Cummings and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3773
•17 November 2023
Cummings and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3773 (17 November 2023)
Division:GENERAL DIVISION
File Number: 2023/6406
Re:Aumatareka Cummings
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:17 November 2023
Place:Melbourne
The Tribunal sets aside the decision by a delegate of the Respondent on 10 August 2023 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 (Cth) and in substitution decides not to exercise the discretion under s 501(2).
...................[sgd].....................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – cancellation of applicant’s visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) – applicant was a member of the Rebels motorcycle gang and committed family violence when in a relationship with his former partner – applicant has now left the Rebels and is adequately rehabilitated – the applicant is in a loving relationship and has not engaged in any further criminal conduct or family violence – applicant does not pass the character test by reason of s 501(6)(b) - whether discretion to cancel the visa should be exercised – primary considerations – low risk of reoffending – other considerations – ties to the Australian community are very strong – cancellation of the visa is not in the best interests of the children - decision under review set aside.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430
Singh v Minister for Home Affairs [2019] FCA 905
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179
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
Deputy President Britten-Jones
17 November 2023
This is an application for review of a decision made by the delegate of the Respondent on 10 August 2023 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501(2) of the Migration Act 1958 (Cth).[1] The Tribunal has the power pursuant to s 500(1)(b) to review the decision of the delegate of the Minister. The Tribunal may affirm or set aside the decision under review.
[1] All references to legislation are to the Migration Act 1958 (Cth).
On 17 March 2023, the applicant was notified that consideration was being given to cancelling his visa under s 501(2) due to his association with the Rebels motorcycle gang and other serious or criminal conduct. On 5 May 2023, the applicant’s representatives provided written submissions that the visa should not be cancelled but on 10 August 2023 the visa was cancelled.
THE LEGISLATIVE SCHEME
Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been involved in criminal conduct…
The High Court in Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 considered the construction of s 501(2) and said as follows:
[34] Bearing centrally on the construction of s 501(2) of the Act is recognition that s 501(2) confers a single power that is exercised by the Minister or a delegate in the first instance, and that is re-exercised by the AAT under s 43(1) of the AAT Act on review, according to a two-stage decision-making process.
[35] The first stage of the decision-making process begins with the decision-maker forming a reasonable suspicion that the visa holder in question does not pass the character test. By operation of s 501(6), a person either passes the character test or does not. The person does not pass the character test in any one or more of the circumstances exhaustively enumerated in s 501(6). Otherwise, the person passes the character test.
[36] Reasonable suspicion is a state of mind — “a state of conjecture or surmise” — that is based on “sufficient grounds reasonably to induce that state of mind”. The necessary precondition to the decision-maker forming a reasonable suspicion that the visa holder does not pass the character test is therefore the existence of facts sufficient to induce a reasonable person to surmise that one or more of the circumstances exhaustively enumerated in s 501(6) has occurred.
[37] The decision-maker having formed a reasonable suspicion that the visa holder does not pass the character test, the first stage of the decision-making process is completed by the decision-maker making a binary decision either to be satisfied by the visa holder that he or she passes the character test or not to be so satisfied and in consequence to maintain the reasonable suspicion.
[38] Satisfaction too is a state of mind — an “actual persuasion of [the] occurrence or existence” of the thing in issue. Implicit in the statutory placing of the onus on the visa holder to satisfy the decision-maker that he or she passes the character test is a requirement of procedural fairness that the visa holder be given notice and an opportunity to make representations before the first stage of the decision-making process can be completed. Implicit in the statutory need for satisfaction or non-satisfaction is that the satisfaction or non-satisfaction is to be reasonably based on the totality of the facts then known to the decision-maker.
[39] If the outcome of the first stage of the decision-making process is that the decision-maker is satisfied by the visa holder that he or she passes the character test, the only decision open to the decision-maker is not to cancel the visa. The decision-making process necessarily ends with the making of that decision.
