CWRG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2408
•21 July 2021
CWRG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2408 (21 July 2021)
Division:GENERAL DIVISION
File Number: 2020/6906
Re:CWRG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date: 21 July 2021
Place:Brisbane
The decision under review is affirmed.
......................[SGD]................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – refusal of application for Return (Residence) (Class BB) visa – where Applicant does not pass the character test – whether the discretion in section 501(1) should be exercised – consideration of Ministerial Direction No. 90 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Acts Interpretation Act 1901 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
DECISION
REASONS FOR DECISION
BACKGROUND
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
General overview of the Applicant’s offending
Application of Factors in Paragraph 8.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s contentions
Respondent’s contentions
Some observations about the medical evidenceConclusions on the likelihood of the non-citizen engaging in further criminal or other serious conduct
Is the risk of harm affected by any of the factors referred to in 8.1.2(2)(c)?
Conclusions on risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Who are members of the Applicant’s family?
Reference the Applicant’s conviction in February 2018 for breaching a DVO. Was that female victim a member of the Applicant’s family at the time he committed the offence?
Reference the Applicant’s conviction in May 2011 for unlawful stalking. Was that female victim a member of the Applicant’s family at the time he committed the offence?
Reference the Applicant’s conviction in May 2011 for common assault. Was that female victim a member of the Applicant’s family at the time he committed the offence?
One other matterConclusion on Primary Consideration 2
PRIMARY CONSIDERATION 3
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
OTHER CONSIDERATIONS
(c) Impact on victims
(d) Links to the Australian community
Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian communityFindings: Other Considerations
CONCLUSION
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
21 July 2021
BACKGROUND
CWRG applies for review of a decision made by the Minister for Immigration, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”). The Minister has refused to grant a Return (Residence) (Class BB) visa (“visa”) to her son (who I will refer to as the “Applicant” for convenience). The refusal has occurred pursuant to s 501(1) of the Migration Act 1958 (Cth) (“Act”). The refusal was based on a finding that the Applicant does not pass the character test because he has a “substantial criminal record” pursuant to the combined operative effect of ss 501(6)(a) and 501(7)(c) of the Act.
A hearing was held before me on 24 and 25 May 2021. The hearing received both written and oral evidence. The written evidence was described in an agreed Exhibit List, a true and correct copy of which is attached to these reasons and marked Annexure A. The nominated applicant is the Applicant’s mother who is an Australian resident. The Applicant’s mother did not give evidence. The hearing received oral evidence from the Applicant and his father, both of whom are situated in Fiji.
On 25 May 2021, I made a confidentiality order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). In summary, the net effect of that confidentiality order is that for the purposes of the transcript of these proceedings, the parties will be referred to as follows:
·“CWRG” is the visa applicant’s mother, and the review applicant;
·“CWRG Husband” is the husband of the review applicant, and the father of the visa applicant; and
·“CWRG Son” is the son of CWRG and her Husband and is the visa applicant. This is the person who I will refer to in these reasons as the “Applicant”).
ISSUES
Section 501(1) of the Act provides that:
“(1)…The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
There are, therefore, two issues presently before the Tribunal:
(a)whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
(b)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant.
If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa. I will address each of those grounds in turn.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 2 June 2015, the Applicant was sentenced to a head custodial term of imprisonment for a period of three years for respective convictions relating to (1) robbery with actual violence whilst armed; (2) burglary and commit indictable offence; and (3) fraud (dishonestly obtaining property from another).[1]
[1] T2, 18–19. Note: on 2 June 2015, the Applicant was actually sentenced to five years and three months of custodial time represented by (1) three years for robbery with actual violence whilst armed; (2) two years for burglary and commit indictable offence; and (3) three months for fraud.
It follows that the Applicant does not pass the character test, and the discretion to refuse to grant the Applicant a visa in s 501(1) is enlivened.
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[2] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[3]
[2] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[3] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[4]
[4] Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[5]
[5] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
General overview of the Applicant’s offending
Court Date
Offence Date
Offence
Result
31 December 2010
21 December 2010
Failure to appear in accordance with undertaking[6]
No conviction recorded; not further punished
11 May 2011
Between 2 March 2010 and 9 October 2010
Unlawful stalking[7]
No conviction recorded
Fined: $800
15 October 2010
Common assault[8]
2 June 2015
2 October 2012
Robbery with actual violence whilst armed[9]
Conviction recorded
Imprisonment: 3 years
21 November 2012
Burglary and commit indictable offence[10]
Conviction recorded
Imprisonment: 2 years
21 November 2012
Unlawful use of motor vehicle[11]
21 November 2012
Breach of Bail Condition
Convicted
No further penalty imposed
24 August 2012
Fraud - Dishonestly obtains property from another[12]
Conviction recorded
Imprisonment: 3 months
Note: all terms of imprisonment were ordered to be served concurrently. An immediate parole release date was fixed for 2 June 2015. As part of the sentencing regime imposed by the Southport District Court on 2 June 2015, the Court dealt with the Applicant for certain summary offences pursuant to s 651 of the Criminal Code Act 1899 (Qld) (“Code”). None of those summary offences involved the imposition of custodial time.[13]
2 February 2018
Between 8 November 2016 and 11 January 2017
Contravention of domestic violence order
Convicted
Fined: $750
[6] Bail Act 1980 (Qld), s 33(1).
[7] Criminal Code Act 1899 (Qld) sch 1 (“Code”), s 359E.
[8] Code, s 335.
[9] Code, ss 408 and 411(2).
[10] Code, s 419(4).
[11] Code, s 408A(1)(a).
[12] Code, s 408C(1)(b).
[13] See R2, 51 for details of those two summary offences.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(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)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(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)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
I will consider each paragraph in turn, citing specific offences relevant to the operative effect of each applicable sub-paragraph in paragraph 8.1.1(1) of the Direction.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
In relation to sub-paragraph 8.1.1(1)(a)(i), there are two relevant offences of violence. On 15 October 2010, the Applicant committed the offence of common assault in breach of s 335 of the Code. I have checked the material and cannot locate any document providing any detail about the factual circumstances of this offence. We are left with the Applicant’s explanation as contained in his written statement:
“Then in 2010, during an event where I was performing as a DJ, I got into an argument with the victim, her female friend, and three male friends.
The female friend had attempted to slap me, but she missed. One of the male friends then either attempted to hit me, or did hit me. Following this, I pushed him away and he collided into the victim.
A member of security witnessed the altercation and escorted the victim and her friends out of the venue.
Following this event, I was charged with Unlawful Stalking Common Assault.”[14]
[14] A2, 1[11]–2[14].
The Applicant was cross-examined about this offence. He said the following:
“Ms Letcher-Boldt: Okay. A report – or the report by Dr Beech, a psychiatrist, said that when he interviewed you, you explained the situation as you had dated a woman, when you broke up you didn’t handle it well, you became angry with her when she didn’t return your calls and then you saw her at a nightclub and had a go at her and one of her friends intervened and an altercation took place, is that right?
Applicant: Yes, that would be the gist of it.
Ms Letcher-Boldt: And what was the offence of assault for, what happened at the nightclub?
Applicant: Okay. So at that time I was a (indistinct) jockey and there was an event that was being held at the Met Nightclub in Brisbane. It was an Indian event, so my ex-partner is – my ex-girlfriend, sorry, she’s Indian . So we – so I was performing that night and so, I stepped out to have a cigarette and when I – well I was walking past, I stood there and I had a cigarette and then I heard someone say something to me, I can’t confirm who it was but when I turned to my left, then I saw my ex and her new partner and their friends. There was two other males and then the victim of the common assault was female. Nothing happened then but it was an argument ensued and so when I went back in, I was trying to look for somebody else, I was trying to look for a friend of mine and so, I was sort of (indistinct) because it’s two levels and so when I went up to the second level, I was in the crowd and then apparently I had bumped into one of her male friends and he – they thought it was intentional and so, then he pushed me and then I pushed him and then he – I guess, I don’t know who he collided with but according to the allegation or accusation, that it was either my ex-girlfriend or a female friend. So after that happened, a member of security had come and he escorted them out and then I remember saying – asking him, I was like how come you kicked me out? He’s like no bro, well he said it like this, he’s like no bro, I saw what happened. I was like – you know, they pushed you first, I said okay cool. And then that was it. And then I never saw them again.”[15]
[15] Transcript, 22, lines 23-46; 23, lines 1-4.
