DCWM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 2846

DCWM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2846 (23 July 2021)

Division:GENERAL DIVISION

File Number:          2021/3883

Re:DCWM  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:23 July 2021

Date of Written Reasons:      13 August 2021

Place:Brisbane

The decision under review is affirmed

............................[SGD]............................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – domestic violence and stalking – best interests of minor children where other parent suffering fatal illness – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185; [2019] FCA 500

HZCP v Minister for immigration and Border Protection [2019] FCAFC 2021

Minister for Home Affairs v Buadromo [2018] FCAFC 151

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Rebecca Bellamy

13 August 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 50-year-old citizen of New Zealand. In December 2009 when he was 39 years old, he moved to Australia on a permanent basis. The most recent visa granted to him was a Class BB Subclass 155 Five Year Resident Return visa (“visa”).[1]

   [1]     Exhibit G1, Section 501 G documents, G16, pages 118 to 119.

2. On 17 December 2020 a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 27 November 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 10 June 2021, the Respondent decided not to revoke the cancellation.[4]

   [2]     Exhibit G1, Section 501 G documents, G20, pages 162 to page 168.

   [3]     Exhibit G1, Section 501 G documents, G12, pages 53 to 57.

   [4]     Exhibit G1, Section 501 G documents, G6, page 19.

3. The Applicant lodged an application for review in this Tribunal on 15 June 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5]     Exhibit G1, Section 501 G documents, G2, pages 3 to 8.

4. The hearing of this application took place on 21 and 22 July 2021. The Applicant gave evidence via videoconference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

5. The Applicant has two minor children. Tragically their mother has recently been diagnosed with terminal cancer. For this reason, the Applicant asked for his application to be decided as quickly as possible. The day after the hearing concluded, I affirmed the reviewable decision. I did not provide written reasons as that would have taken additional time. I now provide my reasons.     

   LEGISLATIVE FRAMEWORK

6. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   (4)The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

7. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]

   [6]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

   Does the Applicant Pass the Character Test?

8. 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”.

9. On 14 October 2020, the Applicant was sentenced to a term of imprisonment of three years which was to be suspended for four years after serving 12 months. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

10. In considering whether to exercise the discretion in s 501CA(4) 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”) applies.[7]

    [7]     On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

11. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.

12. Those principles may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a 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.

13. Paragraph 6 of the Direction provides 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.

14. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They 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; and

    (4)expectations of the Australian community.

15. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

16. Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

17. The Applicant grew up in New Zealand. He committed 21 offences in New Zealand between 1988 and 2000[8] when he was aged between 17 and 29. Those offences included cultivating cannabis, possession of cannabis (x 4),  possessing a knife in a public place, ‘male assaults female (manual)’ (x 2), behave threateningly, obstructs/hinder police, speaks threateningly and disorderly behaviour. He received fines, periodic detention (both residential and non-residential) and a period of imprisonment for three months.

    [8]     Exhibit G1, Section 501 G documents G9 page 47.

18. In relation to the offence “speaks threateningly” the Applicant said he swore at the police.[9] In relation to the two offences of “male assaults female (manual)”, he said the female victim was not an intimate partner but was the sister of a male with whom he did not get along. They had both been drinking at a pub and she knocked his glass over and, in his words, “got in my face” regarding his history with her brother. He pushed her out of the way and left. A month later he went to the same bar and the female victim was again present and heavily intoxicated. She verbally abused him, and he again pushed her out of the way. She fell back and knocked some skin off her elbow. He was convicted and sentenced to four months of residential periodic detention.[10]

    [9]     Exhibit G1, Section 501 G documents, G18 page 131.

    [10]    Transcript, page 62.

19. In May 1999 the Applicant’s daughter, “Ms C”, was born.[11] According to the Applicant, her mother had post-natal depression and could not cope so he raised Ms C from around the age of four.[12] He said “I ended up with custody of my daughter and my offending stopped more or less once I had a young daughter to raise”.[13]

    [11]    Exhibit G1, Section 501 G documents, G13 page 60.

    [12]    Transcript, page 8, lines 29 to 31.

    [13]    Transcript, page 10, lines 1 to 7

20. In 2006, the Applicant married “Ms P”, whom he had known since high school.[14] She was not the mother of Ms C but raised her as her own.[15]

    [14]    Exhibit G1, Section 501 G documents, G13, page 61.

    [15]    Transcript, page 10, lines 20 to 21

21. In 2007, the Applicant and Ms P had a son, “Child A”.[16] In 2009, when he was 39 years old, the Applicant moved to Australia with Ms P, Ms C and Child A.[17] Another son, “Child B” was born in 2011.[18] They settled on the Sunshine Coast in Queensland.

    [16]    Exhibit G1, Section 501 G documents, G13, page 62.

    [17]    Exhibit G1, Section 501 G documents, G13, page 60.

    [18]    Exhibit G1, Section 501 G documents, G13, page 62.

    Offending and other serious conduct in Australia

22. The Applicant’s criminal offending in Australia commenced in 2019 when he was 48 years old and coincided with the breakdown of his marriage to Ms P.

23. In addition to offences of which he was convicted, there were some unprosecuted abusive text messages sent to Ms P and incidents of domestic violence against Ms P.

    Unprosecuted abusive messages

24. According to a “Statement of Facts” that was prepared for the District Court, at 9.31am on 6 September 2018 the Applicant sent Ms P a text message[19] that said:

    "A fucking clothing bin. And put every fucking last thing into it. Ya dildo. It's too small anyway. Fuck me ya need a coke can round and 10 cans long to be in the running. All ya clothes. Shoes work clothes everything. Even ys bike helmet. The lot. You can get fucked. We are Over. Get the divorce papers in. Asap. And stop using my last name hoe you are a green or a brown what ever And mix those 2 ya get lack so if the colour fits then run with it Nigger."

    (Errors in original)

    [19]    Exhibit R2, Respondent’s Tender Bundle, TB1 pages 15 to 38.

25. In the hearing, the Applicant claimed that this message was in response to a text message that Ms P had sent him at a time when the relationship was deteriorating but he did not know why it was deteriorating.[20]

    [20]    Transcript, page 54, lines 20 to 44.

26. On 1 December 2018, the Applicant sent Ms P a text message that said:

    "I had to walk them to the park to get them out of the front of my house crying little poofs. Backpack on.. Bawling there eyes out. Both them lol. I said that way. Go. Then I came back to my house. Last I saw them they were walking past the bus stop still crying hahaha. Little girls. They have water bottles. They will be fine. And now they know All they have is you. And they know why all they have is You Cause you're a CUNT to me. Hope you all get along good. And No Thanks I don't want my access to see your girls. I don't want every 2nd weekend with your girls at I do want is nothing. Ever It's broken You have no clue what broken is But your going to know. Destroy is a better word Those little girls should of stopped crying and be up Karawatha by now".

