Dickson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4961
•8 December 2020
Dickson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4961 (8 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5621
Re:Logan Dickson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:8 December 2020
Place:Perth
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...................................[SGD]..................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 - protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to New Zealand when Applicant has voluntarily returned – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii)
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56
Gage and Minister for Home Affairs [2020] AATA 326
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2939
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Pinder and Minister for Home Affairs [2019] AATA 1398
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1,6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 14, 14(1), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a)(i), 14.2(1)(b), 14.4, 14.4(1), 14.5(1), Part C
Violence Risk Appraisal Guide (VRAG) – (Quinsey, Harris, Rice and Cormier, 2006)
Level of Service Inventory – Revised (LSI-R) – (Andrews and Bonta, 1995)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UTS 3 (entered into force 2 September 1990) – Article 3
REASONS FOR DECISION
Deputy President Boyle
8 December 2020
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated
14 September 2020[1] to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1] R1, G6.
The Applicant’s visa was cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review,[2] made on 16 September 2020, was made in accordance with
s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa.[2] R1, G2.
THE ISSUE
The Applicant, correctly, concedes that he does not pass the character test.[3] Therefore, the only issue for determination is whether the Tribunal should exercise the power in
s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. That will require determination of whether there is a ‘another reason’ why the mandatory cancellation decision should be revoked.[3] Applicant’s SFIC para. 3.
BACKGROUND
The Applicant is a 28 year old citizen of New Zealand. He first arrived in Australia on
26 December 2009. Prior to his most recent departure, he had departed twice, on9 February 2012 (for six weeks) and 6 November 2013 (for 11 days).[4][4] R1, G15 and R1, G30.
The Applicant grew up in Tauranga, New Zealand. He left school around 2007 after completing year 11.[5] He came to Australia by himself when he was 17 years old. His mother, stepfather and siblings had moved to Australia a year before he came.
[5] R1, G30.
His parents separated when the Applicant was one year old and his father died in motor vehicle accident when the Applicant was three.
Since arriving in Australia, the Applicant has had the following work:[6]
(a)2010-2011: cleaner and maintenance man with Particular Cleaning and Maintenance in the Pilbara;
(b)2011-2013: storeman for SCT Logistics (Carlton Breweries);
(c)2013: storeman for Schneider
(d)2013-2014: storeman for Inghams Chicken; and
(e)2014-2018: forklift operator/warehouse assistant for Tyres 4 U, Welshpool.
[6] R1, G30/120.
The Applicant became a full-time employee of Tyres 4 U in January 2016. He completed his forklift operator’s licence in 2015. In 2019, while incarcerated, the Applicant completed a first aid qualification.
The Applicant says that between 2015 and 2016 he volunteered for the Mandurah Pirates Rugby Club mentoring young players.
The Applicant has an extensive criminal history. He was first convicted as a minor
(17 years of age) on 18 November 2009 in New Zealand of other trespass under specific statute; car theft (under $500); unlawful interference with a motor vehicle and breach of Wild Animal Control Act 1977 (NZ).[7] The Applicant was fined for these offences. In 2010 the Applicant was convicted of two counts of common assault and one count of assault occasioning bodily harm in the Karratha Children’s Court. He was fined a total of $900 received spent convictions.[8]
[7] R1, G8/43.
[8] R2, TB1/3.
Between 2011 and 2015 the Applicant was convicted for - no authority to drive (on five occasions); disorderly behaviour in public; unauthorised driving by learner; exceeding 0.08g alcohol per 100ml of blood (on two occasions); and driving with passenger 16 years unrestrained for which he received fines and/or driver’s licence disqualification.[9]
[9] R1, G7/42; G10/55; R2, TB1/1-2.
On 18 January 2018 the Applicant was convicted of two counts of grievous bodily harm. He was sentenced to two and a half years imprisonment on the first count and two years imprisonment (cumulative) on the second count; a total of four and a half years imprisonment.[10]
[10] R1, G7/41; R2 TB1/1.
The Applicant’s full criminal history is as follows:
Jurisdiction
Offence Date
Court Date
Offence
Court Result
Karratha Children’s Court
30.05.2010
22.09.2010
Common Assault
Spent conviction Fine: $250
Karratha Children’s Court
30.05.2010
22.09.2010
Common Assault
Spent conviction Fine: $250
Karratha Children’s Court
30.05.2010
22.09.2010
Assault Occasioning Bodily Harm
Fine $400
Rockingham Magistrates Court
05.11.2011
05.12.2011
No authority to drive (fines suspended)
Fine $250
Perth Magistrates Court
20.10.2013
22.11.2013
Disorderly behavior in public
Spent conviction Fine $500
Midland Magistrates Court
26.10.2013
29.01.2014
Unauthorised driving by learner driver
Fine $250
Mandurah Magistrates Court
02.02.2014
07.02.2014
No Authority to drive
Fine $750
Mandurah Magistrates Court
02.02.2014
07.02.2014
Exceed 0.08g alcohol per 100ml of blood. Greater than 0.12g but less than 0.13g- 2nd offence
MDL disqualified 7 months concurrent. Fine $750
Midland Magistrates Court
16/12/2013
05.03.2014
No Authority to drive
MDL disqualified 3 months. Mandatory – Concurrent Fine $350
Midland Magistrates Court
26.03.2014
07.05.2014
No Authority to drive
MDL disqualified 9 months cumulative. Fine $400
Mandurah Magistrates Court
24.05.2015
08.07.2015
Driver to ensure passenger 16 years or more wears seatbelt
Fine $2800
Mandurah Magistrates Court
24.05.2015
08.07.2015
No Authority to Drive
MDL disqualified 9 months cumulative. Fine $2800
Mandurah Magistrates Court
24.05.2015
08.07.2015
Exceed 0.08g alcohol per 100ml of blood. Greater than 0.12g but less than 0.13g- 2nd offence
MDL disqualified 14 months concurrent. Fine $2800
District Court of Western Australia
12.03.2016
18.01.2018
Grievous Bodily Harm
Imprisonment: 2 years 6 months from 14 January 2018 (Head sentence)
District Court of Western Australia
05.04.2015
18.01.2018
Grievous Bodily Harm
Imprisonment: 2 years cumulative from 14 January 2018
By letter dated
23 May 2019,[11] the Applicant through his representative,
Samuta McComber Lawyers, requested that the Department initiate the cancellation of the Applicant’s visa under s 501(3A) of the Act so that the Applicant could commence the “revocation process… and attempt to have his visa status resolved before his expected release from correctional detention”. The Applicant’s representatives advised that they expected the Applicant to be released from prison on “court-ordered parole after serving 2.5 years”.[12]
[11] R1, G17.