The second offence that, at first blush, can be said to involve violence committed by this Applicant arose from his conviction for “robbery with actual violence whilst armed” at the Southport District Court on 2 June 2015. The circumstances in which the Applicant came to commit this offence are amply summarised in the relevant sentencing remarks of Richards DCJ. The Applicant approached and entered a retail shop and as noted by Richards DCJ:
“[…] the robbery in particular involved you being in the store for quite a long period of time, approaching the complainant – who was the shop assistant – and apologising to her and then asking for the money out of the till, indicating that you had a knife. She was shocked and basically just did nothing. He then – sorry, you then showed her the knife and put it back into your pocket. She then gave you what money she had and you walked out of the store with the money and some items that you’d picked up, telling her your name, where you lived and the reason why you said you were taking the money.”[16]
[16] T, 29.
The actual conduct that, at first blush, may be found to be violent, involved the Applicant engaging in menacing and threatening behaviour by showing a 20cm long kitchen knife contemporaneous with making a demand for money upon the shop assistant. This behaviour is additionally peculiar because the Applicant bizarrely sought to becalm the victim before threatening her. He also told police at a later stage that he was apparently suffering from spinal cancer. Be all of that as it may, the salient aspects of his conduct amounting to violence can be readily gleaned from the police schedule of facts:
“Around 5:46pm, and when the store was empty, the defendant asked the complainant if she was a calm person.
She replied that she was and asked why. The defendant then said words to the effect of "Well I'm sorry to do this to you 'cause you seem like a nice girl. You're just at the wrong place at the wrong time and it's not you. I have a knife in my pocket and I'm not afraid to use it. l would like you to put all the money out of the till and put it in a bag and give it to me".
The complainant was shocked and just stood there. The defendant said "ok have it your way" and pulled out a kitchen knife, approximately 20cm long, from his pocket and held it up. He held the knife up for about 3 seconds, not close to the complainant but more by way of a demonstration, then put it back in his pocket.
The complainant, scared by the knife, told him she would comply and the defendant told her to hurry up. The complainant advised that she had just been to the bank and barely had $500, to which the defendant replied that he did not care and wanted it all.
The complainant indicated that it was mostly coins, but the defendant advised he still wanted it.”
To my mind, any finding that this particular offending conduct falls within the definitional ambit of a “violent crime” pursuant to paragraph 8.1.1(1)(a)(i) of the Direction must be approached with caution. When being sentenced, this is what the Court put to the Applicant:
“[Court]: You further stand charged by that name that on the 2nd day of October 2012 at Gold Coast in the State of Queensland, you robbed [name redacted] and that you were armed with an offensive instrument, namely, a knife. [The Applicant], how do you plead: guilty or not guilty?
[Applicant] Guilty.”[17]
[17] T, 32.
It is then necessary to have regard to the relevant indictment on which the Applicant pleaded guilty for this offending. The indictment records that the relevant sections of the Code pursuant to which the Applicant was convicted were ss 409 and 411(2). Section 409 facilitates a conviction for “robbery” where “Any person who steals anything, and, at or immediately before immediately after the time of stealing it, uses or threatens to use to actual violence to any person or property […] is said to be guilty of robbery.”[18] Section 411(2) relevantly provides that in the circumstances of the commission of a robbery, “[…] if the offender is or pretends to be armed with any dangerous or offensive instrument, […] at or immediately before or immediately after the time of the robbery […] the offender is liable to imprisonment for life.”[19]
[18] Code, s 409(1).
[19] Code, s 411(2).
The reason for my stated caution in assigning this conduct to the category of “violent” crimes within the ambit of paragraph 8.1.1(1)(a)(i) derives from the fact that the Applicant may have only been convicted by the court on the basis that he “threatened to use actual violence”. That, to my mind, falls short of the Applicant committing “actual violence” as is recorded in his criminal history.[20] While the Applicant may take some measure of comfort from a finding that his conduct in this specific episode of his offending escapes adverse scrutiny by paragraph 8.1.1(1)(a)(i), any such relief is short-lived. For reasons that follow, I am of the view that his appalling conduct in front of this female shop assistant is readily captured by the immediately following paragraph 8.1.1(1)(a)(ii) of the Direction.
[20] T, 18.
While the Applicant’s conduct against the female shop assistant is not captured as a “violent crime” within the definitional ambit of 8.1.1(1)(a)(i), I am of the view, and I find, that his offending culminating in his conviction for common assault in May 2011 does. This conduct militates in favour of a finding that the nature of the Applicant’s unlawful conduct has been, at the very least, of a serious nature.
Next, it is necessary to ascertain whether any aspect of the Applicant’s offending engages paragraph 8.1.1(1)(a)(ii). In the immediately preceding several paragraphs, I have recounted the very serious nature of the Applicant’s conduct culminating in his conviction for robbery whilst armed. There can be no doubt that his conduct and general posture towards the female shop assistant involving the knife is a crime of a violent nature against a woman.
I have found that the Applicant’s conduct with the knife towards the female shop assistant did constitute a crime of a violent nature towards her. It follows that this conduct is strongly militative in favour of a finding that the nature of the Applicant’s conduct has, at the very least, been serious, more likely very serious.
It is also necessary to ascertain whether any aspect of the Applicant’s offending engages paragraph 8.1.1(1)(a)(iii) of the Direction. In paragraphs [112]-[137] of these reasons, as part of my consideration of Primary Consideration 2, I explain that the Applicant has not perpetrated family violence. Therefore, this sub-paragraph is not relevant.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
As best as I understood the material, there is no contention from the Respondent that the Applicant’s conduct attracts the operative effect of the abovementioned sub-paragraphs (i) to (iv). As best as I understood the material, the Applicant has never been in immigration detention and therefore he cannot have committed a crime “while in immigration detention”. Likewise, there is no suggestion that he (1) has caused any person to enter into or be a party to a forced marriage; or (2) has committed crimes against vulnerable members of the community; or (3) government representatives or officials (a) due to the position they hold, or (b) in the performance of their duties. Therefore, sub-paragraphs (b)(i), (b)(ii) and (b)(iv) are not relevant to the instant determination.
In relation to sub-paragraph 8.1.1(1)(b)(iii) of the Direction, I am mindful of the reference to “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion”. The Respondent has not propounded this component of the Direction in its written material or oral submissions. Likewise, the Applicant. Accordingly, this sub-paragraph is not relevant.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider the sentence(s) imposed by the Courts for a crime or crimes of a non‑citizen/applicant. Its terms are expressed thus:
“With the exception of the crimes or conduct mentioned in sub-paragraph (a)(ii) and (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes.”
[My emphasis and underlining]
This sub-paragraph (c) is thus expressed to have no application to sentences imposed for offending which attracts the operation of sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction. This means whatever sentence was imposed on this Applicant for the commission of crimes falling (for present purposes) within the ambit of (a)(ii) or (a)(iii) or (b)(i), such crimes must be viewed as “very serious” because that is what is stipulated in paragraph 8.1.1(1)(a). This finding of “very serious” must attach to this offending even if the sentences imposed for it were at the low end of the range for that type of offending.