    (Errors in original)

27. The Applicant said he thought the Statement of Facts had the date of that text message wrong because his family were living together at the time whereas this message refers to him having access to the children. He did not deny having sent the text but he did deny that he had left his sons to cry at a bus stop. Rather, he said he had made that up just to be spiteful because he had been receiving spiteful messages from Ms P. He said his sons were in fact happily playing and swimming in the swimming pool at his home.[21]

    [21]    Transcript, page 40, lines 39 to 45.

28. The Applicant claimed he did not normally refer to his sons in a derogatory way and he had never called them things like that before, but he had done it on this occasion to “stir up” Ms P. He said:

    “Well, I think - I think I was just trying to upset her day, like - like all my days were and I think I thought by telling her that she'd get in the car and go looking for them when they weren't out on the streets to be found anyway. They were - I was - I went through a real dark patch and this is a part of it. I can't really - there's no excuse for it. I can't - there's no-one to blame but myself about it but I in no way meant any harm towards my sons, it was - it was - like I - you know, I don't know, I just didn't have any - any defence for what I was going through and like, you know, it was a pitiful attempt at upsetting my wife's day, like I don't know

    …

    I don't have any answers for my poor behaviour. The whole lot of it is appalling. It's just - it's completely out of character for me, but I should've been going - consulting - trying to get - seek professional help instead of resorting to all this I guess.”[22]

    [22]    Transcript page 42.

    Unprosecuted domestic violence

29. According to police records,[23] on 12 December 2018, Ms P attended a police station with Child A and Child B to report an incident of domestic violence between her and the Applicant. The record states that the police had attended her address previously in relation to domestic violence and on these occasions both Ms P and the Applicant were named as the aggrieved and respondent. The account Ms P gave the police on this occasion was that:

    [23]    Exhibit R2, Respondent’s Tender Bundle, TB2 pages 69 to 73.

    ·on the car journey to their son’s primary school graduation, Ms P and the Applicant had an argument. Their other son was with them too. When they arrived at the venue, the Applicant drove off;

    ·the Applicant then sent multiple text messages to Ms P insulting and belittling her. She showed these to the police;

    ·after the graduation, Ms P texted the Applicant asking for a lift home and he sent a text reply “get some other nigger to run after you this one is clocked off”;

    ·Ms P and the children started walking home and the Applicant located them and picked them up in the car;

    ·at home, the argument recommenced. Ms P became scared, fled the house and started walking down the street. The Applicant went outside and kicked her car. Ms P returned to the house, collected the children and went to the police station to report the incident;

    ·while at the police station, Ms P telephoned the Applicant and the police heard the Applicant call her a bitch and insult her. He also told her she was an idiot for going to police and that they would both get in trouble. He said he would not speak to the police;

    ·Ms P told police that the Applicant frequently got up in her face and insulted her calling her “skinny ugly bitch”, “nigger” and “bitch”; 

    ·Ms P told the police there had been other incidents of domestic violence that had occurred between her and the Applicant, including an incident that had occurred the previous year when they had argued about money and the Applicant had swung a pair of roller blades at her and broke her rib for which she received hospital treatment; and

    ·Ms P told the police that their relationship was dysfunctional and highly volatile. She said she has contributed to the volatility in the relationship over the years as well by committing domestic violence against the Applicant.

30. Following this incident, Ms P left the family home with Child A and Child B.

31. In the hearing the Applicant said that earlier that day Ms P’s best friend had told him that Ms P was having an affair with a “Mr J”. He could not help bringing it up with Ms P before they left the house. He had every intention of going to the graduation, but he could not get a parking space near the school, so he dropped them off and was so upset that he ended up going home. When Ms P texted him later asking where he was, he responded “You fucked my son’s graduation, you cunt”. The graduation finished at around 8:30pm and he refused to pick them up because he had consumed two beers, however Ms P abused him so he ended up going to pick them up. He said he probably would not have been over the limit. He said he only kicked the mirror of the car knowing that it would fold inwards and not sustain any damage. Ms P then went to her girlfriend’s home with the two boys.

32. The Applicant conceded that while Ms P was at the police station, she telephoned him and he called her a bitch and insulted her. However, he denied that he frequently got up into her face and called her skinny ugly bitch, a nigger and a bitch.

33. The Applicant said it was true that there was a problem with Ms P’s ribs and she went to hospital but it was not from anything he did, and that she had injured herself playing Roller Derby.[24] He denied that the relationship was dysfunctional and highly volatile prior to him finding out about the cheating. He said the reference to “over the years” probably meant “over the year”, being 2018.[25] He said it had been the best marriage previously.[26]

    [24]    Transcript, page 52, lines 20 to 47.

    [25]    Transcript, page 56.

    [26]    Transcript, page 50, line 29 to page 51, line 43.

1. The Applicant claimed that Ms P had made up the allegations to get a protection order because her friend had told her that it was a way to get the Applicant out of the family home, and she wanted him out so she and the boys could move back in.[27] However, Ms P chose to leave the home on the night she made the complaint to the police and there is no evidence that she subsequently made any effort to remove the Applicant from the home.  Further, in that report, Ms P made admissions against her interests, being that she had engaged in some of the past domestic violence. Her report was consistent with the police records that they had attend the address previously in relation to domestic violence and that both Ms P and the Applicant had been named as respondent and aggrieved. 

   [27]    Transcript, page 14, lines 1 to 12; page 53, lines 4 to 8.

2. Further, Ms P subsequently wrote a letter in support of the Applicant[28] when he was being sentenced for offences against her in which she said the relationship deteriorated in 2016 and in 2018 she and the boys moved to a “safer environment”. When I referred the Applicant to those words, he said “safer environment” referred to keeping the boys away from him and Ms P arguing and fighting.[29] I do not accept this: that phrase has a clear, unambiguous meaning in a domestic context. I find that Ms P meant that there was physical violence in the family home before she and the children left. It would seem perverse for her to include a false allegation in a letter she wrote to assist the Applicant, so I am inclined to accept her evidence about the home environment.   

   [28]    Exhibit G1, Section 501 G documents, G15 page 116. This is set out below at paragraph 110.

   [29]    Transcript, page 61, lines 12 to 17.

3. On 18 December 2018 a temporary protection order (“TPO”) was made[30] although I do not have a copy of the order or evidence of what the conditions were.

