whether discretion to cancel visa should be exercised – Direction 99 – conviction of a serious offence involving family violence – multiple AVO breaches – real risk of reoffending – applicant’s lengthy residence in Australia and interests of children weigh substantially in his favour – applicant fails character test – preferable decision on balance is to exercise discretion to cancel visa – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326; (2019) 166 ALD 1; (2019) 79 AAR 545
Irving v Minister for Immigration, Local Government and Ethnic Affairs(1996) 68 FCR 422
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
17 June 2024
I delivered my decision in this matter on Friday, 7 June 2024 at 1.30 pm, having completed the hearing in the mid-afternoon of Thursday, 6 June 2024. When I delivered my decision, I was clear about the appropriate outcome and the reasons for it, but I did not have time to prepare and deliver written reasons on that day. When adjourning on 6 June 2024, I was faced with an exigency: the day by which my decision had to be delivered ‒ failing which the decision under review would be taken to be affirmed under section 500(6L)(c) of the Migration Act, 1958 (Cth) (‘the Act’)) ‒ fell on Monday, 10 June 2024. That was a public holiday across most of Australia, including where I was sitting. There being no case authority deciding affirmatively that section 36(2) of the Acts Interpretation Act 1901 (Cth) applied to extend the deadline to Tuesday, 11 June 2024, I decided I would deliver my decision on Friday, 7 June 2024 if I was clear as to the appropriate outcome and the reasons for it. As I was satisfied of these matters when I reconvened on Friday 7 June 2024, I delivered my decision on that day, and I indicated to the parties that I would provide written reasons within five business days.[1] The following is a statement of my written reasons prepared and provided within that stated timeframe.
[1] In accordance with the full Federal Court’s decision in Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326; (2019) 166 ALD 1; (2019) 79 AAR 545. This authority permits the Tribunal to deliver a written decision without reasons provided reasons follow with a reasonable time thereafter.
This is an application by Mr Yoel Villa Cruckshank seeking a review of the decision of the respondent’s delegate to cancel Mr Cruckshank’s five-year resident return visa under section 501(2) of the Act. As a consequence of this decision, all other visas held by Mr Cruckshank were also cancelled.[2] Mr Cruckshank was taken into immigration custody in due course as he no longer held a visa to remain in Australia.
[2] See section 501F of the Act.
TRIBUNAL’S TASK
Mr Cruckshank has now sought a review in this Tribunal of the decision to cancel his visa, as I have indicated. In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[3] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a discernible error in the delegate’s reasoning if that is the correct or preferable decision on the evidence.
[3] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
Like the delegate who decided to cancel Mr Cruckshank’s visa, I must address the statutory criteria in section 501(2) of the Act. The first criterion is whether I reasonably suspect that Mr Cruckshank does not pass ‘the character test’ (as defined in subsection (6)), and if that is the case, Mr Cruckshank must satisfy me that he does in fact pass this test; otherwise, the discretion to cancel the visa will be enlivened. I am clear that Mr Cruckshank does not pass this test. Mr Cruckshank was convicted in 2021 of a serious assault upon his former partner and of breaching AVOs.[4] He was sentenced on that day to an aggregate term of 15 months, to be served by an intensive corrections order. I shall describe the offending in due course. In these circumstances, I am satisfied that Mr Cruckshank does not pass the character test since he has a ‘substantial criminal record’ (see section 501(6)(a) and (7)(c)).
[4] Apprehended Violence Orders.
In addition, Mr Cruckshank was convicted of a further offence in 2022 of contravening a prohibition or restriction in an AVO. He received a sentence of imprisonment of three months for this offence. I have concluded that in light of these offences, Mr Cruckshank is not of ‘good character’ at the present time, and that insufficient time has elapsed since the commission of his most recent offences for Mr Cruckshank to be in a position to satisfy the Tribunal that he is now of good character.[5] And, finally, my assessment of his risk profile[6] causes me to conclude that there is a risk that Mr Cruckshank would engage in criminal conduct in the future if he remained in Australia.[7] He does not pass the ‘character test’ for these reasons.
[5] See section 501(6)(c) of the Act and see also Irving v Minister for Immigration, Local Government and Ethnic Affairs(1996) 68 FCR 422, at 432 (Lee J).
[6] See below at [51]ff.
[7] Section 501(6)(d)(i) of the Act.
The threshold conditions for the exercise of the discretion in section 501(2) having been satisfied, the next question I must consider is whether to exercise the discretion to cancel Mr Cruckshank’s visa and thereby terminate his right to remain in Australia. In addressing this question, like the delegate, I must apply Direction no. 99 (‘the Direction’) [8] issued under section 499 of the Act.
[8] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
At the hearing before me, Mr Cruckshank represented himself; Ms Jones-Bolla represented the respondent.
STATEMENT OF CONCLUSION
I have decided to affirm the decision under review. I set out below the background facts and my reasons for this conclusion.