Therefore, taking into account the “exception” provision in this sub-paragraph (c), I am precluded from having regard to the level of seriousness indicated by the sentence imposed on the Applicant for the robbery offence which comprised a head custodial term of imprisonment of three years. I must nevertheless treat the circumstances of the commission of that offence as being indicative that the nature and seriousness of the Applicant’s offending, viewed as a whole, is very serious. I must make this finding even though Richards DCJ ordered that the Applicant be released immediately on parole for an operative period of three years.[21]
[21] T, 30.
The position is the same with regard to the Applicant’s conviction for common assault in May 2011. This was an offence committed against a woman within the ambit of paragraph 8.1.1(1)(a)(ii). Once again, the “exception” provision in this sub-paragraph (c) has application. I am thus precluded from having regard to the level of seriousness indicated by the sentence imposed by the court for this offending. In any event, the sentence involved the imposition of a fine in the sum of $800. As mentioned above, regardless of the low end nature of this sentence, I must nevertheless, pursuant to 8.1.1(1)(a), treat this offending as indicative of the nature and seriousness of the Applicant’s offending being at least serious, more likely very serious.
It is pertinent to provide an overall picture of the Applicant’s sentencing history. On any reasonable view, his is not a lengthy criminal history – in terms of the number of offences committed. He has committed a total of 10 offences comprising (1) failure to appear; (2) unlawful stalking; (3) common assault; (4) robbery; (5) burglary; (6) unlawful use of a motor vehicle; (7) fraud; (8) breach of bail; (9) a “traffic offence” and (10) contravention of a Domestic Violence Order (“DVO”).
The important part of his sentencing history is, to my mind, the reality that in the course of just four court dates, the Applicant has compiled head custodial terms of five years and three months[22] and incurred fines in a sum exceeding $1500. In terms of head custodial sentences, it is relatively rare for a sentencing court to impose head custodial terms of the length of three years at a relatively early stage during an offender’s history. As against that, there is the reality that he was immediately released on parole upon being sentenced to that head custodial term of three years. For the purposes of weight allocable to this sub-paragraph (c), it should be noted that the three years imposed for the robbery with actual violence whilst armed must be excluded. There remains, of course, two years and three months of head custodial time that was imposed for the burglary and fraud offending. Those two offences can be taken into account for the purposes of this sub-paragraph (c).
[22] Note: The three years of head custodial time imposed for the robbery with actual violence offence is one of the sentences precluded from consideration.
Regardless of the length of any criminal history, custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[23] The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process.[24] I am of the view that the sentences imposed by the courts for the crimes of this Applicant do militate in favour of a finding that his offending has been of at least a serious nature. While I have referred to the above-mentioned fines imposed on the Applicant, I do not consider that those types of punishments tend to suggest the associated offences were at a lower level of seriousness.
[23] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
[24] See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As mentioned, this is not an applicant with a relatively long or frequently committed criminal history. Put at its highest, he has been convicted of 10 offences across an approximate eight year sentencing history. It is difficult to attribute a finding of “frequency” to such a record. That said, the position becomes different when the second limb of this sub-paragraph (d) is taken into consideration: whether there is any trend of increasing seriousness.
To my mind, there is a discernible trend of increasing seriousness. In December 2010, he was dealt with for a failure to appear in accordance with an undertaking. There followed convictions for unlawful stalking and common assault in 2011. Viewed most favourably for the Applicant, the circumstances of his commission of the common assault may be said to be more in the realm of an affray or, perhaps, some “push and shove” while people were otherwise distracted or influenced in a nightclub. That is about as good as it gets for the Applicant because on 2 June 2015 he was dealt with for offences of a significantly higher level of seriousness:
·I have earlier recounted the factual circumstances of his commission of robbery, punished by a head custodial term of three years. Those circumstances involved him forcibly and threateningly imposing himself on an innocent victim going about her business. He sought to do so by menacingly introducing a 20cm knife into his threatening posture. The circumstances of this offending is in a completely different league to whatever offences he had earlier committed.
·Likewise, his convictions for burglary and unlawful use of a motor vehicle, punished by a head custodial term of two years, involved the intentional breaching the lawful boundary of another person’s private property and the removal and unlawful use of a Ferrari motor vehicle – taken on a joyride – having a value of over $400,000.[25] This conduct resulted in the very expensive vehicle being driven by the Applicant and being involved in a traffic incident. This offending derives from a completely different paradigm to any conviction imposed on the Applicant prior to June 2015.
·Likewise also, his conviction for fraud involved conduct that he committed via Gumtree involving him advertising a residential unit and obtaining a security bond and two weeks worth of rent while falsely holding himself out to be an “accountant for the landlord”. This conduct was intentionally designed to deprive the victim of those funds. Again, it is in a completely different league to whatever offences the Applicant had been convicted for prior to June 2015.
[25] T, 35.
Perhaps a further aspect of increasing seriousness of the Applicant’s offending relates to his offending against women. I have earlier relayed the circumstances of his conviction for common assault in May 2011. This theme of offending against women recurred in February 2018 that resulted in the Applicant’s conviction for contravention of a DVO. It would appear that the Applicant’s conviction for common assault in May 2011 did not convince him that, insofar as disagreements with women are concerned, he should leave well enough alone. Instead, the subject DVO had a “no contact” condition preventing him from contacting the aggrieved. The material is replete with him engaging in something like a 160 message dialogue that, in turn, culminated in his conviction for breaching the DVO. While it may be said that this DVO breach conduct constitutes some measure of increasing seriousness with regard to his offending against women, it is not of the same level of increasing seriousness as his above-described offences for which he was convicted in June 2015.
Having regard to the totality of the Applicant’s offending history and its manner of evolution from 2010–2018, it can be safely found that, while not necessarily frequent, his offending, viewed as a whole, does contain a trend of increasing seriousness. This sub-paragraph (d) militates in favour of a finding that the totality of his offending has been at least serious, more likely very serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
To my mind, the Applicant’s repeated offending is indicative of four cumulative effects. First, it can be fairly said that he has failed to develop a sufficiently reliable moral boundary between himself and offences committed against women. Such offending is not acceptable in circumstances where people are recreating and are otherwise enjoying themselves – such as in a nightclub. He cannot pass off that conduct as a mere disagreement. Similarly, his menacing conduct with a 20cm knife towards a young female shop assistant victim was seen to be serious enough for him to receive a head custodial term of three years. Likewise, his contravention of the DVO was indicative of a failure to respect and understand the protective purpose of that DVO for the benefit of the aggrieved. It should also be borne in mind that the Applicant has an additional conviction for unlawful stalking from May 2011.
Second, the Applicant’s offending history betrays a failure to develop any measure of respect for the property of other people. His commission of a fraud upon an innocent party genuinely interested in renting a residential unit is indicative of a readiness to unlawfully relieve people of their money. He had little or no compunction with unlawfully transgressing the boundary of another person’s property and removing a Ferrari motor vehicle worth in excess of $400,000 and taking that vehicle for what can only be described as a joyride all the way to the Gold Coast. When he felt a requirement for money, he had little or no hesitation in committing a robbery upon a retail outlet whose takings (and any other property that he took) rightfully belonged to the operators of that business.
Third, the Applicant has demonstrated little or no hesitation to impose at least some measure of a violent element to a desired outcome. His argument or disagreement in the nightclub resulted in conduct which lead to his conviction for common assault. While I have found that it might not have been violence per se, I have found that his offending constituting the robbery was an offence “of a violent nature […] against a woman”.
Fourth, his offending history is redolent of a failure to observe lawfully made orders and directions compelling him to do something or refrain from doing something. He has (1) failed to appear in accordance with an undertaking; (2) breached a bail condition; and (3) contravened a DVO. This failure to respect the lawful authority governing the Australian community is, to my mind, a further cumulative effect of this Applicant’s offending.
