DJYG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2553
•20 July 2022
DJYG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2553 (20 July 2022)
Division:GENERAL DIVISION
File Number:2022/3648
Re:DJYG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Member Angela Julian-ArmitageDate:20 July 2022
Date of Written Reasons 11 August 2022
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 26 April 2022, to not revoke the mandatory cancellation of the Applicant’s visa.
.......................[SGD]............................... .......................[SGD]...............................
Senior Member Theodore Tavoularis Member Angela Julian-Armitage
Catchwords
MIGRATION – Non-revocation of a mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – various traffic and drug-related offending, aggravated break and enter – Applicant presently residing with his family in New Zealand – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301Tewhare and Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
)
)
No: 2022/3648
General Division
)
Re: DJYG
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL: Senior Member Theodore Tavoularis
Member Angela Julian-Armitage
DATE: 20 July 2022
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 26 April 2022, to not revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
………………[SGD]………………….. ………….….…[SGD].…………….
Senior Member Theodore Tavoularis Member Angela Julian-Armitage
REASONS FOR DECISION
Senior Member Theodore Tavoularis and Member Angela Julian-Armitage
11 August 2022
introduction and background
DJYG (“the Applicant”) is a 39-year-old male, born in New Zealand on 7 May 1983. He moved to Australia on a permanent basis on 28 April 2008.[1] His Movement History[2] indicates the following arrivals and departures in and out of Australia:
[1] See Applicant’s Statement, dated 7 March 2022. R1, G2, page 106, para [3]. Noting that the Applicant’s Statement incorrectly records the date as 28 April 2007.
[2] Ibid, pages 159-160.
Arrival Departure Time in Australia (rounded) 10 January 1994 20 January 1994 10 days 28 April 2008 20 December 2008 8 months 3 January 2009 14 June 2014 5 years 6 months 27 June 2014 12 August 2018 4 years 2 months 20 August 2018 8 November 2019 1 year 3 months 17 November 2019 16 June 2022[3] 2 years 7 months Total time spent in Australia: Approx. 14 years, 2 months, 10 days
[3] See Transcript (5 July 2022), page 31, lines 16-19.
The Applicant has an offending history in both Australia and New Zealand. In this country, he has committed some nineteen offences that have been dealt with at twelve separate sentencing episodes.[4] His offending history in Australia (in terms of sentencing episodes) runs from October 2009 to October 2021, a period of some twelve years. His offending history in New Zealand[5] indicates the commission of six offences dealt with at four separate sentencing episodes. The history in New Zealand (in terms of sentencing episodes) runs from July 2004 until March 2008, a period of just under four years. Combined, the Applicant has, in both Australia and New Zealand, committed some 25 offences that were punished at sixteen separate sentencing episodes. He has been in Australia for just over fourteen years. His criminal history in this country runs for twelve of those years he has spent here.
[4] R1, G2, pages 28-30.
[5] Ibid, page 31.
At all material times, the Applicant has been the holder of a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”). On 19 October 2021,[6] a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as the Ministerial portfolio was then called) (“the Respondent”) mandatorily cancelled the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. On 8 November 2021,[7] the Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation decision. On 26 April 2022,[8] the Respondent decided that the discretion subsisting in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa was not enlivened. The Applicant was notified of this decision, by hand, on 27 April 2022. On 6 May 2022,[9] the Applicant sought review of this decision (i.e., the one made on 26 April 2022) in this Tribunal.
[6] R1, G2, page 58, para [161].
[7] Ibid, pages 51-97.
[8] Ibid, pages 9-27. Note: the letter enclosing delivery of this decision to the Applicant is dated 27 April 2022. The decision itself (i.e., the statement of reasons) is dated 26 April 2022.
[9] Ibid, G1, pages 3-8.
The hearing of this application proceeded before us on 5 and 6 July 2022, respectively. The hearing received oral evidence from:
·The Applicant;
·The Applicant’s wife (“Ms Emma”);
·The Applicant’s adult stepson (“TG”); and
·A Counsellor, Mr Elvis Caus.[10]
[10] Mr Caus works with ”SAMSN” which is an acronym for “Survivors & Mates Support Network” which is a counselling service offering support fale survivors dealing with the effects of childhood sexual abuse.
The hearing also received written evidence which was reduced to an agreed Exhibit List,[11] a true and correct copy of which is attached to these Reasons and marked “Annexure A”.[12] On 20 July 2022, the Tribunal affirmed the decision under review (see above) and now provides its written reasons for that decision.
[11] See Transcript (5 July 2022), page 2, lines 40-47; page12, lines 1-13.
[12] Note: at the commencement of the hearing, a position was taken by the Applicant’s representative to the effect that this proceeding was no longer expedited because of the Applicant’s voluntary removal to New Zealand on 16 June 2022. The Tribunal received submissions from both parties on the point and ruled against the Applicant, finding that the proceeding retained its expedited status regardless of the Applicant’s voluntary removal to New Zealand (See specifically, Transcript (7 July 2022), page 5, lines 40-47; page 6; and page 8, lines 1-15. We daresay the purpose behind ventilation of this issue on behalf of the Applicant was to tender certain additional material (currently marked as Exhibit R5 in the agreed Exhibit List) which the Applicant would not be able to tender if the matter retained its expedited status because to do so would have offended the two-day rule contained in s 500(6H) and (6J) of the Act. Ultimately, this issue was resolved by the Respondent’s representative acting pursuant to her model litigant obligations and, following the obtaining of instructions, agreeing to tender the material from the Respondent’s side (See specifically, Transcript (7 July 2022), page 10, lines 44-45; page 11, lines 1-13).
