CYNW and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 12
•6 January 2025
CYNW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 12 (6 January 2025)
Applicant/s: CYNW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8088
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:6 January 2025
Decision:The Tribunal affirms the decision under review.
...............................[SGD].........................................
General Member A. Maryniak KC
Catchwords
MIGRATION - Mandatory cancellation of visa – failure to pass character test – whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 110 applied – Primary Considerations 1, 2 and 5 each weigh against the revocation of the visa cancellation decision – protection of the Australian community – serious offending –contravene both interim and final intervention order – driving whilst suspended - low risk of reoffending – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – decision affirmed.
Legislation
Migration Act 1958 (Cth)
Administrative Review Tribunal Act 2024 (Cth)Cases
1419288 (Refugee) [2018] AATA 282
FYBR v Minister for Home Affairs [2019] FCAFC 185Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
The 38 year old Applicant, a citizen of Pakistan, seeks review of a decision made 14 October 2024 refusing him a partner visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (‘the Act’). He has been in immigration detention since that date.
CONSIDERATION
Background Facts
The Applicant first arrived in Australia in 2007 on a student visa. Prior to that, in 2004, the Applicant’s father was abducted and the Applicant’s father received threats in Pakistan.[1] Despite such threats, the Applicant returned to Pakistan four times between 2007 and 2013 for a total cumulative period of about 5 months.[2]
[1]1419288 (Refugee) [2018] AATA 282, [14].
[2] See Annexure B to R’s ASFIC, attached to these Reasons as ‘Annexure A’.
On 18 November 2013, the Applicant’s Temporary Skilled Graduate visa was due to expire. On 11 November 2013 (one week earlier) the Applicant applied for a protection visa. On 24 January 2018, the earlier form of this Tribunal, differently constituted, in affirming a decision not to grant the Applicant a protection visa, found that ‘the applicant had a strong incentive to fabricate a story regarding an incident during his September 2013 visit to Pakistan, to support an application for a Protection visa to be lodged shortly after his return to Australia’.[3] In April 2018, the Applicant applied for a review of that Administrative Appeals Tribunal Decision but ultimately withdrew that application.
[3] 1419288 (Refugee) [2018] AATA 282, [48].
In April 2019, the Applicant married his current wife, an Australian citizen. On 27 November 2020, the Applicant’s first son was born. On 2 December 2020, the Applicant applied for a Partner (Temporary (Class UK) visa.[4] In October 2023, the Applicant’s second son was born.
[4] G23, 224.
Earlier, in about 2010 or 2011, the Applicant commenced a relationship with his ex-partner (‘the Victim’). In 2014, upon the Victim ending the relationship with the Applicant, the Applicant was involved in an extensive range of offending against the Victim over an eight month period between 8 August 2014 and 12 April 2015.[5] Such offending culminated in the Applicant being held in remand for some days in May 2015.
On 24 March 2016, the Applicant was sentenced to 12 days imprisonment aggregate for Persist Contravention Family Violence Final Intervention Order (2 charges) and convicted of Persist Contra-Fam Violence Interim Intervention Order (3 charges), sentenced to an 18 month community correction order and required to perform 100 hours of community service (collectively referred to as ‘the Victim Offending’).
Further, in about 2015 the Applicant did a significant amount of driving whilst his licence was suspended (as discussed in paragraph 16 below) until he was caught and subsequently convicted in June 2016, and fined $1000. There was also a red-light intersection infringement.
Evidence
The Tribunal has considered the documentary material before it, comprising exhibits A1 and R1 to R3 together with the testimony of the Applicant, the Applicant’s wife, the Applicant’s brother, the Applicant’s father, the Applicant’s friend MSAWR, two of the Applicant’s sisters and Dr Kwok, Clinical and Forensic Psychologist.
In addition to the character related testimony from witnesses during the hearing, the Tribunal has also considered statutory declarations or statements from the Applicant's wife, the Applicant's parents, the Applicant's brother and sister-in-law, the Applicant's sisters, the Applicant's nephews, the Chair of the Melton Interfaith Network, MSAWR, Ms Luba Grigorovitch MP, Sana Zia, and a brother-in-law of the Applicant.[6]
[5] See Annexure A.
[6] R1, E3 – E15; E31 - E34.