[12] R1, G17/65.
On 26 June 2019 the Respondent gave notice to the Applicant that his visa was cancelled under s 501(3A) of the Act.[13] The visa was cancelled on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months for the grievous bodily harm offences and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c)).[14]
[13] R1, G19/70.
[14] R1, G19/72.
On 28 June 2019 the Applicant requested revocation of the cancellation of his visa (within the prescribed period).[15] On 14 September 2020 a delegate of the Respondent decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.[16] The Applicant was notified of the decision on 15 September 2020[17] and on 16 September 2020 he lodged an application for the review of that decision in the Tribunal.[18]
[15] R1, G22/81.
[16] R1, G6/20.
[17] R1, G6/18.
[18] R1, G2/3.
The Tribunal is satisfied that it has the jurisdiction to review the decision.
Some time prior to the hearing of this application the Applicant voluntarily returned to
New Zealand.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
Section 501CA of the Act provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person
...
(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.
THE HEARING AND THE EVIDENCE
The application was heard on 23 November 2020. The Applicant was represented by
Ms J Samuta and the Respondent was represented by Mr A Burgess. The Applicant and Ms Samuta appeared by video link, the Applicant from New Zealand. Witnesses, other than the Applicant, gave evidence by telephone.The following documents were admitted into evidence:
(a)Statement of Ms S, dated 18 November 2020 (Exhibit A1);
(b)Statement of Jessica Mofflin, undated (Exhibit A2);
(c)Report of Dr Jacqueline Yoxall, dated 25 June 2020 (Exhibit A3);
(d)G documents (Exhibit R1); and
(e)Tender Bundle (Exhibit R2)
The Applicant gave evidence at the hearing and was cross-examined. The following witnesses also gave evidence and were cross-examined:
(a)Ms S – Applicant’s partner;
(b)Applicant’s partner’s mother;
(c)Dr Jacqueline Yoxall;
(d)Jessica Mofflin; and
(e)Applicant’s partner’s father.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, titled “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA” (Direction 79). The commencement date for operation of Direction 79 was
28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They 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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a. Protection of the Australian community from criminal or other serious conduct;
b. The best interests of minor children in Australia;
c. Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship[19] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase is defined, relevant to this case,
in s 501(7)(c) and (d) (see [21] above) 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 or has been sentenced to two or more terms of imprisonment totalling 12 months or more.[19] [2009] AATA 47; (2009) 106 ALD 666.
The Applicant has been sentenced to a term of imprisonment in excess of 12 months as well as two or more sentences totalling more than 12 months. As a result, the Applicant has a substantial criminal record as defined in s 501(7) of the Act and, therefore, does not pass the character test (s 501(6) of the Act). This is conceded by the Applicant and the Tribunal so finds. Therefore, the only issue for consideration is whether there is another reason to exercise the discretion to revoke the cancellation of the visa under
s 501CA(4)(b)(ii) of the Act.PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a. The nature and seriousness of the non-citizen’s conduct to date; and
b. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c. The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e. The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f. The cumulative effect of repeated offending;
g. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant’s offending falls into two categories: one category being the assaults and grievous bodily harm convictions in 2010 and 2018, and the other being the driving related convictions.
The convictions for violence and violent behaviour
Obviously the most serious of the Applicant’s convictions are the two grievous bodily harm convictions in January 2018. The circumstances of these offences are set out in
Bowden DCJ’s sentencing remarks as follows:[20]
[20] R1, G9.
…the first offence occurred on 5 April 2015 at Mandurah when you did grievous bodily harm to Mr Robertson. You pleaded not guilty to that matter and you were convicted after a three-day trial before a jury. …
Now, the facts relating to that incident were around about 4.45 in the morning you became involved in an argument with Mr Robertson. You punched him to the side of the face and the footage does show, in my view, a number of blows were struck and ultimately Mr Robertson fell to the ground. He was located approximately three hours later near the old Mandurah traffic bridge. He had injuries which clearly constituted grievous bodily harm.
Medical evidence given was that he’s suffered swelling and bruising to the right eye, bruising to the right eyeball, numbness to an area below the right eye, numbness to the lower lip and chin on the left and right-hand side. And a subsequent scan showed a fracture to the jaw and to the right orbital floor. Now, the jaw fracture was left to the jury as the grievous bodily harm on the basis that it was an injury of such a nature as to cause, or be likely to cause, permanent injury to health in that there would be a permanent non-alignment of the jaw if surgery had not been performed.
Insofar as that incident is concerned it’s impossible to work out exactly the number of blows that were delivered but it does seem to me and I sentence you on the basis that there was more than one blow. I accept that there had been some interchange between you and Mr Robinson prior to the incident but clearly your actions in resorting to force were not in self-defence and clearly they were a gross overreaction which left the victim with two jaw fractures and the other injuries that have been referred to.
…
Now, the reality is that your actions caused real pain and real suffering to a fellow citizen. As to the grievous bodily harm which occurred around about 12 months later on 12 March 2016, you pleaded guilty to that offence…
Now the circumstances of that incident were that the victim, who was 42, was out celebrating his birthday. Ultimately, he ended up in a nightclub with some people.
It appears that his drink had been disposed of by staff. He approached an unknown male asking for a drink. An altercation occurred between the victim and that unknown male. You then intervened.
You approached the victim and the second unknown male, put your drink on the bar, grabbed the victim by his upper right arm and forcefully punched him with a closed fist to the left side of the face splitting his face and rendering him unconscious. Now he fell to the dance floor. He remained unconscious for around 10 to 15 minutes, his head having hit the ground.
You walked away from him. At the time of the incident apparently you had been banned form the club for a period of time but I accept, and it’s not pushed by the State, but you knew that you had in fact been banned.
Now, the victim was taken to the emergency department of various hospital [sic]. He basically suffered from a bleeding on the brain. He had, had other injuries including lacerations which required stitches to his mouth, bruising to his arm and the injuries were of a nature to be likely to endanger life and cause – or likely to cause, permanent injury to health.
As a result of the assault the victim has been left with impaired cognitive abilities. That is, he has difficulty with speech, difficulties with his sight and balance and has constant headaches. And again, I’ve also received a victim impact statement from the victim of you second assault. It refers to difficulties that he still experiences.
…
Now, no one is suggesting that you intended and set out on the evenings in question to cause grievous bodily harm and it seems to be universally acknowledged, not only by your own counsel, but also by the various references that I have received and the various reports that I have received, that when you drink these sorts of things happen.
…
I read the various references that have been provided to me including the references form your partner who refers to you as being loving and supportive.