   [30]    Exhibit R2, Respondent’s Tender Bundle, TB2, page 69.

4. On 26 December 2018, Ms P contacted the police stating she had been assaulted and that the Applicant had breached the TPO. The police facts stated that since the order was put in place, Ms P had been staying elsewhere but had returned to the family residence for Christmas. While the children were outside in the pool, Ms P and the Applicant had an argument. The Applicant charged at her and she ran into one of the bedrooms. She was unsure whether she fell onto the bed or she was pushed. She started to scream, and the Applicant held her down on the bed and covered her mouth with his hand. She did not feel suffocated and was certain this was just to stop her from screaming. She kicked out and eventually the Applicant got off her. Ms P told him she would call the police and she left the house.[31] The police notes record:

   “Suspect was interviewed over this matter. Suspect gave a similar version however stated that when the verbal argument got heated he left the house. Suspect completely denies the allegations put forward by the aggrieved. There are no other witnesses and police believe we do not have enough evidence to charge the suspect for this offence. Suspect was interviewed over other dv breach matters and completely admitted and gave full details of those.”[32]

   [31]    Exhibit R2, Respondent’s Tender Bundle, TB2 pages 69 to 70.

   [32]    Exhibit R2, Respondent’s Tender Bundle, TB2, pages 70 to 71.

5. In the hearing, the Applicant claimed that when the police attended Ms P admitted that it did not happen so the charge was dropped.[33] This is not consistent with the passage quoted above from the contemporaneous police record. He added that he and Ms P never left their sons in the swimming pool unsupervised.[34] This detail does little to assist the Applicant given he had engaged in other impulsive behaviour that was not in the children’s best interests because of his anger at Ms P around that time.  

   [33]    Transcript, page 58, lines 1 to 30.

   [34]    Transcript, page 77, lines 7 to 17.

6. Ms P did not give evidence in the hearing so her allegations could not be tested. However, it does not appear that she had anything to gain by making false allegations against the Applicant, and her accounts seem balanced, for example she admitted to perpetrating domestic violence and she did not allege the Applicant was trying to suffocate her when he held his hand over her mouth. Moreover, her accounts were consistent with the contemporaneous, neutral police records of their interactions with her and the Applicant whereas the Applicant’s accounts were not.   

7. Further, the Applicant has previously been physical with a female (in New Zealand), and he was verbally aggressive towards Ms P so physical aggression does not appear to be out of character. I am satisfied that before Ms P and the children left the family home, the Applicant was violent to Ms P, including the specific acts of violence she reported to the police, and that she was sometimes violent to him.     

8. While the Applicant was not charged in relation to Ms P’s report on 26 December 2018, the police did apply for a Protection Order. That order was made by consent, without admissions, on 8 January 2019. It required the Applicant to be of good behaviour towards Ms P and not commit any domestic violence against her.[35]

   [35]    Exhibit R2, Respondent’s Tender Bundle, TB1, page 39.

   Breaches of the Protection Order – February 2019

9. On 1 February 2019, the police attended Ms P’s address and she showed them 66 missed calls and 35 text messages from the Applicant. In the text messages he referred to her as "meth girt', "scum bag" and "meth head'.

10. On 4 February 2019, Ms P had 20 missed calls and received 36 text messages from the Applicant during the day. The text messages included abuse such as:

    "You better answer the phone when I ring U cause if you don't you know how you looked up and I was there. That will happen one more time. Answer the phone.",

    "I'm almost on the coast. Why don't you answer your phone. They are my boys not yours. I'm worried your going to try and fuck them you kiddy fucker".

    “why don’t you just answer use scattered meth headed blonde under age boy fornakayer”[36]

    [36]    Exhibit R2, Respondent’s Tender Bundle, TB2, page 63.

11. In the hearing, the Applicant claimed that by “fuck them” he meant hinder or stop his sons from seeing him on days they were to be in his care, and that “kiddy fucker” referred to Mr J being only 23 years and Ms P being three years older than Mr J’s mother.[37] I do not accept the Applicant’s interpretation of “fuck them”. In its context, it appears to be an allegation that Ms P would have sexual intercourse with her sons because she previously had sexual intercourse with a young man.

    [37]    Transcript, page 31, lines 34 to 40.

12. At 6.00pm on 4 February 2019, Ms P arrived home in her car and saw the Applicant standing at her front door. He yelled and screamed at her. He banged on her car windows, tried to open her car doors and yelled, "You fucked [Mr J], I know you did!". She immediately drove away and reported the matter to the police.

13. A witness who resided nearby told the police that they had heard a car horn and saw Ms P sitting in the driver’s seat of her car and saw a male person causing a disturbance outside the car. The witness told police they had recorded a video on their phone.

14. The police interviewed the Applicant at 8.00pm, and he admitted to sending the text messages and stated that he was very emotionally upset about the break-up and the fact he had not seen his sons. He acknowledged that some of the content of his text messages contravened the good behaviour condition of the Protection Order. However, he denied attending Ms P’s address.[38] He was charged with three breaches of the Protection Order and released on bail.

    [38]    Exhibit R2, Respondent’s Tender Bundle, TB2, page 64.

15. The Applicant subsequently pleaded guilty and was convicted on 6 September 2019. In these proceedings, he admitted having attended Ms P’s address, which is something he denied to the police, but said he only did so to give Child A a mobile phone he had bought him for Christmas[39] He disputed that the neighbour took a video or that he was screaming. He said as Ms P pulled into the driveway he held up a Telstra bag and said “[Child A], here is your phone you wanted” and Child A wound down the window. The Applicant walked over to pass the phone through the window and that is when Ms P beeped the horn, put the car in reverse and left. He said there was no yelling, he did not bang on the car and he did not say “You fucked [Mr J], I know you did.” He explained his guilty plea on the basis that he did not have legal representation and he thought he was pleading guilty to the swearing and the abuse in the text messages.[40]  

    [39]    Transcript, page 30, lines 15 to 20

    [40]    Transcript, page 32 to 33.

16. At some time on 4 February 2019, it is not apparent when, a TPO was made naming Ms P as the aggrieved and the two children as other persons protected by the order. The TPO not only required the Applicant to be of good behaviour, it included conditions intended to keep the Applicant away from Ms P. It further prohibited him from making telephone calls or sending text messages to her without her written consent or from using the internet or any other communication device to communicate with, publish pictures of, or make comments concerning Ms P except with her written consent. There was a limited exception to facilitate contact between the Applicant and the children. He was prohibited from exposing the children to domestic violence. The TPO had the effect of suspending the existing Protection Order from the time the police notified the Applicant of it.[41]

    [41]    Exhibit R2, Respondent’s Tender Bundle, TB1, pages 40 to 41.