[40] The second stage of the decision-making process is reached only if the outcome of the first stage is that the decision-maker, not being satisfied that the visa holder passes the character test, maintains a reasonable suspicion that the visa holder does not pass the character test by reason of the occurrence of one or more of the circumstances set out in s 501(6). The second stage then involves the decision-maker, reasonably and in compliance with applicable directions given under s 499, exercising a discretion the outcome of which is the making by the decision-maker of a further binary decision either to cancel the visa in the exercise of discretion or not to cancel the visa in the exercise of discretion.
The Issue for the Tribunal
In this case, there is no dispute about the outcome of the first stage of the decision-making process because it is conceded by the applicant that he does not pass the character test. Consistent with that concession, I am not satisfied that the applicant passes the character test by reason of s 501(6)(b). The facts establish, and there is no dispute, that the applicant has been a member of an organisation, namely the Rebels motorcycle gang, which is involved in criminal conduct. Whilst denying any recent involvement, the applicant accepts that he was a member. Having failed the character test, the issue for the Tribunal is whether to exercise the discretion to cancel the visa, guided by the considerations set out in Direction 99.[2]
[2] 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) (Direction 99).
Direction 99
The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to cancel a non-citizen’s visa are set out in paragraph 5.2 of Direction 99 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.5(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.
In making a decision under s 501(2), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501(2), other considerations must also be taken into account, where relevant, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[3]
[3] Direction 99 at 7.
BACKGROUND
The applicant came to Australia from New Zealand on 17 March 2012 when he was 24 years old. He is of Cook Island ethnicity and is a Christian. When he first arrived, the applicant stayed with his aunt in Clayton for around six months before moving to Sunshine where he got work and moved in with one of his cousins. Since arriving in Australia he has had no difficulty finding employment.
The applicant has two sons from a previous relationship who are seven and nine years old. He had a troubled relationship with the mother of these two boys. He suffered from depression in 2014 following a temporary breakdown of that relationship. He saw a psychologist for about nine or 10 sessions before he stopped because he could not afford to keep going.
At the end of 2021 the applicant met his current partner and fiancée. They soon commenced an intimate relationship and he moved in with her, her son and her mother in around May 2022. They became engaged in January 2023. They have a daughter of their own who is around 10 months old. The applicant is currently in detention but he would return to his home with his fiancée and family if released. The applicant rightly considers that his fiancée and her family are now his family and I will refer to them in that way.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below 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 – 8.1.1 of Direction 99
The applicant has a criminal record spanning about six years from 2015 to 2021.
(a)His first offending for unlawful assault, failing to answer bail, recklessly causing injury and contravening a family violence intervention order resulted in a community corrections order for 12 months without conviction in the Werribee Magistrates Court on 12 October 2015. The offending involved family violence directed towards his former partner.
(b)He was then charged and convicted for further offences involving family violence directed towards his former partner on 20 March 2017 for which he received a fine and community corrections order for 18 months and was required to perform 150 hours of unpaid community work.
(c)In 2019 he was convicted for two separate charges involving contraventions of family violence orders relating to his former partner.
(d)The applicant’s first and only custodial sentence for an aggregate of 30 days imprisonment was imposed on 15 January 2021 for breaching a family violence order and committing an indictable offence whilst on bail (two charges). This related to the applicant’s former partner.
(e)He was convicted in the Melbourne Magistrates Court on 13 May 2021 for charges including a further breach of a family violence order relating to the applicant messaging his former partner for which he received a $1,000 fine and negligently dealing with proceeds of crime for which he received a $2,000 fine. He maintains that he is innocent with respect to this final conviction and that he had withdrawn $20,000 from his superannuation accounts to purchase a car.
It is apparent from the criminal record that all of the applicant’s convictions relate to family violence except for the dealing with proceeds of crime offence. I will deal with the family violence offending under paragraph 8.2 of Direction 99 but I note that, irrespective of where it is considered, the conduct involving family violence would be viewed very seriously by the Australian Government and community and that it was frequent with a significant cumulative effect during a period of about six years.