I acknowledge that you have made efforts to change your life. You – clearly, you’ve continued your stable relationship. You are currently in the care of your partner and your child. You have ceased alcohol.
You attended courses at Salvation Army. You had sessions with a psychologist and you’ve made effort to understand why you resort to violence, why you get angry and what you can do to prevent that occurring again.
The other violent offences for which the Applicant has convictions are the three assaults as a minor in 2010. The circumstances of those offences are set out in the police statements of material facts.[21] The three assaults occurred in the same incident at a service station in Karratha when the Applicant became involved in a confrontation with a group. All three victims were punched in the head. The Applicant said that his uncle had just died, and he was “quite worked [up] about it”.[22] The Applicant’s evidence at the hearing[23] was that the first victim had said something offensive to him so he punched that victim in the face and then punched the two other victims because he thought that they were going to hit him, so he hit them first. The following exchange occurred in cross-examination:
COUNSEL:…You’d accept that these were unprovoked attacks, weren’t they?
APPLICANT: Unprovoked, I just thought that he was walking towards me like he was going to hit me, so I just acted.
COUNSEL:Well, no-one hit you, did they, Mr Dickson?
APPLICANT: No. No.
[21] R2, TB1/27-29.
[22] Transcript at 20.
[23] Transcript at 21-22.
In addition to the Applicant’s convictions, the Applicant was also involved in an incident with another prisoner on 1 February 2020.[24] The Applicant was cross-examined on this incident as follows:
[24] R2, TB/191.
COUNSEL:And an altercation between your child and the child of that other prisoner wasn’t there?
APPLICANT: Yes.
COUNSEL:After that altercation, that was when you found the other prisoner and punched him?
APPLICANT: No. He come to my unit. I didn’t go looking for him. He turned up in my door.
COUNSEL:He didn’t punch you did he?
APPLICANT: He wasn’t letting me go out of the room neither, he was blocking me in inside my cell.
COUNSEL:My question was he didn’t punch you, did he?
APPLICANT: No.
Summonsed records disclose that the Applicant has also been involved in other physical altercations. The Applicant was cross-examined on these incidents:
COUNSEL:You were initially charged with common assault in October of 2015 in relation to a fight that you got into with a friend in Banksia Terrace, South Yunderup. Do you remember that fight?
APPLICANT: Yes. Yes, I remember that one.
…
COUNSEL:On that occasion, you made admissions to assaulting the victim to police when you were interviewed?
APPLICANT: Yes.
COUNSEL:It states here:
Declan Johnson has informed the victim and his friends to leave the area as he thought they were there for a party. The accused was under the impression that the victim and his friends were disrespecting his friend, Johnson. It was at this point that he punched the two victims’ friends.
COUNSEL:That occurred, didn’t it?
APPLICANT: Yes.
COUNSEL:Then, the victim held up his hands, stating he didn’t want to fight. He turned away and you punched him to the right side of the head and he fell to his face, didn’t he?
APPLICANT: There was only one person I had hit.
…
COUNSEL:The person who was assaulted chose not to press charges against you, didn’t they?
APPLICANT: I’m not too sure.
COUNSEL:Were you convicted of that assault?
APPLICANT: No, I don’t think so.
COUNSEL:But you will accept, on that occasion, you did again punch someone to the head?
APPLICANT: Yes. Yes.
The Applicant was also cross-examined on altercations involving family members to which police were called. On 25 December 2015 it appears that he was involved in an altercation with his mother. A restraining order was issued against the Applicant protecting his mother on 25 December 2015 which expired on 26 December 2015.[25]
On 8 March 2014 it appears that the Applicant was involved in an altercation with his brother which included damage to property.[26] His evidence in cross-examination was that he could not remember any of these incidents nor could he remember being served with a restraining order protecting his mother.
[25] R2, TB1/37.
[26] Police incident reports: R2, TB1/33-36.
Driving related offences
The second category of the Applicant’s offending is the driving related offences.
The Applicant has been convicted of driving with no authority to do so on five occasions, unauthorised driving as a learner, driving with excess of 0.08% alcohol twice and failing to have a passenger restrained. These offences occurred over the period from November 2011 to May 2015.Tribunals have repeatedly observed the seriousness of driving offences. Three of the more recent tribunal decision in which this issue has been considered are Gage and Minister for Home Affairs[27] at [75]-[76] (Member Burford); SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[28] at [43] (Senior Member Dr Evans-Bonner); Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[29] at [80]-[81] (Deputy President Boyle). In Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[30] at [50], Senior Member Dr Evans-Bonner noted:
…Licensing rules are in place to ensure drivers are suitably qualified and responsible in order to protect innocent road users from harm. Additionally, as well as these types of licensing related offences, the Applicant also has convictions for driving under the influence of alcohol (2008), reckless driving (2008) and driving under the influence of an illicit drug (2014). Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that “...driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly.”
[27] [2020] AATA 326.
[28] [2020] AATA 344.
[29] [2020] AATA 421.
[30] [2020] AATA 32.
Senior Member Dr Evans-Bonner then went on to cite the comments of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection[31] (Bartlett) at [43]-[45] which graphically encapsulate the serious nature and adverse consequences to the community of driving offences. This Tribunal agrees with and adopts the observations of those two learned Senior Members.
[31] [2017] AATA 1561.
Assessing the Applicant’s history of offending and other conduct against the considerations identified in paragraph 13.1.1(1) of Direction 79, the Tribunal observes that:
(i)(subparagraph 13.1.1(1)(a)) - the Applicant has numerous convictions for offences involving violence. These offences must be viewed very seriously;
(ii)(subparagraph 13.1.1(1)(b)) - the Applicant has no convictions for offences against women, although the Tribunal does note that a violence restraining order was taken out for the protection of the Applicant’s mother in December 2015.
(iii)(subparagraph 13.1.1(1)(c)) – it does not appear that the Applicant’s offences have been committed against vulnerable members of the community.
(iv)
(subparagraph 13.1.1(1)(d)) – the only terms of imprisonment that have been imposed are those for the two grievous bodily harm convictions,
two years and two years and six months.
(v)
(subparagraph 13.1.1(1)(e)) – while the Applicant’s has committed a significant number of offences (19, including the four convictions as a minor in New Zealand) over a relatively short period of six years and four months (November 2009 to March 2016), his offending appears to have been episodic rather than frequent. There are seven convictions for offences committed in the six months between November 2009 and May 2010,
six convictions for offences committed in the seven months from October 2013 to May 2014 and then five convictions for offences committed in the 11-month period between April 2015 and March 2016. The most serious of the Applicant’s offences were the two grievous bodily harm offences in April 2015 and March 2016. There was, therefore, a trend of increasing seriousness. There were, however, also significant periods when the Applicant did not commit offences.
