Derrick and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] ARTA 189
•1 November 2024
Derrick and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 189 (1 November 2024)
Administrative Review Tribunal
Applicants:Bryan Zachary Derrick
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/6165
Tribunal:Deputy President K Millar
Place:Adelaide
Date:1 November 2024
Corrigendum
Date of Corrigendum: 7 February 2025
Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alteration made to the decision:
1.Delete the words “who is 20 years old” in paragraph 77.
...............................[SGND]....................................
Deputy President K MillarApplicants:Bryan Zachary Derrick
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/6165
Tribunal:Deputy President K Millar
Place:Adelaide
Date:1 November 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides not to cancel the Applicant’s visa.
[SGND]
Deputy President K Millar
CATCHWORDS
MIGRATION – cancellation of applicant’s visa – applicant does not satisfy character test –whether statutory discretion to cancel visa should be exercised – Direction no. 110 – offending occurred over 30 years ago – no appreciable risk to the Australian community if Applicant remains in Australia – Applicant has been of good behaviour in the community for over 15 years – Applicant has been in Australia since the age of four – strong and extensive ties to immediate family – strength, nature and duration of ties to Australia weigh heavily in favour not cancelling Applicant’s visa – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth)Migration Regulations 1994 (Cth)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration [2019] FCAFC 202
Rukuwai v Minister for Immigration and Multicultural Affairs [2023] FCA 67Rukuwai v Minister for Immigration and Multicultural Affairs [2023] FCAFC 15
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
Mr Derrick is a citizen of the United Kingdom who came to Australia in 1972 when he was four years and 11 months old on an entry permit dated 9 November 1972. He was deemed to hold a permanent Class BF (Transitional) visa by virtue of r. 9 of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth).
In 2019 he was convicted of persistent sexual exploitation of a child – retrospective law, and sentenced to a term of imprisonment of six years to be served by way of home detention. This offending was against a child his parents had fostered. The sentence relates to his conduct as an adult over a period of approximately 18 months to two years from 1985 to 1987.
As a result of this conviction, a delegate of the Minister found that he did not meet the character test and cancelled his visa.
In considering this matter, the issues are whether Mr Derrick passes the character test; and, if he does not, whether his visa should be cancelled.
BACKGROUND
Mr Derrick came to Australia with his parents with his three older brothers shortly before he turned five years of age. His parents are now both deceased.
He married in 1987, and there are two children of this relationship, his older daughter and son. He does not have any contact with his older daughter or her children. His son has a child who is seven years old and his son shares the care of his child equally with his ex-partner.
Mr Derrick’s relationship ended in 2002 or 2003, and he has been in a relationship with his wife since then. His wife has a son from a previous relationship (his stepson), and Mr Derrick and his wife have a daughter who is now 20 years old.
Mr Derrick, his wife, and their daughter have relocated to regional Australia and live with his father-in-law.
LEGISLATIVE FRAMEWORK
Under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’), the Minister may cancel a visa that has been granted to a person if:
(a)The Minister reasonably suspects that the person does not pass the character test; and
(b)The person does not satisfy the Minister that the person satisfies the character test.
A person does not pass the character test in the circumstances set out in s 501(6) of the Act. These circumstances include at s 501(6)(e) that a Court in Australia has convicted the person of one or more sexually based offences involving a child.
Mr Derrick has been convicted of a sexually based offence involving a child and does not meet the character test.
As he does not meet the character test the remaining issue is whether the discretion to cancel his visa in s 501(2) of the Act should be exercised.
THE DIRECTION
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
At the time the notice of intention to cancel his visa was issued to the Applicant, the relevant direction was Direction no. 99. Before a decision was made, the Applicant was advised by the Department that Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’), had replaced Direction no. 99. The Applicant was provided an opportunity to make further submissions and provide information on the Direction before the primary decision was made.
The Direction is expressed to apply to the Administrative Review Tribunal (on its establishment) in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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 measureable 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, 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.
(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.[1]
[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[2]
[2] Ibid cl 7.