10. The Tribunal finds that this evidence establishes, inter alia:
(a)The removal of the Applicant from Australia will have a profound negative impact upon the lives of the Applicant's wife and two young sons, all Australian citizens;
(b)The Applicant takes his family obligations very seriously. He makes a significant contribution to members of his immediate and extended family. He is heavily involved with and assists in the raising of his two sons (including help with household chores) and, to a lesser degree, his nephews (including playing soccer) and niece. He assists his parents to a significant extent with various matters including driving them to and overseeing their medical appointments and associated issues. To a lesser extent, he is of support and assistance to his brother and sisters living in Australia;
(c)The love and respect between him and his immediate and extended family members is real and mutual. His absence from Australia will have a negative impact upon each family member, to varying significant degrees;
(d)The Applicant has, over many years, performed a substantial amount of volunteer work and work within his religious community. He hosts regularly on various online TV platforms and is an accomplished and regular hymn singer. He has, for example performed much community work for the Qaim Foundation of Australia Inc. and has been involved in anti-racism work. Thus, in this regard, the Applicant has made a positive contribution to the Australian community;
(e)There is a significant risk that the Applicant will be exposed to threats and/or physical harm should he return to Pakistan. This risk will have a real impact upon his ability to have a regular normal life in Pakistan; and
(f)The Applicant is said to be of ‘exceptional character’.
11. The Tribunal has considered and factored in these findings on the evidence lodged on behalf of the Applicant, in evaluating and balancing the matters set out below.
Legislative Framework
12. This Application is brought pursuant to s 500(1)(b) of the Act. A person does not pass the character test if one or more of the circumstances set out in s 501(6) applies. In respect of the Victim Offending, relevantly:
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
i. engage in criminal conduct in Australia; or
ii. harass, molest, intimidate or stalk another person in Australia.
13. Further, the Tribunal is to apply Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’): ss 499(1) and 499(2A). Paragraph 5.2 of the Direction provides the following framework:
5.2 Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7) 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 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
14. The Tribunal, standing in the shoes of the original decision maker, informed by these principles, is then to take into account the primary and other considerations set out therein, with Primary Consideration 1 to be given greater weight amongst the primary considerations and the latter to be given greater weight than the other considerations.
The Applicant’s Evidence
15. It is first necessary to make some observations and findings about the Applicant’s conduct in association with this hearing. He was, at least at times, an unsatisfactory witness. Such detracted from his evidence overall and makes it difficult for the Tribunal to be completely comfortable with his evidence. The Tribunal approaches his evidence with a degree of caution. The Tribunal notes that his testimony, in particular, was consistent in regards to his respect for women and how he says he would behave differently (and more appropriately) if his current marriage was to end.
16. However, the fact remains that he clearly lied to the Tribunal under oath and continued to do so, even after being warned by the Tribunal, in respect of the extent and reasons for driving whilst his licence was suspended in or about 2015. Such instances of driving in themselves represent a total disregard for Australian laws. More relevantly, the Applicant was prepared to attempt to mislead the Tribunal and initially suggest that he had only driven out of extreme necessity, in the interests of others, for medical emergencies and the like. In the end, after substantial questioning by the Tribunal, the Applicant admitted that he was also driving for, inter alia, work purposes.[7]
[7] See also, R1, E18, [46].
17. The Tribunal’s concerns as to the truthfulness (or otherwise) of the Applicant’s evidence is amplified by the fact that an earlier Tribunal, differently constituted, found ‘significant concerns regarding the applicant’s credibility’, as outlined in paragraph 3 above.[8]
[8] 1419288 (Refugee) [2018] AATA 282, [48].
18. The Applicant’s preparedness to mislead an Australian Tribunal under oath, as at December 2024, shows a lack of regard for Australian law and its institutions and as such is ‘serious conduct’ as defined in Part 1.4(2) of Direction 110. It also engages Principle 5 as set out in paragraph 13 above.
19. The Tribunal is satisfied that the matters in paragraphs 16 and 18 above in themselves constitute ‘past and present conduct’ in addition to the Victim Offending (as discussed below) which each result in the Applicant being ‘not of good character’ under s 501(6)(c) and he therefore fails the character test in s 501(1) of the Act.
20. For completeness only, the Tribunal is concerned with the legitimacy (or otherwise) of the Applicant’s ongoing Transport Accident Commission of Victoria Claim (‘the TAC Claim’), for which the Applicant is continuing to receive regular payments since about September 2023, according to his testimony. This concern arises in light of the evidence before it and the manner in which the Tribunal had to extract from the Applicant details of the TAC Claim and its existence. The Tribunal notes the Applicant volunteered such information during questioning from the Tribunal.