(vi)
(subparagraph 13.1.1(1)((f)) – it is the case that the Applicant has committed a significant number of offences. Although any assault is serious, and his repeat driving offences, particularly his repeat driving without authority and two excess 0.08% alcohol charges, are serious,
the two grievous bodily harm convictions are by far the most serious of the Applicant’s offending. However, given the episodic nature of the Applicant’s offending, and the relatively long periods of non-offending between those episodes, there is, in the Tribunal’s view, no particular cumulative effect of repeat offending.
(vii)(subparagraph 13.1.1(1)((g)) – the Applicant acknowledges that he provided incorrect information to the Australian Government when he declared that he had no criminal convictions in the course of completing Incoming Passenger Cards upon his arrival in Australia in 2009, 2012 and 2013.[32] He says that he mistakenly believed that because his prior offences were dealt with by fines, they did not need to be declared. The Applicant submits that, in circumstances where the false declarations are better described as a mistake rather than intentionally misleading, the false declarations should not weigh against him. The Tribunal does not accept that submission. The Incoming Passenger Cards are clear in what is required and clearly state that the passenger is making a declaration that the information provided is “true, correct and complete”.[33] The declaration says “I understand failure to answer any question may have serious consequences”. It is unequivocally the declarant’s responsibility to ensure that the answers are true, correct and complete.
(viii)(subparagraph 13.1.1(1)(h)) – the Applicant has not received any formal warning.
(ix)(subparagraph 13.1.1(1)(i)) – while there is a violent incident involving another prisoner in February 2020, this subparagraph requires consideration of “crime committed while the non-citizen was in immigration detention” and, as far as the Tribunal is aware, the Applicant has not been convicted of a crime arising out of that incident. Further, the incident occurred while the Applicant was in prison, not in immigration detention. Accordingly, this subparagraph has no application in this case.
[32] Applicant’s SFIC para. 35.
[33] R1, G11-13.
Overall, the nature and seriousness of the Applicant’s criminal offending and other conduct, taking into account the factors identified in the applicable subparagraphs (a) to (i) of paragraph 13.1.1(1), weigh moderately against the revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1) In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[34] (CZCV) summarised the task for the Tribunal as follows:
56. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[34] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[35], Justice Moshinsky stated, at [68]:
...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[35] [2016] FCA 1181.
The Tribunal agrees with and adopts the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal and other behaviour which he has in the past, is obvious and serious. The harm caused by violence and driving offences and are not only significant for those who are the direct victims of these sorts of offences, but also for the broader community with increased policing, court, medical and correctional costs. As Senior Member Tavoularis noted in Bartlett at [43]:
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
Some of the consequences of the Applicant’s violent behaviour were reflected in comments made by Bowden DCJ when sentencing the Applicant on the grievous bodily harm offences (see [40] above). The nature of the harm that is caused to members of society, both to victims and to their families, dependents and loved ones, by the sort of violence that the Applicant has engaged in, unprovoked assaults involving punches to the head, are obviously serious. As the Applicant himself apparently advised Dr Yoxall,
“…he is very grateful that his actions did not result in more severe injuries or even death”.[36] It does seem that it is merely a matter of luck that the permanent injuries that have been suffered by the Applicant’s victims were not more serious or that none of the Applicant’s assault victims has died.The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
[36] A3, para 8.2.
The Applicant’s SFIC submits that:
(a)The Applicant’s antecedents serve as an explanation for his offending and the Applicant’s ability to reason and recognise the behaviour attached to the criminal offending are indicative of rehabilitation and remorse.
(b)The Applicant has reflected on his actions and is cognisant of the factors that led him to offending and any further offending is likely to be far less serious than the index offending.
(c)The Applicant is a low risk of re-offending because of:
(i)Dr Yoxall’s psychological assessment;
(ii)his sobriety and commitment to living an alcohol-free life;
(iii)his personal reflection, remorse, acceptance of responsibility, maturity and insight;
(iv)his appreciation of the impact of his offending on his victims;
(v)his insight in relation to his previous alcoholism, subsequent understanding of his issues which he has learned essentially stem from the loss of his father at a very young age, the obvious absence of a father during his childhood, and experience of childhood bullying – the grief and pain which cumulated (maladaptively) into anger and fighting as a defence mechanisms;
(vi)the multifaceted support from immediate family, as well as his partner’s family in relation to his efforts to live a life free of alcohol;
(vii)his having undertaken a number of rehabilitation courses, attending Alcoholics Anonymous and seeking counselling;
(viii)his fatherhood since his index offending;
(ix)the stability brought about by his relationship with his partner including the fact that since he has been with her (2016) he has been alcohol free;
(x)his partner’s dependence on the Applicant due to her complex clinical needs; and
(xi)his stable work history and the promise of employment.
The Respondent contends that:
(a)The harm to the community if the Applicant were to reoffend is so serious that despite the assessment by Dr Yoxall that the risk of re-offending is “low” the risk that it might be repeated is unacceptable (applying principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79). The risk to the community was highlighted in the sentencing remarks of Bowden DCJ cited at [40] above.
(b)Dr Yoxall[37] attributes the Applicant’s offending to the effects of alcohol. He has a significant history of alcohol abuse since the age of 16 years, has also used cannabis on an intermittent basis from the age of 16 years to 22 years (ceasing cannabis use when drug testing was introduced at his workplace) and a brief experimentation with methamphetamine. Despite the Applicant’s claims to be rehabilitated, the Respondent contends that that he remains an unacceptable risk to the Australian community in circumstances where:
[37] A3.
(i)the rehabilitative courses undertaken were short. There is no independent evidence to confirm the Applicant’s engagement to address his substance misuse disorder, and no independent evidence as to how he responded to participation in the courses. The fact that the Applicant assaulted a fellow inmate in February 2020 would suggest that the courses have had little effect on his behaviour. Dr Yoxall reported that the Applicant has a history of difficulty with managing his anger, and this appears to have been demonstrated by him engaging in violence and assaulting the other inmate. Whilst Dr Yoxall assessed the risk of reoffending as “low” in her report dated 25 June 2020, this was dependant on “protective factors” remaining in place.
(ii)The findings in the parole review report which was completed just over a month before Dr Yoxall’s report is not consistent with Dr Yoxall’s assessment. That report noted that:
Based on the current assessment Mr Dickson presents a moderate risk on the VRS-SV for future violent behaviour and a very high risk on the LSIRNR for general reoffending, It is recommended that Mr Dickson complete the Medium Intensity Program to address both his violent behaviour and substance use. Mr Dickson presents as willing to engage in treatment programs. It is noted that Mr Dickson stated that despite his current conviction he remained unsure if he committed the Grievous Bodily Harm offence in April 2015. Whilst he lacks insight into his violent behaviour it should not prevent him from participating. His ability to engage meaningfully in a group treatment environment should be closely monitored by facilitators.
