CSYS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4425
•23 December 2022
CSYS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4425 (23 December 2022)
Division: General Division
File Number(s): 2021/2330
Re: CSYS
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:23 December 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister, dated 14 April 2021, not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s visa is revoked.
............................[SGD]........................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) – Direction No. 90 – violence against women – domestic violence – intentionally choke – protection of the Australian community – expectations of the Australian community – links to the Australian community – impediments to relocation – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) s 5G, 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
DQDW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3657
Long and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2313
NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39Oldbury and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 807
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
S. Edwards and H. Douglas, ‘The Criminalisation of a Dangerous Form of Coercive Control: Non-Fatal Strangulation in England and Wales and Australia’ (2021) Journal of International and Comparative Law 87.
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
23 December 2022
INTRODUCTION
Mr CSYS (the Applicant) is a 39-year-old citizen of China. In 2005, he arrived in Australia as a 22-year-old postgraduate student,[1] enrolling in a postgraduate degree at a tertiary institution in Sydney. He graduated in 2007.
[1] G4/33.
In 2011, he met his future wife, and they married in April 2012.[2] After returning to China to care for an ill family member, they returned to Australia. Their first child (OPH) was born in 2013,[3] and their second child (OLH) was born in 2016.[4] The children are now six and nine years old. They are Australian citizens by birth.
[2] G25/124.
[3] G13/68; G25/125; G40, 301.
[4] G13/68; G25/125.
Their marital relationship ended in April 2018. He resided in the same house until 7 April 2019, when he was arrested for assaulting his estranged wife. He continued to spend time with his children until 9 March 2020, when he was arrested and taken into custody.[5] He was charged with intentionally choking a person without consent (DV). On 24 August 2020, he was sentenced to a term of 2 years imprisonment, with a non-parole period of 8 months. On appeal, the head sentence was reduced to 15 months with a non-parole period of 8 months. He was also convicted on 2 counts of contravening an AVO (domestic).[6]
[5] G7, 41, 46; G12; G39, pp.229-231; G40, 302..
[6] G3; G7; G39, pp.280-281.
He has had no physical contact with his children since 9 March 2020, due to his incarceration.
MANDATORY VISA CANCELLATION
A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ by reason of paragraph 501(7)(c) of the Migration Act 1958 (Cth) (‘the Act’) and therefore fails the character test by reason of paragraph 501(6)(a).
On 11 September 2020, a delegate of the Minister cancelled his Class BB Subclass 155 Five Year Resident Return visa (‘visa’) as required by subsection 501(3A).[7] On 9 October 2020, he applied to the Minister, in accordance with an invitation to do so, to consider whether to revoke the decision to cancel his visa.[8]
[7] G11.
[8] G13
On 8 November 2020, he was transferred to the Villawood Immigration Detention Centre (VIDC), where he has resided for the past two years.[9]
[9] G6, 36; also IHMS Records, 12.
On 14 April 2021, a delegate of the Minister declined to revoke the cancellation of his visa.[10] On 15 April 2021, the Applicant applied to this Tribunal for review of the decision not to revoke the cancellation of his visa.[11] On 7 July 2021, the Tribunal affirmed the decision of 14 April 2021.[12]
[10] G2/4
[11] G1.
[12] G53.
On 21 February 2022, the Federal Court of Australia quashed the Tribunal’s decision of 7 July 2021, and remitted the matter to the Tribunal by consent of the parties.
The matter was heard by a reconstituted Tribunal on 1 and 2 December 2022. The solicitor who represented the Respondent in the first proceeding, Mr J. Watts, appeared again for the Respondent. The Applicant was represented by the principal solicitor of Kinslor Prince Lawyers, Mr D. Prince.
On 1 December 2022, the hearing commenced by videoconference. After experiencing some technical difficulties, the mode of hearing was altered to ‘in-person’ for the second hearing day, with Mr Watts appearing by videoconference from Brisbane.
The Applicant called Mr Tim Watson-Munro, an experienced consultant psychologist, and two lay witnesses: Mr CZH, and Ms SDA. The Tribunal was also assisted by the participation of a Mandarin interpreter.