I am of the view that the abovementioned cumulative effects of the Applicant’s offending each militate in favour of a finding that his offending has been at least of a serious, more likely very serious nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant’s movement history indicates that he departed Australia on 8 September 2012 and returned on 13 September 2012.[26] As part of his re-entry into Australia, he had to complete the usual and necessary incoming passenger card. In this card, the following question was put to him: “If you are NOT an Australian citizen: […] Do you have any criminal conviction/s?”. To this question, the Applicant ticked the “No” answer.[27] For present purposes, I find (1) the Applicant’s proficiency in English was sufficient for him to understand the question and answer it truthfully and accurately, and (2) that the circumstances of his convictions in December 2010 (for failure to appear in accordance with an undertaking) and May 2011 (for unlawful stalking and common assault) must have been within the realm of his knowledge at the time he completed this passenger card.
[26] T, 21.
[27] T, 20.
I have checked (1) the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”);[28] (2) the Respondent’s SFIC;[29] (3) the Applicant’s statement;[30] and (4) the Transcript. I cannot find any reference, question, response, or other submission to why the Applicant answered “No” to the relevant question. It is thus difficult to make a finding about whether the Applicant has provided false or misleading information to the Department. As against that, it should be fairly noted that for each of these three convictions, the Applicant’s offending history contains a reference to “no conviction recorded”.[31] Out of an abundance of caution, and in fairness to the Applicant, I will not proceed to allocate adverse weight to this sub-paragraph (f). In terms of the extent to which it informs the nature and seriousness of the Applicant’s conduct, I will regard it as neutral.
[28] A1.
[29] R1.
[30] A2.
[31] R2, 23.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
I have checked (1) the Applicant’s SFIC;[32] (2) the Respondent’s SFIC;[33] (3) the Applicant’s statement;[34] and (4) the Transcript. I have also checked the remainder of the material. As best as I understood that material, the Applicant has not received anything from the Respondent or anyone else about the consequences of further offending in terms of his migration status to remain in Australia. Further, his offending has not been the subject of a previous adverse action regarding his visa – while neither onshore nor offshore – by the Respondent. Given the absence of any of these elements, this sub-paragraph (g) is not relevant to the instant application.
[32] A1.
[33] R1.
[34] A2.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs (a)(i), (a)(ii), and (c)–(e) inclusive, I am of the view that the Applicant’s offending can be readily characterised as serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(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 rehabilitation courses to be undertaken);
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
To my mind, the nature of the Applicant’s offending is, in and of itself, informative of the nature of harm to individuals or the Australian community were it to be repeated. In terms of his offences of violence (including crimes of a violent nature) it is safe to find that were he to re-commit the circumstances of his common assault and armed robbery, there would be adverse consequences for victims. While it can be accepted that no significant physical injury was occasioned to a victim of this type of offending by the Applicant, we are all too familiar with “one-punch” or one-episode type of offending that has resulted in very serious or catastrophic outcomes. Likewise, it is not a stretch of the evidence to suggest that were he to re-commit the circumstances of his robbery, while armed with a 20cm kitchen knife (or similar weapon), there could very well be very serious and even catastrophic outcomes for a victim or anyone else drawn into its orbit.
His offending has also caused quantifiable loss in terms of property belonging to other people. He has defrauded at least one innocent person looking for residential lodgings by unlawfully taking that person’s rent paid in advance while pretending to be an accountant of the landlord. Similarly, he has unlawfully taken a very valuable and unique motor vehicle from its owner and proceeded to unlawfully use it in circumstances where the owner gave him absolutely no permission to do so. Again, were he to re-commit this type of offending against other people’s property, victims of that offending would suffer quantifiable loss.
Of particular concern are his offences involving women. Across an offending history running for almost a decade, it is not unsafe to find that he has failed to develop and establish any kind of moral boundary between himself and the lawful rights of women. There is a conviction for unlawful stalking from as long ago as May 2011. There followed his cowardly robbery upon an unwitting and innocent shop assistant female victim after assuring her he had no hesitation to use a 20cm knife to achieve his objective (in 2015). As recently as February 2018, there is the abovementioned contravention of a DVO which had been put in place to specifically protect the aggrieved female victim.
Therefore, were the Applicant to re-commit offences of the types he has committed thus far, it is safe to find that victims of that offending could experience (1) financial harm; (2) partial or total destruction or loss of their property; (3) psychological harm; and (4) physical harm (including, to a potentially catastrophic level).
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s contentions
As I understood the totality of the Applicant’s submissions, the following contentions are put in favour of a finding that the Applicant represents a low risk of recidivism. First, there is a reference to the sentencing remarks of Richards DCJ, based upon which it is propounded that “Judge Richards determined that [the Applicant] is not a serious risk to the community, and appropriately, granted [the Applicant’s] immediate release into the community.” With respect, Richards DCJ made no such finding about the Applicant’s risk of recidivism. What Her Honour did was to impose a head custodial term of three years. This was not accompanied by any finding about the Applicant’s risk of recidivism. On the contrary, Her Honour placed the Applicant on parole for an operative period of three years. In so doing, Her Honour told the Applicant “[…] if you breach your parole, they’ll just put you into custody.”[35]
[35] T, 30.
Second, it is propounded on behalf of the Applicant that while sentencing the Applicant in June 2015, Richards DCJ made a determination of the risk the Applicant represented to the community by saying the following:
“I have been provided with a report, which does give some insight into what was happening in your life at that time and certainly there were some very difficult domestic circumstances that were operating to place you under a lot of stress.”
While I accept the Applicant’s offending which was before Richards DCJ happened at a difficult and vulnerable time for the Applicant when he was aged between 17 and 21 years old, I do not, with respect, necessarily concur with a finding about how the factors of whatever “was happening” in the Applicant’s life at that time are then or now informative or determinative of his level of risk. Her Honour was speaking in the context of what was before her at that time about circumstances apparently causing stress to the Applicant. Her Honour makes no determinative finding about the Applicant’s future risk of recidivism.
Third, a contention is made about the time that has elapsed since the Applicant has been in the community on an unsupervised basis without him committing any further offences. To my mind, this contention is fairly made because of the offending contained in the Applicant’s criminal history between 2009–2016. The starting point for the Applicant’s time in the community is 2 June 2015 at which time Richards DCJ placed him on parole for an operative period of three years. The only offence that he subsequently committed involved the abovementioned breach of the DVO. He did not commit any further offence in Australia until he voluntarily left Australia in November 2018 to spend time with his father in Fiji. On any fair view, apart from breaching the DVO between 8 November 2016 and 11 January 2017,[36] the Applicant remained offence-free in Australia from June 2015 until the end of 2018.
[36] R2, 20.
It is only fair to the Applicant to recount the circumstances leading to the breach of the subject DVO. In his statement appearing in the material, the Applicant purported to provide context to the relationship between him and the named aggrieved in the DVO. He accepted that he:
“[…] messaged the victim, telling her to stop contacting my parents. Regrettably, an argument then ensued between the victim and me.
The victim made a complaint to the Police in 2017.
She provided copies of our messages from November 2016, when our relationship was ending.
The contravention was committed through messaging, and not through in-person contact. There was no act of violence or abuse.”[37]
[37] A2, [79]-[82].
During the course of sentencing submissions made before Ms Kelly SM, it was contended on the Applicant’s behalf that the Facebook messaging giving rise to the breach involved “reciprocated interactions over Facebook Messenger”:
“Her Honour: Just from them there, there don’t appear to be any - - -
[Police prosecutor]: That’s the case, your Honour
Her Honour: - - - threats, but they appear to be more emotional outpourings about the demise of the relationship.
[Applicant’s lawyer]: Yes. And what is clear from those messages is that it’s clearly reciprocated interactions over Facebook Messenger. It’s not one-sided, and that was what I was instructed, in any event, in terms of the interactions. And I am instructed that the initial reason for this first interaction – regaining contact with the aggrieved – was because [the Applicant] received a call from police saying that a missing persons notification had been sent from the aggrieved’s mother to the police and they - - -
Her Honour: About the aggrieved.