(x)Whilst the Applicant’s family have provided letters outlining the support that they will provide upon his release, limited weight should be placed on the claimed support networks as such supports did not prevent him from offending in the past and there is no compelling evidence to suggest that they will prove effective in curbing his offending behaviour in the future:
(xi)the Applicant’s rehabilitation has only been tested in the community for a limited time and while the applicant ceased alcohol in 2016 this was a result of a strict bail condition preventing him from entering licensed premises.
(a)There remains an unacceptable risk of the Applicant reoffending and the factor of the protection of the Australian community weighs heavily against revocation.
Dr Yoxall’s report and evidence
Dr Yoxall’s report of 25 June 2020 opined that:
On assessment, Mr Dickson presented with a high level of personal insight as to his history of alcohol abuse (which meets the criteria for DSM5 diagnosis of Substance Misuse Disorder – Alcohol Abuse, now in sustained remission in a controlled environment). He also presents with insight as to his history of emotional reactivity and over-sensitivity to perceptions of threat. Mr Dickson appears to have matured in his thinking and is now focused on his role as a partner, father and son to his parents, as well as a worker, making a positive contribution to society.
Determination of risk of reoffending is complex at best.
Dr Yoxall’s opinion was that on an actuarial measure of risk of violent reoffending, utilising the Violence Risk Appraisal Guide (VRAG) (Quinsey, Harris, Rice and Cormier, 2006), the Applicant was similar to those of whom 35% (of the normative sample) reoffended within seven years. The Level of Service Inventory – Revised (LSI-R) (Andrews and Bonta, 1995) empirical risk assessment model, which assesses static and dynamic risk/need domains, was also applied by Dr Yoxall. That model indicated that the Applicant was a low risk of general reoffending. Dr Yoxall advised that in the normative sample under the LSI-R model, approximately 11.7% who scored in the range that the Applicant scored, reoffended within 12 months. She goes on to note that “It is not possible to determine if
Mr Dickson is most similar to the 11.7% in this group who reoffended in this time period or the 88.3% who did not”.On page 23 of the report (A3) Dr Yoxall concluded that:
If protective factors remain in place, and Mr Dickson continues to implement new learnings and strategies in his day to day life and abstains from abuse of alcohol, his risk of reoffending, in my view is best described as “low”.
In her report Dr Yoxall stated that:
Mr Dickson has reportedly been of good behaviour whilst in prison. He denied any breaches to date.
In cross-examination it was pointed out to Dr Yoxall that the Applicant had assaulted another prisoner in February 2020, several months before she interviewed the Applicant and prepared her report. It was also pointed out to Dr Yoxall that in addition to the violent offences of which the Applicant has been found guilty, there were other incidents of violence, including violence involving family members and friends which did not result convictions. Dr Yoxall agreed that the assessment in her report may have been different if she had been aware of those incidents.[38]
[38] Transcript at 56.
While the Applicant points to Dr Yoxall’s assessment of the risk of the Applicant reoffending as being low,[39] that assessment as is, understandably the case in most assessments of risk of reoffending undertaken by health professionals, heavily qualified. Dr Yoxall’s assessment of low risk set out at [60] above is subject to the Applicant:
(a)having “protective factors” remain in place;
(b)continuing to implement new learnings and strategies in his day-to-day life; and
(c)abstaining from abuse of alcohol.
[39] Closing submissions, transcript at 68.
The utility of Dr Yoxall’s psychological assessment is further limited by the ability,
or potentially inability, to apply the VRAG and LSI-R (see [59] above) assessment results to the Applicant. As Dr Yoxall pointed out, as have other health practitioners who have given evidence to this Tribunal in other matters, the above assessments are assessing the number of people within a cohort who are likely to reoffend within a certain timeframe, not the likelihood of an individual within a cohort to reoffend. Unfortunately, this Tribunal’s job is to assess the likelihood of an individual, the Applicant, reoffending.
It is clear that alcohol has been the key factor in the Applicant’s offending, particularly his violent behaviour. The Applicant’s risk of reoffending is inexorably linked to the risk of the Applicant being unable to control his abuse of alcohol. In that regard there are, in the Tribunal’s view, a number of factors which provide hope. The two most significant factors are his obviously strong relationship with his partner Ms S, with whom he has been living (prior to incarceration) since March 2016, and his child K, born in August 2017.
Ms S’s evidence was that she does not drink because of her medical condition.[40]
[40] Transcript at 37.
She stated that she would not allow alcohol in their house. Her evidence was that:
…I have made it very clear to Logan that my house is a non-alcohol house.
If anybody tries to bring alcohol into my house, I will be turning them away at the door. I know that sounds harsh, but it’s what has to be done because if Logan has that temptation there, I feel that he would be more inclined to fall off the bandwagon if he had that temptation. So for me - and technically that house is my house. Logan would be coming home to my house, so I have to set those boundaries…
…
…I have stated to Logan, and I have made it extremely clear, that there isn’t to be any alcohol in my house and he has agreed with that. And he knows why that I have put those – I have stated that there is to be no alcohol in my house, because I don’t want to endanger my child, he doesn’t want to endanger his child,
The Applicant’s evidence was:
COUNSEL:And what role do you consider alcohol might have in your life in the future?
APPLICANT: No, I am just going to give it up altogether. This has been quite a wakeup call to me especially with all the stuff I’ve put other people through. It’s quite an impact on me. There was a possibility I could’ve killed someone if I had gone to the extra mile, and it’s just - I just feel ashamed of myself and wish I could take it all back. Wish I could say sorry to the victims, and tell them how much - like, how much I’m sorry for putting them through what I put them through. It shouldn’t have come to that.
COUNSEL: Do you think you’ll have any difficulty staying away from alcohol?
APPLICANT: No. No, I’ve been since 2016 to now I’ve been sober and feel good. I just keep training and I’m just working on my body and working on my future with my - yes, just to be there for her, her and my partner. They’ve been through enough and about time I grew up.
COUNSEL:And has [Ms S] spoken to you about, like, her view on your drinking alcohol?
APPLICANT: Yes. She said it’s not for me, I’ve got to give it up, look what I’ve put them through, and just that’s - it hasn’t done me any good.
COUNSEL:If you returned to using alcohol again how do you think [Ms S] would respond to that?
APPLICANT: She wouldn’t hang around. She wouldn’t hang around.