BACKGROUND FACTS
Mr Cruckshank gave evidence to the Tribunal. He is a citizen of Cuba. He was born in a small town there in 1979 and was 44 years of age at the time of the hearing before me. He said he was happy growing up in Cuba with his mother, father and siblings, although the family was poor. He has three siblings: three older half-brothers from his mother’s former marriage. One older half-sister died in 1982, when he was three years old.
Mr Cruckshank attended boarding school, he said, from the ages of 9 to 13 and then a public school where he obtained the equivalent of his higher school certificate. After school, he obtained a qualification in business management.
He had an intimate relationship when he was young, and that relationship produced a child named Eduardo. When the child was very young, Mr Cruckshank left for Germany. He said he had been warned by friends to leave the country. He left with the intention of eventually bringing his family to Germany, he said. Eventually, however, he did return to Cuba and resumed living there with his former partner.
He first came to Australia on a holiday visa in 2001. He had earlier met his soon-to-be wife in Cuba. She was Australian and suggested that he come to Australia on holiday for three months. He began a relationship with her, they married, and they returned to Cuba in due course. This marked the end of his relationship with his first partner. He came to Australia with his wife, and they started to live in Melbourne in 2003.
I note that Mr Cruckshank has lived in Australia on a permanent basis since 2003, with some time spent back in Cuba over the years.[9] The year 2003 is, of course, more than 20 years ago now.
[9] Mr Cruckshank’s movement records appear at Ex R1,108-109.
The marriage to his first Australian partner lasted about four years, Mr Cruckshank said. There were no children of that marriage, and eventually the couple separated.
He then met another partner, the mother of his daughter Krystal. Krystal gave evidence before me. Mr Cruckshank said that he and his partner were in a relationship for approximately two years, from 2007 to 2009. They separated, and he gave evidence that he was not allowed to see his daughter Krystal after that time. The relationship between Mr Cruckshank and Krystal’s mother ended acrimoniously. He has had no contact with his former partner since then, and had no contact with Krystal for many years, although she has recently made contact with him.
He then had a new relationship with another partner, who married him, but there were no children from this relationship, and in 2014 he separated from this partner as well. In 2013 to 2014, Mr Cruckshank said he returned to Cuba, but came back to Australia in 2015 (but his movement records suggest he left in November 2012 and arrived back in September 2014)[10]. Mr Cruckshank said that he decided on his return to divorce his then wife. That divorce eventually took place.
[10] Ex R1, 108.
In 2017, Mr Cruckshank lost both his father and his son, Eduardo, who was living in Cuba. Mr Cruckshank has alleged that his son was murdered by the regime.[11] In any event, the death was certainly untimely, and it affected Mr Cruckshank substantially, he said. I accept that Eduardo’s death would have been a very difficult burden for Mr Cruckshank to bear.
[11] See email to the Minister at Ex R1, 84.
Mr Cruckshank began a relationship with a new partner in 2018, to whom I shall refer as Ms ‘T’ (to preserve confidentiality in respect of her identity), and she quickly conceived a son, ‘D’, in 2019. Ms T had three children from a prior relationship as well at that point. The relationship with Mr Cruckshank ended in March 2020, and has now ended permanently from Mr Cruckshank’s perspective (although Ms T wishes to resume the relationship). Ms T was the victim of a serious assault that I shall describe in due course.
In 2023, Mr Cruckshank met Ms Thompson, who gave evidence before me. He has begun a relationship with her. If he is allowed to stay in the Australian community, Mr Cruckshank plans to live with her as his partner.
Mr Cruckshank has had employment in Australia although his work ended with a work injury in 2019. He has worked for a number of firms, including Academy Roofing, for some two years, he said, and for various contractors. These employers are also listed in his Personal Circumstances Form.[12] As of the cancellation of his visa, he accepted that he had not been employed for at least two years.
[12] Ex R1, 81.
He has contributed $400 per week to the upkeep of Krystal, he said, through Centrelink, and he maintains that he has contributed to D’s upkeep although not pursuant to any formal arrangement. Ms T gave evidence, which I accept, of limited financial assistance from Mr Cruckshank in respect of D.
To complete the summary, I should note that Mr Cruckshank had an affair when he was living in Germany, and he has a daughter from that relationship. That child does not live in Australia.
Criminal offending
I now turn to describe Mr Cruckshank’s criminal offending. His record was before me in evidence.[13] A number of offences from 2008 to 2016 are recorded as having resulted in no conviction. I have excluded these from consideration. The respondent submitted that they appear to be offences to which I ought not to have regard given the decision in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6. I accept this submission.
[13] Ex R1, 41ff.
I have also declined to have any regard to alleged instances of family violence and sexual assault as reported in certain police records that were before me.[14] These are also referred to as background material in a police ‘Facts Sheet’.[15] No charges were brought in respect of the alleged conduct and no evidence was called by the respondent in this regard.
[14] See for example R7, 95ff.
[15] Ex R1, 47ff.