The applicant was convicted and fined $2,000 for negligently dealing with proceeds of crime. He pleaded guilty but says that he did not commit the offence. He says that the money he was photographed holding was withdrawn legitimately from his superannuation account. There is no documentary evidence to support the applicant’s version of events and it does not fit with the police version of events nor the 8 April 2020 video recording of the applicant holding cash and saying “That’s how we roll, Rebel power mother f***ers”. This is serious conduct and should be viewed in the context of his admitted involvement with the Rebel motorcycle gang (the Rebels) from about 2015.[4]
[4] Applicant’s SOFIC at [21] and applicant’s statement dated 16 October 2023 at [17]
The Rebels are a violent organisation with whom the applicant had a close involvement for a significant period. He ceased that involvement in early 2021 but his association with that outlaw gang was very serious conduct that reflects very poorly on his character. The Australian Government and community consider to be serious any membership of an organisation involved in criminal conduct such as the Rebels.
The respondent contended that I should find that the applicant has a continuing involvement with the Rebels beyond 2021 but I consider that there is insufficient evidence to support that contention. The evidence from his family and work colleagues suggests no ongoing relationship and that the applicant spends nearly all of his time either working or at home with his new family. In particular, there is an unchallenged statutory declaration from the applicant’s supervisor at his most recent job who confirmed that the applicant had cut all ties with the Rebels which was an ongoing condition of his employment. The applicant explained how he was vulnerable and homeless when first approached to join which he now says was a big mistake. He expressed genuine regret about joining the Rebels but said he had severed all ties. He has since been the subject of ongoing investigations by the Echo Task Force and was interviewed in November 2022, but the evidence does not establish an ongoing affiliation with the Rebels. There was a reference to a firearms prohibition order but the applicant said that he had never possessed or discharged a firearm. The file note from the Department of Home Affairs dated 22 September 2022 provides a summary of the applicant’s association to the Rebels. That note contains evidence of criminal activity by the applicant in association with the Rebels in 2020 but nothing beyond that date. Finally, there is a police incident summary report dated 23 June 2022 which refers to pending charges for the applicant in relation to property damage by a person wearing a Rebels jumper. There is no record of a charge sheet and the applicant when questioned by police said he did not do it. The applicant told Mr Cummins that he had no knowledge of being charged or provided with any paperwork regarding this matter. In these circumstances I place no weight on this more recent evidence and I remain of the view that the applicant has had no involvement with the Rebels since 2021.
The applicant also has a long list of traffic infringements including speeding offences and driving whilst disqualified which suggests a disregard for the law and the authorities, but no driving under the influence of alcohol or drugs. The applicant provided some limited explanation for these infringements but the number of them is concerning. The respondent found evidence of a criminal record in New Zealand, but this was strongly denied by the applicant who said he never offended in New Zealand and that an error was made because he shared the same first name and last name with others who may have committed those offences.
There is a charge of possess cannabis which is recorded as having been dismissed on 15 January 2021. The applicant said that he never smoked cannabis and that the vehicle in which the small amount of cannabis was found was not his.
I conclude that the applicant’s violent and harassing behaviour towards his former partner and his conduct as a member of the Rebels indicates a very high level of criminal offending and other very serious conduct. The applicant’s high level of traffic infringements is also serious and indicates a disregard for the law.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[5] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[5] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[6] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[6] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
If the applicant were to engage in further similar criminal or serious conduct, then the nature of the harm would be very serious because of the inherent harmful nature of family violence and because being a member of an outlaw motorcycle gang is very serious conduct that contributes to serious harm to the wider community.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant was comprehensively assessed by Mr Jeffrey Cummins, an experienced clinical and forensic psychologist who provided two written reports and gave oral evidence at the hearing. Mr Cummins concluded that the applicant was adequately rehabilitated and was a low risk of further violent offending. I expand upon his expert opinion under paragraph 8.2 of Direction 99 because the majority of the applicant’s convictions relate to family violence. With respect to the applicant’s association with the Rebels, Mr Cummins noted that the applicant said he had no further involvement with them since early 2021 and he gave the applicant credit for breaking away from them. In terms of risk of reoffending, Mr Cummins placed significant weight on the positive relationship the applicant has with his fiancée who he interviewed at length as part of the assessment of the applicant. The applicant’s fiancée described him as a loving person and said that they were thinking of buying a house.