THE APPLICANT’S REQUEST FOR REVOCATION OF THE CANCELLATION OF HIS VISA
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
In his response to the notice of intention to cancel his visa, Mr Derrick states that he was found guilty of something he did not do. All his family live in Australia and support him. He has worked in Australia, paid taxes and is married with children. He does not know anyone in England. His wife and father-in-law also provided statements in support. His wife writes of the loss to her and the family if Mr Derrick is unable to remain in Australia and that he has done nothing wrong. His father-in-law, as an ex-police officer, also disputes the finding of guilt stating the trial judge made major errors. Mr Derrick lodged an appeal but withdrew due to the financial effect of pursuing this matter. His father-in-law states Mr Derrick’s brothers support him and reject the findings. He states that Mr Derrick had the care of his children after his marriage broke down.
THE PRIMARY CONSIDIERATIONS
The Direction contains five primary considerations, which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.[3]
[3] Ibid cl 8.
I have considered each of these considerations, keeping in mind the principles in cl 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian government, and that the government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.[4]
[4] Ibid cl 8.1(1).
The Tribunal is directed to have regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[5]
[5] Ibid.
Decision makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[6]
[6] Ibid cl 8.1(2).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[7]
Criminal offending
[7] Ibid cl 8.1.1(1)(a).
The offending occurred in and around 1985.
The offending is described in the sentencing remarks of Judge Barrett of 11 April 2019. Mr Derrick was found guilty by a jury of maintaining an unlawful sexual relationship with a child. Mr Derrick’s parents fostered two children, a girl who was the victim of the offending and who was approximately seven years younger than Mr Derrick, and a boy who was approximately eight years younger. These children said they were treated harshly by Mr Derrick’s parents and were eventually removed from his parent’s care. Mr Derrick said at trial that the description of the treatment of these children by his parents was untruthful, however this was not accepted.
The victim of the offending said that the offending commenced when Mr Derrick was a little over 13 years old and comprised having the victim commit fellatio on him, and this continued until Mr Derrick left the family home when he was approximately 20 years old. Mr Derrick was sentenced for his offending as an adult, during which time the victim was between 11 and 13 years old. It was claimed that his father also sexually abused the victim after Mr Derrick left home. Judge Barrett said that the foster children were treated differently to Mr Derrick and his brothers, and that Mr Derrick exploited this differential treatment for his own sexual pleasure, giving the victim lollies and access to his computer to obtain her compliance.
Judge Barrett described Mr Derrick as having a good work record, and a lengthy relationship with his current wife. He has the care of children in a period after they separated, although the length of time was uncertain. In sentencing Mr Derrick to six years’ imprisonment by home detention, Judge Barrett noted that home detention can only be granted for a serious sexual offence, such as the one for which Mr Derrick was convicted, unless special reasons exist. In finding special reasons, Judge Barrett stated that he did not think Mr Derrick posed an appreciable risk to the community and, with some hesitation, found that the interests of the community would be better served by Mr Derrick serving his sentence by home detention rather than in custody.
As a result of his conviction, Mr Derrick was placed on the Australian National Child Offender Register (ANCOR) for a period of 15 years.[8]
[8] Ex G6, 51.
He has complied with the terms of his home detention with one minor incident where he crossed into his neighbour’s yard.
Mr Derrick has a conviction for carrying an offensive weapon and attempt to damage property in 2008. This arose from an incident where he went to his ex-wife’s house and hit her car with a piece of wood. At the time he admitted damaging her vehicle. He said did not take the piece of wood to her house as alleged, but found it in the driveway.[9] Mr Derrick amended his statutory declaration about this incident at the hearing as he had provided a different explanation of this offence than that contained in the police report.[10] I do not accept the Minister’s submission that this shows a tendency to fabricate given these events occurred in 2007, approximately 17 years ago.
[9] Ex R1, 8.
[10] Ex A1, [38].
Mr Derrick was convicted in 1998 of common assault. The police facts record that he ran across the road after a 15 year old boy, grabbed him by the jacket, pushed him into a fence and threated to kill him. At the time, Mr Derrick stated that the victim rode his bike past him and stuck his middle finger up at him, telling his to ‘fuck off’ so he chased after him.