On 9 December 2022, the Tribunal made a decision to set the decision under review aside, as a result of which his visa is not cancelled. The Tribunal decided in addition, that the identity of the Applicant should be anonymised in order to protect the identity of his minor children.
I now provide the following written reasons.
FINDING ON THE CHARACTER TEST
The Applicant’s visa was cancelled by a delegate of the Minister on 11 September 2020,[13] as a result of his conviction on 24 August 2020, which attracted a head sentence of 2 years, with an 8 month non-parole period. The head sentence was later reduced to 15 months.
[13] G11.
The Applicant does not dispute that he was, at the time of visa cancellation, serving a sentence of more than 12 months imprisonment, on a full-time basis, in the Bathurst Correctional Centre, and that he fails the character test.
I am satisfied that he fails the character test.
THE SOLE ISSUE
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.In determining whether the Tribunal can be satisfied that ‘there is another reason why the original decision should be revoked’, pursuant to s 501CA(4)(b)(ii) of the Act, the Tribunal must consider the legal consequences of the decision.[14] Having regard to sections 189, 196, and 198 of the Act, the legal consequence of not revoking the cancellation of the applicant’s visa is that he is liable to be removed to China, with ongoing detention until that removal occurs.
[14] DLJ18 v Minister for Home Affairs [2018] FCA 1650 at [5] (Flick J) and [28] (Bromberg J).
At the Tribunal’s request, the Applicant’s solicitor provided a Note setting out the circumstances under which a visa-cancelled person may reapply to enter Australia. The Note supports the proposition that for all practical purposes a person whose visa is cancelled on character grounds is permanently excluded from Australia, subject to the remote possibility that the Minister may exercise personal powers to grant a visa.
I turn to consider whether there is ‘another reason’ why the original decision to cancel his visa should be revoked.
The Discretion Under Subsection 501CA(4)
In exercising the discretion under subsection 501CA(4), on the basis of paragraph 4(b)(ii), the Tribunal is required by subsection 499(2A) to comply with Direction No. 90 (the Direction).[15]
[15] Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
Part 1 of the Direction sets out the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(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 measureable 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 noncitizens 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 noncitizens 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 measureable risk of causing physical harm to the Australian community. (emphasis added)
Part 2 of the Direction is entitled Exercising the Discretion. There are four primary considerations (paragraph 8), and four ‘other’ considerations (paragraph 9) that must be considered ‘where relevant to the decision’. Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, ‘other considerations’ include (but are not limited to) the extent of impediments if removed, the impact on victims, and links to the Australian community.
The Direction also contains principles and rules relating to the weighing of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that a non-primary consideration may be decisive in some circumstances.[16]
Primary Considerations
[16] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Protection of the Australian community: PC1
Paragraph 8.1(1) states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community
Paragraph 8.1(2) provides that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct to date: paragraph 8.1(2)(a)
The Applicant’s criminal history is recorded in a report prepared by the Australian Criminal Intelligence Commission.[17]
[17] G3/29.
On 1 January 2015, he committed a traffic offence of mid-range drink driving. On 7 May 2015, he was fined $400 and disqualified from driving for 6 months.[18]
[18] G3; G31; G39, pp.236 and 280.
On 7 April 2019, he committed a common assault on his wife.[19] On 12 September 2019, he was convicted and sentenced to a conditional release order for 12 months. The Court made an AVO prohibiting the applicant from, among other things, going to his wife’s home or work addresses.[20]
[19] G39/235-236.
[20] G3; G39/232-233.
On 24 November 2019, he contravened the AVO. On 25 November 2019, he was sentenced to a 16-month community correction order.[21] He received a community corrections order for the assault committed on 7 April 2019.[22]
[21] G3; G8; G39/232-234; G40, 301.
[22] G7; G39, pp.280- 281
As noted above, on 9 March 2020, during the course of a struggle with his wife, he placed his hands over her mouth and nose. Later, the couple left to collect their daughter from school and his wife escaped into a neighbour’s garage. The police were called and he was arrested and taken into custody.[23] He was charged with intentionally choking a person without consent (DV). On 24 August 2020, he was sentenced to a term of 2 years imprisonment, with a non-parole period of 8 months. He also convicted on 2 counts of contravening an AVO (domestic).[24]
[23] G7, 41, 46; G12; G39, pp.229-231; G40, 302..