These reports concern extremely serious allegations, including of violent rapes and forced bestiality. Ms Jones-Bolla submitted that the Direction requires me, in paragraph 8.2(2)(b), to have regard to family violence when ‘there is information or evidence from independent and authoritative sources indicating the non-citizen... has been involved in the perpetration of family violence’, even though no criminal proceedings have been brought. I accept that the police reports and the Facts Sheet constitute an accurate record by police, and the police can be assumed to constitute an independent and authoritative source. The reports and the Facts Sheet record, however, allegations made by an alleged victim to the police: these documents do not constitute a record of any finding that the behaviour alleged to have occurred did in fact occur. They do not record, for example, what has been observed or discovered by police in connection with the alleged crimes. I have no information before me explaining why charges were not laid, and no direct oral or written evidence from the victim was called. In the circumstances, I have excluded these reports and the relevant pages of the Facts Sheet entirely from my consideration.
In Mr Cruckshank’s criminal record, there is a conviction on 9 December 2015 for contravening a family violence interim intervention order. Mr Cruckshank gave evidence that on his return from Cuba in 2015,[16] he had entered a bank where his former partner happened to be working, unbeknownst to him. He noticed her name on a board and enquired whether she was working there. Once he was told that she did work there, he left immediately, he said. He presented the offence to me as an unfortunate coincidence.
[16] He returned in 2014 according to the movement records: Ex R1, 108.
I do not accept this explanation, and I note that Mr Cruckshank was convicted of breaching the order in question. Importantly, Mr Cruckshank must have appreciated at that point, if not earlier, that breaching a family violence intervention order was a serious matter under Australian law that could lead to a criminal charge before the Courts. He was convicted on that occasion and fined an aggregate of $600. The fact that a fine was imposed would suggest that the contravention was not judged to be particularly serious, but the conviction and fine were nevertheless a clear indication to Mr Cruckshank of his legal obligation to obey such orders.
In 2017, Mr Cruckshank was convicted of stalking/intimidating with intention to cause fear or physical harm in relation to a domestic partner. He received an 18-month bond on this occasion for that offence. On the same day, he was also convicted of a Commonwealth offence of using a carriage service to menace, harass or offend a person but he was released without sentence on entering a recognisance of $500 to be of good behaviour for 18 months. Again, Mr Cruckshank had chosen at this point to breach Australian law by, in effect, harassing a former partner. I note that in 2017, Mr Cruckshank was a mature adult, who was some 38 years of age.
On 2 March 2021, Mr Cruckshank was convicted of a number of offences in the Parramatta Local Court. These offences are serious and involve Mr Cruckshank’s ex-partner, Ms T. In relation to these offences, I had before me the New South Wales Police Facts Sheet and the Court’s brief sentencing remarks.[17] The Facts Sheet refers to a number of offences and each is given a so-called ‘sequence’ number.[18] Mr Cruckshank pleaded guilty to five offences as follow:
·Sequence 1: Contravening a prohibition or restriction in an AVO (domestic);
·Sequence 4: Contravening a prohibition or restriction in an AVO (domestic);
·Sequence 6: Contravening a prohibition or restriction in an AVO (domestic);
·Sequence 8: Contravening a prohibition or restriction in an AVO (domestic);
·Sequence 11: Using a carriage service to menace/harass/offend.
[17] Ex R1, 53ff.
[18] Ex R1, 53.
The Facts Sheet details the offending in relation to each of these sequences. As Mr Cruckshank pleaded guilty to these sequences, it is reasonable to proceed on the basis that the facts alleged in the Facts Sheet was adopted in the main by the Court for sentencing purposes. I rely on the Facts Sheet in this regard.
Mr Cruckshank disputed the following sequences, but was found guilty after a trial:
·Sequence 5: stalk/intimidate, intend fear (domestic);
·Sequence 7: assault occasioning actual bodily harm.
The Facts Sheet gives a version of Sequence 7, but as it comprised a disputed charge that went to trial, it seems to me to be more appropriate not to have regard to the Facts Sheet, but to have regard to the sentencing remarks alone, in discerning what was actually found proved by the Court. The Court’s sentencing remarks record Mr Cruckshank intimidated Ms T at a park, and then assaulted her at his home including by biting her, bruising her, sitting on her, and repeatedly slapping her.[19]
[19] Ex R1, 63.
I note the sentencing remarks record that four other charges were dismissed, and I have ignored these alleged offences.
The Court’s remarks set out the individual sentences the Court would have imposed: 12 months in relation to sequence 7, and 3 months in relation to each of sequences 1, 4, 5, 6, and 8. An aggregate sentence of 15 months was imposed in the event. This sentence was directed to be served by way of an intensive corrections order (with a home detention condition for a period of 10 months secured by electronic monitoring).
Mr Cruckshank was directed to complete the ‘Engage’ domestic-violence program, and I accept his statement in his Personal Circumstances Form that he has done so.[20] He was also directed to obtain a mental health care plan under the supervision of community corrections.