17. On 12 February 2019, a Protection Order was made naming Ms P as the respondent, ordering her to be of good behaviour towards the Applicant and not commit any domestic violence against him.[42] The Applicant said this followed an incident when Ms P broke into the house after having moved out, put a hole in the wall and smashed the television.[43]

    [42]    Exhibit A2, Applicant’s Further Evidence lodged on 25 June 2021.

    [43]    Section 501 G-Documents, G18 page 130.

    Unlawful Stalking – March 2019 to 10 January 2020

18. For an 11-month period between 1 March 2019 and 20 January 2020 the Applicant engaged in behaviour directed at Ms P that was ultimately charged as unlawful stalking. The Applicant pleaded guilty to the charge and was sentenced on the basis of the Statement of Facts referred to above[44]. It comprehensively set out the offending. The offending not only breached the TPO and a subsequent TPO that replaced it, it also breached a condition of the bail that he had been granted in relation to the offences he committed in February 2019.

    [44]    Exhibit R2, Respondent’s Tender Bundle, TB1 pages 15 to 28.

19. The stalking consisted of harassing, demeaning, offensive, coercive and intimidating text messages and emails, numerous phone calls and some threatening conduct. Below I have extracted and summarised some of the offending behaviour described in the Statement of Facts (replacing names of individuals with pseudonyms).

20. At 12.50pm on 1 March 2019, the Applicant sent Ms P the following text message:

    "Do i deserve over a year in Prison [Ms P]? Do I? Will you help me? Only you can help me. You have to come and see this lawyer with me. But if you dont want to then no prob. But im not going for missed calls and texts Ill go for something that will make headlines right across Australia. And for 12 to 15 months Get fucked Might as well make it worth while Like life lags worth while And don't freak Your sweet Your not in.harms way You have my sons to raise Your their mumma You I would never ever hurt ever I can not hurt my boys mumma They my boys Your their mumma .. Andi just wouldn't want to But the [name omitted] Well. What ever happened to the [name omitted] family Would not affect my boys at all. In the slightest And if im going to jail Cause you fucked a friend of mine In my home And then. LIED AND LIED AND LIED ABOUT IT When u didn't have too. Then if Im going to jail for that Then.Fuck yea /.Can't wait Then im.going to.go. In.a massive way/ look forward to it BUT IM NOT GOING QU/ETLY I'll make headlines on the news all around this planet FOR A MASSACRE CAUSE I CAN IM SURE MASSACRE SO WELL EVERY OTHER MASSACRE WILL BE PATHETIC . THE  [Applicant’s surname omitted]MASSACRE WILL BE TOP OF THE PILE. And why Cause a boy luved a girl And the girl could not be honest Ring me please And talk to me about me And how we can help me out of this situation That world be sooo great".

21. The Applicant continually messaged Ms P until approximately 8:30pm that night. The messages continued the next day. Ms P messaged the Applicant "I told you do not contact me ever again." The Applicant continued sending threatening and abusive text messages during the night, including a threat to release a picture of Ms P smoking a pipe.

22. The Applicant sent more text messages on 4 March 2019. One included the following:

    “I stopped appreciating you and didn't realise and I fucked a stranger You purposely intentionally tried to screw me!  By using the pigs And we don't talk to pigs don't u remember And you fucked a cunt that would come into my house and sit at my table So No Way have I done worse than than you!!  Talking to the pigs ..omg And fucking a friend of ours omg..."

23. Another message included:

    “…People are With Me On This . People I don't even know People that you know Your circles of people Cause They Think You Are A Piece Of Shit Dog Cunt, And They Think You Derserve What Ever Lady Luck Hands You Out On The Day You Pay For Your Crime ! Good Luck Your Welcome.”

24. At 1am on 5 March 2019, the Applicant sent a message that included:

    “You probably sucking shit of bain the tratoirs gay poo stained shit flavoured dick and luving it your so fucked aye. Gold Shit Dick Coast Here you cum [Ms P] poo eater.Loi . Nite”

25. The Applicant later sent messages that referenced Ms P’s police statement and threatened that he would breach her, “a hundred times and that's jail for u” and said that because he "mentioned meth" their children would be taken away. He told her, "All you have to help me with is to state to my lawyer that you allowed contact.”

26. The Applicant continued sending numerous unwanted text messages and calling Ms P repeatedly throughout the following months. In the messages he complained about her, criticised her and tried to cajole or threaten her into doing various things. He threatened to report her to Centrelink and accused her of defrauding him and smoking “crack”. He demanded that she lift an objection to him having 42% shared care of their children.

27. On 29 April 2019 the Applicant failed to appear in accordance with his bail undertaking in relation to the charges arising from the offending in February 2019. (On 18 July 2019 he was sentenced to a fine for breaching the undertaking).

28. On 13 May 2019 he sent Ms P a text message that included:

    “Look if you want the mortgage paid and gear and things like [Child B’s] bike for his birthday then just trust me If your unhappy in a few weeks still things can be changed But the way your going your going to fuck us big time What's the matter are you out of drugs? So your angry? I can't buy you drugs pay everything and child support if you don't allow me to have shared care. And I'll get sick of trying And play your silly game And breach you like you do to me Tell centre/ink the lies you tell them I can tell them we never split it's just fraud you like to pull so STOP it and work for family frees and not against”.

29. In June 2019, the Applicant took a car that he and Ms P owned. This left Ms P without that car.

30. On 28 July 2019, the Applicant sent Ms P a screenshot of an email she had sent from her email account to a police officer about conducting a download of her telephone. On 29 July 2019, Ms P responded, "Get off my gmail". The Applicant responded by sending numerous abusive messages which accused Ms P of being unfaithful.

31. On 31 July 2019, the Applicant sent Ms P a photo depicting her and captioned it “Suspicious cheating wife…look at it”. He also sent her photo depicting her in the nude and captioned it, "Why she send me pics if im so bad".

32. On 18 August 2019, the Applicant sent the following text message:

    "No word all day. Not if push bike is out just nothing. You must be getting around the place with somebody.. The boyfriend ya dont have. Well i suppose he probably doesnt look as himself being a boyfriend. What. How does it go with you? Pick you up. Fucks you. Drops ya off. Then goes out and spends money on dinner and drinks with his actual girlfriend! Dam. When can i get on board?? Lol. Sounds great! Anyway seems Ya dont really need the car. Your all good. Cool."