The applicant’s fiancée and her mother both gave written and oral evidence which reflected very favourably on the applicant. They said he was a caring person, who helps financially and with household chores and who loves the children and provides support to the wider family. There were very positive written statements from his fiancée’s three sisters and two nieces who all attested to his good and supportive character. They support the applicant because they have seen his loving conduct towards their sister/aunt and also towards the applicant’s step-son who calls him ‘Dad’ and who is very sad to be separated from the applicant.
There were four very supportive written statements or letters from work colleagues who attested to his strong work ethic and his good nature in the workplace. There was another positive reference from a person at Homeless Aid where the applicant has been a volunteer.
These references and letters of support show how respected the applicant is within his family and the wider community. The applicant has the support of many people from his family and workplace which I believe will improve the likelihood of him not reoffending. The applicant has never had a problem with drug or alcohol abuse. I consider that whilst the potential harm of further offending would be significant, there is only a low chance that the applicant will reoffend because of his positive conduct for about the last three years during which he has shown himself to be rehabilitated. In these circumstances there is not an unacceptable risk of reoffending.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[7] The applicant is a low risk of reoffending and has shown himself to be adequately rehabilitated. The applicant’s past offending and membership of the Rebels means that the protection of the Australian community is a factor that weighs in favour of exercising the discretion to cancel the visa, but I would ascribe limited weight to this factor for the reasons set out above.
[7] Direction 99 at 8.1(1).
Family Violence – 8.2 of Direction 99
The applicant has engaged in family violence which caused fear and injuries to his former partner. In considering the seriousness of the family violence engaged in by the applicant, the following factors in paragraph 8.2(3) are relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
The applicant is recorded as having 11 family violence intervention orders in relation to his former partner:
(a)The first order was made on 19 June 2014 after a violent incident on 14 June 2014. This conduct was the subject of the applicant’s guilty plea on 12 October 2015. During his oral evidence, the applicant denied the particular facts of the offending but said that it was the biggest mistake he had ever done and that he was sorry for arguing with her. The applicant’s former partner gave a contemporaneous statement which refers to the applicant bashing her head against a car window whilst she was driving and then dragging her by her hair and punching her repeatedly in the face with a clenched fist. The statement by the applicant to the police said that ‘we were both slapping each other actually’. The applicant is a very large and strong man. There were photos of bruising to the face of the victim. The applicant accepts some poor behaviour which he regrets. I conclude that the evidence is sufficient to make a finding that the applicant was physically violent to his former partner over a protracted period of time on that day and that she suffered physical injuries as a result.
(b)There was a further violent incident on 14 February 2015 whilst the applicant, his former partner and their child were driving. The contemporaneous statement from the former partner says that during an argument the applicant struck her with his hand three times to her face, which became swollen and bruised. The applicant is recorded by the police as saying that he did it because he was drunk, but in his oral evidence he denied saying he was drunk and added that he never drinks. Under cross examination, the applicant admitted having a big argument that day. Again, the applicant expressed general remorse whilst denying that he hit his former partner. This conduct was also the subject of the guilty plea on 12 October 2015. An interim family violence order was made on 19 February 2015 which was extended on 9 April 2015 by consent of the applicant without admission of the allegations. I conclude that the evidence is sufficient to make a finding that the applicant was physically violent to his former partner on 14 February 2015.