Ms S’s evidence was strong and clear as was, the Tribunal accepts, the message that she gave to the Applicant about the need to refrain from alcohol. The Applicant’s evidence in this regard was, in the Tribunal’s assessment, genuine. The stable relationship with Ms S, based on mutual support and dependence, and the birth of their daughter are, in the Tribunal’s view, significant changes in the Applicant’s environment providing a strong incentive for the Applicant to continue to refrain from alcohol.
Another change in the Applicant’s environment which will assist in the Applicant abstaining from alcohol is the support of Ms S’s parents. Ms S’s mother gave a statement[41] in which she confirmed that the Applicant had abstained from alcohol since the time of his arrest in 2016.[42] This included his time in the community while on bail up to the trial in January 2018. She also gave evidence as to the support that the Applicant had provided to her daughter who is on the autism spectrum with Asperger’s which causes her to be reliant on others and to be socially isolated.[43] She pledged support for the Applicant.[44] Similar sentiments were expressed in the statement provided by Ms S’s father[45] and in his evidence at the hearing.[46]
[41] R1, G46.
[42] R1, G30/125.
[43] R1, G46/172.
[44] Transcript at 45.
[45] R1, G39 and G45.
[46] Transcript at 66.
The Applicant also appears to have genuinely engaged in rehabilitation, including attendance at Alcoholics Anonymous meetings and counselling since the last of his offences in March 2016. The Applicant also undertook the Salvation Army Positive Lifestyle Program (ten sessions over ten weeks) prior to his incarceration.[47] In cross-examination the Applicant was taken to a Department of Justice program completion report dated 5 September 2019[48] which expressed some concern that the Applicant had “reported setting a limit of four alcohol beverages in any situation” as a means of addressing his alcohol abuse. The Applicant conceded that that was inconsistent with his abstaining from alcohol. Concern was also expressed in that report that one of the strategies that the Applicant had identified for controlling his anger, was to utilise
“time out”. The concern was that that strategy assumed the ability to take that time out. This, according to the report, “suggested an ongoing risk of recidivism”.
[47] R1, G30/124.
[48] R2, TB6/186.
The Tribunal also notes that the Applicant was granted parole. Included in the summonsed documents[49] was a Parole Assessment Report with a “Performed” date of
13 May 2020. That report supported release on parole.[50] Under the heading “Summary of Evidence for Program Allocation”, that report stated that “Based on the current assessment Mr Dickson presents a moderate risk on the VRS-SV for future violent behaviour and a very high risk on the LS/RNR for general reoffending”. The author of that report was not called to give evidence and there is no explanation in that report as to what those assessments are based on or how they were undertaken. Little weight can therefore be placed on that part of the report. In any event, the conclusion reached by the author of the report was that release on parole was supported. It would appear that the Prisoners Review Board agreed.
[49] Tender Bundle, R2.
[50] R2, TB6/194.
Taking all of the above into account, the Tribunal assess the likelihood of the Applicant engaging in further criminal or other serious conduct as low. Taking into account the harm that would be caused to the community if the Applicant were to reoffend, considered in light of the likelihood of the Applicant engaging in such conduct, while there is a risk,
the Tribunal does not consider the risk to be an unacceptable one (see [51] above). Accordingly, this consideration weighs marginally against the revocation of the cancellation of the visa. The Tribunal is of the view that relatively minor weight should be given to this consideration.
Second primary consideration: The best interests of minor children in Australia (13.2)
Paragraph 13.2 of Direction 79 provides:
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a. The nature and duration of the relationship between the child and the non-citizen. 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 (including whether an existing Court order restricts contact);
b. 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;
c. 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;
d. 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;
e. Whether there are other persons who already fulfil a parental role in relation to the child;
f. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant’s SFIC identifies his three-year-old daughter to Ms S, four nieces and four nephews as being relevant to this consideration.
The Respondent says[51] that if the Tribunal considers that weight should be given to the interests of the Applicant’s daughter, then “limited weight” should be given to that consideration because:
(a)she was less that five months old when the Applicant was imprisoned and since then he has had limited contact with her;
(b)given his criminal history, the Tribunal cannot be satisfied that he would play a positive role in her life;
(c)the child’s mother fulfills the parental role; and
(d)there is no independent evidence that separation would have a negative impact on the child.
[51] Respondent’s SFIC.
In relation to the Applicant’s nephews and nieces, the Respondent submits that no weight should be given to this consideration because there is no evidence that the children’s parents do not fulfill the parenting roles (subparagraph 13.2(4)(a) and (e)), these children have a large family supporting them of which the Applicant only forms one part (subparagraph 13.2(4)(d)), the recent contact has been limited because of the Applicant’s incarceration and there is no evidence that contact between the Applicant and these children cannot be maintained electronically if he were to be removed to New Zealand.
Dealing firstly with the Applicant’s daughter, the Tribunal is satisfied that there is a significant bond between the Applicant and his daughter. As well as the Applicant’s evidence to this effect, the evidence of Ms S was that the Applicant has daily contact with his daughter and, when he was in prison in Australia, she visited him three time a week with her.[52] Her evidence at the hearing was:
…[daughter] has always had a very strong relationship with Logan, her dad.
All the way up until Logan was sentenced, he had [daughter] in his arms when obviously he had to give her to somebody else. But all through his prison sentence he has kept up that relationship with [daughter]. She’s always been excited to see her dad and then when it came time to leave or when there was an announcement that we had 10 minutes left to leave, she became very distressed, saying that she doesn’t want to leave her dad but most recently she has expressed and asked when daddy is going to be coming home, because we have just told her that daddy was at work.
[52] A1.
In his written statement[53] the Applicant said:
76. I really do not want [daughter] to grow up without her father properly in the picture, as I think it would leave her feeling abandoned and with behavioural problems.
77. I grew up without my father, and it clearly had a massive negative impact on me. I am determined that [daughter] will be better, because if I am allowed to remain I will make sure she does not grow up that way I did. She has had a rough start now, with my incarceration, but she is young enough that I can fix her current experience.
[53] R1, G30/127.
Ms S’s parents also gave evidence of the close relationship between the Applicant and his daughter and the help that he had provided, and would provide, to Ms S in bringing up their daughter if he were allowed to stay in Australia.
The Tribunal is mindful of Article 3 of the United Nations Convention on the Rights of the Child (CROC) which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
and the preamble to the CROC which states:
...the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding...
While it is the case that the Applicant’s daughter was only five months old when he was incarcerated and that there have been, as there always are in the case of a person whose visa has been cancelled, periods of absence from the child’s life, the Tribunal finds that it would be in the best interests of the Applicant’s daughter for the cancellation of the Applicant’s visa to be revoked. Moderate weight should be given to this consideration.