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
We are satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[13]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, “substantial criminal record”. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“…
(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;
…”
The Applicant received head custodial sentences comprising a total period of two years and three months imprisonment for the offence of which he was convicted on 1 October 2021.[15] There is a ready concession made on behalf of the Applicant that he does not pass the character test.[16] This concession parallels the Respondent’s contention to the same effect.[17] We are therefore satisfied (and we find) that the Applicant has a, “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[15] R1, G2, page 29. Wollongong District Court, sentence imposed on 1 October 2021 for the offence of “Aggravated break and enter w/i-armed-SI”. The Tribunal notes that the second offence of “Destroy or damage property” was taken into account by the Court at this sentencing episode, but that no formal ‘conviction’ for this offence was recorded, nor was a separate sentence imposed.
[16] A1, page 3, para [5(b)].
[17] R2, G1, page 4, para [9].
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[18] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[19]
[18] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[19] Direction No 90, para [6]. See also para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which we must be guided in making my decision.
The Primary Considerations we must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[20]
[20] Ibid, para [8].
The Other Considerations which, where relevant, we must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[21]
[21] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
We will now turn to addressing the abovementioned Primary and Other Considerations.
primary consideration 1 – protection of the australian community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
We will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As mentioned above, the Applicant has compiled a significant offending history in Australia with some nineteen offences dealt with over a period of twelve years (noting his residence in this country for total of fourteen years). The Tribunal notes that this Applicant’s pattern of offending was also evident in his native country of New Zealand, where he was convicted for a multitude of driving-related and theft charges.[22] This pattern of recidivism has consumed a great deal of Australia’s law enforcement resources and judicial sentencing apparatus in an already under-resourced sector of the justice system.
[22] R1, G2, page 30.
Turning now to the relevant sub-paragraphs contained in Paragraph 8.1.1(1) of the Direction in order to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This specific subparagraph looks for the commission of violent and/or sexual crimes. If an applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community.
As best as we understood the evidence, this Applicant has not offended in a violent or sexual manner to attract the operation of this sub-paragraph. This sub-paragraph is therefore of no application and should be rendered neutral.[23]
[23] The Applicant in his Statement of Facts Issues and Contentions concedes that his “destroy/damage property” committed on 12 May 2017 has, “an element of violence… [but] did not result in a conviction for a violent offence…”. The further point is that this offending did not comprise violence against a person. As such, we do not include this conduct in our discussion for sub-paragraph 8.1.1(1)(a)(i).
Paragraph 8.1.1(1)(a)(ii)
This subparagraph refers to crimes of a violent nature against women or children and, if such offences have been committed by an Applicant, those offences are deemed to be views, “very seriously” by the Australian Government and the Australian community. Notably, this conduct can be taken into account regardless of whether or not a sentence was imposed for it.
The Tribunal notes that although the intended victims of the household subject to the Applicant’s aggravated break and enter offence included the victim’s wife and children, thankfully (and fortuitously for this Applicant) they were not home at the time of this offending. This intention was confirmed by the Applicant when he told the sentencing Judge that he, “was not to know that the wife and children would not be at home”.[24] We note for clarity that no weight can be allocated against the Applicant pursuant to this sub-paragraph as the offending was not committed against a woman, or child, but the Tribunal notes that were the intended victim’s wife or child home at the time of the Applicant’s offending, it is foreseeable that physical violence could have been inflicted upon either, or one of them, or that they may have been exposed to the adverse circumstances of this conduct. Ultimately, the Applicant’s unlawful conduct in the commission of the aggravated break and enter offence did not involve violent offending against women or children and, as such, does not fall within the auspices of this sub-paragraph. It is of neutral weight for the purposes of the instant consideration.
[24] Ibid, page 38, para [8], lines 1-3.
Paragraph 8.1.1(1)(a)(iii)
As best as we understood the evidence, none of the Applicant’s convictions fall within the realm of family or domestic violence. This sub-paragraph should therefore be rendered neutral for present purposes.
Paragraph 8.1.1(1)(b)(i)
There is no evidence in either the oral or written material to the effect that this Applicant has committed any offences in the realm of causing a person to enter into or being a party to a forced marriage. We are not able to find any formally recorded conviction for such offending nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This particular sub-paragraph is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct and is rendered neutral.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. The Tribunal notes that the Applicant has acted aggressively (i.e., verbal threats and intimidation) towards both Police Officers and various railway workers in the performance of their duties when travelling on trains. Specifically, there are numerous NSW Police incident reports, dating between 2017 – 2020, which appear in the material.[25] The majority of these incidents stemmed from the Applicant travelling without a valid ticket, or engaging in other anti-social activity within the vicinity of members of the public at a train station. The material records the Applicant receiving a not significant number of monetary fines / transport infringement notices as a result of this conduct.
[25] See generally, R4, pages 2-7.