[20] Ex R1, 80.
A two-year community correction order with supervision and a fine of $1,000 were also imposed in respect of his sending a sexually explicit video to a former partner of Ms T, with whom she was then residing. It comprised a recording of an act of intercourse between Mr Cruckshank and Ms T, and it was accompanied by an offensive message. His subsequent attendance at Ms T’s premises (which was noted to be non-violent) received a two-year community correction order with supervision and a fine of $1,000.
I note that on 17 June 2022, Mr Cruckshank was sentenced again for contravening a prohibition or restriction in an AVO. He had been taken into custody in respect of this offending in March 2022, it would appear. He was sentenced to three months’ imprisonment on that occasion. From his criminal record, Mr Cruckshank appears to have been released on the day of sentencing, having spent three months in jail. It would also appear that this episode involved a further attendance at Ms T’s premises with an argument but no physical violence.[21]
[21] Ex R7, 45.
I note that there are a number of pending charges against Mr Cruckshank listed in his criminal record.[22] I have not formed a view that Mr Cruckshank is guilty of these offences. That would be improper. The fact that charges have been brought by a responsible authority in the circumstances of this case has meant that I cannot form a positive conclusion in his favour that he has been of good behaviour. Having said that, I do not hold the charges against him, and I do not proceed on the basis that he has been of bad conduct since the last offending. They are simply charges as of my decision on 7 June 2024, not proven offences. I do not accept Ms Jones-Bolla’s submission that I should rely on them as further evidence of misconduct. As I say, the fact that there are charges prevents me in the circumstances of this case from forming a positive conclusion that he has been of good conduct, but it has not caused me to form any negative view of his subsequent conduct.
REASONS
[22] R1, 42.
Considerations arising under the Direction
I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
Applying the Direction
I now turn to apply the Direction. The first primary consideration I must apply is the protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this regard, I am directed to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, it will not cause or threaten harm to individuals or the Australian community. I bear this principle steadily in mind.
I must have regard to the nature and seriousness of the non-citizen’s conduct to date, and to the risk to the Australian community should he or she commit further offences or engage in other serious conduct. In considering the first of these matters (namely, the nature and seriousness of Mr Cruckshank’s criminal offending and other conduct to date), I must have regard to matters appearing in paragraphs (a) to (h) of paragraph 8.1.1(1).
Mr Cruckshank has been found guilty of an assault against Ms T. This comprised violent acts against a woman and also constituted acts of ‘family violence’, as defined. (Ms T was a former partner and, therefore, a ‘member’ of Mr Cruckshank’s family as defined in paragraph 4(1) of the Direction.) In my opinion, the violence inflicted on Ms T was very serious. It consisted of a number of physically violent acts as described, albeit briefly, in the sentencing remarks.
I regard the offending in this regard as very serious.
I note also that the criminal record discloses repeated breaches of AVOs. This is a very serious matter as well in my opinion. An AVO is issued in order to protect members of the community. These community members are frequently women, who are generally more vulnerable to assault from male partners and ex-partners. An AVO is a well-recognised method by which our legal system seeks to afford protection to community members from interactions with others whom they have reason to fear.
Once an AVO is issued, it must be obeyed whatever the recipient of that order may think about the fairness of the order. A person who breaches an AVO frequently shows a defiance towards Australian law. That was the case here in my opinion. Mr Cruckshank knew that not obeying an AVO was a breach of the criminal law and that he could be prosecuted for such an offence. Indeed, he was prosecuted in 2015 in relation to an offence of this type. He was 36 years of age in 2015 and, therefore, a mature adult. Subsequent breaches of AVOs represent choices he has made to have unlawful contact with protected persons contrary to Australian law and despite the risk of prosecution.
The drafting of paragraph 8.1.1(1)(c) appears to imply that I am not to diminish the seriousness of violent crimes against women and acts of family violence by reference to any sentence, but the sentence imposed was 15 months long, which is a significant sentence in any event. I accept that Mr Cruckshank was found a suitable candidate for serving his sentence by way of an intensive corrections order.
So far as the physical violence against Ms T is concerned, it is the only instance of direct physical violence against a partner in Mr Cruckshank’s record, and I weigh that in his favour. There have been, however, a number of occasions when Mr Cruckshank has breached AVOs, and this represents in my opinion a serious and ongoing trend. In particular, there were two contraventions of AVOs after the physical assault on Ms T. The first occurred four months later. The second occurred the following year. The second of these also occurred after the 15-month sentence had been imposed in the Parramatta Local Court and during that 15-month period. It is a very serious matter, in my opinion, that Mr Cruckshank re-approached his victim, Ms T, during this time.
I am also concerned by the fact that Mr Cruckshank was warned by letter dated 21 July 2021 of the fact that consideration was being given to cancelling his visa.[23] That did not prevent Mr Cruckshank from re-approaching Ms T in March 2022 in breach of his legal obligation to observe the AVO.