21. Save for some limited testimony during the re-examination of the Applicant and questioning of the Applicant’s friend, MSAWR, by the Tribunal, there was simply no evidence before the Tribunal to even suggest that the Applicant is purportedly injured to such an extent that he has been unable to work since at least September 2023, prior to the Tribunal’s questions. Consistently, the Tribunal observed no apparent discomfort or physical limitations in the Applicant during the three day hearing of this Application. It was only upon questioning by the Tribunal, after his examination in chief was completed, that the Applicant revealed that he is currently in receipt of TAC payments.
22. Contrary to the fact of the TAC Claim, the Applicant’s evidence and submissions up to that point in the hearing had been to the effect that the Applicant was almost continuously working up to the time he was placed in detention and if not for that fact, would still be working; see for examples paragraphs 59 to 67 of the Applicant’s statement and paragraph 14 of the Applicant’s SFIC.[9]
[9] Save for the Report of Dr Kwok, located at R1, E18, [15]; [19].
23. The preponderance of evidence before the Tribunal goes further and suggests the Applicant was busy helping his wife around the house and with their children, helping all his relatives and performing extensive volunteering duties at his Shia Muslim community centre, without any apparent physical limitations or injury.[10] Consistent with this is the Applicant’s own testimony to the Tribunal that he is essentially fit and keen to get back to work, save for the measured evidence he gave in re-examination regarding some ‘adjustments’ he may need when returning to work.
[10] See, for example, R1, E11, paragraph 4, the Applicant ‘plays soccer with us’.
24. Whilst it is not for this Tribunal to enquire further as to the legitimacy or lack thereof to the Applicant’s TAC Claim, in light of matters discussed above, the Respondent should ensure that a copy of these Reasons is provided to the relevant TAC employees.
25. Another aspect of concern arises from a discrete aspect of the manner of revelation of the TAC Claim, though such does not impact upon the consideration of the Applicant’s review application. Despite the Applicant being legally represented, the Applicant’s statement dated 15 November 2024, SFIC and testimony in chief failed to alert the Tribunal to his TAC Claim. The manner in which the Applicant’s evidence was presented, prior to intervention by the Tribunal, prevented the Tribunal from ascertaining that the Applicant was, rather than working up to the time of detention, actually in receipt of TAC benefits and hence purportedly injured to such an extent that he could not work, since at least about September 2023. This ‘wrinkle’ in the presentation of the Applicant’s case to the Tribunal is something that the Applicant is not to be disadvantaged by. However, it is a matter of significance for the Applicant’s legal representatives to reflect upon. Whether this occurred through inadvertence or otherwise cannot be determined by the Tribunal.[11]
[11] See also, G3, Delegate Decision 14.10.2024, [23] and Administrative Review Tribunal Act 2024 (Cth), s 56(2).
CHARACTER TEST
26. The parties are at issue as to whether or not the Applicant fails to pass the character test in s 501(1) of the Act. The Applicant submits inter alia the risk of offending is minimal and trivial.[12] On the evidence before the Tribunal, that submission is rejected as discussed in paragraphs 27 to 30 below. On that basis, the Applicant does not pass the character the test.
PRIMARY CONSIDERATIONS
[12] A SFIC, [25].
Primary Consideration 1
27. In dealing with Primary Consideration 1 the ‘protection of the Australian community from criminal or other serious conduct’ such analysis also permits the Tribunal to determine whether the Applicant fails the character test under s 501(6)(d). The Victim Offending is to be viewed ‘very seriously’.[13] Even in the absence of a victim impact statement there is sufficient material before the Tribunal to establish that the Victim Offending had a significant negative impact over some months, at least, upon the Victim. Such a pattern of conduct is viewed very seriously by both the Australian community and the Australian Government. Whilst the Tribunal acknowledges that the Victim Offending was at the lower end of the range of acts encompassing family violence, it did consist of a high volume of acts occurring intermittently over a period of about 34 weeks and some offending continued to occur after Court Family Violence Intervention Orders were made.[14] The Tribunal finds the Victim Offending serious.
[13] Paragraph 8.1.1(1) of Direction 110.
[14] See, Annexure A.