The Applicant’s conduct, while clearly reprehensible, did not result in a conviction for any offence of the type contemplated by this particular sub-paragraph. Put at its highest, it is persistently disrespectful and abusive conduct directed at those conducting public-facing duties. That said, it is not possible or safe to allocate any weight to this sub-paragraph as there is no conviction for an offence. For the instant consideration, this sub-paragraph must be neutral.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph refers to serious conduct involving, “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. While the Respondent refers to this sub-paragraph in its Statement of Facts, Issues and Contentions (“SFIC”), it does not otherwise propound this component of the Direction in either its written or oral submissions. Likewise, we cannot find any reference to this specific sub-paragraph in the Applicant’s SFIC. The transcript demonstrates neither party said anything about this particular sub-paragraph at the hearing. We therefore find that this sub-paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct and should be rendered neutral.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. There is no evidence before us that the Applicant has committed any offences that would be caught by the provisions in the subparagraph and is rendered neutral for present purposes.
Paragraph 8.1.1(1)(c)
In applying this particular sub-paragraph, we are precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[26] (2) acts of family violence;[27] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[28]
[26] Direction No 90, para [8.1.1(1)(a)(ii)].
[27] Ibid, para [8.1.1(1)(a)(iii)].
[28] Ibid, para [8.1.1(1)(b)(i)].
The Tribunal notes that none of the Applicant’s offending has resulted in the imposition of sentences for any of the precluded categories of offending contemplated by this sub-paragraph. Further, there is no evidence before the Tribunal that the Applicant has been convicted of conduct involving him causing a person to become a party to a forced marriage.
With that being said, the Applicant has a dearth of offending which falls outside the parameters of the abovementioned precluded offences. Notably, the Applicant has received nearly the full ambit of sentences available to judicial sentencing officers including: multiple bonds, fines and driving disqualifications, as well as a community service order, the imposition of convictions without penalty and terms of imprisonment (where he spent time in actual custody) with a fixed non-parole period. The Applicant’s criminal history demonstrates that he has forged a long and consistent criminal career spanning a period of some ten years.
First, he has committed numerous and repeated traffic offences, commencing in 2009 and running from 2012 to 2018 (noting that he has been prohibited from driving in Australia till 2032). These offences and their accompanying sentences are briefly summarised below:
DATE
EVENT/OFFENCE
REFERENCE
12 October 2009
The Applicant is found guilty of driving a motor vehicle with a mid-range prescribed concentration of alcohol. The Applicant was fined $1,000 and disqualified from driving for 9 months.
The Applicant is found guilty of being a resident for 3 months without obtaining a New South Wales licence. The Applicant was fined $250.
G2, 30
30 October 2012
The Applicant is found guilty of driving whilst under the influence of alcohol or other drugs in the Burwood Local Court.
The Applicant is fined $500 and disqualified from driving for 12 months. The Applicant is found guilty of driving with an expired licence (for the second time) and is fined $300.
G2, 30
26 March 2013
The Applicant is found guilty of driving in excess of 10km/h in the Burwood Local Court and fined $200.
G2, 30
10 April 2013
The Applicant is convicted of driving a motor vehicle during a disqualification period in the Burwood Local Court.
The Applicant was fined $500 and disqualified from driving for 2 years.
G2, 30
8 October 2013
The Applicant is convicted of driving a motor vehicle during a disqualification period in the Burwood Local Court.
The Applicant is given an order of 150 hours of community service and disqualified from driving for 2 years.
G2, 30
4 February 2016
The Applicant is found guilty of making a U-turn at an intersection with traffic lights in the Burwood Local Court. The Applicant is fined $500.
The Applicant is convicted of driving a motor vehicle during a disqualification period in the Burwood Local Court.
The Applicant is sentenced to 4 months imprisonment, subject to a suspended sentence pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) s12 and disqualified from driving for 2 years.
G2, 30
19 June 2018
The Applicant is convicted of driving a motor vehicle during a disqualification period in the Wollongong Local Court.
The Applicant is sentenced to 8 months imprisonment, subject to a suspended sentence pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) s12 and disqualified from driving for 9 months.
G2, 30
11 December 2018
The Applicant is found guilty of refusing or failing to provide an oral fluid sample in the Wollongong Local Court and fined $500.
The Applicant is convicted of possessing a prohibited drug and driving a motor vehicle during a disqualification period in the Wollongong Local Court. The Applicant is sentenced to 9 months imprisonment and disqualified from driving for 12 months.
G2, 29
Second, the Applicant has also received three convictions for drug-related offending. On 15 June 2010, the Applicant was convicted in the Gosford District Court of, “Supply prohibited drugs on an ongoing basis-SI” and was sentenced to a term of imprisonment of two years and eight months, with a non-parole period of one year and four months (subject to supervision in relation to treatment and counselling for substance abuse relapse prevention and the mental health issues set out in the nominated psychologist report). An auxiliary offence of, “Supply prohibited drug >indict. Quantity (not cannabis)-SI” was also taken into account (though not further punished) during the Applicant’s later sentencing at the Wyong Local Court on 21 July 2010.[29]
[29] R1, G2, page 30.
The facts of the drug supply offence are captured in the sentencing remarks of Judge Ellis:[30]
“…police commenced an undercover operation in August 2009, in relation to premises known as Club Malibu Nightclub at The Entrance. On the evening of 15 August 2009, the offender supplied to an undercover operative, five ecstasy tablets for one hundred dollars. That evening he also supplied 2.52 grams of cocaine. The total cost involved was $1,000.