(c)On 3 January 2017 there was a further incident during an argument when the applicant behaved threateningly towards his former partner and threw a remote control in her direction. The former partner reported the incident to the police who applied for another intervention order. He was arrested and then the applicant sent over 200 text messages to his former partner many of which involved abuse and foul language. The applicant admitted in his oral evidence that there was an argument and he got angry and that it was the wrong thing to do. This conduct was the subject of the guilty plea on 20 March 2017 for unlawful assault, discharge missile to cause injury and use a carriage service to harass. The applicant denied any violent conduct, but I conclude that this was another incident of family violence.
(d)The applicant and his former partner separated in about November 2017 after which date he has never seen his two older children. A family violence intervention order remained in place which he breached in February 2019 by sending text messages to his former partner and attending near her home. This incident was the subject of the guilty plea on 14 May 2019 for persistent contravention of intervention orders for which he was convicted and received a community correction order for 12 months plus a requirement to perform 100 hours of community work. There was another incident and breach which resulted in a further conviction and fine on 6 August 2019. The former partner reported to police that she was in fear of the applicant because of these ongoing breaches.
(e)The contravention of family violence intervention orders continued with the last recorded contravention for Facebook messages to his former partner on 9 January 2021. On 15 January 2021 the Court sentenced the applicant to 30 days imprisonment for the persistent contraventions of family violence orders. Further contraventions from earlier dates were dealt with by the Court on 13 May 2021.
There is a current order in place which has been extended to 1 March 2025. The domestic violence inflicted on the applicant’s former partner was very serious. The applicant has expressed general remorse about his past offending and recognises that “it was me that was the problem. It was all because of my actions and who I was at the time.”[8]
[8] Applicant statement 5 May 2023 at [39].
The physical violence from 2014 to 2017 during the applicant’s relationship with his former partner was abhorrent and extremely serious. Further, the applicant continued to harass and intimidate his former partner up until early 2021. I note that the family violence was frequent for a considerable period and the seriousness of its cumulative effect was reflected in the custodial sentence imposed on 15 January 2021 for 30 days imprisonment for his persistent contraventions of family violence intervention orders. The applicant re-offended despite being given warnings as part of the sentences imposed by the Courts for his offending. Those sentences became more severe starting with a 12 month community correction order without conviction in October 2015 and culminating in convictions and a custodial sentence in 2021. Despite receiving lenient sentences and effective warnings, the applicant did not change his behaviour until after his custodial sentence was imposed.
The respondent contended that the applicant has not displayed appropriate remorse and has no genuine insight with respect to his domestic violence. It is true that the applicant denied before the Tribunal ever hitting his former partner and did not accept responsibility for his particular actions which were the subject of convictions. The applicant told Mr Cummins that he got into a lot of trouble with his former partner because he was trying to sort out things to do with child support with her and then she would report him for contacting her. This is only partly correct – the main reason he got into trouble was because he was physically and verbally abusive towards her. This reflects poorly on the character of the applicant and would on its own suggest a lack of appropriate remorse and insight. However, he also admitted more generally that his behaviour towards his former partner was not good and that he would not wish it upon anyone. I believe that the applicant does accept some responsibility for his conduct and that he has some understanding of the serious impact of his conduct on his former partner. However, his failure to accept full responsibility for his misconduct is one aspect of the matters that I consider relevant to whether the applicant is rehabilitated and whether he is likely to reoffend.
Mr Cummins expressed his opinion in his reports and confirmed under cross examination that the applicant’s current risk of committing further violence was low. He noted that the applicant’s criminal offending was related primarily to his former partner, their breakup and the fact that he was precluded from having contact with his two sons. Mr Cummins gave the applicant credit for his work ethic, for disengaging with the Rebels and for not abusing drugs or alcohol. He considered that the applicant presented as a rehabilitated person who did not require any further treatment of relevance to his offending history. Mr Cummins’ opinion was tested in cross examination during which it was put to him that his offending was more violent than Mr Cummins had assumed. Mr Cummins said that, even if the applicant had engaged in the conduct as alleged in the police reports put to him, his opinion remained the same, namely that he was still only a low risk of reoffending because of his more recent conduct and the stable environment offered by his fiancée and her family. I note from paragraph 7(1) of Direction 99 that I am to give appropriate weight to evidence from independent and authoritative sources. Mr Cummins is such a source and I give his opinion considerable weight in determining whether to exercise my discretion to cancel the applicant’s visa.