In his statement,[54] the Applicant stated that most of his family is located in Australia and that he has regular contact with his nephews and nieces.[55] It would be fair to characterise his relationship with his siblings’ children as social. The Applicant does not claim that his role in relation to any of these children is parental in nature or that he supports any of them financially. He says[56] that “…we are a close knit [sic] family, and the absence of their uncle will be noticed”.
[54] R1, G30.
[55] Paragraphs 80-89.
[56] Para. 89.
The Tribunal finds that the best interests of the Applicant’s nephews and nieces would be served by the Applicant being allowed to stay in Australia, however, because of the limited role that the Applicant has played in their lives and the fact that others appear to be fulfilling the parenting roles in those children’s lives, only minimal weight should be given to this consideration in relation to those children.
Third primary consideration: Expectations of the Australian community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [31] above).
The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[57] (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs[58] (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[59] (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs[60]).
[57] [2017] FCA 1466.
[58] [2019] FCA 495.
[59] [2019] FCA 500.
[60] [2019] AATA 1398.
That debate as to which approach is correct appears to have been resolved by the
Full Court of the Federal Court in FYBR v Minister for Home Affairs[61] (FYBR (FC)).
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing“an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[62] (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[63] at [77]-[78].[61] [2019] FCAFC 185.
[62] [2019] AATA 4424.
[63] [2020] AATA 3445.
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the
High Court (Kiefel CJ and Keane J) refused special leave (FYBR v Minister for Home Affairs & Anor[64]).[64] [2020] HCATrans 56.
Justice Stewart in FYBR (FC) found:
89. It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90. However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91. The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
Justice Charlesworth FYBR (FC) also observed:
75. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows:
173. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174. However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
The Applicant’s record is serious primarily because of the two latest convictions,
the grievous bodily harm convictions. These are the only two offences for which the Applicant has been sentenced to imprisonment. The Applicant’s offending has, however, been the result of his issues with alcohol rather than an innate criminality. The offending has also been in episodes separated by extended periods of positive contribution to the community through steady employment. In these circumstances, while the consideration must weigh against revocation of the cancellation of the Applicant’s visa, only minor weight should be given to this consideration.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
International non-refoulement obligations (14(1)(a))
The Applicant is a citizen of New Zealand and has voluntarily returned to New Zealand. This is not a relevant consideration in this matter.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia in 2009 as a 17-year old. He has only left Australia for short periods before voluntarily returning to New Zealand upon his release from prison on parole.
The Applicant did start offending shortly after his arrival in Australia. Less weight must therefore be given to this consideration (subparagraph 14.2(1)(a)(i)), however, it is the case that more weight should be given to the time that the Applicant has contributed positively through his employment. In this regard the Applicant has been employed throughout the time that he has been in Australia (see [8] and [9] above).
The Tribunal finds that the Applicant’s family and social links are predominantly in Australia. His partner and his daughter are Australian citizens. The Applicant’s partner’s family lives in Australia and most of the Applicant’s family has moved to, and now live in, Australia.[65] They include his mother, his stepfather, his sister, his brother, a cousin and his eight nephews and nieces, some of whom, the Applicant says, are his godchildren.
[65] R1, G30/127.
Of particular significance, in the Tribunal’s view, is the Applicant’s relationship with his partner and mother of his daughter, Ms S. As noted above, she has autism with depression and anxiety. She is in receipt of the disability support pension and NDIS funding. She also receives help from Autism Australia.[66] She says that routine is critical in maintaining her mental wellbeing and she has suffered significantly as a result of the Applicant’s absence.
[66] A1, para. 30.
Ms S’s father in his statement[67] described Ms S’s situation as follows:
My daughter [Ms S] relies heavily on support from others and Logan has proven to be a huge support for her but she also relies daily on the support she receives from family and external service providers such as Psychologists and NDIS support workers for which she is funded. If she were to relocate this support would be removed from her and she would be impacted greatly.
[67] R1, G45/169.
Ms S’s mother in her statement[68] described her daughter’s relationship with the Applicant as follows:
Logan has been an incredible support to our eldest daughter [Ms S] who is on the Autism spectrum with Asperger’s which causes many issues including reliance on others and social isolation. Logan has been nothing but accepting of [Ms S] and her uniqueness and celebrates her differences which is a breath of fresh air not only to [Ms S] but to me and her family. Logan has afforded [Ms S] the independence she has for so long wanted but struggled with…
With all [Ms S]’s support here in Perth she is very stable in her routine something that is critical in [Ms S]’s daily life.
[68] R1, G46.
Ms S’s mother’s evidence at the hearing was:
…for me he’s proved to be nothing but a fantastic father and partner to my daughter and granddaughter.[69]
…
… Obviously, the fact that Logan’s not here is a huge burden for her, but she deals with it incredibly well. But, you know, it’s taken its toll, the fact that it’s gone on for so long. You know, the time where there the COVID restrictions stopped all visits, well it was really hard for her because [Ms S] (indistinct words) three visits per week but she religiously would go, which was about a six hour round trip, including the visit, for her and her daughter, but she would make that trip three times a week. But that was okay for [Ms S] because that was her routine and that’s what she survives on and is successful with. So when that was taken away during COVID, it sort of threw her into a (indistinct). She suffered quite noticeably, you know, her depression increased and, you know, she had to increase her antidepressants, just things like that. So it was very noticeable. So I imagine that if [Ms S] had to go to New Zealand, a country that, you know, she has no family there or support other than Logan, I feel that, you know, it would have a huge detrimental effect on her mental wellbeing.[70]
[69] Transcript at 42.
[70] Transcript at 44.
Ms S’s evidence at the hearing was:
COUNSEL:Since he’s been in prison and separated from you, how have you been coping financially?
Ms S: I haven’t. I’ve really been struggling because I’m - because of my autism spectrum disorder I am on the disability pension and I also get single parenting but it’s - once I’ve paid my rent, because I’m renting it becomes really hard for me, because once I’ve paid my rent, one I’ve paid for my food and my utilities it’s then really hard and I often can’t afford transport, I can’t afford to get anywhere. I have a compromised immune system as well so I need medication and just - I’ve had to rely financially on my parents and my siblings as well, which has been really, really hard because I don’t want to have to rely on them. It’s not so much the relying but if Logan and I are a partnership and we’re a family so with him being away it’s been really difficult for me financial wise, because I’m only on a disability pension and it’s hard. It’s hard. I can’t get out anywhere, I can’t afford to travel so it has, it’s been really, really hard.