[23] Ex R1, 65.
I must also have regard to the risk to the Australian community should Mr Cruckshank commit further offences. I must have regard to two matters in this regard ‘cumulatively’ under paragraph 8.1.2(2) of the Direction. The first is the nature of the harm to individuals or the Australian community should Mr Cruckshank engage in further criminal conduct, and the second is the likelihood of his so doing.
The consequences of a physical assault can be serious, and they include both physical and psychological harm. It is self-evident that a repetition of the physical assault upon Ms T could have very serious consequences for her. I note that a number of acts were found to have occurred, including repeated slapping, sitting on her, and biting. The physical effects of such violence can be very serious. There is a risk of psychological injury as well. Moreover, breaches of AVOs, particularly repeated breaches, can result in intimidation of victims even when there is no actual physical assault. A protected person is entitled to feel secure under an AVO. When an AVO is breached, there is usually a reasonable apprehension of danger, and this can engender feelings of insecurity and sometimes psychological harm as well.
I must have regard to the likelihood of Mr Cruckshank reoffending. In Mr Cruckshank’s case, I regard the risk as real, and not low. First, it is quite clear on Mr Cruckshank’s evidence, that he has approached Ms T in order to gain access to his son, D. Ms T gave evidence that there has been no negotiated settlement through the Family Court to regulate that matter. Mr Cruckshank has shown himself willing to resort to intimidation, violence, and unwanted attendances at Ms T’s premises in order to force the access he wants.
Secondly, as noted, there was a further breach of an AVO that occurred while Mr Cruckshank was serving an intensive corrections order in the community and after he had been formally warned that his visa was under review. Mr Cruckshank gave evidence that he now understands that he must not approach a former partner under Australian law; but I do not believe that he lacked any understanding of his legal obligations when he offended. Moreover, having heard Ms T’s evidence and that of Mr Cruckshank, I am clear that access to D would most likely remain an ongoing source of dispute between them if Mr Cruckshank were to return to the community.
Mr Cruckshank was not remorseful before me in respect of the physical assault upon Ms T. He actively denied the assault on Ms T before me, and I am unable, therefore, to attribute genuine regret to him in this regard.
There is a suggestion that Mr Cruckshank has unresolved grief issues in respect of Eduardo’s death. I note that there is a specific reference in his criminal record to an obligation that he attend ongoing counselling to address issues around unresolved grief.[24] Mr Cruckshank refers to this factor in his Personal Circumstances Form.[25] I am prepared to accept that these issues may well have affected him, even though the offending against Ms T occurred some years after Eduardo’s death. There is no firm evidence before me, however, to suggest that these grief issues have been adequately addressed and are now resolved; and, in any event, I do not accept these issues explain fully or even substantially the violence that was inflicted upon Ms T on that day or the breaches of AVOs.
[24] Ex R1, 42. (entries alongside date of 17 June 2022).
[25] EX R1, 80.
In assessing future risk, I have taken into account that both the experience of jail and of immigration detention (as a precursor to deportation) must have made a significant impression on Mr Cruckshank. They could hardly do otherwise. They do offer a strong deterrent for the future, and I weigh that in my risk assessment.
Nevertheless, all in all, I regard the risk of reoffending as real, and not low, in respect of future breaches of any AVOs that are in place, and I also think that there is a real, and not low, risk that Mr Cruckshank will commit a further assault upon Ms T if she refuses access to their son as and when demanded by Mr Cruckshank.
Paragraph 8.2 requires me to have regard to family violence committed by Mr Cruckshank. Paragraph 8.2(1) records that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. These concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen. I am instructed by subparagraph (3) to have regard to a number of factors in assessing the seriousness of the conduct. There have been a number of breaches of AVOs, and where these have caused fearfulness in Ms T, they represent a form of ‘family violence’, as defined. Clearly, the most serious instance of family violence is that involving the physical assault upon Ms T. This has occurred on one occasion only on the evidence before me, although the assault comprised a number of violent acts. Mr Cruckshank has not accepted responsibility for the family violence. He denied the physical assaults before me; and he has not demonstrated any understanding of the impact of his behaviour on Ms T. I regard the family violence in this case as a serious instance of violence.
I must have regard to the strength, nature, and duration of ties to Australia. Mr Cruckshank denied that Ms T was a present family member, and gave evidence, that I accept, that he is in a new relationship with Ms Thompson. Although Ms T, for her part, wishes to resume a relationship with Mr Cruckshank, it is clear he does not want that.