Mr Clements: Yes. And they contacted [the Applicant] to see if he knew of her whereabouts. And that’s the initial reason he has instructed me as to why he started the contact which then led on to, as your Honour can see, a number of messages between them both. Your Honour will note from his criminal history that he is on parole at the moment, and, your Honour, that is, in my submission, the strictest support possible for a person in the community.”[38]
[38] A6, 1-5, [29]-[47]; 1-6, [1]-[3].
These submissions seem to resonate positively with Ms Kelly, SM, who noted the following in her sentencing remarks:
“[…] the contravention – I take into account that plea of guilty, and I have reduced the penalty that I otherwise would have imposed. The contravention took place over, essentially, two months in which 161 Facebook messages and a number of phone calls were made to the aggrieved.
[…]
I hope that you appreciate now, even, contact that you have undertaken, which appears to be born [sic] out of some sort of welfare, and then emotional upheaval about the relationship deteriorating, that you understand that that contact is just not permissible. And that is the purpose of the protection order being put in place.
Your criminal history shows quite serious matters on that but does not contain offences of a like nature.”[39]
[39] A7.
In the SFIC filed on his behalf, it is contended that this breach of DVO offence committed after the Applicant’s asserted rehabilitation “[…] does not indicate that [the Applicant] is reverting to old behaviour.” This breach of DVO offence is sought to be characterised as a “one-off incident during the breakdown of the relationship between the [Applicant] and the aggrieved.”[40]
[40] A1, 7.
Therefore, it is, to my mind, safe to find that the time that elapsed between the Applicant’s conviction for his most serious offending in mid-2015 until the time he left Australia at the end of 2018 – some three and a half years – is a factor militative in favour of a finding that he represents a low risk of recidivism. His breach of the DVO at the end of 2016 through the beginning of 2017 is not to be ignored but does not rise to the level of detracting from his otherwise offending-free period from mid-2015 until the end of 2018.
Fourth, the Applicant makes reference to and seeks reliance on, the psychological assessment of Dr Bruce Stevens dated 27 January 2021. Dr Stevens opined that the Applicant had (but had since recovered from) an adjustment disorder with mixed anxiety and depressed mood. He thought the Applicant had made significant changes in his life and that he now represented a low risk of re-offending. In his report, Dr Stevens recounted the prevailing circumstances in the Applicant’s life during the period in which the offences were committed between 2009 and 2016. He thought the Applicant was confronted with “considerable stresses” during this period arising from the separation of his parents, and his mother’s commencement of a relationship with the Applicant’s uncle, who then became violent towards him. Dr Stevens noted that these unhappy domestic circumstances caused the Applicant to leave the care of his mother and to briefly reside with an aunt.
Dr Stevens further noted that these unstable circumstances in the Applicant’s life lead to a symptomatology of low mood, high anxiety, and resulting self-medication with alcohol. He opined that the Applicant’s behaviour at this time was characterised by impulsivity and adversely affected judgement. As mentioned earlier, these factors culminated in a diagnosis of “an adjustment disorder with mixed anxiety and depressed mood.”[41] It is contended that the Applicant now represents a low risk of recidivism because those causative symptoms have reached the following state of development in the Applicant, according to Dr Stevens: “He has recovered from this condition which is relatively brief in nature.”[42]
[41] A4, [50].
[42] A4, [52]–[53].
It is further propounded on the Applicant’s behalf that Dr Stevens has noted that as far back as 2013, the Applicant sought counselling which “[…] helped him to significantly change his life.”[43] Dr Stevens was of the view that the outcome of this counselling was that it helped the Applicant to overcome his predisposition to abuse alcohol, noting further that the Applicant “[…] never had a problem with drugs.”[44] It was further positively contended on behalf of the Applicant that Dr Stevens noted the Applicant’s abovementioned period of years during which he remained offence-free and otherwise complied with the terms of his parole conditions. A further contention made on behalf of the Applicant’s risk of recidivism is Dr Stevens’ notation that the Applicant has no history of offending in Fiji.[45]
[43] A4.
[44] A4, [65].
[45] A4, [70].
Finally, the contention was put on behalf of the Applicant that his prospects of re-establishing his life in Australia also speak to a low risk of recidivism. Reference is made to the observation of Dr Stevens that the Applicant has completed a Diploma in Legal Studies at TAFE Gold Coast, and that the Applicant is looking to eventually commence studies towards a law degree. Dr Stevens also noted that the Applicant “[…] has a reasonable work history including working in areas with charitable focus. He has pro-social goals for the future.”[46]
[46] A4, [72]-[73].
These submissions arising from Dr Stevens’ findings culminate in the submission that the Applicant represents a low risk of recidivism. To quote Dr Stevens, “in my opinion, based on clinical data, [the Applicant] would be relatively low in the risk of re-offence [sic].”[47]
[47] A4, [79]-[80].
Fifth, the Applicant takes issue with the findings of the delegate who thought the Applicant showed a lack of remorse for his behaviour. It was contended that the Applicant is “very remorseful”. While I did not follow the resulting contention, it was said this expression of remorse “is indicative by his odd behaviour.”[48] Perhaps more understandable was the submission that the Applicant has “sought to address his issues, which demonstrates remorse.” Perhaps most reliably on this issue of remorse are the findings of Dr Stevens who was of the view that the Applicant had “expressed clear regret” and had “expressed clear remorse” and that his expression of remorse shows empathy for the victims.[49]
[48] A1, 7.
[49] A4, [55]-[62].
Rather than making a finding either way on this issue of remorse, I think it is necessary to have regard to the Applicant’s statement where he does make some reference to the effect of his offending history on the victim/shop assistant. In his written statement appearing in the material, the Applicant purports to give context to his offending on the basis of being “[…] fearful of my landlord and required money to pay my rent. I had fallen behind on my rent payments.”[50] He then makes the unsubstantiated and extraordinary claim that his landlord was predisposed to violence because of his membership of a certain outlaw motorcycle gang, and that this landlord had made threats to harm his partner and him. Putting aside this unsubstantiated and extraordinary context behind his very serious conduct, he has the following to say about his understanding of the impact his conduct had on the shop assistant:
“I should have turned to my family for help. I did not process this properly. Instead, I did the most foolish act that I continue to deeply regret today.
I absolutely had no intention of using the knife, except for display. Though I understand the affect it would have had on the shop assistant.
I entered an early plea of guilty to this offence.”[51]
[50] A2, [48].
[51] A2, [52]-[54].
Having regard to the above factors, the global contention is made that:
“[The Applicant] is regretful of his past behaviour, and he has changed since 2012. He now understands full well the impact that further offending would have on his residency in Australia and on his future goals. [The Applicant] is completely deterred from further offending.”[52]
[52] A1, [34].
Respondent’s contentions
The Respondent’s contentions commence with a limited acknowledgment that “there is no evidence to suggest that the Applicant has committed further offences since the time of the Reviewable Decision.”[53] The Respondent goes on to make the broad submission of their being no evidence before the Tribunal demonstrative of the Applicant completing any courses or programs addressing the causative factors behind his past offending. That contention is somewhat at odds with the findings of Dr Stevens who, in January 2021, noted that the Applicant had overcome those symptoms and that they would not now adversely affect the Applicant were he to be returned to the Australian community.
[53] R1, [46].