33. On 24 August 2019, the Applicant sent Ms P a photo of her performing oral sex on him. He followed it with the following text message:

    “Whos that alright You know who...it will be you Cause look what you do. Cant answer in front of him and what do you get the boys to lie for you... Oh well... That picture. Ill ruin every single thing you have with anyone. Oh hello buddy .shit. Look at this.. she has just sucked me off. So jyst a heads up dont kiss the old jizz smoker for a day or two..”

34. Ms P told the Applicant “Stop texting or calling”. He continued to send similar messages, including a photo of Ms P smoking a pipe with the caption “Smoking and shagging”. He threatened to send the photo to the police officer Ms P had contacted via email and he threatened to call the police and report that there was a domestic violence disturbance at her home.

35. The following day, the Applicant texted Ms P a photo of herself with the file name “[Ms P] Luvs Cock For Roc Slut". He captioned the message, "Cum and Get It [Ms P].” He continued sending her photos including screenshots of women holding signs that read, “JULY- 05 - 2019 SLUTWIFE LOOKING FOR COCK! PLEASE FUCK ME!”. He also sent a screenshot of a draft email to the police officer Ms P had contacted via email. The draft email attached the photo of her using a pipe. The Applicant called Ms P repeatedly and continued to send abusive text messages throughout that day.

36. On 31 August 2019, the Applicant sent a text message to Child A, who was 12 years old at the time, that read, “Your mum is a slut, sleeping with other men for ice” which was accompanied by a photo of Ms P partly naked. It was followed by further derogatory comments about Ms P.

37. In the hearing, it was put to the Applicant that receiving that message would have had a negative impact on Child A. The Applicant agreed.[45] He said the Child A kept wanting to know why he and Ms P were always arguing. He told the boys that Ms P had left their home and taken them with her because she was cheating with Mr J. Ms P denied it and Child A kept telling the Applicant he was wrong. Unbeknown to Ms P, the Applicant had put a motion detector camera in their bedroom which took photographs of her engaged in sexual activity with another person. He sent one of the photos to Child A to prove he was in the right.

    [45]    Transcript, page 42.

38. Rather disturbingly, it was not the case that the Applicant did not realise that Child A was likely old enough to understand, at least partly, the meaning and significance of the photo and message. Rather, the Applicant sent the message because he thought Child A would realise what it meant. He said:

    “he kept wanting to know why we were always arguing and I thought well he’s 13, I thought they teaching you about sex in school now, he kept wanting to know why me and mum were always arguing, he said mums done nothing wrong, mum was still, at that stage, denying any of the facts and I thought - I don’t know why I thought this but I thought all right, you’re old enough to know the truth so - and like he just didn’t let up, he kept asking me every day for weeks…”

39. The Applicant said he now realised it was absolutely terrible to do that.[46]

    [46]    Transcript, page 44 lines 5 to 10.

1. On 1 September 2019, the Applicant sent the following message:

   “How cool that be... your funeral and no [the Applicant’s surname] .no [Child A] no.[Child B] yeees Your dads funeral no [the Applicant’s surname], any funeral on your side is No [Child A], or [Child B] or Their Dad!”

2. On 6 September 2019, the Applicant was sentenced for the three breaches of the Protection Order between 1 February 2019 and 4 February 2019. It is apparent from the penalty, being a $1,000 fine without a conviction being recorded, and the discussion the learned Magistrate had with the Applicant, that His Honour gave the Applicant a chance to stop his bad behaviour of his own volition. I have reproduced some of the discussion below.  

   Magistrate: You are lucky you were not charged with a Commonwealth offence twice - use carriage service to menace, harass, offend, threaten. I do not know why they haven’t charged you with that offence, but they have not. There would have been a whole lot more grief for you had they charged you with those offences. Automatic convictions recorded, condign punishment... It is easily not good enough behaviour. But what it is, it is emotional and psychological abuse. Okay? It is designed to threaten…

   …

   Now, you are aware, aren’t you, of Mr Dutton’s view---

   Applicant:       Yes, sir

   Magistrate:     --- aren’t you? What am I talking about?

   Applicant:       Deportation

   Magistrate: (after referring to the Applicant’s criminal history in New Zealand) Do not replicate that he or he will get interested in you.

   …

   And you know what? There is a myth out there that you have to got to be sentenced to 12 months imprisonment minimum to activate the interest. That is not true.”[47]

   …

   (addressing the Applicant and Ms P) If I was to ask both of you what would be the most significant issue in your lives at the moment - say, what was the most important responsibility that you could point to me, both of you would tell me it is the children, wouldn’t you?

   Ms P:              Yes.

   Magistrate: Both of you would say, ‘Now, I don’t care about him and I don’t really care about her or what they do or what she does or what he does. It’s just about the kids,’ you truly have not gotten there yet. Because when you do - when you do truly only care about your own relationship with your children, you will not come to a Courtroom.”

   …

   Today was a good outcome for you, [Applicant], and I have told you already. I do not need to repeat that. I am fairly confident that you two can achieve a suitable outcome between both of you, keeping in mind, you know, it is all about the kids, because at least this is just communication. We see some horrible domestic violence issues between parents who have split recently and so forth that involve horrible physical violence. All you have got to do, both of you, is keep your communication cordial, respectful. Respect is a big issue in domestic violence. And I will tell you how you can achieve it. Forget about the past. Forget about the past. Never bring it up. Just forget about it. Cast adrift. Look towards the future. All of those things. ‘You did this. You did that.’ Do not mention it. Trust each other to do the right thing by the kids.[48]

   [47]    Exhibit R2, Respondent’s Tender Bundle, TB1, pages 2 to 4.

   [48]    Exhibit R2, Respondent’s Tender Bundle, TB1, pages 8 to 10.

3. At that time, the Minister for Home Affairs was the Hon. Peter Dutton, MP. In the hearing, the Applicant initially said that it was not until he pleaded guilty in October 2020 that he became aware that he could have his visa cancelled.[49] He was challenged by the lawyer for the Respondent on the basis of the exchange reproduced above. The Applicant said it had been hard for him to understand what the Magistrate was saying, and he agreed without really understanding.[50] However, he ultimately conceded that the Magistrate had given him “the heads up”.[51] I am satisfied that from 6 September 2019 at the latest, the Applicant had been warned and was on notice that criminal offending in Australia could result in deportation. 

   [49]    Transcript, page 25, lines 27 to 30.

   [50]    Transcript, page 27, lines 7 to 24.

   [51]    Transcript, page 27, lines 36 to 45.

4. On 9 September 2019, the Applicant sent Ms P a picture of part of a police statement she had made. It was accompanied by a message that referred to her sucking his penis.