On 10 September 2009, he supplied 13.4 grams of cocaine and fifty ecstasy tablets in exchange for $4,250 Between the 21 and 29 September 2009, the offender negotiated and then agreed to supply 200 ecstasy tablets at seventeen dollars per tablet. The three counts of supply relate to the five ecstasy tablets, the 2.52 grams of cocaine, the 13.4 g ams of cocaine and fifty ecstasy tablets.
This was planned criminal activity, but the planning involved was generic to the offence. It was an offence committed for financial gain, but that is an element of the offence. Ultimately there was no substantial injury because the illicit substances did not make their way into the community, but that was as a result of good police work rather than anything done by this offender.
He [the Applicant] has shown remorse, he has accepted responsibility for his conduct and acknowledged the harm that such conduct causes within the community. He pleaded guilty at the earliest opportunity and is entitled to the full utilitarian discount of twenty-five per cent…”
[Tribunal insertion]
[30] Ibid, pages 42, 44 and 45.
The Applicant has also been convicted of, “Possess prohibited drug” on 11 December 2018 at the Wollongong Local Court, for which he was sentenced to an aggregate term of nine months’ actual imprisonment (with three months suspended).[31] The facts of this offence are reported in the relevant police narrative:[32]
“…[After checking the Applicant’s details] Police returned to the drivers window. Here they could smell a pungent odour of Cannabis coming from the vehicle. As a result [the Applicant]… was informed he would be subject to a roadside oral fluid test, to which he refused. Police have at this point introduced themselves, cautioned the accused and informed him he was under arrest for refusing to submit to a roadside oral fluid test. Due to previous observations, Police have requested [that the Applicant] exit the vehicle which he complied. Police have informed the accused his vehicle would be searched for prohibited drugs, to which the accused refused. Police informed the accused the vehicle would be searched and asked if he had anything to declare prior to the search being conducted to which he replied 'There's Cannabis in the door'. During a subsequent search of the drivers door pocket, Police located a small clear resealable satchel containing an amount of green vegetable matter believed to be Cannabis… the seized Cannabis was weighed and photographed with a combined packaged weight of 7.22 grams…”
[31] Ibid, page 29.
[32] R4, SM1, pages 2-3.
The Tribunal also notes that the Applicant was convicted of the offence of, “Destroy or damage property” on 18 September 2018 (also in the Wollongong Local Court) and was subsequently issued a twelve-month good behaviour bond with an accompanying $1,500 fine.[33] This incident, which occurred on 13 May 2018, involved the following conduct by the Applicant:[34]
“About 6:15pm on Saturday the 12th May 2018 the Victim, ........., was driving a silver Toyota Hilux, registration ......... (NSW). The Victim was driving north on the Princes Highway, Bulli when he noticed a white Toyota Corolla, registration ......... (QLD) driving ahead of him. The Corolla appeared to be swerving over the road. The Victim was driving in lane 1 and when the Corolla merged into the same lane in front of him the Victim has overtaken the Corolla in the right hand lane. From this point on the driver of the Corolla has driven very close to the rear of the Victim's vehicle, tail gating him. This continued until the Victim stopped at traffic lights at the intersection of Lawrence Hargrave Drive and Philip Street, Thirroul. The Victim was stopped at the traffic light in the right hand lane. Vehicle ......... (QLD) has driven past the Victim and stopped about one car length ahead in the left hand lane. The Accused, [DJYG], has exited the Corolla, believed to be from the driver's door. The Accused has walked in front of the Victim's vehicle holding a beer bottle in a brown paper bag. The Accused has yelled at the Victim, "Do you think this is a game." The Victim states the Accused appeared extremely angry. The Accused has then thrown the beer bottle at the Victim's vehicle striking the bonnet just below the windscreen. The bottle has then struck the Victim's windscreen and then smashed behind his vehicle on the road. This caused a dent to the bonnet and a chip to the windscreen...”
[33] R1, G2, page 30.
[34] R4, SM1, page 4.
Whilst, in the main, the Applicant’s offending has been against a backdrop of various drug and traffic-related offences, the offence that triggered the mandatory cancellation of his visa was that of “Aggravated Break and Enter with intent while armed” (with a count of “Destroy or damage property” also taken into account at the same sentencing episode), for which he was convicted and sentenced in the Wollongong District Court to a term of imprisonment for two years and three months (with a non-parole period of 1 year and two months).[35] The sentencing remarks of DCJ Haesler, dated 1 October 2021, capture the agreed facts behind the Applicant’s offending:[36]
“The victims of the offence lived in a house in Warilla with their three children. On 18 June 2020 they left the home to go out. Exhibit B, the CCTV from the premises, shows that in the afternoon Mr [DJYG], accompanied by another man, walked forcefully to the front door of the premises and knocked. The footage depicts the offender holding a baseball bat. He also had an axe in the pocket of his jeans. He waited a few seconds, stepped back from the door, removed a knife from the front of his pants, and then kicked in the front door of the premises. He and the other man entered. The footage shows Mr [DJYG] leaving the house via the laundry door and then striking various objects with the bat. This did not cause any damage. But while he was inside the premises he had damaged a television set and a dryer.
The genesis for the events, as set out in the facts, is that he was having an “ongoing argument” with the male victim. Material before the Court, which is not in serious dispute, including affidavits and evidence from the offender himself, is that he owed $250 to the male victim. The male victim demanded repayment of it. Mr [DJYG] told me that various threats were made to recover the debt, including a threat that “the boys from Warilla” would do something to him and that he would be “popped;” that is killed when he went to pick up his daughter from school. His wife deposes that she spoke to the unknown male who said, “Tell him the whole of Warilla is after him. I’m going to run through your house”.