[24] G3; G7; G39, pp.280-281.
His sentence for intentional choking was reduced on appeal to 15 months with a non-parole period of 8 months, ending on 8 November 2020.[25] The head sentence expired on 8 June 2021.
[25] On 14 December 2020: see G9.
On 8 November 2020, he was discharged from prison and transferred to Villawood Immigration Detention Centre (VIDC).[26]
[26] G6, 36; also IHMS Records, 12.
Assessing the mature and seriousness of his criminal record: paragraph 8.1.1(1)
Paragraph 8.1.1 of the Direction outlines certain factors a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending.
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) …(omitted)
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) (omitted)
Crimes of a violent nature against women are viewed very seriously by the Australian Government and the Australian community. There is no doubt that the Applicant’s offending on 9 March 2020 falls into this category. This assault also constituted an act of family violence, and is therefore, on that account alone also to be considered as very serious. To this may also be added the domestic assault committed on 7 April 2019.
Under the Direction, these offences are to be regarded very seriously, regardless of the sentence imposed. However, I note the adjusted sentence of 15 months imprisonment imposed in respect of the aggravated assault.
I also note the issues relating to the frequency or the non-citizen's offending and whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending. My assessment is that the offending is too sparse to support a finding of a trend of increasing seriousness. In essence the record shows two assaults, and three AVO contraventions, and while the second assault is objectively more serious than the first, it is hard to discern a trend based upon so few incidents.
The assessment of risk
Under paragraph 8.1.2(1) the Tribunal is required to consider 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.
Under paragraph 8.1.2(2), in assessing the risk that may be posed by the applicant to the Australian community, the Tribunal must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
The sentence imposed for the choking offence reflected the inherent dangerousness and seriousness of such conduct. Unfortunately, the transcript of the sentencing remarks in the District Court (in reducing the head sentence from 24 to 15 months) is not before the Tribunal.
The Tribunal has taken account of the harm that would arise should the Applicant engage in any further action of a similar kind,
Paragraph 8.1.2(2)(b): The likelihood of the applicant engaging in further offending.
I am required to consider 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 noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal was provided with a number of reports bearing on this issue, including the following:
a)Sentencing Assessment Report of Ms Tara Schmidt, Community Corrections Officer, Windsor Community Corrections Office, dated 21 August 2020;
b)Intensive Correction Order – Breach Report, dated 25 November 2019;
c)Update Breach Report, dated 31 August 2020;
d)Report of Mr Anthony Pignataro, Consultant Clinical Psychologist, dated 16 June 2021;
e)Report of Mr Tim Watson-Munro, Consultant Clinical Psychologist, dated 5 September 2022, including addendum, dated 22 September 2022.
Mr Watson-Munro was called to give evidence before the Tribunal. It would be fair to describe him as one of the country’s leading forensic psychologists, with a distinguished career spanning some four decades.[27]
[27] Applicant’s Bundle of Evidence, pp 76 et seq.
In his main report, he sets out an extensive history relating to the Applicant’s background and relationships.
Up until his involvement with the criminal justice system, commencing in 2015 with a drink-drive conviction, his life in Australia was characterised by a solid work ethic, a commitment to his family and high aspirations of remaining here as a contributing member of the Australian community. It is further apparent that in the context of issues within the marriage, escalating depression, anxiety and low self-esteem and the alleged infidelity of his former wife, that Mr [CSYS] struggled at an emotional level from about 2019 until his incarceration in March 2020.
It is clear that he continues to suffer a spectrum of psychological symptoms, which essentially now relate to a lack of physical contact with his children, in addition to his confinement in detention and the uncertain future he faces referable to his possible deportation.[28]
[28] Applicant’s Bundle of Evidence, 65.