Mr Derrick’s account of these events had changed by the time of his sentencing and in his statutory declaration of these proceedings, where he said that his daughter had been sexually abused by the victim who was babysitting her. He said that he had told police but could not convincingly account for why this did not appear in the police report. While I accept this is his belief now, I do not accept it was his belief at the time of the assault, but again little turns on this as these events are over 25 years ago.
Nature and Seriousness of the Conduct
The Direction sets out that the Australian government and the Australian community regards crimes of a violent and/or sexual nature against women or children to be very serious, regardless of the sentence imposed.
There is no doubt the offence for which Mr Derrick was convicted is a crime of a sexual nature against a child is regarded very seriously by the government and the community.
There is little information on the impact of the offending on the victim. Judge Barrett states in the sentencing remarks that the victim was also sexually abused by Mr Derrick’s father when Mr Derrick left home, and that Mr Derrick’s parents brutalised both the victim and her brother. Judge Barrett states that the victim spoke forcefully about the long-term consequences in her life of Mr Derrick’s behaviour and that of his parents, but that in the circumstances it is difficult to determine exactly how much each of them contributed to her difficulties later in life.[11] Mr Derrick relied on a report that the parole board had contacted the victim and had no comment on the release of Mr Derrick on parole. I do not accept that this reflects on the impact on the victim of Mr Derrick’s offending rather than her reaction to his release on parole.
[11] Ex G4, 42.
I consider Mr Derrick’s offending has had serious and long-term consequences on the victim.
Mr Derrick was convicted of the offence of persistent sexual exploitation of a child – retrospective law. This covered a course of conduct as an adult over a period of approximately 18 months, and the individual offences were frequent during this period. He was convicted of two offences after the conduct that led to his conviction for the sexual exploitation of a child, however there is no trend of increasing seriousness. The cumulative effect of his offending on the victim of his offences is undoubtedly severe, however the offence itself was not repeated and Mr Derrick has no further convictions for this offence. In total he has been convicted of three offences.
Mr Derrick has not provided false or misleading information to the Department or been previously warned of the consequences of further offending.
The nature and seriousness of the conduct is grave with a severe impact on the victim. However, it has not been repeated and there is no cumulative effect of repeat offending, increasing severity of offending, or a failure to disclose information to the Department or heed a warning about the effect on his migration status.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[12]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[12] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[13] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[14] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[15]
Nature of the harm
[13] The Direction, cl 8.1.2(2)(a).
[14] Ibid cl 8.1.2(2)(b).
[15] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, I must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[16]
[16] The Direction, cl 8.1.2(2)(a).
Mr Derrick has been convicted of a serious offence. The sentencing remarks record that this was serious offending against a vulnerable girl over a period of about 18 months. There can be no dispute that the nature of the offending is very serious, and the nature of the harm to both an individual and to the community should this conduct be repeated is grave.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In sentencing Mr Derrick to home detention, Judge Barret noted that the court cannot impose a home detention order unless special reasons exist, and the only special reasons are whether advanced age or infirmity mean that he is no longer an appreciable risk to the safety of the community, and whether the interests of the community as a whole would be better served by Mr Derrick serving the sentence on home detention.[17] Judge Barret did not consider Mr Derrick posed an appreciable risk to the community.
[17] Ex G4, 43.
The offences occurred approximately 30 years ago. There are no reports of any behaviour of a similar nature, and his most recent offence is over 20 years ago. Mr Derrick has been compliant with the terms of his home detention and parole,[18] often attending early to meet with his parole officer. The Parole Board submission states that there is no indication he is an appreciable risk either to the community or the victim.[19]
[18] Ex R1, 278.
[19] Ex R1, 276.
Other than a single infringement of his home detention where he went into the yard of a neighbour, he has complied with the highly restrictive nature of his home detention. Mr Derrick is now acutely aware that offending may result in being deported from Australia.