In evidence Mr [DJYG] accepted that on the day in question, having heard these threats, he determined that he would go and confront the victim. He went to the home armed with a variety of weapons and in company. It is self-evident that as the victim was not at the house, he broke in and ran through his house. He told me he was angry and upset. He was also affected by the drug “ice” (methylamphetamine). Whether or not he thought the male offender was there or not, he did not pause long before he kicked in the door and he accepts he was not to know that the wife and children would not be at the home.
He said that he intended to intimidate the victim. He also said he also had the money to repay the debt...”
[Tribunal redactions]
[35] Ibid.
[36] Ibid, pages 37-38.
It is clear from the above that this offence was objectively serious. This is reflected in the head sentence of two years and three months the Applicant received for the offence, which, as the sentencing Judge stated, would have been a three-year sentence but for his early guilty plea. The Tribunal notes that the Applicant was armed with weapons (i.e., a baseball bat, an axe and a knife) which were used to cause damage to the victim’s property, and on the Applicant’s own admission, intended to intimidate. Fortunately, as mentioned above, the intended victim and his family were not home when the Applicant broke in.
Paragraph 8.1.1(1)(d)
This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. One need travel little distance to safely arrive at a conclusion that the Applicant’s offending has been regular and frequent in nature. As previously mentioned, this Applicant has committed some nineteen offences over a period of some twelve years and he has been dealt with on twelve different sentencing episodes. Accordingly, we find that there is an obvious and undeniably consistent frequency to the Applicant’s offending.
The consideration pursuant to this sub-paragraph also requires an assessment of whether the criminality of the Applicant’s offending shows an increase in seriousness. The Applicant has consistently and frequently offended between 2009 to 2021 with a notable trend of increasing seriousness in offending. The earlier stages of the Applicant’s offending history follows a pattern of convictions and sentences for less serious offences relating to his use of illicit drugs (including his conviction for supply) and various repeated traffic offences. However, this Applicant’s subsequent offending has risen to a crescendo of greater seriousness namely, his commission of the “Aggravated break and enter with intent while armed” and “Destroy or damage property” offences, for which he was sentenced on 1 October 2021. This was, arguably, the Applicant’s first offence which was directed toward a person, though as highlighted previously, fortunately did not result in any physical or psychological harm to the victim (or his family) due to them not being present at the time the Applicant forcibly broke into their home with weapons. Therefore, we are satisfied that the Applicant’s offending has been both of a frequent nature and with an undeniable trend toward increasing seriousness.
We, therefore, conclude that both the frequency and seriousness of the Applicant’s offending, for the purposes of sub-paragraph 8.1.1(1)(d) are strongly on the side of a finding that the totality of the Applicant’s criminality in this country has been of a serious nature.
Paragraph 8.1.1(1)(e)
This sub-paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. We are of the view that the Applicant’s sequence of offences is demonstrative of a number of cumulative effects. The Applicant’s offending has its primary theme firmly rooted in his frequent drug use, from when he was first using cannabis (i.e., prior to 2018) to his move towards using stronger and more serious drugs (namely, methamphetamine, which the Applicant was under the influence of during the commission of his index offending). The Applicant’s difficulties with illicit substances have, without question, so severely distorted his moral compass such that it has caused him to offend repeatedly and increasingly culminating in the position he is currently in having had his visa revoked.
First, there seems to be little to cavil with the proposition that his offending is demonstrative of a failure to comply with and/or live within a community abiding by the requirements and laws of that community. This is evidenced by his continued abuse of illicit drugs and his repeated driving offences (i.e., driving whilst disqualified, recklessly, or driving under the influence of alcohol or drugs). This conduct, in the Tribunal’s view, demonstrates an abject disregard for the laws and orders of Courts more generally.
In terms of the Applicant’s traffic offences relating to the use of motor vehicles, the Applicant is prohibited from driving in this country until 2032.[37] This is further evidence of his long history of blatant disregard for the lawful compliance relating to the operation of a motor vehicle on Australian roads. He has a multiplicity of convictions for both operating a motor vehicle while not lawfully licenced to do so as well as while under the influence of alcohol or drugs. It is not safe or appropriate to categorise the Applicant’s driving offences as belonging to some minor corner of his offending history. There is a level of concerning prevalence of driving offences in the Applicant’s history that suggest an attendant recklessness and indifference to the laws and regulations governing the operation of a motor vehicle. As held previously by this Tribunal,[38] the protections of road users, “go to the essential safety of the community.”
[37] See Transcript (5 July 2022), page 29, lines 35-37.
[38] Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561, at para 45
Second, the progressive evolution of the sentencing regime imposed upon the Applicant is demonstrative of him not experiencing any deterrent or dissuading effect as the sentences imposed on him have only become more severe over time. While we will separately discuss the Departmental formal warning – in writing – given to the Applicant in 2010 about the consequences of further offending on his Australian visa status, it is clear that the Applicant has demonstrated both a failure and reluctance to take anything from efforts by those involved in the regulation of his conduct.