Mr Watson-Munro’s findings were as follows:
1. Mr [CSYS] presents as a co-operative though depressed and anxious man, who is currently before the Administrative Appeals Tribunal (AAT), subsequent to the Department of Home Affairs mandatorily cancelling his subclass 155 Resident Return visa on “character grounds” under section 501(3A) of the Migration Act 1958 on 11 September 2020, ahead of his anticipated release from prison on parole on 8 November 2020. I further note that on 14 April 2021, an officer of the Department decided not to revoke the cancellation of Mr [CSYS]’s visa. The background history in this case has been extensively documented. I note that his visa has been mandatorily cancelled under section 501(3A) of the Act relating to his character and that he has requested that revocation be revoked. I further note that you seek my opinion regarding his risk of reoffending, should he be permitted to remain in the Australian community.
2. Mr [CSYS]’s clinical and developmental history were unremarkable up until 2019. I note in 2015, he was convicted of a mid-range PCA matter and that in 2014, there was an episode of alleged domestic violence involving his now former wife. She however did not press charges against him. In 2019, Mr [CSYS] was significantly destabilised by a range of events, including learning that his mother had been diagnosed with brain cancer. There were further background stressors referable to his wife being diagnosed with thyroid cancer and having surgery, his parents-in-law relocating to China, subsequent to living within the family home in Australia and providing assistance referable to the two children of the marriage and him learning in unfortunate circumstances that his wife had allegedly been unfaithful to him. There was then a significant decline in Mr [CSYS]’s psychological well-being, with him experiencing escalating symptoms of depression, anxiety and low self-esteem. He acknowledged that for a time he was tending to drink excessively, as a means of self-medication. Reflective of his stress, he was evidently diagnosed with alopecia in 2019. This is gradually resolving.
3. Significantly, during this period, Mr [CSYS] had no assistance from a mental health practitioner. In this context, he found it increasingly difficult to cope with the pressures in his life. I note that he and his wife attended the (…) Community Church for 10-sessions of marital counselling, although this does not appear to involve one-to-one therapy. Equally so, Mr [CSYS] is not medicated for anxiety or depression. His reduced capacity for stress appears to have been aggravated by the fact of having no immediate familial support in Australia, although he evidently had a circle of friends who offered some support to him.
4. His offending behaviour appears to have been quite specific and situational (sic) referable to the breakdown of the marriage. In other words, there has been no indication of anti-social or violent behaviour in the general community. I note the comments undertaken by Ms Tara Schmidt, Community Corrections Officer and with respect, I disagree that his conduct reflects an escalating pattern of domestic violence, impacted by cultural nuances. I say this advisedly, in the context of him being previously married and there being no suggestion of domestic violence at the time that that marriage ended. It would appear that as a consequence of his untreated distress and at times a propensity to rely upon alcohol, that Mr [CSYS]’s judgment was impacted. He acknowledged that he struggled with consequential thinking and impulse control when stressed and it was essentially in this context that he offended. Since that time, he has undertaken a number of programs whilst in custody. These have been well described in the documentation. I note in particular the comments of the facilitator of the Remand Domestic Violence Program, speaks to his positive motivation, his insight and his ownership of his past conduct. These aspects of his functioning are clearly positive indicators of a successful prognosis with continuing support and treatment.
5. He has also matured and is now clearly aware of the consequences of his behaviour. He has insight to the gravity of his actions and insight to the impact of his behaviour upon his former wife. In this regard, there appears to have been a shift from his state of attitudes, as described in the Sentencing Assessment Report.
6. Mr [CSYS] is suffering a Generalised Anxiety Disorder and a Depressive Disorder. His symptoms in my respectful view are now a function of his concerns regarding his two daughters. He has had no physical contact with them since 9 March 2020 and he is now faced with the prospect of not seeing them at all should he be deported. He stated that he is keen to have an active and positive involvement with their lives and realistically notes that if he is returned to China, this will be impossible. Mr [CSYS] stated that he is not normally predisposed towards domestic violence. He nonetheless acknowledged his wrongdoing at examination. There does not appear to be any suggestion however of anti-social behaviour in the community, apart from the drink-driving matter, which appears to have been a function of underestimating the impact of the alcohol he had consumed at that time. He has now been alcohol free since 2020 and in this context he is thinking more clearly.