Mr Cruckshank has two biological children in Australia. The older, Krystal, gave evidence before the Tribunal, and has also provided statements.[26] She is presently homeless, having become estranged recently from her biological mother and stepfather. She wishes to establish contact with Mr Cruckshank one-on-one because she has never had contact with her biological father before and she currently lacks family supports and connections. I well understand her desire to engage with Mr Cruckshank meaningfully one-on-one rather than see him deported to Cuba, where she will be most unlikely to see him again. Krystal gave evidence concerning her own poor mental health at the present time, and I accept that it would be substantially in her interests for Mr Cruckshank to remain in Australia. She indicated that she is aware of his criminal offending, but that she wishes to reserve her judgment about his character, which is an understandable stance in the circumstances. I believe it is in her interests that Mr Cruckshank remain in Australia. She has clearly suffered in the past, and it will be a special personal burden for her to know that her biological father is not available to her just at the point when she has been able to make contact with him.
[26] Ex A3
It is also in D’s interests to have contact with Mr Cruckshank. D is young (born in 2019), and in my view it is in his interests that he has access to his biological father over the course of his childhood and adolescence. I am clear that contact with both biological parents is in the interests of a child absent circumstances making that contact inadvisable. I weigh that in Mr Cruckshank’s favour, although there is no doubt that lawful access to ‘D’ is not yet an agreed and regulated matter between the parents.
Mr Cruckshank presented evidence that he is presently in a romantic relationship with Ms Thompson, and that was supported by her evidence to me. That relationship is not of long standing but it is nevertheless one that I weigh in Mr Cruckshank’s favour.
Mr Cruckshank has made a contribution to the wider community, particularly in terms of his participation in the local Cuban community and with those who are interested in Cuban culture and dance. There is a reference, for example, from Ms Rosemary Parlour in respect of that contribution,[27] and it would appear that Mr Cruckshank met Ms Thompson through that same community activity. I give him credit for that contribution. He has also contributed to the community through his past employment, to which I have earlier referred.[28] I accept that from 2019 onwards, he has not worked on the recommendation of his doctor due to a neck injury.[29] This injury has not apparently prevented him from being involved in daily activities, including dance, however. There are friends and acquaintances who have provided references, and I have weighed these as well in his favour.[30] Mr Cruckshank maintained in his Personal Circumstances Form that he was involved in social events, volunteering, and some charity work as well as cultural activities, and I give him credit for that.[31]
[27] Ex R1, 96.
[28] See above at [20].
[29] Ex R1, 102.
[30] Ex R1, 93-97.
[31] Ex R1, 82.
In particular, I must also weigh in Mr Cruckshank’s favour the very lengthy time he has spent in Australia. It is true, as the respondent points out, that he arrived here as a young adult, and not a child, but he has spent more than two decades here now, and Australia has clearly become his home. It is a very serious matter, in my opinion, to deport someone who has spent over 20 years in Australia, and who has two biological children of his own here. That is a matter that weighs very substantially in his favour.
So far as minor children in Australia are concerned, I am required to consider the interests of the five persons nominated by Mr Cruckshank.[32] Krystal, his biological daughter, is 17 and whilst I must weigh her interests as a minor, I am directed to have regard to the length of time until a child turns 18 (in this case, some 10 months).[33] I accept that the relationship has been non-existent for many years; but there are special circumstances here, as I have mentioned, that make the development of that relationship important from Krystal’s perspective. I weigh this substantially in Mr Cruckshank’s favour.
[32] Ex R1, 75.
[33] Paragraph 8.4(4)(b) of the Direction.
D is only four years of age approximately, and his interests weigh substantially in favour of Mr Cruckshank remaining in Australia provided there can be an orderly, non-threatening interaction between Mr Cruckshank and Ms T (although I am not persuaded at the present time that such an interaction would be likely to eventuate in the near future).
Mr Cruckshank has nominated Ms T’s three biological children from her former partner as children where he has a connection.[34] But I note that Mr Cruckshank was clear that the relationship with Ms T is over. These children do have their own father. I accept that Mr Cruckshank may mean something to these children, but inevitably his contact with them will be limited unless there is a resumption of contact between Mr Cruckshank and Ms T. It is also the case that Mr Cruckshank’s principal interest lies in developing a relationship with D, although that does not exclude a relationship with the other three children. But I give the interests of these other three children much less weight than I do to D’s.
[34] Ex R1, 75.
All in all, this consideration does count substantially in Mr Cruckshank’s favour.
I am required to have regard to the expectations of the Australian community in accordance with paragraph 8.5. Paragraph 8.5 (1) makes it clear that where a non-citizen has engaged in serious conduct in breach of this expectation, as a norm ‒ although not as an inflexible rule ‒ the Government is expected by the Australian community not to allow the person to remain in Australia. That is a statement that weighs, self-evidently, against Mr Cruckshank. Subparagraph (2) goes on to state that the nature of character concerns or offences may be such that the Australian community would expect that the person not continue to hold a visa in Australia. In particular, acts of family violence and the commission of serious crimes against women are listed as instances of crimes giving rise to serious character concerns. That consideration applies here.
Subparagraph (3) requires me to apply the expectations whether or not a non-citizen poses a measurable risk of causing physical harm to the Australian community. I am to proceed, moreover, on the basis of the expectations as outlined in paragraph 8.5 without independently assessing them in a particular case: see subparagraph (4).