5. On 16 September 2019, the Applicant sent Ms P a message that attached a photo of her performing oral sex on him. He then sent a photo of her with a pipe and a photo of her with her breast exposed.

6. On 21 September 2019, the Applicant sent Ms P messages that attached photos depicting her naked and a picture of his penis.

7. On 21 October 2019, the Applicant sent a text message accusing Ms P of vindictively stopping him from seeing Child A and Child B. He abused her and accused her of using drugs.

8. The abusive messaging and calling escalated in volume and ferocity throughout November 2019. For example, on 3 November 2019, the Applicant sent Ms P numerous messages including the following:

   “No I wish You would Cut The bull shit. And If ya knew ya were not coming down.just.say that Instead of all this fucking. Lame arse crap excuses the boys this the boys that. fuck me dead I know THAT if [Ms P] Wants the Cock there IS NO the boys,,, oh no i have work,,,, Im in Menapause lol I Actually Dont Like Cock or Sex Anymore fucking garbage!! [Ms P] wants the Cock,, Nothing Stops Herl! The Mall Today Was Probably A Fuck At [Mr J]The Fridgies OR the Tennis Players OR someone ya sneakily FUCK Cause You Do Ya Always Have YOUR a Sexy Blonde title Slut That If You Want Someone To Fuck You YOU MAKE IT HAPPEN For Gods Sake Its not a bad thing NOW GET DOWN HERE And Suck My.Cock Like The Awesome Little Slut that You Are Thanks TO ME cause Im just like you,, a Horny As Male Dirty Cum Slut...”

9. At 3.45am on 4 November 2019, after sending numerous text messages, the Applicant sent the following:

   “Look. Richie rang me 10 times in a row..he is a domestic violence offender [Ms P]. You like down get ya cunt out get spoofed up while married in our home. You went somewhere. And got ya cunt fair fucken smashed up. I know you did I fucked you for 15 years. After fucking it is or the side flaps of it are puffy, swollen, redness like a graze a bit because when a mans jams his COCK in and out in and out and grind it in the hilt ITS THAT PART of ya cunt that where his cock starts hits and hits and hits..like boxers face ... After a fight ... And then he cums in you. Ya cunt when I licked it [Ms P] ... did not taste like pussy but salty sperm [Ms P]. SO PLEASE DO NOT TRY TO LIE AND DENY".

10. At 11:50am, the Applicant sent the following text message:

    “ya fucken lying cunt   you fucken piece of dog turd fuck u ... your such a crappy liar your good at being slutty A+ cum hoe”.

11. On 15 November 2019, the Applicant called Ms P a “black cunt”.

12. On or about 18 November 2019, the Applicant entered Ms P’s home and stole a bag from her wardrobe. The bag contained prescription medication (which he claimed, in the hearing, was his) and personal documents including Ms P’s diary, birth certificate and marriage certificate. The diary contained her passwords for various accounts. The Applicant later apologised for stealing Ms P’s belongings.

13. On 19 November 2019, a further TPO was made against the Applicant.[52] In this one, the prohibitions against having any kind of contact with Ms P were not subject to any exemption for the purpose of the Applicant having contact with the children. The Applicant was personally served with a copy of the order on 29 November 2019.

    [52]    Exhibit R2, Respondent’s Tender Bundle, TB1, page 42.

14. On 20 November 2019, the Applicant sent Ms P numerous abusive text messages. These included:

    “Did you give this to Police [Ms P]. I don't think u can trade sex for drugs with strangers and my sons in the house”

    and

    “This is what cause domestic violence [Ms P] when jumped up women like you much around with guys heads aye.”

15. On 23 November 2019, the Applicant sent Ms P multiple screenshots of a Facebook account he had created bearing her name with photographs of her.

16. In December 2020 the text messages and calls continued to escalate in volume and ferocity. On 7 December 2019, the Applicant threatened Ms P and accused her of breaking the law by leaving her children at home by themselves, and he sent her screenshots of a website that discussed s 364A of the Criminal Code (Qld). The following day he texted “Call Me Please asap Or im calling the Police today and Getting The Boys Out Of There”. He repeatedly called her and sent similar messages throughout the day.

17. Between 21 December 2019 and 2 January 2020 the Applicant sent 74 emails to Ms P about the breakdown of their relationship, and he made threats in relation to her neighbour and her friends. He also threatened to contact her workplace and send explicit photographs of her to her boss and to tell her boss that she was a drug user.

18. On 22 December 2019, the Applicant sent Ms P a photograph from outside her workplace. He followed it with a message, part of which stated:

    “Omg that was the worst yet When did I become someone you have no respect for and just tell me complete un truth garbage on behalf of scumbags like the fridgie and that super stupid idiot at your building.”

19. On 25 December 2019, at 7.00pm, the Applicant went to Ms P’s house and took her car. She reported it to the police and showed them the previous four days' worth of messages sent by him.

20. On 1 January 2020 at 9:30pm, he went to Ms P’s house, knocked on the door and asked to be let in. Ms P refused and he said, “So it's going to be like that hey”. He left approximately 30 minutes later.

21. The following day the Applicant left Ms P an abusive voice message accusing her of being “a police narc" and saying “I'm about 5 fucks in arrears” and “You're a poor excuse for a wife. Ya fucken fell off the wagon!”. He also threatened her, saying the following things:

    ·     “Everybody knows you can get anybody can get anybody before the police get em”

    ·     “Yeah the police will still turn up and get ya, but you got a window of opportunity”

    ·     “I can go out and fucken slaughter. Fucken slaughter, with a sharp knife, ten sheep out in the paddock for the freezer, before any police fucken turn up”

    ·     “They don't save anybody”

    ·     “They get involved and upset people”

    ·     “Then upset people do stupid shit”

    ·     “And then ring a hearse or bring an undertaker to take the dead people away”

22. On 3 January 2020, the Applicant texted “Cunt” to Ms P.

23. Between 3 and 19 January 2020, the Applicant emailed Ms P numerous times, calling her “Bumb”, “dub arse pathetic” and a “narsassist paeodophile” amongst other abusive names. He said he was going to “loose the plot and snap”.

24. On 14 January 2020, the Applicant was required to appear in court in relation to the protection order. He emailed Ms P demanding that she fail to appear. Over the following two days, he sent photos of Ms P naked to Child A.

25. On 18 January 2020, the Applicant emailed Ms P and threatened to kill her when she was at work. He further said “Ill show ya how to destroy a family”. He also told her that he would ask for a welfare check every day concerning their children and that he would provide Centrelink:

    “with Evediance Your not Fit To Have Children, Dangerous Drugs & Prositution. And the Police & Child Saftey. .. The campaign is starting now and I'm going to hand your butt to you ... By the end of this year your going to be a sad sorry state of a human like you deserve and I still everyday I get out of bed I'll still find something I can educate you on that your not doing correctly.”