7. At examination Mr [CSYS] expressed a desire for treatment in the community, if he is permitted to remain here. This too, reflects maturation and insight to the dynamics surrounding his past criminal behaviour. In any event, his emotional state has now stabilised, notwithstanding his anxiety regarding the future. Specifically, he has come to terms with the breakdown of the marriage and is keen to move forward with his life, with this level of acceptance. He stated that he has no animus in relation to his former wife and is keen to have an amicable working relationship with her in terms of him seeing the two children of the marriage.
Taking all factors into account, including a number of protective factors referable to his desire to maintain employment, his expressions of remorse, an absence of substance use, his motivation for treatment and his desire to be involved with his children’s lives, I believe that the risk of him reoffending is now trending from Moderate to Low. [29]
[29] Applicant’s Bundle of Evidence, 72-75.
Mr Watson-Munro gave oral evidence to the Tribunal. He confirmed that in his view the risk of the Applicant engaging in further acts of violence was trending towards low.
In Mr Watson-Munro’s view, the Applicant had a strong motivation not to reoffend. He had expressed remorse, and desired to obtain treatment in the community. He had a strong desire to have a relationship with his children and strong employment prospects. He said that he used the word ‘trending’ because the Applicant was still in detention. But there were a number of protective factors. His offending had been confined for the most part to the context of a declining and unhappy marriage. There was no evidence of violence towards people in general.
Alcohol was a critical factor, and it was one of the factors, along with the health issues relating to both his mother and his ex-wife, that increased his anxiety. He thought that for the most part his stressors had gone. He wanted to move on with his life and did not want to be deported
I note that the Applicant completed various courses while in detention including the following:
a)Offender Services & Programs, Corrective Services NSW, Department of Justice, Letter of Attendance: Remand Domestic Abuse, dated 14 May 2020;
b)Certificate of Course Completion re Drug and Alcohol Abuse 101, dated 22 July 2022;
c)Certificate of Course Completion: Domestic Violence 101, dated 29 July 2022;
d)Certificate of Course Completion: Child Psychology 101, dated 6 August 2022;
e)Certificate of Course Completion: Anger Management 101, dated 11 August 2022;
f)Certificate of Course Completion: Depression Management, dated 21 August 2022;
g)Certificate of Course Completion: Positive Parenting Techniques, dated 21 August 2022;
I agree with Mr Watson-Munro that his risk of reoffending may be regarded as relatively low. He showed considerable remorse for his offending conduct, in giving evidence in chief and under cross-examination. He did not attempt to blame his ex-wife or minimise the gravity of his conduct.
To this may be added that his status as a non-citizen, with the associated risk of visa cancellation. At the time of the hearing before the Tribunal, the Applicant had spent almost three years in either immigration detention or on remand or serving a sentence. This should serve as a powerful factor for the protection of the Australian community.
Conclusion on PC1
While PC1 weighs against revocation of the mandatory cancellation, it does not do so to the exclusion of all countervailing factors.
Family Violence: PC2
There is no doubt that the applicant has engaged in family violence. This includes not only a domestic assault but two contraventions of AVOs and the serious offence relating to intentional choking. This behaviour constitutes an egregious form of family violence. In this context the Respondent provided an academic article which speaks to the prevalence and seriousness of such behaviour.[30] A person who engages in such behaviour may on that account alone expect to forfeit the privilege of holding a visa. This consideration weighs heavily against revocation of the mandatory cancellation.
[30] Edwards and Douglas, ‘The Criminalisation of a Dangerous Form of Coercive Control: Non-Fatal Strangulation in England and Wales and Australia’ (2021) Journal of International and Comparative Law 87.
Best interests of minor children in Australia affected by the decision: PC3
I note that the Applicant has proceedings on foot in the Family Circuit Court for parenting orders relating to his children. Those proceedings were initiated some 18 months ago.
Paragraph 8.3(4) of Direction No. 90 requires decision-makers to consider certain matters relating to the Applicant’s two daughters. The Applicant’s solicitor contended that:
The Applicant lived in the same household as [OPH] and [OLH] until 8 April 2019, at which time [OPH] was approaching 6 years old and Olivia was 3 years old. He continued to spend time with them regularly until his arrest on 9 March 2020, at which time [OPH] was approaching 7 years old and [OLH] was almost 4 years old. Although the Applicant has not had contact with his daughters since 9 March 2020 apart from limited WeChat contact with [OPH] between September 2021 and January 2022, weight should be given to the fact that he lived with them for a substantial part of their lives.