It is difficult to cavil with the Respondent’s further submission that the Applicant’s offending has occurred at times in the Applicant’s life when he has been faced with stressful circumstances either in his intra-family or inter-personal relationships. Support for this contention is sought to be found in the report of Dr Michael Beech, a forensic psychiatrist, whose report dates from May 2015 and was presumably obtained in support of the Applicant’s appearance for sentencing before Richards DCJ in June 2015. In this report, it was noted that the Applicant:
“…suffers from significant problems of low self-esteem, poor judgement, and limited resilience. He has personal vulnerabilities from childhood and when stressed he seeks to make up for these by excuses, some deceptiveness, boasting and self-deception, and ultimately by avoidance… he has sought to evade these difficulties and his responsibilities, and then act rashly.”[54]
[54] R2, 119.
The resulting contention put by the Respondent is that it is “almost inevitable”[55] that when faced with similar obstacles and challenges in his life, the Applicant will re-offend. Examples of such difficulties are cited to include finding employment in Australia, being accepted into a degree-certified law course at a university (or similar institution) as well as re-establishing an interpersonal relationship with a partner. As against that, there is the evidence of Dr Stevens who was of the view that the Applicant “[…] no longer abused alcohol and never had a problem with drugs” and that otherwise, the Applicant has recovered from the previously-diagnosed condition of an adjustment disorder with mixed anxiety and depressed mood.
[55] Transcript, 97, line 14.
The Respondent attacked the Applicant’s claimed increase in awareness of his mental health issues and, in particular, his claims of having developed self-taught coping mechanisms. This attack was based on what he told Dr Beech (albeit in May 2015) that caused Dr Beech to make the following notation in his report:
“From his account matters have improved more recently. He is employed. He gets on better now with his family. There are no longer the financial or personal difficulties that he faced in 2012. There is evidence of an ongoing avoidant stance but he seems now to be aware that ultimately these matters must be decided.”[56]
[56] R2, 120.
While the Applicant may have said this to Dr Beech, the stark reality is that the Applicant did subsequently re-offend at the end of 2016–beginning of 2017 in the form of his contravention of the DVO. There is no requirement to repeat my summary and findings of and about the circumstances of that breach. While it was a relatively low-level breach (as endorsed by the sentencing remarks of Ms Kelly, SM), it was nevertheless, a breach giving rise to a conviction in circumstances where the operative effect of the three year parole order were still live.
The Respondent then attacked the Applicant’s claims of remorse and regret for his offending conduct in Australia. The contention is made that the Applicant has sought to significantly minimise his offending behaviour. I have a measure of sympathy with this contention when one has regard to the Applicant’s oral evidence about certain aspects of his offending. There was, to my mind, a degree of minimisation in his oral evidence when he sought to explain and counterpoint his conceptualisation of the robbery incident involving the knife. It was plain from the police records that he made a clear and unambiguous representation to the female victim that he held the knife and that he was not afraid to use it. I found his oral evidence seeking to explain this conduct to be obfuscatory and, to an extent, artificial.
While I have made an earlier differentiation about whether or not actual violence was used in the commission of that offence, I am of the view that for the Applicant to take this position in his oral evidence, did not assist in convincing me that he had developed any measurable level of insight into what he did. A genuinely remorseful applicant would have been appalled and regretful about threatening a female shop assistant with a knife, telling her he was not afraid to use it, while making demands for money. To raise a technical point about the actual description of the offending, over half a decade after he was convicted for it, does, to my mind, verge on the high-handed.
During cross-examination, he was asked to reconcile his assertion that he did not intend to be aggressive towards the female shop assistant while at the same time indicating to her that he was in possession of a knife. Ultimately, he agreed that his conduct would be seen as violent:
“Ms Letcher-Boldt: [Applicant], you say that you were not aggressive; however, you indicated to the victim that you had a knife on you. How do you reconcile those two things?
Applicant: Looking back, like I said, I wasn't in the right frame of mind and I was just a different person, but I know that I would never have, like, hurt her or anything.
Ms Letcher-Boldt: Do you agree that this was a violent offence?
Applicant: It wasn't my intention to be, but I suppose yes, it would be seen as that.”[57]
[57] Transcript, 31, lines 39–46.
The Respondent cites a further example of under-statement of his offending and, alternatively, his attempts to minimise it or to deny it on an outright basis. In cross‑examination, he was questioned about his conviction for stalking in 2011. He suggested that he did not actually make any physical contact with the complainant, that he did not visit her, or meet up with her “or anything like that. It was just through text message and yes, SMS messaging. Yes.”[58] When the circumstances of his alleged conduct giving rise to the stalking conviction were put to him, he purported to deny those allegations, on an outright basis, because his then-legal representative had apparently seen video footage that challenged the allegations made by the complainant. Interestingly, this asserted video footage was viewed by the Applicant’s then-representative but never the Applicant:
“Ms Letcher-Boldt: And is it correct that she alleged that you went to her place of residence wearing a mask and that, she says, you attempted to open her window security screen with a spanner?
Applicant: Okay, I – that is not true, that is a false claim, I even had that mentioned in court during that proceeding, those proceedings for it, they’re blatantly untrue. There is no evidence to support that as well, to the point where there was a camera, video camera at the entrance of the complex which I visited and I got out of a taxi with no mask and no bag, as far as the footage showed. That is what my representative told me at that time. So no, I did not do that. I deny – that didn’t happen.”[59]
[58] Transcript, 25, lines 17–20.
[59] Transcript, 25, lines 32-40.
Parallel to the theme of minimisation and obfuscation of his offending, there is a contention from the Respondent that the evidence points to a propensity in the Applicant to provide false information to the police about his offending. Several examples are cited. First, at the time he was being questioned about his robbery offence (with the knife), there is his revelation to the police of having a condition of spinal cancer that was being apparently treated by the administration of aspirin. Second, when questioned about the circumstances in which he found himself in unlawful possession of the Ferrari motor vehicle, the Applicant lied to the police. The offending in relation to the Ferrari vehicle was committed after the Applicant had been arrested for the armed robbery offence and had been placed on remand for about a month. He was then released on bail for that offence and that is when he committed the burglary and associated offending relating to the Ferrari vehicle. He said the following during cross-examination:
“Ms Letcher-Boldt: Okay. And when you were questioned by police in relation to this offence, you falsely stated that you had purchased the stolen vehicle earlier that day, is that right?
Applicant: Yes, sorry, excuse me.
[…]
Ms Letcher-Boldt: Oh the last one. I asked you, when you were questioned by police in relation to this offence, you falsely stated that you had purchased the stolen vehicle earlier that day, is that right?
Applicant: Yes.
Ms Letcher-Boldt: Okay, all right. And then on 2 February 2018, you were convicted of - - -?
Applicant: Sorry for interrupting, may I add to my response?
Ms Letcher-Boldt: Yes, of course?
Applicant: I was dishonest with police because I was scared of going back to jail but if it matters, I was honest, completely honest with the court, as evidence by my early guilty plea, or guilty plea, I don’t know if it was early but guilty plea. So I never denied that I look at the court proceedings and everything, it was just at that moment I was just scared of going back to jail.”[60]
[60] Transcript, 33, lines 42–44; 34, lines 10–22.
In these circumstances, contends the Respondent, the Applicant’s claimed insight and remorse of his offending cannot be accepted to be at the level that the Applicant would like the Tribunal to believe it is.
Some observations about the medical evidence
This is an application in which two expert medical opinions are ventilated and debated. Those expert opinions are disparately separated by a period of approximately five years. The first opinion, dating from May 2015, is from a forensic psychiatrist. The second opinion, dating from January 2021, is from a forensic psychologist. Both opinions reach certain findings about factors said to have been, and perhaps to still be, causative of the Applicant’s pre-disposition to offend.
It is, to my mind, something of an unfair impost on this Tribunal for expert medical reports containing complicated and technical findings, diagnoses and opinions to be ventilated in circumstances where neither expert is called to clarify what they have written in their respective reports. The Tribunal is expected to, somehow, place two reports on a table before it, read them, and then make definitive and purportedly reliable findings about the findings and opinions expressed by those experts.