The Applicant’s offending must, on any reasonable analysis, be found to have consumed more than his fair share of the community’s law enforcement and judicial sentencing resources. His involvement in the unlawful supply of illicit drugs has directly challenged the safety and well-being of the Australian community. Difficulties visited by illicit drugs upon the community often result in devastating impacts, not just on individual users, but upon families/connections of those users who are at the front line of dealing with the adverse effect of such substances on their loved ones. In this way, it is reasonable to surmise that the Applicant’s offending has likewise consumed its inordinate fair share of the community’s public health resources.
For the above-described cumulative effects of the Applicant’s repeat offending, this Tribunal finds that the totality of the offending in this country is of a very serious nature.
Paragraph 8.1.1(1)(f)
This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. We have earlier outlined the Applicant’s movement history in and out of Australia. On his own admission, the Applicant has provided false information to the Minister’s department by not disclosing his prior convictions in New Zealand on his incoming passenger cards, dated 28 April 2007 and 2 January 2009, respectively.[39] The Applicant stated that he did this as, “he was trying to flee New Zealand… [but that] once he had his family to care for, he took responsibility for his offending and… declare[d] his criminal history upon his multiple returns to Australia after 2009…”.[40] The Tribunal does not find this a particularly cogent excuse and we harbour grave difficulties in reaching any conclusion that this sub-paragraph weighs in the Applicant’s favour (given that, as a matter of fact, the Applicant has provided false or misleading information to the Department on at least two separate occasions years apart).
[39] A1, page 8, para [35].
[40] Ibid.
Consequently, the Applicant’s purported explanation is rejected with the effect that this sub-paragraph 8.1.1(1)(f) militates in favour of a finding that the totality of the Applicant’s offending history in Australia has been very serious in nature.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. The material contains a copy of the letter from the Respondent, dated 7 December 2010.[41] There can be no question the Applicant received a copy of this letter because there is a signed acknowledgement for it appearing in the material[42] (despite the Applicant’s protestations to the contrary in his SFIC[43]). This correspondence makes it plain to the Applicant that (1) the correspondence comprised a “formal warning”; (2) the extent of his offending up until that time had come to the attention of the Respondent and (3) any further offending could seriously imperil his visa status to remain here. Indeed, the terms of the letter could not have been clearer:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[44]
[Emphasis in original]
[41] R1, G2, pages 144-155.
[42] Ibid, page 157.
[43] A1, page 8, para [36].
[44] Ibid, page 154.
Despite receiving this explicit formal warning in December 2010, the Applicant contrived to commit an additional sixteen offences that were punished at another nine separate sentencing episodes. There is a ready concession by and on behalf of the Applicant that this sub-paragraph 8.1.1(1)(g) weighs against him. He makes this concession in writing in his written statement, dated 7 March 2022.[45] His representative made a similar concession during closing submissions.[46]
[45] R1, G2, page 106, paras [6]-[7].
[46] See Transcript (6 July 2022), page 93, lines 29-30.
We are therefore of the view that this sub-paragraph 8.1.1(1)(g) strongly militates in favour of a finding that the nature and extent of the Applicant’s offending in this country has been of a very serious nature.
Conclusion about the nature and seriousness of the Applicant’s conduct
We have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable sub-paragraphs to which we have referred, we conclude that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, we should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, we must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. The configuration of the SFIC filed on behalf of the Applicant is not such as to offer any acknowledgement about the nature of the harm to individuals or the Australian community in the event this Applicant re-engaged in further criminal or other serious conduct. Rather, the posture is one of an unlikelihood of the Applicant reoffending due to the presence of a number of, “…protective factors against future reoffending of any kind, but in particular of a kind as serious as the Index Offending.”[47]
[47] A1, page 10, para [40].
This written submission had its echo in oral closing submissions made on behalf of the Applicant which were put thus:[48]
“With respect to the first limb of the first primary consideration, which is the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, we submit that paragraph 39 of the applicant’s SFIC lists the protective factors that protect against the applicant reoffending, particularly of offending of a similar kind as the index offending.”
[48] See Transcript (6 July 2022), page 93, lines 32-37.
In our view, these submissions only serve to deny the obvious. Were this Applicant to re-commit any of the offences contained in his criminal history thus far, individual victims and/or the Australian community at large could quite conceivably suffer physical, psychological, and other material damage (i.e., financial). Were he to again involve himself in conduct involving the destruction or damaging of the property of others, victims of such crimes would undoubtedly suffer measurable material loss.
Were he to again irresponsibly and unlawfully assume control of a motor vehicle whilst disqualified from doing so, or in breach of applicable road rules and regulations, he would again expose the users of Australian carriageways to an unacceptable level of risk. Were he to again become involved in the supply of prohibited drugs, the users of those substances, plus the loved ones of those users, plus the country’s public health apparatus, would again be adversely affected.
To our minds, the nature of the harm that would result from further offending by this Applicant is more appositely expressed in the Respondent’s SFIC:[49]
“The Respondent contends that the harm to individuals of the Australian community should the Applicant engage in further criminal conduct of the kind in which he has previously engaged in is very serious and unacceptable.
If the Applicant were to reoffend in a similar manner, the Respondent contends that there is a substantial prospect of serious physical, financial and/or psychological harm toward members of the Australian community.”
[49] R2, page 11, paras [49]-[50].