A statement in support was also provided by Ms Mofflin who also gave evidence at the hearing. She is Ms S’s support worker. In her statement Ms Mofflin outlined the issues that Ms S faces with her autism, her need for routine and the negative impact that the Applicant’s absence has had on Ms S. She expressed the view that, if she were forced to relocate to New Zealand, there would be adverse effects on Ms S’s health. Her evidence at the hearing was:
… he [the Applicant] was a major support for her, because before me she only had one other support worker, but before that she didn’t actually have anyone.
So there’s just been two of us. So having Logan at home with her, she has been given that support from him every day rather than just once a week from me and the other support worker. So he pretty much would have just done all those things that I mentioned previously for her. However, it would obviously be a lot more in depth, because he was a financial support for her and her daughter and things like that. So he played a major and still does play a major role in supporting [Ms S] as best he can.
The Tribunal finds that the Applicant has significant family and social links with Australian citizens and permanent residents and that the non-revocation of the cancellation of the Applicant’s visa would have a significant impact on those individuals. In particular, the Applicant’s removal would have a very significant impact on Ms S, both emotionally and financially, and on those who also care for and love her. This consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Impact on Australian business interests (14(1)(c))
This consideration has no application in the present matter.
Impact on victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1)Impact of a decision not to revoke the cancellation on members of the community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
As this Tribunal noted in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[71] at [109]-[111], although subparagraph 14(1)(d) and the heading to subparagraph 14.4 refer only to impact on victims, subparagraph 14.4(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community including victims (emphasis added). Both parties submitted that there was no evidence before the Tribunal relevant to this consideration.
[71] [2020] AATA 4171.
This Tribunal has also previously commented on the requirement of paragraph 14.4(1) to consider the impact of a decision not to revoke the cancellation, that is a decision that would see the non-citizen removed from Australia and how such a decision would impact a non-citizen’s victims, who would, presumably, be in Australia (see McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[72] at [120] and the cases referred to therein).
[72] [2020] AATA 2939.
Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. An aspect of the impact of the Applicant’s removal (i.e. a decision not to revoke) has been considered above under the heading of strength, nature and duration of ties under paragraph 14(1)(b) and 14.2 of Direction 79. Insofar as the impact on those members of the Australian community is to be considered, then the Tribunal has done so under the above heading at [94]-[104].
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a. The non-citizen’s age and health;
b. Whether there are substantial language or cultural barriers; and
c. Any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC identifies the impediments as follows:
81. It is submitted that this matter is relevant in these matters as the Applicant will face a significant degree of practical, financial and emotional hardship upon a return to New Zealand, due to his separation from family and absolute lack of social, medical, and economic support.
82. Furthermore, is submitted that this concern is exacerbated as a result of the COVID-19 pandemic.
The Respondent submits that the evidence does not disclose any medical or psychological conditions which would constitute a relevant impediment. Insofar as the Applicant raises COVID-19, the Respondent notes that impediments are to be assessed against the services available to other citizens of New Zealand and in that regard there is no evidence that the Applicant would not be entitled to the same supports as any other citizen of New Zealand. The Respondent is correct.
The Respondent also points to the fact that the Applicant was educated in in New Zealand and lived there until he was 17. He is relatively young and has transferable work skills. The Respondent further notes that the Applicant has family in New Zealand.
The Applicant’s submissions on this consideration are largely misconceived.
The supposed impediments identified by the Applicant are either not supported by the evidence and/or do not fall within the scope of paragraph 14.5(1) of Direction 79. While separation from his family and his partner may cause the Applicant “emotional hardship”, that is not an impediment of the type to be considered under this paragraph of the Direction. The direction requires the Tribunal to consider impediments in the Applicant establishing and maintaining basic living standards, in the context of what is generally available to citizens of New Zealand, taking into account his age and health, language and cultural barriers and the medical and social and/or economic supports available.
Clearly there are no language or cultural barriers as the Applicant was educated and has spent the majority of his life in New Zealand. He is young and, on the evidence presented to the Tribunal, fit and has trade skills and qualifications which would make him readily employable. The Applicant does not contend, and there is no evidence that he would not be entitled to the same social, medical and/or economic support available to other citizens of New Zealand.
In the end there is no reason to believe, and certainly no evidence was presented by the Applicant to support a claim, that he would not be able to establish himself and maintain basic living standards (in the context of what is generally available to other citizens of
New Zealand). The Tribunal also notes that the Applicant has already voluntarily relocated to New Zealand which will obviously result in his being separated from his family, partner and daughter and has already commenced, if not already competed, his period of COVID-19 quarantine.
This consideration weighs against the revocation of the cancellation of the Applicant’s visa.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision maker should apply the primary and other considerations. Paragraphs 8(3) to (5) of Direction 79 are relevant.
They provide:(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection[73] (see also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ[74]).
[73] [2018] FCA 594.
[74] [2018] FCAFC 217.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
This Tribunal agrees with the above approach.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in [38]-[72] above, the Tribunal finds that the likelihood of the Applicant re-offending is low and that the risk is not an unacceptable one. The Tribunal finds that in the present case this consideration weighs only marginally against revocation of the cancellation of the Applicant’s visa and assesses that only minor weight should be given to this consideration.
For the reasons set out in [73]-[83] the second primary consideration, the best interests of minor children in Australia, weighs in favour of the revocation of the cancellation of the Applicant’s visa. The Tribunal is of the view that moderate weight should be given to this consideration because of the Tribunal’s findings in relation to the interests of the Applicant’s daughter.
The third primary consideration, the expectations of the Australian community, weighs against revocation of the cancellation of the visa, which, as a result of the decision in FYBR (FC) (see [87] above), it must, however, for the reasons set out in [92] above the Tribunal gives only minor weight to this consideration.
In relation to the “other consideration”, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)) weighs heavily in favour of the revocation of the cancellation of the visa (see [95]-[105] above). The consideration of the impediments that the Applicant would face if he is returned to New Zealand weighs against the revocation of the cancellation of the Applicant’s visa. None of the other considerations applies in the present case.
Having undertaken the weighing exercise, the Tribunal is of the view that the correct or preferable decision is that the cancellation of the visa should be revoked.
CONCLUSION
The Applicant does not pass the character test. The issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of his visa under s 501(3A) of the Act should be revoked. Taking into account all of the provisions of and considerations required by Direction 79, as guided by the authorities identified above, the Tribunal is satisfied that there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.
DECISION
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Act be revoked under
s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
....................................[SGD].................................
Associate
Dated: 8 December 2020
Date(s) of hearing: 23 November 2020 Counsel for the Applicant: Ms J Samuta Solicitors for the Applicant: Samuta McComber Lawyers Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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