All too often, this gives rise to more questions and uncertainty than it does answers. For example, in his report from May 2015, Dr Beech makes it clear that:
“In my opinion he would benefit from physiological treatment. Avoidant personality coping styles are ultimately self-defeating and are likely to continue to cause him difficulties through life unless he learns ways to act in a more mature manner. Psychological treatment is probably best done as a Cognitive Behaviour Therapy with an experienced psychologist.”[61]
[61] R2, 120.
It would have been very helpful, for example, to know the views of Dr Beech about any ongoing treatment necessary to be undertaken by this Applicant and to what extent his avoidant personality type may or may not cause him to experience difficulties through his life and to possibly re-offend. Likewise, it would have been helpful to know Dr Stevens’ views about the extent of any ongoing psychological treatment for the Applicant. Instead, we have Dr Stevens’ untested (in oral evidence) finding that the Applicant has, apparently, overcome every pre-dispositive clinical indicator or symptom that may give rise to future offending. In these circumstances, the Tribunal is asked to make definitive findings about whether or not to grant a visa on the basis of untested evidence of two psychological experts from whose reports date five years apart.
Conclusions on the likelihood of the non-citizen engaging in further criminal or other serious conduct
The most recent and clinically expert and independent material before the Tribunal that can be said to be informative about the risk of recidivism is, of course, the report of Dr Stevens that dates from 27 January 2021. For reasons I have summarised earlier as part of the Applicant’s submissions around recidivism, Dr Stevens reaches the view that “[i]n my opinion, based on clinical data, [the Applicant] would be relatively low in the risk of re-offence.” [sic] Any weight allocable to that finding must be moderated due to (1) Dr Stevens’ evidence not being the subject of testing in cross-examination and (2) Dr Stevens not providing his views about the earlier findings of the forensic psychiatrist, Dr Beech.
As I have understood the totality of the submissions on recidivism, the Applicant’s intention to refrain from re-offending and to otherwise avoid factors that previously predisposed him to offend, are matters that remain to be tested upon a return to the community. In his favour is the reality that he was at large in the community from mid-2015 until the end of 2018 and that he did not re-offend. Also in his favour is that he does not seem to have re-offended in Fiji. As against that, there is his conviction for the breach of the DVO in February 2018, the circumstances of which I have dealt with earlier.
I again stress the difficulty in making any reliable assessment about recidivism in circumstances where an expert with specialised knowledge conducts comprehensive and nuanced testing on an Applicant and reaches certain conclusions, yet that expert’s evidence is not orally ventilated before the Tribunal. This, in circumstances where a decision is sought from the Tribunal about whether or not to grant a visa to a person who has committed at least serious, perhaps very serious, offences, during his time here.
In these circumstances, the safest course is to cautiously follow the findings of the most recent clinical expert who, of course, is Dr Stevens. Accordingly, I find that the Applicant represents, in the words of Dr Stevens, a “relatively low” risk of recidivism.
Given the Applicant’s assessed state of rehabilitation, I am of the view that he now represents no different recidivist risk to that which applied to him at the time of his most recent departure from Australia at the end of 2018.
Is the risk of harm affected by any of the factors referred to in 8.1.2(2)(c)?
Paragraph 8.1.2(2)(c) provides:
“where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
I have checked the written material and note there is no contention made about any minor children in Australia by either party either in each of the SFICs or in any of the oral submissions or in any other part of the written record of this matter. This Primary Consideration 3 is not relevant to determination of this application.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[78] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[79]
[78] Direction, paragraph 8.4(3).
[79] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second, proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, 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.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I also note, based on the principles in paragraph 5.2 of the Direction, that:
·the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[80]
·Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[81]
·the nature of a 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 a visa outcome that is not adverse to the non-citizen.[82]
[80] Direction, paragraph 5.2(4).
[81] Direction. 5.2(4).
[82] Direction, paragraph 5.2(5).
Analysis – Allocation of Weight to this Primary Consideration 4
With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
(i)breached the expectation in the immediately preceding sub-paragraph (a); or
(ii)there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Clearly, the Applicant has breached the Australian community’s expectations by his breaches of Australian laws.[83] Therefore, the Australian community “as a norm” expects the Australian government to refuse him entry into Australia.
[83] See [19], above.
Paragraph 8.4(2) of the Direction refers to the Australian community’s expectation that refusal of a visa may be appropriate simply because the nature of the offending is such as to give rise to an Australian community expectation that the person should not be granted a visa to remain here. In particular, paragraph 8.4(2) stipulates that an Australian community expectation is that the Australian government “can and should refuse entry to non-citizens” in such circumstances. This paragraph 8.4(2) then enumerates certain factors that are informative of this expectation and, ultimately, the weight allocable to it. I note my findings that the Applicant has been convicted of two crimes of a violent nature against a woman.[84]
[84] See [23]–[32], above. Note: For the purposes of this decision, I have found (1) that the Applicant’s common assault offence was captured by 8.1.1(1)(a)(i) of the Direction and (2) his offence of robbery with actual violence whilst armed fell within the ambit of 8.1.1(1)(a)(ii) of the Direction. Both offences involved female victims.
To my mind, these findings engage the principle in paragraph 8.4(2) such as to give rise to a finding that the nature of this Applicant’s offending gives rise to an Australian community expectation that the Australian government can and should refuse to grant the visa.
The final question is whether there are any factors which modify the Australian community’s expectation that the Applicant cease to hold a visa. This question is informed by the principles in paragraph 5.2(4) of the Direction.
The Applicant was a permanent resident in this country and has spent just over half of his life here, until he returned to Fiji in November 2018. During that time, he has made contributions to the Australian community. During his time on parole, he worked as a sales manager for a resort company. He has also made community contributions through his work for a charity organisation raising funds for those affected by cerebral palsy.[85] It follows that the Australian community does not have a low tolerance of this Applicant’s conduct as they would if he held a limited stay visa, or had been participating in or contributing to the community for a short period of time.
[85] See A2, [117].
Principle 5.2(4) further provides that the Australian community may afford a higher level of tolerance to this Applicant’s criminal or other serious conduct if (1) the Applicant has lived in the Australian community for most of his life, or (2) he has lived here from a very young age. At best, only the second element has possible application to the Applicant. He lived in the Australian community, on a predominant basis, from January 1995 to March 2000, and from June 2008 to November 2018. Therefore, only the second of these elements is of assistance to the Applicant.
Thus, I am of the view that the Australian community’s expectations are not fundamentally modified by the principles in paragraph 5.2(4) of the Direction.
Conclusion: Primary Consideration 4
Considering all relevant factors, Primary Consideration 4 weighs strongly, but not, on its own, determinatively, in favour of exercising the discretion to refuse to grant the Applicant a visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
The Applicant is offshore. Logically, it is not possible for him to be “removed” from Australia. Therefore, none of Other Considerations (a)–(b) are relevant. I will therefore only address Other Considerations (c) and (d).
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community. This includes 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.
In its SFIC, the Respondent says there is no evidence to indicate this Other Consideration is relevant to the instant determination. I agree. I have looked through the Applicant’s SFIC and the Transcript and can find no reference to any contention being made about this Other Consideration (c) in those documents. Accordingly, this Other Consideration (c) is not relevant.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight to allocate to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.
Strength, nature and duration of tiesAn initial observation is that the second paragraph of this paragraph 9.4.1 is not relevant to the instant application. It is predicated on an applicant seeking relief from a cancellation of their visa or non-revocation of the mandatory cancellation their visa. Here, the Applicant seeks relief from a decision to “refuse” a visa. Paragraph 9.4.1(2) is not relevant to determination of the instant application.
I will therefore limit my consideration to the componentry of paragraph 9.4.1(1) of the Direction.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant has the following immediate family members in Australia:
·his mother; and
·his brother.