We are of the view (and we find) that were this Applicant to re-offend, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
The Tribunal heard evidence from the Applicant and his wife as to the Applicant’s purportedly low risk of re-offending. However, the general tenor of this evidence, in our view, at best comprises aspirational accounts of the Applicant’s family’s hope for the future and do not derive from any psychological evidence proffered by a duly qualified and independent clinician. The Applicant asserted that he was now in a position such that he would not return to using illicit drugs as he now knows that, in doing so, he will most likely lose his family. Whilst we understand this may be a protective factor against the Applicant reoffending, there is limited evidence before us indicating any attempt by the Applicant to implement practical rehabilitative steps as a means of ensuring any such ultimate outcome.
The Applicant’s wife gave evidence along the lines that she was confident he would not re-offend as he would lose his family in the event he did so. She also stated the following regarding the Applicant’s tentative and relatively early engagement with the rehabilitative process:[50]
“Well, with - with COVID the gaol system and the detention centre didn’t actually have much support available. So, we looked to anything we could do online or over the phone. And that we found to be quite difficult because especially while he as in prison, there was nobody that would accept him, or be able to do anything with him until he was released. So, we got in contact with SAMSN the sexual abuse survivors program and they said as soon as he came into the detention centre they could offer counselling. So, as soon as he got there he started that. And then I think he had attended a few sessions within the detention centre, and maybe even within the prison. But the struggle definitely was with COVID and the restrictions, and they weren’t allowing anybody that normally would be allowed within the detention centre, or the prison, to attend. So, he was in a very, very, bad place mentally. I was very concerned that he was suicidal. He - and - yes, we couldn’t get the support that he required. So, within the detention centre he then also found some other online courses he could do that he thought could be helpful. But we’re definitely still on the journey. He’s nowhere near where he wants to be. But - yes, he’s taken those first steps and he was very eager to take those steps.
…
And then in terms of the applicant’s rehabilitation - sorry, going back to that - in terms of his rehabilitation and the programs that you mentioned he is looking to participate in in New Zealand, you’ve mentioned that there’s quite a number of steps that the applicant still needs to take in terms of getting back on track. Is it fair to say that the applicant still has some way to go in terms of his rehabilitation journey?---Yes, well I think it’s going to be a lifelong commitment, I think. It’s something he’s going to have to continually do, because it’s different triggers and, you know, different circumstances that, yes, I think with a proper assessment and the medication that can help him, sort of, be a little more - stabilise his anxiety. But I think in terms of psychology and things, I think it’s going to be a long journey, yes.”
[50] Transcript (5 July 2022), page 56, lines 30-46; page 57, lines 16-26.
The Tribunal also received written and oral evidence from Mr Elvis Caus, a counsellor from SAMSN, who is an experienced (some seventeen years) social worker. The Tribunal notes that Mr Caus is not a trained psychological clinician with experience in the analysis of predispositive factors giving rise to criminal behaviour. Nor is he qualified to identify any resulting issues otherwise impacting upon a person’s recidivist profile. Mr Caus has only seen the Applicant on a one-on-one basis for seven sessions whilst he has been in immigration detention. The liaison between Mr Caus and the Applicant has focussed on assisting the Applicant to deal with thoughts of trauma and emotional pain arising from the Applicant’s exposure to childhood sexual abuse. It is not within the ambit of Mr Caus’ engagement with the Applicant to make any past or prognostic assessment of the extent to which the Applicant’s now-expressed feelings of trauma do or do not speak to his levels of recidivist risk. The following portion of Mr Caus’ evidence-in-chief is demonstrative of our observation and impression of his evidence:[51]
“We engaged in a lot of interpersonal therapy where we just explored his relationships with his peers, family and just the way DJYG sees himself. We looked at person centred and solution oriented therapy and some cognitive behavioural therapy as well as mindfulness just to kind of – we talked about, I guess, find that peace (indistinct words) because of the nightmares would come back and just how to manage that at times. So, we explored all of those therapies together.
…
So, we spent a fair bit of time in terms of just managing his goals and also there was, as I mentioned before, around nightmares and flashbacks and overwhelming feelings about family in New Zealand as well who may have taken, kind of, the other side as well. So, just how to manage his feelings about him going back in the community and also integrated back with his own family, to make peace with his father, yes.”
[51] Transcript (6 July 2022), page 84, lines 31-38; page 85, lines 28-33.
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
Since his incarceration in 2021 the Applicant has undertaken a number of courses and was treated by Xiang Yan Hong, the John Morony Correctional Centre Senior Psychologist. Ms Hong provided a discharge summary, dated 19 August 2021, as an up-date of a previous report relating to the Applicant (authored by two different psychologists), dated 1 April 2021. Ms Hong’s summary states that the Applicant:[52]
“…was seen for individual treatment for 10 sessions between December 2020 and August 2021…also attended a 10 session Cognitive Behavioural Therapy based Mood Management group program.
…
I recommend … to continue therapy for assistance with:
oProcessing his traumatic experience
oOngoing symptoms of depression and anxiety with a focus on values and gaol setting
oAnger Management and automatic reactions
oSubstance dependence…”
[52] R1, G2, page 129.
In addition, the Applicant voluntarily sought assistance with his substance abuse through the Community Restorative Centre (“CRC”) who attest to him seeking out their assistance. The letter provided by this organisation is dated 16 September 2021 and is addressed to the Presiding Judge at the Wollongong District Court.[53] The letter itself is somewhat confusing as it states that the Applicant’s initial assessment was undertaken some three months after the date of the letter (the Tribunal presumes that this date is incorrectly recorded and should read 10 December 2020) and goes on to state that he participated in five ‘Alcohol and Other Drug Counselling’ sessions before CRC were no longer able to continue to provide further sessions. The letter further advises the Court that the Applicant has been actively working on a relapse plan and is aware that he will need to avoid high risk situations and continue to participate in on-going support and treatments when returned to the community.