The applicant has completed two courses of men’s behavioural programs in 2014 and 2017 which reflects positively on him but less so because his poor behaviour continued after 2017 albeit with less physical violence. The more compelling evidence of rehabilitation is that he disengaged with the Rebels, avoided any further criminal convictions and commenced what appears to be a very loving and stable relationship with his fiancée. His criminal record comes to an end with the convictions on 13 May 2021. One year later, the applicant had moved into his fiancée’s home and was working full time and living a very stable life in a supportive and stable environment. He had severed his relationship with the Rebels. He has more recently engaged in very commendable volunteer work to help the homeless.
I have absolutely no doubt about the bona fides and the strength of the applicant’s current relationship with his fiancée who gave very compelling written and oral evidence in support of the applicant.
I was also very impressed by the written and oral evidence given by his mother-in-law to be who confirmed the loving relationship with her daughter but also gave evidence of how the applicant helps both financially and practically with shopping and home duties. She also confirmed the loving relationship and support he provides to the two children who live with them. She explained how her health is failing and that the applicant has taken on an integral role of support for her and her family.
The applicant’s conduct in the community and with his new family provides very strong evidence of rehabilitation. The applicant himself gave very emotional and genuine evidence about his relationship with his fiancée and children and all his new family. The applicant understands how important his new family is and I believe that he will do anything for them and would not engage in any conduct that may put that relationship at risk.
This primary consideration as to whether the applicant has engaged in family violence weighs in favour of exercising the discretion to cancel the visa because of the very serious nature of the applicant’s conduct in his relationship with his former partner but I give it less weight because of the applicant’s conduct since the offending, the evidence of rehabilitation and the expert opinion that the applicant is only a low risk of further violent conduct. In my view it is highly unlikely that the applicant will reoffend because he is likely to obtain solid employment and has a stable relationship with a partner and family who are willing to support him in the long run.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(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) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
The applicant has lived in the Australian community since 2012 when he was 24 years old. He worked and engaged positively in the community for about two years but his abuse and violence towards his former partner began in about June 2014. His life took a turn for the worse when his relationship broke down and he found himself homeless and unemployed. It was in that vulnerable state when he became associated with the Rebels. The applicant met his fiancée in late 2021 from which time his life began to improve. He disengaged with the Rebels from early 2021 and his last conviction was May 2021. The applicant moved in with his fiancée and her mother and took on a positive parental role of his fiancée’s son who was born in January 2020. The applicant and his fiancée have a daughter together who was born in January 2023. They plan to get married and all the evidence suggests that they have a very happy relationship. The applicant helps financially and practically in the home and is of great assistance to his mother-in-law who has come to rely on him as her health deteriorates. Since about 2021, the applicant’s life has been shared between his work and his new family.
The applicant’s fiancée and mother-in-law would be devastated if he is not released from detention. They would find it hard to cope without him. He has been a great support to them and their wider family financially and in all other ways. The applicant’s fiancée comes from a very large family – her mother has 24 grandchildren – most of whom live in Melbourne. She has had her share of problems growing up and she, understandably, is not in a position whereby she could move to New Zealand.
I give significant weight to the applicant’s relationship with his two children with whom he lives.[9] His step-son is three years old and calls him ‘Dad’. They have a very strong and loving relationship. I also give weight to the strong relationship the applicant has built with his work colleagues who gave evidence to the Tribunal. They miss him on the worksite and hope that he will soon return.
[9] Direction 99 at 8.3(2)
Through his work and family commitments and his more recent volunteering, the applicant has made a significant and positive contribution to the Australian community which I am confident would continue if he is released.