The Applicant’s father is a permanent resident of Australia. However, his father is not relevant to paragraph 9.4.1(1) of the Direction, because he is not “in Australia” at the time of this decision. He is in Fiji.[86]
[86] See A3, [24]–[26].
Even though he has a number of extended family members in Australia (two aunts, one uncle, and one cousin),[87] they are not “immediate” family members. Therefore, they are not relevant to paragraph 9.4.1(1) of the Direction.
[87] In the PCF, the Applicant says he has three aunts – one is in New Zealand; he also says he has two cousins – one is in New Zealand.
In her written statement, the Applicant’s mother, who did not give oral evidence at the hearing, said the following:
“[The Applicant] has spent most of his life in Australia. He has always related with the Australian culture and way of life, and has said he feels very distant from people in Fiji (where he currently is).
Also, [the Applicant’s] older brother, [name redacted], has planned to be wed this year (Covid-19 restrictions permitting), and we are all hoping [the Applicant] will be able to attend.
As his mother, it would devastate me if he being younger son was not allowed to return home to Australia. Therefore, I humbly request that he is granted his appeal to return to Australia, the country he loves, and the place he belongs.”[88]
[88] A5, [33]–[35].
In the Applicant’s SFIC, reference is made to the impact of this decision on the Applicant’s mother thus:
“The decision has impacted the Review Applicant, as the mother who resides in Australia.
The Review Applicant feels guilty acknowledging that her son’s offending stems from issues within her home, and that [the Applicant] is still dealing with the repercussions.
Her relationship with [the Applicant] has been repaired, although still fragile. It would be devastating for their relationship to be separated. The Review Applicant wishes to support her son, to make up for the hurt caused in the past.
The decision has impacted the Review Applicant’s wellbeing, as she has found it very upsetting and difficult to have one child in Australia and one child in Fiji.”[89]
[89] A1, 9[42]–9[45].
I did not take from the Applicant’s oral evidence any confirmation that the relationship with his mother was an overly close one. Similarly, when asked about his relationship with his brother, the Applicant kept repeating “there’s no animosity there.” This is what he said in cross-examination:
“Ms Letcher Boldt: Okay. Now the relationship with your mother, you mentioned in your evidence, you know, that’s definitely much, much better than what it was during the period 2009 to 2012 or, you know, probably after that. Can you describe as best you can, what your relationship with your mother is at this point?
Applicant: At this point it’s a healthy one. You know, we don’t argue as much as we used to. You know, as I mentioned, she’s aware that I – well from that point on, she was aware that I was struggling with certain challenges, you know, mentally, such as depression and whatever else I was diagnosed by Dr Beech. So there is that open communication now where, if I am having a bad day, I can talk to her. If she’s having a bad day, she can talk to me and visa [sic] versa. If I am in a good day, I can tell her about it. You know, we speak on the weekends, you know. And so, it is much healthier in that regard. Yes.
Ms Letcher-Boldt: What’s your relationship with your brother?
Applicant: My brother, he – it’s not the closest but there is no animosity there. It’s just that right now he’s engaged, he’s looking to become a teacher so he’s going to re-enrol in university, he’s saving for a house, so he’s kind of doing his own thing which I understand and I don’t hold anything against him for that. It’s just because I am in Fiji too, we don’t talk as much as we did when I was in Australia. I was invited to his wedding so there’s no like animosity there. That’s one of the reasons why I do want to return as well, is to attend his wedding, he’s the only brother I have and yes. So I do love him, I do love him and I do care about him. But he is, you know, doing things for his life and his fiancé and they’re setting up their own, you know, future.”[90]
[90] Transcript, 67, lines 9–32.
I have checked the written material and cannot find a statement from the Applicant’s brother. The brother did not give oral evidence at the hearing. However, there is reference to the Applicant’s brother in the SFIC filed on behalf of the Applicant:
“The decision has an impact on [the Applicant’s] brother, [name redacted], who is an Australian citizen and resides in Australia.
The refusal of the visa has caused separation between two siblings. [Brother’s name redacted] is well settled in Australia with many connections to the community, but sadly, he is now separated from his only sibling.”[91]
[91] A1, [46]–[47].
The Respondent submits that to the extent the Tribunal finds that this Other Consideration may weigh in favour of granting the visa, it should only be afforded limited weight and is otherwise significantly outweighed by Primary Considerations 1 and 4.[92]
[92] R1,16[94].
The impacts on the Applicant’s mother and brother will to an extent, be significant in the event he is not allowed to enter Australia. Despite the Applicant’s history of offending, and the Applicant’s intra-family issues with his mother consequent upon the termination of her relationship with his biological father, both his mother and his brother can be safely found to remain open to the prospect of him returning to Australia.
I am of the view that the impact on the Applicant’s immediate family – specifically his mother and brother – militates moderately, but not determinatively, against exercising the discretion to refuse to grant the visa.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a refusal decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
I have checked the Applicant’s SFIC together with that of the Respondent and cannot find any reference to this part of Other Consideration (d) being of relevance to the instant determination. The position is the same with regard to the Transcript insofar as oral submissions are concerned. I am not satisfied that denial of the visa to the Applicant, despite whatever work history he may have in Australia, would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.” Accordingly, this second part of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
With specific reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view that having regard to the relevant components of this first part of Other Consideration (d), the totality of the evidence points to a moderate, but not determinative, level of weight in favour of the Applicant. As mentioned, the second part of this Other Consideration (impact on Australian business interests – paragraph 9.4.2(3)) is not relevant to determination of the instant application.
Findings: Other Considerations
The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: not relevant;
(c)impact on victims: not relevant; and
(d)links to the Australian community: moderate, but not determinative, weight in favour of the Applicant.
CONCLUSION
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should exercise the power conferred by s 501(1) to refuse to grant the subject visa to the Applicant.
In reaching that conclusion, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 weighs strongly, but not on its own, determinatively, in favour of refusal;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 is not relevant;
·Primary Consideration 4 weighs strongly, but not on its own, determinatively, in favour of refusal;
·I have outlined the weight attributable to the Other Considerations. I consider that the totality of the moderate weight I have attributed to Other Consideration 4 does not outweigh the combined strong weights I have respectively allocated to Primary Considerations 1 and 4; and
·A holistic view of the considerations in the Direction therefore favours exercise of the discretion to refuse to grant the visa to the Applicant.
Consequently, I exercise the discretion to refuse to grant the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
[SGD] Associate
Dated: 21 July 2021
Date(s) of hearing: 24 and 25 May 2021 Advocate for the Applicant: Rodney Sahay Solicitors for the Applicant:
Advocate for the Respondent:
Stephens & Tozer Solicitors
Emma Letcher-Boldt
Solicitors for the Respondent:
Clayton Utz
ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
T
Section 37 T-Documents (paged 1‑183)
-
23 Nov 2020
A1
Applicant’s Statement of Facts, Issues and Contentions (paged 1-13)
1 April 2021
1 April 2021
A2
Statutory Declaration of the Applicant (9 pages)
25 March 2021
1 April 2021
A3
Statutory Declaration of the Applicant’s father (3 pages)
17 March 2021
1 April 2021
A4
Psychological Report by Dr Bruce Stevens (paged 1-14)
27 Jan 2021
1 April 2021
A5
Statutory Declaration of the Applicant’s mother (or the ‘Review Applicant’) (4 pages)
6 April 2021
7 April 2021
A6
Hearing Transcript (before Ms Kelly, SM) (paged 1-7)
2 Feb 2018
19 May 2021
A7
Decision Transcript (of Ms Kelly, SM) (paged 1-2)
2 Feb 2018
19 May 2021
A8
Applicant’s reply (paged 1-3)
14 May 2021
14 May 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (paged 1-16) (Annexure A not reproduced)
29 April 2021
29 April 2021
R2
Respondent’s Summons Bundle (paged 1‑121)
-
29 April 2021
1
3
0