All in all, this consideration counts substantially against Mr Cruckshank.
I must regard have regard to so-called ‘other’ considerations: section 9. The legal consequence of my decision will be the removal of Mr Cruckshank to Cuba. Mr Cruckshank submitted that he faced possible threats to his life on return to Cuba.[35] These give rise to a claim that he is owed non-refoulement obligations. These submissions were initially contradicted by Mr Cruckshank’s initial opening statement to me at the hearing where he expressed the view that he felt safer in Cuba than he does in Australia (on account of what he called police discrimination against him in Australia), and he suggested, in fact, that he did not have any concerns about returning to Cuba.
[35] Ex R1, 83 and 85.
He later retracted and modified that submission by expressing his clear preference for remaining in Australia. Mr Cruckshank maintained that he did, in fact, fear returning to Cuba because he would be put on what he called a ‘regulated list’ as I understood his evidence. In his Personal Circumstances Form, he indicates that there was a massive protest in Cuba on 11 July 2021, whereupon the Government launched a persecution of all those opposed to the Communist dictatorship. Mr Cruckshank maintains this persecution is ongoing.[36] Mr Cruckshank submitted that the State has now begun to ‘eliminate all opposition to the regime’. He said his ‘life and the safety of his family here in Australia are in danger’ and the regime ‘could easily destroy our lives’.[37]
[36] Ex R1, 83.
[37] Ibid.
I note, however, that Mr Cruckshank has spent time back in Cuba including in the years from 2012 to 2014, and so I do not accept that he had fears for his safety up to and including the year of his last presence there (i.e., 2014). Moreover, as noted, Mr Cruckshank asserts in his Personal Circumstances Form that the ongoing persecution followed protests in Cuba in 2021. But he has not been in the country for some years, and it is not reasonable to suppose that he would be suspected of having instigated or participated in events in Cuba in 2021. I do not believe that he has genuine and reasonably based fears in respect of returning there. All in all, I remain quite unpersuaded by Mr Cruckshank’s statements that he will likely face violence if he returns to Cuba and I remain unpersuaded that he or his family face threats here in Australia. That latter observation seemed to be to be a great exaggeration. Were he to return to Cuba, Mr Cruckshank would simply be a citizen arriving back home after many years, and he has intermittently returned and lived there in the past.
I do not believe it is plausible to suppose, given his long absence from Cuba, that he will be associated in the mind of the Government with any recent political activism there. I do not believe any connection has been established on the evidence before me between Eduardo’s death in 2017 and any present day threat to Mr Cruckshank on his return to Cuba in 2024. As I say, Mr Cruckshank chose to return to live in Cuba between 2012 and 2014, and his presence there at that time did not cause him trouble with the authorities. There is no evidence before me of activities engaged in by Mr Cruckshank post-2014 that would lead me to suppose that he would be exposed to threats if he returned to Cuba now. In all the circumstances, I am not satisfied that he would face impediments of this type on his return.
I certainly accept that Cuba is an authoritarian one-party Communist state, and that normal political freedoms we take for granted do not exist there. Authoritarian regimes can be arbitrary, cruel, and they operate unaccountably in defiance of basic human rights, as a general proposition . But I do not find that Cuba is a place of potential danger for Mr Cruckshank as he has suggested.
I note further that Mr Cruckshank’s claim for protection can be assessed fully through the protection-visa application procedures should Mr Cruckshank wish to make that claim: see paragraph 9.1.2(2). A decision to affirm the decision under review does not preclude him from making an application for a protection visa.
But to make matters clear, I also do note that the Direction requires me to assess the impediments Mr Cruckshank would face on return,[38] and I acknowledge that these are said by him to include the risk of serious Government persecution. I may not leave consideration of this alleged impediment to the forum where any claim for a protection visa is adjudicated, but must address and evaluate it as part of my decision. Nevertheless, for the reasons given, I am not persuaded that this particular impediment would arise for him on return to Cuba.
[38] By paragraph 9(1)(b) of the Direction.
I do accept that Mr Cruckshank would face a substantially lower standard of living there, however. Cuba is a poor country. I note that I am directed to assess this factor in the context of the standard of living that generally applies to others in his position.[39] He is certainly familiar with the country, its language, and customs, and has a qualification gained in that country.
[39] Paragraph 9.2 of the Direction.
Whilst all that is true, I do weigh in Mr Cruckshank’s favour that he may well be unlikely to receive the surgery that has been recommended to him by his doctor in 2019 for his unstable cervical spine. Mr Cruckshank said that he has been prevented by the intensive corrections order from pursuing surgery, and that may well be true for the period from 2021 onwards, but there was a period of time before then (from 2019 onwards), when Mr Cruckshank did not arrange to undergo surgery. I note that whilst he has not been able to work, he has continued to participate in life in the community, including participation in Cuban dance, and I do not accept therefore that the surgery is urgent. Having said that, I do acknowledge that Mr Cruckshank has had surgery recommended to him, and that his future job prospects are potentially far more limited in Cuba unless and until he receives that surgery. This is a factor that serves to distinguish his situation from that of other Cubans. I weigh that factor in his favour.