I conclude that the applicant has made a significant and commendable contribution to the Australian community through his employment and connections to family and friends. I take into account in particular the devastating impact on his fiancée if he is not released. The strength, nature and duration of the applicant’s ties to the Australian community are a factor that weighs significantly against cancelling the visa.
Best interests of minor children – 8.4 of Direction 99
The applicant has two children aged nine and seven from his former partner but he has not seen them since about 2017. He still pays some child maintenance and he would like to re-engage with them if he is released. There is a current family violence intervention order which expires in 2025. At least one of the children was exposed to the family violence he inflicted on his former partner. I have no doubt that both these children have been impacted negatively at least indirectly due to the applicant’s violent and harassing conduct. It is unclear whether the applicant would ever be able to play a parental role with these children in the future if released. Given the applicant’s stated intention of trying to re-establish a relationship with these children there is a chance that he will play a parental role which would have a positive impact on these children in the future. Consequently, I am prepared to conclude that his visa cancellation is not in the best interests of these two children, but I do not give it significant weight because of his family violence and his absence from their lives since 2017.
The interests of the two children with whom the applicant lived in more recent times would most definitely be served by his release from detention so that he can return to his role as a father and provider for them. The evidence from his fiancée and all of her family establishes that the applicant is a wonderful and caring father who loves and is loved by his children. The three year old step-son is struggling at kindergarten and at home because he misses his ‘Dad’ so much. There is no suggestion that these children have been exposed to any family violence and I am confident that the applicant would play a very positive parental role in the future. His daughter is less than a year old and I consider it very important that the applicant is released immediately so that he can be there for his children. Cancellation of the applicant’s visa would be very detrimental to these children and would not be in their best interests.
I also take into account some of the cousins of his children who are the nieces and nephews of his fiancée. The family is very large with 24 grandchildren. There is a written statement from one of the nieces who is 13 years old and who lives nearby. The applicant has supported her particularly to assist with her depression. She also refers to the help the applicant has given her siblings and her other cousins. There is another statement of support from a niece who is 17 years old. There are statements from three ‘sisters-in-law’ of the applicant who have children and have appreciated the care and support he has provided to their children. These nieces and nephews often have difficulties of their own and they are helped by having the applicant in their lives. Visa cancellation is not in their best interests, but less weight would be given because the applicant has had less meaningful contact with them and the relationship is non-parental.
I conclude that the best interests of his children and the nieces and nephews (to a lesser degree) is a factor that weighs very heavily in favour of not exercising the discretion to cancel the visa.
Expectations of the Australian community – 8.5 of Direction 99
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 remain in Australia.[10] The applicant has failed to obey the laws of Australia and would therefore be expected to have the visa cancelled. His criminal conduct involved violence towards his former partner on at least three separate occasions in 2014, 2015 and 2017. His acts of intimidation and harassment continued until early 2021. These acts of family violence together with his involvement with the Rebels are so serious that the Australian community would expect that the applicant should not continue to hold a visa.
[10] Direction 99 at 8.5(1).
I conclude that the expectations of the Australian community is a factor that weighs heavily in favour of exercising the discretion to cancel the visa.
Other Considerations
In deciding whether to exercise the discretion to cancel the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99 where relevant, but these are not exhaustive.[11]
[11] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 99
This factor is not relevant. Both parties contend that this factor is neutral.[12] There is no claim that the applicant is owed non-refoulement obligations and there is no need to consider the factors in paragraph 9.1 of Direction 99.