I am satisfied that in this case meaningful bonding has taken place between the Applicant and his children, and especially his oldest daughter OPH.
An important factor is the extent to which the Applicant is likely to play a positive parental role in the future. There is no evidence that he abused or neglected his children. He was attentive to their needs when he was able to have contact with them. There is no evidence that they have suffered or experienced physical or emotional trauma arising from his conduct. It appears that the children were not directly exposed to family violence. They did not witness the choking incident. I note that on 29 March 2021, a year after the aggravated assault, the AVO was amended so as to remove the names of the children, thus enabling the Applicant to have physical contact. However, such contact has not been possible due to his ongoing detention.[31]
[31] G35.
The extent to which the Applicant can add value to the lives of his children will depend on a number on factors, including his capacity to obtain meaningful employment so that he can support his children. Much will depend on the outcome of his application for parenting orders currently before the Family Circuit Court. I accept Mr Prince’s contention that the removal of the Applicant from Australia to China will make it difficult if not impossible to obtain enforceable co-parenting orders, due to the absence of reciprocal enforcement mechanisms.
The Applicant’s solicitor conceded that:
It is admitted that the Applicant’s conduct has had an adverse impact on his children. However, given that they did not themselves witness any acts of family violence which were perpetrated by him the negative impact of his offending conduct upon them is minimal apart from having resulted in their separation from him due to the Apprehended Domestic Violence Order and now their mother’s refusal to allow them to have contact with him.
A most important element relates to the likely effect that any separation from the Applicant would have on the child, taking into account their ability to maintain contact in other ways.
On this subject, Ms SDA, a friend of the family, gave evidence to the Tribunal. She manages a day care centre and has worked in child care since 2010. She expressed the view that the children, especially the older daughter OPH, had been adversely affected by physical separation from her father.
She provided screenshots showing conversations on WeChat between the Applicant and his oldest daughter OPH. She had not facilitated such interactions and said that OPH had instigated the contact by finding her father’s contact details on her mother’s account. This was tendered as evidence of the child’s desire to have contact with her father.
Mr Watson-Munro was asked about the Applicant’s relationship with his children. He commented that he could not talk about the specifics of the relationship, but that in general the fracturing of the family unit impacts adversely upon children, especially those who are denied parental contact. The Applicant impressed as genuine, well-educated and intelligent and wanted to make a positive contribution to the welfare of his children’s lives.
I accept Ms SDA’s evidence that the oldest child, OPH, is very unhappy that she is unable to see her father. I am satisfied that the permanent physical loss of their father would have a harmful impact upon the development of the children, especially OPH. The children may be very adversely affected by a decision to remove their father from Australia.
I do not think that this case is relevantly similar to the two cases I referred to at the hearing, where the possibility of ongoing acrimony between warring parents could be expected to have a prejudicial impact on the children.[32] I note that the Family Court proceedings have been on foot for some time, and that property matters have been settled.
[32] Long and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2313, at paras 103-114; 149-156; Oldbury and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 807.
I find that PC3 weighs firmly in favour of revocation of the cancellation decision.
The expectations of the Australian community: PC4
Paragraph 8.4 of the Direction provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Respondent contends, consistently with the Direction, that the Applicant’s offending should be regarded as very serious, irrespective of the sentence imposed.
Taking into account the serious nature of the aggravated assault, I find that PC4 weighs firmly against him.
Other Considerations
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i)Strength, nature and duration of ties: OC4.1
(ii)Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
This consideration has no application to this matter.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
As noted above, the Applicant has lived in Australia for 18 years. He was 29 years old when he arrived from China. There is no significant language or cultural barrier preventing him from returning to the People’s Republic of China. He has travelled to China on several occasions and has been gainfully employed in that country.
His IHMS records indicate that he does not suffer from any mental disorder. I accept the evidence of Mr Watson-Munro that his overall mood is depressed by reason of the present challenges he faces, including the absence of his children and the uncertainties of immigration detention.[33]
[33] See IHMS Records, 118, 124.
I consider that OC2 is neutral.