My sole reservation on the likelihood of reoffending is his adamant denial that he committed the offences for which he was found guilty, and the steadfast support of family members in the belief that he did not commit these offences. His family were unable to conceptualise the possibility that he had committed these offences.
Mr Derrick was found guilty by a jury, and Judge Barrett stated that he was also satisfied beyond reasonable doubt about the evidence of the victim.[20] I cannot go behind or contradict a conviction by a Court.[21]
[20] Ex G4, 40.
[21] HZCP v Minister for Immigration [2019] FCAFC 202, [77] – [79].
Having taken into account that Mr Derrick maintains his innocence, and being mindful that Judge Barret was aware of this when finding that Mr Derrick is not an appreciable risk to the community, and Mr Derrick’s subsequent compliance with his home detention and parole, I have concluded Mr Derrick does not currently pose an appreciable risk to the community.
Rehabilitation
The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence.
Mr Derrick completed a 10-week Owenia House Understanding Sexual Offending program as required by his supervising community correction officer and an individual counselling session at the end of the course.[22] He said that he found the information very confronting and was distressed throughout most of the course. He said his distress was at last partly because he does not consider he has committed the offence. The post treatment report advised there were no recommendations for further treatment.[23]
[22] Ex R1, 278.
[23] Ex R1, 278.
While there is a reference to Mr Derrick being considered for family violence courses, he has not been required to attend a course.
Mr Derrick has attended rehabilitation as required, however as he does not accept that he committed any offences and has not completed any additional rehabilitation. He was in the community before his conviction and remained in the community on home detention, and has not come to the attention of police in a period of over 15 years.
If Mr Derrick reoffends, the consequences are grave. However, I find that there is a very low likelihood Mr Derrick will reoffend, and therefore risk to the community is low.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Mr Derrick’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs somewhat in favour of cancelling his visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[24]
[24] The Direction, cl 8.2(1).
The term ‘family violence’ is defined in the Direction as violent or threatening behaviour that coerces or controls a member of the person’s family or causes the family member to be fearful. The term ‘member of the person’s family’ is further defined as including a person who has, or has had, an intimate personal relationship with the relevant person.
Mr Derrick’s actions towards his ex-wife and the conviction for damage to property that relate to him hitting her car with a stick come within the definition of family violence. While he did not accept that this would have caused her to be fearful, I do not accept that following a dispute where he was yelling at her that picking up a piece of wood and hitting her car would not have made her fearful.
It was argued on behalf of Mr Derrick that the offending toward his foster sister was not family violence. It was submitted that the term ‘member of the family unit’ in r 1.12 of the Migration Regulations 1994 (Cth) includes a child or stepchild of the family head. In this case the family head was one of Mr Derrick’s parents. A child of another person for the purposes of s 5CB of the Act includes, but is not limited to, a child for the purposes of the Family Law Act 1975 (Cth) or an adopted child.
Section 5G of the Act also addresses relationships and who is a member of the person’s family, but also expressly does not limit who is a member of the person’s family or relative of a person.
Both Mr Derrick and the Minister relied on the decision of Raper J in Rukuwai v Minister for Immigration and Multicultural Affairs,[25] and the Full Federal Court decision on appeal in Rukuwai v Minister for Immigration and Multicultural Affairs (‘Rukuwai’).[26] The issue in this matter was whether a former spouse of the appellant was a member of her family for the purposes of considering family violence under the precursor Direction 90.
[25] [2023] FCA 67.
[26] [2023] FCAFC 157.
This precursor Direction was the subject of some judicial consideration on whether a previous partner was a member of the person’s family unit, and whether behaviour after the end of the relationship towards a former partner could be considered family violence. In considering if a former spouse was a family member for the purpose of the definition of family violence, the Full Court in Rukuwai considered the proceeding below ‘unnecessarily distracted’ by matters including the application of Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[27] and ss 5CB, 5F and 5G of the Act. The Full Court considered a finding on the facts that a person was a member of the person’s family was reasonably open to the Tribunal in the circumstances of that case.[28]
[27] [2022] FCAFC 115.