I must consider the impact of my decision on victims.[40] Ms T, who has been a victim, gave evidence. She also wrote two statements.[41] She clearly wishes Mr Cruckshank to remain in Australia. She wishes, in fact, to resume a relationship with him, although he was clear in his evidence to me that he did not wish that to occur. In answer to my question as to why she wishes to resume a relationship with a man who has assaulted her so severely, Ms T answered that the relationship had been initially loving, fun, and also very sexually satisfying. I accept that is her perspective, and that she will feel a high degree of genuine remorse and loss if he is deported. I take that into account in Mr Cruckshank’s favour.
[40] Paragraph 9.3 of the Direction.
[41] Ex A2, and EX R1, 86-87.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations. My legal responsibility is to face squarely the consequences of Mr Cruckshank’s deportation, both for him and for others. He has lived in Australia since 2003, more than 20 years ago. He has two children in Australia, and there will be a significant loss both to him and to his children if he is deported. D is young and will be deprived of contact with his biological father over the course of his life. The older child, Krystal, who is almost an adult, is presently in a vulnerable situation, will feel ‘robbed’, so to speak, of the opportunity to develop a proper relationship with her father. The removal of Mr Cruckshank from Australia will have particular impacts on his biological children. There can be no doubt about that, and as I have said in other cases, children are often the victims of the dysfunction brought about by the poor choices of one or other parent. I must weigh their interests carefully; and as troubled as Mr Cruckshank’s relationship with his past partners has been, it is nevertheless the case that a decision by me to affirm the decision under review will fracture those relationships permanently. I mention also the financial support, albeit limited, Mr Cruckshank could make to the ongoing maintenance of his two children were he to remain in Australia.
Mr Cruckshank does have a non-urgent medical condition that would benefit from surgery. This has limited his employment prospects to date, and I accept that if Mr Cruckshank returns to Cuba, he may well be unable to secure appropriate medical care permitting him to undergo and recover from complicated surgery appropriately. There is also a nascent relationship with Ms Thompson, but I attach less weight to this in the circumstances as Mr Cruckshank and Ms Thompson have only met relatively recently.
I must weigh carefully, however, the serious family violence of which Mr Cruckshank has been found guilty. Moreover, he has breached AVOs frequently, including after having received a letter from the federal Government warning him that his visa status was being reviewed and while he was serving a sentence in the community through an intensive corrections order.
The Direction places considerable emphasis on the protection of the community. This includes Ms T. She wishes to resume a relationship with Mr Cruckshank as I say; but as genuine as that wish is, I am firmly of the view that it is a misplaced one. Mr Cruckshank has shown himself to be extremely violent to her and has shown himself willing to breach AVOs that are designed to protect her and safeguard her security in the community. I regarded her evidence of a resumption of a relationship as somewhat wishful and naïve, I must say. Mr Cruckshank has shown himself to be interested in contact with D on his terms, and I accept Ms T’s evidence that the Family Court’s mediation processes have not led to a negotiated outcome. She does not seem to appreciate the risk he poses to her in circumstances where, on his own evidence, he no longer wishes to have a relationship with her, but still actively desires contact with his son. I do believe he remains a risk to her. The Direction is clear in the strong weight I should attach to family violence against women and the expectations of the Australian community in this regard clearly do weigh strongly against Mr Cruckshank.
Moreover, this is not a case where I am persuaded that there is only a low risk of reoffending: I have assessed the risk as real for the reasons given earlier in these reasons.
I do not accept that Mr Cruckshank’s strong desire to see D justified any of his behaviour: it clearly did not. Mr Cruckshank was estranged from his former partner and he found himself, as many do, in the position of having to co-operate with an ex-partner to establish contact with a biological child, failing which orders had to be obtained from the Family Court, if possible. That is what must occur in a well-ordered society like Australia’s, and resort to violence and defiance of AVOs are repugnant to a safe and secure community.
All in all, I have weighed the considerations I have identified carefully, and I have found that on balance, the preferable decision is to exercise the discretion under section 501(2) of the Act to cancel Mr Cruckshank’s visa. This is no easy decision to reach given the very lengthy amount of time Mr Cruckshank has lived here and the inevitable fracturing of ties that will follow deportation. This fracturing of ties will impact severely both Mr Cruckshank and his family members, but I have concluded that cancelling Mr Cruckshank’s visa is the preferable decision on the evidence before me.
FORMAL DECISION
The Tribunal affirms the decision under review.
I certify that the preceding eighty-eight (88)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]………………………..
AssociateDated: 17 June 2024
Date of hearing: 27, 28, 29 May; 6, 7 June 2024
Advocate for the Applicant: Self-Represented
Advocate for the Respondent: Daphne Jones-Bolla
Sparke Helmore
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