Impact on victims: OC3
The Direction provides:
(1) 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 is no evidence before the Tribunal relating to this consideration, which is therefore neutral.
Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia: OC4.1
Paragraph 9.4.1 of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has two Australian children, and there are Family Court proceedings on foot relating to parenting orders.
The applicant has provided several references from friends and employers. One of these, Mr [CZH], gave evidence to the Tribunal. Mr [CZH] impressed the Tribunal as an honest witness, although his knowledge of the specific offences committed by the Applicant was somewhat vague. He explained that while in prison, the Applicant was only allowed to nominate one outside contact, and had chosen to nominate him. They were good friends and he could provide some short-term accommodation, but the extent of his friendship would inevitably be tempered by the other demands on his time, which included children, family and work. He intended to remain in contact with the Applicant after the hearing.
I note that the Applicant has a good employment record in Australia. In 2010, he began working as a manager of a foreign exchange market company[34]. In 2013, he began working as a manager at a logistics company.[35] In 2015, he began working as a sales and marketing director at the Australian branch of a Chinese organisation which provides cross-border e-commerce solutions.[36]
[34] G13/80; G21/112.
[35] G13/80-81.
[36] G13/80-81; AB9.
His first criminal conviction (driving under the influence) did not occur until some years after arriving in Australia.
I find that that OC4.1 weighs in favour of revoking the cancellation decision.
(ii) Impact on Australian business interests: OC4.2
I find that there is no evidence of any impact on the sort of Australian business interests referred to in the Direction. This consideration has no application.
CONCLUSION
In weighing the primary and other considerations, I record the following:
Factors in favour of non-revocation:
·Safety of the community (PC1)
·Family Violence (PC2)
·Expectations of the community (PC4)
Factors in favour of revocation:
·The best interests of minor children in Australia affected by the decision to remove (PC3)
·Links to the Australian community (OC4.1)
Factors that are neutral or not applicable
·Non-refoulement (OC1)
·Impediment to resettlement (OC2)
·Victim impact (OC3)
·Impact on Australian business interests (OC4.2)
Three of the primary considerations weigh against the Applicant, and each weighs firmly against him.
Mr Watts conceded that this was a “complicated” case. Mr Prince said that it was really all about the children. I agree that but for the children it would be a straightforward matter for the Tribunal. OC4.1 would not, by itself, outweigh the combined weight of PC1, PC2 and PC 4.
I am satisfied that the Applicant is a motivated father who wants to nurture and support his children. That was obvious to the Tribunal during the course of the hearing. It is undeniable that during the family breakdown he lost self-control. His behaviour towards his wife was appalling. He has shown remorse, contrition and shame. I think that he met the challenge of satisfying the Tribunal that his remorse was real and that he had genuine insight into his offending.
These proceedings are not intended to punish him further or deter other would-be abusers. He has been punished roundly for his bad behaviour in a criminal court. These administrative proceedings involve other considerations. As the Tribunal noted in DQDW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3657, per Bellamy SM, at [232]:
The Tribunal is not conducting a sentencing exercise. The legislative scheme governing the cancellation of visas on character grounds is not concerned with punishment, deterrence or mercy with respect to offending or other serious conduct. It is protective, not punitive. The cancellation of a non-citizen’s visa may well feel like further punishment to the non-citizen and their family, however that does not mean it is.
In terms of protective considerations, I do not think that the Applicant poses an elevated risk to the Australian community, or to his ex-wife. I believe that his prospects of achieving social re-integration and rehabilitation are very good. He has qualifications and the prospect of a good job.
The best interests of his two young daughters provide the key ingredient as to why, despite failing the character test, he should be allowed to remain in Australia.
The decision not to revoke the mandatory cancellation decision should therefore be set aside. There is ‘another reason’ why the original decision not to revoke his visa cancellation should be set aside, even though he fails the character test.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister, dated 1 September 2022, not to revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class BF Transitional (Permanent) visa is revoked.
I certify that the preceding 98 (ninety eight) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 23 December 2022
Date(s) of hearing: 1 & 2 December 2022 Advocate for the Applicant: Mr David Prince Solicitor for the Applicant: Mr David Brooks Solicitor for the Respondent: Mr Jamie Watts
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