[28] Rukuwai v Minister for Immigration and Multicultural Affairs [2023] FCAFC 157, [67].
Given subsequent changes to the text of the Direction, which inserted a definition of ‘member of the person’s family’ to include a person who has, or has had, an intimate relationship with the other person, much of this dispute about where conduct towards a former partner is family violence has fallen away. What does remain for consideration is whether, in the circumstances of the case, a person is a member of the other person’s family.
I do not accept the submission that Mr Derrick’s foster sister was not a member of his family. Firstly, the term ‘member of the family unit’ is not the same as the term used in the Direction which is ‘member of the person’s family’. Secondly, the definition of a child in s 5CB and 5G of the Act is not limited to a child under the Family Law Act 1975 (Cth) or an adopted child.[29] Thirdly, I do not accept that this definition would intentionally include a biological sibling and exclude a foster sibling. This is not to say that the circumstances of a particular relationship should not be considered in each case in deciding whether a person is a member of the other person’s family.
[29] See Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115, [123]; Rukuwai v Minister for Immigration and Multicultural Affairs [2023] FCA 67, [79].
The facts of this case are that at the time of the offending his foster sister lived in the same household as Mr Derrick, his parents and his brothers. His foster sister lived with them for at least six or seven years and from when she was very young.[30] I consider Mr Derrick’s foster sister a member of his family, and his offending against her falls within the examples of family violence that includes sexual assault or other sexually abusive behaviour.
[30] Sentencing remarks of Judge Barrett, Ex G4, 39.
In regard to the first offence of family violence against Mr Derrick’s ex-wife, there is no information before me to show that this behaviour was frequent or increasing in seriousness, or that there were repeat offences or conduct against his ex-wife that constitute family violence. Mr Derrick moved away from the area his wife lived and states that this was to avoid further incidents which I accept. I accept that he took steps to remove himself to address his conduct. He has little understanding of the effect of his behaviour, however, as he did not consider his behaviour would have caused his ex-wife to be fearful. He has not undertaken any rehabilitation about family violence as suggested in the parole report, however, also was not required to undertake any rehabilitation.
The sexual violence against his foster sister occurred over a lengthy period including when he was a child himself. I infer that the cumulative effect of his offending has had severe and long-lasting effects on the victim of his offending. Mr Derrick does not accept that he committed the offence, and while he has undertaken a rehabilitation course, does not accept his conduct had an effect on the victim.
I consider this factor weighs heavily in favour of cancelling Mr Derrick’s visa.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
Mr Derrick’s immediate family members who are Australian citizens, Australian permanent residents or people who have a right to remain Australia indefinitely are his wife, his daughter, two adult children from his previous relationship, his stepson and his grandchildren.
There is no doubt Mr Derrick’s immediate family, except for his elder daughter and her children with whom he has no contact, have suffered hardship because of Mr Derrick’s offending. They have moved to another town to live with his wife’s father and access more financially viable accommodation. At the time of his trial, his daughter was entering year eight at high school. Her level of distress in giving oral evidence was such that the Minister rightfully decided not to subject her to cross-examination.
Mr Derrick has been with his wife for 22 years and married for 10 years. His wife provided statements and oral evidence about her distress if Mr Derrick is required to leave Australia and her concern for him. I accept she will suffer great distress and financial hardship if Mr Derrick is required to leave Australia.
Mr Derrick has three adult children, a son and two daughters. His two older children are from his previous relationship. He does not have a relationship with his eldest daughter. His son provided statements and oral evidence about the level of his distress and concern for his father’s welfare if he is required to leave Australia. His son also spoke of the relationship between Mr Derrick and his grandson and his desire for his son to have a relationship with Mr Derrick. I accept that Mr Derrick’s son will suffer significant emotional hardship if Mr Derrick is required to leave Australia, and that his grandson will lose the opportunity to have in person contact with his grandfather and will also be affected by his father’s distress.
He has a daughter with his wife who lives with them and his father-in-law who is 20 years old. His daughter will suffer emotional hardship if he is required to leave Australia. His father-in-law has supported him throughout the proceedings and will lose Mr Derrick’s support around the house if he is required to leave Australia.