28. However, it is clear on the evidence that after being held on remand that the Applicant ceased all offending against the Victim. Thus, the nature of the harm to individuals if the Applicant were to re-offend is at the lower end of ‘criminal or other serious conduct’ and the risk of re-offending, whilst not zero, is also low, as discussed below. The fact that the Applicant’s Victim Offending stopped completely after he was charged in May 2015 and held in remand of about nine days is supportive of a finding of low risk of re-offending. Similarly, the Applicant’s driving offending was at the lower range of offending and has not reoccurred.
29. In respect of Victim Offending, the Applicant has not reoffended since about April 2015, which is some 9.5 years ago. In Dr Kwok’s expert opinion, although somewhat inhibited by being based on a 90-minute part video/part telephone interview, there is a low risk of the Applicant reoffending. The Applicant has completed a significant amount of rehabilitation work including a Men’s Behavioural Change course[15] and psychological counselling.
[15] It should be noted that the course consisted of about 30 sessions with a duration of approximately two hours each.
30. A key concern which the Tribunal explored is whether, if the Applicant faced another relationship breakdown, he would adopt a repeat form of offending. To date, The Applicant has not experienced once since the Victim Offending. As best as the Tribunal can assess, on the evidence before it, this would seem unlikely. The Applicant testified that he realised the full negative impacts of his Victim Offending whilst in remand and, in fact, has not reoffended since that time, hence his actions are consistent with his testimony in this regard. Dr Kwok’s evidence equally supports the unlikelihood of the Applicant reoffending. She identified a key protective factor being the Applicant’s wife and children. It seems apparent that the Applicant is committed to them and now has a skill set to detect and deal with any relationship challenging issues which may arise prior to them spiralling out of control. In that sense, the Applicant has matured since his earlier reoffending period. The Tribunal finds that he has a low risk of the Applicant reoffending.
31. Similarly, whilst the Applicant was less than candid regarding the extent and reasons for driving whilst licence suspended, such offending has not occurred since the confined period during which the Applicant was attempting to deal with the loss of his ‘first love’ in around 2015. Again, it seems apparent that he has ‘learnt his lesson’ and has not been charged with any road or traffic offences since. As a consequence of the passage of time during which the Applicant has gained insight and matured, in the absence of any further offending hence any ongoing risk to the Australian community is low. The Tribunal is satisfied that there is a low risk of the Applicant reoffending.
32. The Tribunal finds that this Primary Consideration weighs slightly in favour of visa cancellation.
PRIMARY CONSIDERATION 2
33. The Tribunal finds that the Victim Offending constitutes family violence. The Applicant stalked and harassed the Victim with some significant frequency, although confined to the 2014 - 2015 period,[16] as discussed above. The Victim Offending was serious even though its nature was at the lower end of the range. Its frequency and the fact that it continued after both an Interim then Final Intervention Order is of significance and goes against the Applicant. However, the Tribunal notes that the Applicant has made solid steps towards rehabilitation, has taken responsibility for his offending and has gained insight into the consequences of his offending. In light of these matters, the Tribunal finds that this primary consideration weighs slightly in favour of visa cancellation.
[16] See, Annexure A.
PRIMARY CONSIDERATION 3
34. The Applicant first arrived in Australia in 2007 and his Australian citizen wife, parents and four of his siblings live in Australia. He has worked in Australia and been involved in charity work including through his own non-government TV organisation in Australia. He has also volunteered for All One Together, an anti-racism organisation. The evidence before the Tribunal supports a finding that the Applicant’s marriage is genuine and loving and there was no suggestion from the Respondent to the contrary. His wife’s evidence is to the effect that he is a supportive husband and a good father. The Applicant’s removal from Australia would have a very negative impact upon his wife, parents (accepting that other siblings could step in to take care of them) and to a lesser extent, siblings in Australia. The Applicant’s wife gave credible evidence as to her health challenges and the Tribunal is satisfied that she would be unlikely to take her children and return to Pakistan if the Applicant was removed. The effect of removal would be the break-up of the Applicant’s immediate family, badly affecting three Australian citizens. Each of the Applicant’s nieces and nephews would also be negatively impacted by any removal.
35. Whilst the evidence of the Applicant’s working history and associated contribution to Australia is not particularly persuasive it is apparent that, as the Respondent accepts, the Applicant has been involved in substantial charity and volunteer work, albeit since at least September 2023 whilst in receipt of TAC payments, hence he has made some positive contribution to date to the Australian community. The Tribunal also takes into account the relevant findings from paragraph 10 above.