[12] This was the position of the applicant as stated during oral reply submissions.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is 36 years old and in good physical health. With respect to his mental health, Mr Cummins has diagnosed the applicant with a major depressive disorder of moderate severity and said that he requires mental health treatment. The applicant lived in New Zealand until he was 24 years old. There would be no language or cultural barriers if he were required to return there. He still has some relatives in New Zealand. Social, medical and economic support would be available to him. The applicant would face no material impediments in establishing himself and maintaining basic living standards if removed to New Zealand. Consequently, I give no weight to this consideration.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
The applicant contends that his removal to New Zealand would have an adverse impact on Australian business interests because he would no longer be working on level crossing removals which is an important service. Colleagues who worked with the applicant spoke very positively about the applicant and how he is missed because of his good work practices. The applicant’s supervisor at his work also spoke highly of him and said in his written statement that since he was put in detention his team members have fallen behind and that they are lost without him. The work that the applicant did on the level crossings is an important service and the evidence is that his absence is impacting negatively on that service. Paragraph 9.4 of Direction 99 says that an employment link would generally only be given weight where the decision under s 501(2) would significantly compromise the delivery of a major project or important service in Australia. I am not prepared to accept that the applicant’s absence would compromise delivery in those terms because the evidence does not establish that the level crossings removal project would not be delivered in his absence. However, the decision of Middleton J in Singh v Minister for Home Affairs [2019] FCA 905[13] at [10] makes it clear that the focus has to be on the impact on Australian business interests if the visa is cancelled. There is some impact so I would give this factor some weight, albeit not significant, in favour of not cancelling the visa.
[13] See also Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179.
CONCLUSION AS TO WHETHER TO EXERCISE THE DISCRETION TO CANCEL THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion to cancel the visa.
The protection and expectations of the Australian community together with the fact that the applicant has engaged in family violence towards his former partner weigh in favour of cancelling the applicant’s visa. The acts of family violence and his conduct with the Rebels took place over a lengthy period of time and there is a strong community expectation that the applicant should not continue to hold a visa. These factors weigh heavily in favour of cancelling the visa, but I consider that they are outweighed by the countervailing considerations of the applicant’s ties to Australia and the best interests of his minor children. I note that paragraph 7(3) of Direction 99 says that one or more primary considerations may outweigh other primary considerations. In this case, I find that the three primary considerations referred to above are outweighed by the two primary considerations of ties to Australia and the best interests of minor children.
I would place significant weight upon the expert opinion of Mr Cummins that the applicant is only a low risk of further violent reoffending. This significantly lessens the weight to be given to the factors in favour of cancellation. Mr Cummins’ opinion is supported by the evidence of rehabilitation and the testimony of the applicant’s fiancée and her family who are extremely supportive of the applicant and who appreciate and rely upon the assistance and general support he provides to them. I have found that it is unlikely that the applicant will reoffend because of this family support and because the applicant has proven himself in the community since early 2021. The applicant has work on offer to him if released and he has shown that he has a good work ethic. The applicant’s behaviour towards his former partner was abhorrent but it was limited to that relationship and he has engaged in appropriate rehabilitation. There is no suggestion of any violence towards his fiancée who would be devastated if she does not get to marry and live with the applicant with their children as planned.
I place very significant weight on the interests of the applicant’s step-son aged three years old and his daughter aged 10 months. The applicant has shown that he loves these children and there is no doubt that they will benefit from their father being with their mother to look after them and provide a loving home. If not released, these children would be deprived of a father and male role model in their formative years whilst they are growing up. There would also be a devastating impact on the applicant’s fiancée and her mother if he is not released. The applicant’s fiancée relies on the applicant financially and also to provide support and care for her children and her mother whose health is deteriorating.
Having weighed up the factors for and against exercising the discretion to cancel the visa, I have decided to set aside the decision of the delegate and substitute it with a decision not to exercise the discretion under s 501(2). It is my view that the applicant’s visa should not be cancelled and that he should be released so he can be with his fiancée, children and their wider family.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
..........................[sgd]..............................................
Associate
Dated: 17 November 2023
Dates of hearing: 8, 9 & 10 November 2023 Counsel for the Applicant: Annabelle Ballard Solicitors for the Applicant: JT Lawyers Advocate for the Respondent: Christopher Orchard Solicitors for the Respondent: Sparke Helmore Lawyers
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