(iii) Brothers
The Applicant has three brothers in Australia. His eldest brother provided a statement that of the brothers, he is closest to Mr Derrick. He lives in another state and tries to visit Mr Derrick with his partner every couple of years. They otherwise keep in touch by calls and messaging. He has three adult children from a previous relationship who in turn have children of their own. He says little of the effect on him if Mr Derrick is required to leave, instead focussing on Mr Derrick’s wife and daughter and on Mr Derrick.
Other ties with to the Australian community
Extended family
Mr Derrick is supported by his father-in-law who stridently maintains the Applicant’s innocence. As an ex-police office his father-in-law states that there were errors in the judge’s approach. It bears repeating that the Tribunal must accept the underlying court findings. He has a brother-in-law and a stepson.
Other ties to the community
Mr Derrick has ties with Australia through a former school friend and through close friends of his wife. A close friend of his wife provided a statement and gave oral evidence, stating that Mr Derrick and his wife has assisted by looking after the children following her separation and in a period when she was studying, working and bringing up the children as a single parent. I accept Mr Derrick has close ties with others in the Australian community who will be affected either directly or indirectly due to their relationship with his wife if he is required to leave Australia.
Mr Derrick has a consistent employment history as a labourer, trade assistant and detailer. He said he supports the neighbourhood by doing odd jobs for the elderly.
Mr Derrick has strong and extensive ties to his immediate family and lesser ties to the community. He has been in Australia since he was four years old and has worked consistently and contributed to the community.
The strength, nature and duration of the Mr Derrick’s ties to Australia in light of the length of time he has been in Australia weigh heavily in favour not cancelling his visa.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must decide whether cancellation or refusal under s 501 of the Act is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[31]
·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[31] The Direction, cl 8.4(4)(a)-(h).
Mr Derrick has a grandson who is seven years old who has remained in contact by video chat and a family catch up every other week. The terms of Mr Derrick’s parole limit the contact he can have with his grandson until April 2025. Mr Derrick has a longstanding relationship with his grandson through his son, however this is not parental. If Mr Derrick remains in Australia, I consider he will have a positive role in his grandsons’ life in the future. According to Mr Derrick and his son, his grandson wants to see Mr Derrick and have contact with him. There is no information before me that his grandson has been subjected to witnessing family violence or abuse. I consider the best interests of Mr Derrick’s grandson weigh moderately in favour of not cancelling his visa.
He has other grandchildren with whom he is not in contact, and I do not consider their interests to be affected other than the loss of a possibility that he will have contact with them in the future.
Mr Derrick’s stepson also has a daughter who is 15 years old. Mr Derrick does not have direct contact with his stepson’s daughter, and I do not consider her interests are significantly affected by this decision, other than indirectly due to her father’s distress if Mr Derrick is required to leave Australia. I consider it marginally in her best interests that Mr Derrick remain in Australia.
While there are other children such as the grandchild of his wife’s friend and the children of his nieces and nephew, I do not consider their interests are affected by this decision.
Overall, I consider this factor weighs moderately in favour of not cancelling of Mr Derrick’s visa.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[32]
[32] The Direction, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh in favour of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. In this case, these principles direct that the safety of the Australian community is the highest priority. I have found Mr Derrick does not pose a measurable risk to the community if he remains in Australia. However, the gravity of his offending, and the inherent nature of his conduct, must be considered in assigning weight to this consideration as it gives rise to serious character concerns which apply regardless of whether he poses a measurable risk of causing physical harm to the Australian community. Mr Derrick has lived in Australia for a very long period.
In applying these principles, this consideration weighs in favour of cancelling Mr Derrick’s visa.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[33] Mr Derrick does not claim that Australia’s non-refoulment obligations apply in his case.
[33] Ibid cl 9.1.