36. The Tribunal is satisfied that this Primary Consideration weighs heavily in favour of exercising the discretion to revoke the cancellation decision.
PRIMARY CONSIDERATION 4
37. The Applicant has a one-year-old and four-year-old child, both of whom are Australian citizens. It is in each of their best interests that the Applicant remains in Australia to assist in providing for and raising each of his two children with his wife. To a lesser extent it is in the best interests of his niece and each of his three minor nephews that the Applicant be permitted to remain in Australia and assist with their care as an uncle. The Tribunal also takes into account the relevant findings from paragraph 10 above.
38. The Tribunal finds that this primary consideration weighs heavily in favour of exercising the discretion to revoke the cancellation decision.
PRIMARY CONSIDERATION 5
39. The fifth Primary Consideration is to be considered normatively by reference to the Direction itself. Paragraph 8.5 of the Direction enlivens a ‘deemed community expectation’ that all persons who have committed serious criminal offences giving rise to character concerns should not be permitted to enter or remain in Australia.[17]
[17] FYBR v Minister for Home Affairs [2019] FCAFC 185, [75].
40. By reason of the matters and the relevant findings set out above, the Tribunal is satisfied that the Applicant has failed to meet the expectations of the Australian community to obey its laws. The Australian community would expect that the Applicant should not hold a visa for Australia.
41. The Tribunal finds that this primary consideration weighs in favour of exercising the discretion to affirm the visa cancellation decision.
OTHER CONSIDERATIONS
Legal Consequences of the decision
42. As to the other consideration of legal consequences of the decision, per Direction 9.1.2, the Applicant’s protection claims relating to Australia’s enacted international non-refoulement obligations have already been considered and finally determined against the Applicant by a prior Tribunal decision.[18] In circumstances where any further or alternative determination by this Tribunal of any of Australia’s international non-refoulement obligations in respect of the Applicant is not mandatory, as agreed by the parties, this Tribunal does not do so. This consideration is given neutral weight.
[18] 1419288 (Refugee) [2018] AATA 282, [48].
Extent of impediments if removed
43. The Applicant will face some impediments if removed from Australia to his home country. He is of working age, says he is fit for work, of relatively good health and will not face substantial language and cultural barriers if returned. According to Dr Kwok, the Applicant ‘will be at risk of developing a mental disorder if he is removed to Pakistan. It appears unlikely that he will be able to access treatment in Pakistan’.[19]
[19] R1, E18, [94].
44. The Applicant is a member of a religious minority and may face discrimination in his country of origin. The Tribunal is satisfied it would be quite challenging for the Applicant to re-establish himself in Pakistan, most likely without his wife and two children. The Applicant’s fear of harm is also to be considered, combined with a risk of serious harm or injury in Pakistan which would impact upon his ability to maintain basic living standards.
45. The Tribunal finds this other consideration weighs in favour of revoking the visa cancellation decision.
Further Considerations
46. This risk of harm and injury to the Applicant in Pakistan is further considered separately as another consideration which the Tribunal finds just weighing in favour or revoking the visa cancellation decision.
47. Finally, neither party made any submissions regarding any impact on Australian business interests therefore this consideration is given neutral weight.
CONCLUSION
48. Both Primary Considerations 3 and 4 weigh heavily in favour of the revocation of the visa cancellation decision. Also weighing in favour of revocation are the other considerations of the extent of impediments if removed and the risk of harm or injury to the Applicant if returned. Against these, the Tribunal must balance Primary Considerations 1, 2 and 5 which each weigh against the revocation of the visa cancellation decision.
49. The Tribunal has carried out the evaluative exercise of weighing up the considerations to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
50. On the basis of the matters set out above, the Tribunal has determined that the considerations against the revocation of the visa cancellation decision ultimately outweigh those in favour of the revocation of that decision.
51. The correct or preferable decision is to affirm the reviewable decision.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of General Member, A. Maryniak KC.
................................[sgd]........................................
Associate
Dated: 6 January 2025
Dates of hearing:
16-18 December 2024
Counsel for the Applicant:
Mr Matthew Kenneally
Solicitors for the Applicant:
Carina Ford Immigration Lawyers
Solicitors for the Respondent
Mills Oakley
ANNEXURE A