26. Later that day, the Applicant went to Ms P’s workplace and approached her in a private staff smoking area where she was alone, sitting down. He stood over her and threatened: “I could kill you now and no-one would even know”. Ms P yelled, “Fuck off”, ran away and told a co-worker what had happened.

27. In the hearing, the Applicant admitted attending Ms P’s workplace but he denied standing over her and threatening her. His account was that he suspected that Ms P had left the children at home during school holidays while she was at work. He bought the children lunch and went to see if Ms P’s car was in the work car park. As he was walking into the nearby Red Rooster, Ms P came out to have a cigarette. He walked over to her and said:

    “You’ve left the kids at home alone again, you’re not allowed to do that, I’m getting another welfare check done, I’ve just rang the police to get a welfare check done. I said it is not on, and I said: the boys have rang me, they’re - at home, alone - they don’t like being on their own, and they reckon that there is no food for them - they’re hungry, so I’m getting them something to eat, and going back there, to drop them off something to eat.”

28. He said Ms P called the police and  told them that he had threatened to kill her.[53]

    [53]    Transcript, page 38.

29. The Applicant had pleaded guilty to the stalking offence as described by the Statement of Facts which included the allegation that he had stood over Ms P and threatened her. He said he did not agree to a lot of what was in the Statement of Facts and that he was initially going to plead not guilty, however, he was on remand and could not get bail, and he believed a trial would be 12 to 18 months away, so he pleaded guilty.[54]

    [54]    Transcript, pages 34 to 35.

30. The Applicant had legal representation when he was sentenced. Allegations in a Statement of Facts prepared by the prosecution can be amended for the purpose of giving the court an agreed factual basis on which to pass sentence. Alternatively, where agreement cannot be reached, a hearing can be held to determine the factual basis for sentencing. The remarks by the learned District Court Judge who sentenced the Applicant do not recount the facts of the offending. Nor do they disclose any dispute over, or changes to, the facts alleged by the prosecution. I am satisfied that the Applicant was sentenced on the basis of the allegations contained in the Statement of Facts. Accordingly, he bears a heavy onus of establishing for the purposes of this proceeding that some of those allegations are incorrect.[55] He has not discharged that onus in relation to the allegations that he stood over Ms P and threatened her.      

    [55]    HZCP v Minister for immigration and Border Protection [2019] FCAFC 2021.

31. On 19 January 2020 the police went to the Applicant’s residence to speak with him about breaching the TPO. They noticed a smoking pipe and loose cannabis leaves, and they conducted a search of the residence in which they found:

    ·two large sized cannabis plants, nineteen small sized cannabis plants, and two medium sized cannabis plants all in plastic pots;

    ·a small portable hydroponic tent containing hanging lights, electronic timers, power boards, exhaust fans, and ducting; and

    ·a brass smoking pipe. [56]

    [56]    Exhibit R2, Respondent’s Tender Bundle TB2, page 48; TB1 page 37.

32. The police arrested the Applicant and remanded in custody on 19 January 2020.[57]

    [57]    Exhibit G1, Section 501 G-Documents, G7, page 41.

33. The Applicant claims that he had grown the cannabis for his own personal use because he did not want to pay to buy it.[58] The context of his cannabis use was that when he suspected Ms P of having an affair and she denied it, he could not get closure and the more she denied it, the more he went downhill.[59] He started smoking cannabis which sedated him and let him sleep in. He also started suffering from depression and anxiety.[60]

    [58]    Transcript, page 17.

    [59]    Transcript, page 13, lines 32 to 38; page 14, lines 35 to 45.

    [60]    Transcript, page 15, lines 1 to 4.

34. I asked the Applicant why he did not go to a doctor and get sleeping medication to help him sleep. He admitted that he had used sleeping medication because sometimes he worked the night shift, and he did not satisfactorily explain why he was growing and consuming cannabis when he could have used legal medication.[61]

    [61]    Transcript, pages 17 to 18.

35. On 14 October 2020 the Applicant was convicted in the District Court of:

    ·“Unlawful Stalking Uses/Threatens Violence Contravenes/Threatens to Contravene an Order/Injunction – Domestic Violence Offence”;

    ·stealing (DV); and

    ·four drug offences (that were summary charges).  

36. Ms P wrote the following in a letter to the presiding Judge:

    “I have known [the Applicant] for 30 years. We were friends for many years before we began a relationship in 2005. We married in 2006.

    We had our first son, [Child A] 13 years, in 2007 in New Zealand. He was 2 years old when we decided to immigrate to Australia in 2009. Our youngest son, [Child B], 9 years old, was born in Australia, in 2011.

    [The Applicant] was a good husband and father, and always provided for his family. Things started going downhill in 2016.

    When our marriage broke down completely I took the boys and moved to a safer environment. [The Applicant] did not make very good choices in the way he reacted to my decision. He lost his way and made a lot of poor decisions, which has resulted in him being in front of you today Your Honour.

    I am optimistic that the time [the Applicant] has spent locked up on remand, that he has had plenty of time to reflect on his actions and the impact it has had on his childrens, mine and his lives.

    I hope he has grown and becomes a better person who can rebuild a relationship with his boys.

    A major impact would be if he was to be deported from Australia unable to return and not be able to see his children and grandchild grow up. They all permanently reside in Australia. This would have a negative impact on his children and himself.

    I do not have any family to support me in Australia or to help raise our children.

    Thank you for taking the time to read this, and will await your decision.”[62]

    (Errors in original)

    [62]    Section 501 G-Documents, G15, pages 116 to 117.

37. The Applicant was sentenced to imprisonment for three years to be suspended for four years after serving 12 months for the stalking offence. For the other offences he was given much lower penaltie. The 270 days he had spent in presentence custody was deemed to be time already served. 

38. The learned sentencing Judge’s remarks included the following:

    “When your marriage broke down you behaved remarkably poorly, and you know that. I’m not going to give you a lecture. I’ve read the letter you wrote me and you seem to show enough insight to know what you did is just not on; it’s as simple as that. But I must say that, rather than just not being on, it is one of the more extreme examples of the offence of stalking where there is no actual violence imposed.

    The offending period is about eleven months…In that time you sent literally thousands of text messages and hundreds of emails to your estranged wife. I don’t have the ability to summarise them message by message. And indeed I’ve only been sent a sample of what you have sent and even then, it takes up some 24 A4 pages. The volume is truly remarkable. They are submitted by the prosecutor, I think correctly, to be ‘putrid and disgusting’.