There are a range of legal consequences of a decision to cancel Mr Derrick’s visa. As I have stated in previous decisions, the consequences of a visa refusal or cancellation under s 501 or related provisions include:
- Unlawful status;
- The likelihood of becoming subject to detention and/or removal;[34]
- Refusal of other visa applications and cancellation of other visas;[35]
- A prohibition on applying for other visas;[36] and
- Periods of exclusion and special return criteria may apply.[37]
[34] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.
[35] Ibid s 501F.
[36] Ibid s 501E.
[37] Ibid s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[38] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[39] If Mr Derrick’s visa remains cancelled, he will continue to be detained and will be removed from Australia as soon as practicable.
[38] Ibid s 15.
[39] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The only visa for which Mr Derrick could apply if his visa remains cancelled is a Bridging Visa R.[40]
[40] Migration Act 1958 (Cth) s 501E; Migration Regulations 1994 (Cth) r 2.12A.
While removal from Australia and the visa limitations which result from a decision to cancel of the visa are an intended consequence of the operation of s 501 of the Act, the legal effect of the decision on Mr Derrick is significant because it involves his detention and removal from Australia as well as his ability to return.
This attracts some weight in favour of not cancelling Mr Derrick’s visa.
Extent of impediments if removed
Clause 9.2 of the Direction provides that in taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
- The Applicant’s age and health;
- Whether there are substantial language or cultural barriers; and
- Any social, medical and/or economic support available to the Applicant in their country.
Age and health
Mr Derrick is 56 years old and is in good health. He can perform physical labour and has worked recently as a car detailer. I do not consider his age and health a barrier to re-establishing himself in the United Kingdom.
Mr Derrick’s family members, as well as his wife’s friend, expressed concern about his mental health if his visa remans cancelled and he is required to leave Australia. Each consider there was a risk that Mr Derrick would end his life if required to leave Australia.
I do not have information from independent or authoritative sources regarding Mr Derrick’s mental health or risk of self-harm, and while I accept his family and friends have a genuine concern for his welfare, I place little weight on their evidence in this regard. However, I do accept Mr Derrick will suffer considerable distress if he is required to leave Australia. He has lived here from a young age and has not been out of Australia since he arrived.
Language or cultural barriers
Mr Derrick has not been out of Australia since arriving when he was four years old. He will not face language barriers in the United Kingdom but has no knowledge of local systems.
Any social, medical and/or economic support available to the Applicant in their country
Mr Derrick accepted that health and social services are available to him in the United Kingdom.
I consider the extent of impediments if removed weights somewhat in favour of not cancelling his visa.
Impact on Australian business interests
Mr Derrick has worked in Australia and is likely to work again if released form immigration detention. I consider the impact on Australian business interests to be slight, and place little weight on this factor.
CONCLUSION
Mr Derrick does not pass the character test under s 501 of the Act, and I must consider whether his visa should be cancelled, having regard to the primary and other considerations in the Direction.
As I have said previously, the Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[41]
[41] [2023] FCAFC 138, [23].
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[42]
[42] Ibid [27].
On the information before me, I do not consider there is an appreciable risk to the Australian community if Mr Derrick remains in Australia. His offending occurred over 30 years ago. He has complied with his sentence and has been of good behaviour in the community for over 15 years. While the Australian community would expect his visa to remain cancelled, particularly as his offending involved family violence, I consider the strength, nature and duration of his ties to Australia and to a lesser degree the best interests of minor children together with the legal consequences of the decision and the extent of impediments if removed outweigh these considerations.
As a result, I consider his visa should not be cancelled and set aside the decision under review and substitute a decision not to cancel his visa.
DECISION
The decision not to revoke the cancellation of Mr Derrick’s visa under section 501CA(4) of the Act is set aside and substituted with a decision not to cancel his visa.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Millar.
…[SGND]……………………………………
Associate
Dated: 1 November 2024
Date of hearing: 22 October 2024 Counsel for the Applicant:
Instructed by:
Molly Scanlon,
Jeffcott Chambers
Matthew Thompson,
M. P. Thompson and Associates
Counsel for the Respondent:
Instructed by:
Oliver Morris
Emma Carnell,
HWL Ebsworth
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