    One of the very - there is more than one, but - one of the very concerning features is that you had chosen, in the course of all of this, to send a text message to your son. And it read this: "your mum is a slut sleeping with other men for ice". That you brought your child directly into the matrimonial argument or upset that you felt is very a very concerning aspect of this…It does trouble me greatly

    (After the Applicant interjected to say “He’s 13”) Thirteen. Far too young to be dealing with a marriage break-up where you, by your own acceptance, had become obsessional, over an extended period of time. You pleaded guilty and that will be reflected favourably for you in the sentence that I'm to impose today. I have some doubts about whether it reflects remorse…

    Your criminal history in Queensland would be non-existent but for your upset at the breakdown of your marriage. Current offending is charged - is commencing on the 1st of March, but you had other offences involving contravention of domestic violence orders dating from early February. Now, you were on protection orders or temporary protection orders from that time through the whole of the period of your offending. And so, the circumstance of aggravation is made out. That did nothing to deter you. Indeed the service of the notice- the second of the temporary orders in November did nothing to deter you.

    Also of great concern is that you were convicted of these offences in the 6th September 2019. [The Presiding Magistrate] was pretty blunt when he was speaking with you. And that did nothing to deter you. In particular, [His Honour] spoke to you about the possibility of deportation if you continued on your course of conduct. And you did so continue. I should also note that at one point, a warrant had been issued for your failure to adhere to your bail conditions. And you were offending whilst you were unlawfully at large, also.

    I'm told that your offending has had physical and psychological impact on your former wife. That is unsurprising. I’ve also received from her a very benevolent letter where she recognises the genesis of how things started to go downhill. And she remains optimistic, given your time on remand of some 270 days will be enough for you to reflect on your actions. She hopes that you’ve grown and become a better person. She wants to try to ensure an order where the opportunity for you to remain in contact with your children and grandchild who is expected to arrive in December is facilitated.

    You're a person who's capable of contributing to the community. Your work history shows that. But you let this marriage breakup get the far better of you and your offending, as I say, is one of the more extreme examples where there is no actual violence imposed.

    …

    I am required under section 42 of the Domestic and Family Violence Protection Act to consider the extension of the order which has been made, most recently, in November 2019. I am informed that proceedings remain on foot for that in the Magistrates Court, with it most recently being mentioned last week.

    If I were to vary that order, given that it is on foot until further order, the only meaningful way I could do so would be to make it a protection order which is not temporary in nature. To do that, under section 38 of the Act, I would necessarily have to find, or at least assess, whether it is necessary or desirable to do so.

    I think it is inappropriate to do so in the shortened proceedings of a sentence hearing. Furthermore, given the order that I have imposed, there is a likelihood of deportation which would then make the making of any such order nugatory.”

1. The Applicant claims the following ties in Australia: Ms P, Ms C, Mrs S, Mrs S’s husband and their two children, and his sons.[135]

   [135] Exhibit G1, Section 501 G-Documents, G18, page 134.

2. The Applicant’s relationship with Ms P appears to be non-existent, with her only contacting him so the children can talk to him.  I have already addressed the impact of a non-revocation decision on her. I have addressed the Applicant’s relationship with his sons, and also with his grandson, above under Primary Consideration 3.

3. There is very little evidence about the nature of the Applicant’s relationship with Mrs S and her family, although he said that it would be huge for each family - meaning his and Mrs S’s - not to have the other around. It may be that each family is used to having the other one around. However, neither Mrs S nor her husband provided letters of support whereas other people did. This is not consistent with there being a close or positive relationship between the Applicant and Mrs S or her husband. There is no evidence that their children, in particular, would be affected by the Applicant’s removal from Australia. I am not satisfied that Mrs S or her family would suffer emotional or any other kind of hardship if the Applicant were deported.   

4. The Applicant raised Ms C since the age of four. She is now 22 years old. Ms C was living with the Applicant until he was arrested while Ms P and the boys were living elsewhere. She is now living with her partner, their baby and her partner’s mother. The Applicant described his relationship with Ms C as being very close.[136] Ms C and the Applicant are in contact via electronic means. She said she would find it emotionally difficult if the Applicant was not around and I accept this.[137]   

   [136] Transcript, page 10, lines 20 to 25.

   [137]  Exhibit G1, Section 501 G documents, G15, page 108.

5. The letters of support before me indicate that the Applicant has some long-standing, positive social and employment-based relationships in Australia.   

6. The Applicant’s social and familial links, and the impact on his children and grandchild of his removal from Australia, warrant substantial but not heavy weight in his favour under paragraph 9.4.1(2)(b) of the Direction. 

   Impact on Australian business interests

7. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests.  

   Conclusion: Other Consideration (d)

8. Overall, I am satisfied that the Applicant’s links to the Australian community warrant substantial but not heavy weight in favour of revocation.

   CONCLUSION

9. I am now required to weigh all of the Considerations in accordance with the Direction. It was contended on behalf of the Applicant that Primary Consecration 3 is determinative in this matter. However, I consider that it is Primary Consideration 1 that is determinative because any risk of the Applicant engaging in further offending of the kind he engaged in against Ms P is unacceptable and a real risk exists. In addition, the Applicant’s offending was so abhorrent and sustained, Primary Consideration 4 weighs heavily against revocation. The Primary and Other Considerations that favour revocation, when combined, do not outweigh those that favour non-revocation. Therefore, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

   DECISION

10. The decision under review is affirmed.

I certify that the preceding 231 (two hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

...........................[SGD[.............................................

Associate

Dated: 13 August 2021

Date of hearing:

21 and 22 July 2021

Solicitor for the Applicant

Ms J Samuta

Samuta McComber Lawyers

Solicitor for the Respondent

Mr J Kyranis

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G22 paged 1 to 196)	R	-	22 June 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 19)	A	25 June 2021	25 June 2021
A2	Applicant’s Further Evidence including: ·     Head scans of the Applicant’s Wife (undated) ·     Protection Order dated 12 February 2019	A	-	25 June 2021
A3	Applicant’s Further Evidence including: ·     Histopathology Report of Dr T Robertson dated 24 June 2021 for the Applicant’s Wife. ·     Metro North Hospital and Health Services Information Pamphlet ‘Glioblastoma’	A	-	28 June 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16)	R	13 July 2021	13 July 2021
R2	Respondent’s Tender Bundle (TB1 to TB2, paged 1 to 74)	R	-	13 July 2021
R3	Protection Order dated 20 April 2021	R	20 April 2021	21 July 2021