[53] Ibid, page 131.
The Tribunal also received oral evidence from the Applicant’s wife indicating she had reached out to organisations such as Narcotics Anonymous, the Uniting Church Wollongong Mission and SAMSN on behalf of her husband. We also have written evidence showing that the Applicant attended several short courses such as the Salvation Army ‘Positive Lifestyle Program’,[54] ‘The Connect Program’[55] and the ‘Personal Development & Life Skills Program’,[56] both conducted by Corrective Services NSW Department of Justice. He also completed a number of short courses in early 2022, namely: ‘Depression Management’, ‘Anger Management’, ‘Understanding Additions’, ‘Conflict Resolutions’ and ‘Drug and Alcohol Abuse’ all provided by Universal Class.[57] The certificates in relation to these courses provide little assistance to this Tribunal as they merely acknowledge completion of the short course without any commentary in relation to what benefit the courses were to have on the Applicant’s predispositive factors (i.e., substance abuse) and subsequent recidivist risk.
[54] Ibid, page 146.
[55] Ibid, page 147.
[56] Ibid, page 148.
[57] Ibid, pages 148-153.
As mentioned above, the Tribunal heard evidence of the Applicant’s rehabilitative evidence from Mr Elvis Caus, the Applicant’s counsellor, but was provided with no reliable guidance either from Mr Caus, or any duly qualified clinician regarding the Applicant’s recidivist risk.
The Applicant and his lay witnesses all stated that the recent string of events, including the Applicant’s incarceration and subsequent revocation of his visa has been a huge ‘wake-up call’ with the Applicant now sincerely promising that he will obtain rehabilitative assistance. However, when questioned as to whether the search for this assistance has commenced since his release from prison including in New Zealand, the Tribunal was not told of any such assistance that has been either sourced or has commenced. This is despite the Applicant currently being unemployed, with presumably adequate time to undertake such treatment.
(iii) Conclusions about risk
The Tribunal has unresolved misgivings about the state of the Applicant’s rehabilitation and the extent to which it now speaks to the level of his recidivist risk. There is little or no reliable, independent clinical evidence before the Tribunal facilitative of any safe finding that this Applicant’s recidivist risk has been brought to an acceptable level.
We do not doubt the importance of the Applicant’s family to him and that he could well lose their support should he re-offend. However, the present state of his largely unresolved childhood traumas coupled with his history of substance abuse may very well cause him to revert to his old ways and to re-commence his past pattern of offending. This is particularly so as he has not, in our view, to any satisfactorily fulsome level, embraced the requisite rehabilitative processes to manage the inevitable stresses and strictures of life that could, quite realistically, result in him resuming his offending conduct. It is plain that he is in the formative stages of any rehabilitative process. This is not to say that he does not intend to do so. Rather, our finding is that he is yet to do so to a level such as to provide us with any confidence that his recidivist risk has been lowered to a level that would now be regarded as acceptable when compared to what that level was at the time of his most recent removal from the Australian community. At best, the Applicant’s rehabilitation is a work in progress and that rehabilitative “work” has only just begun.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) provides:
“where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”
We address this specific sub-paragraph purely out of an abundance of caution and for the sake of completeness. This matter does not involve a, “refusal to grant a visa to a non-citizen”. It involves an application for the, “revocation” of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)We have found that the nature and seriousness of the Applicant’s conduct to date has been, “very serious”.
(b)We repeat our finding that were the Applicant to reoffend, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.
(c)Our assessment of the Applicant’s recidivist risk is that it is now little or no different to what it was at the time of his most recent removal from the Australian community. This conclusion is reached on the state of the clinical evidence before the Tribunal. It does not provide any measure of prognostic confidence or certainty that the level of his rehabilitation can now be relied upon as a means of assessing his level of recidivist risk.
(d)We have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as being little or no different now to what it was at the time of his most recent removal from the Australian community. The Applicant’s engagement with rehabilitation is both aspirational and incomplete. We do not have any independent assessment of his current recidivist risk.
Our analysis of the material before the Tribunal has led us to the finding that this Primary Consideration 1 carries a very heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
primary consideration 2: family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Having regard to the nature and extent of the Applicant’s offending history, we are not able to discern any offending arising from, or otherwise referable to, unlawful conduct falling within the definition of “family violence” as contemplated by the Direction. Similarly, we cannot find any reference in the material to conduct otherwise committed or engaged in by the Applicant which became the subject of, for example, an “independent and authoritative” reported narrative from a police service (or similar statutory agency) with authority to investigate and report on such conduct.
We therefore agree with the Respondent’s concession that, “…there is no evidence to indicate that this consideration is relevant to this review…”.[58] Likewise, we agree with the position taken by the Applicant to the effect that, “…this primary consideration is not relevant as there is no evidence that the applicant has engaged in conduct constituting family violence.”[59] This Primary Consideration 2 is therefore of neutral weight.
[58] R2, page 14, para [66].
[59] A1, page 11, para [47].
primary consideration 3: the best interests of minor children in australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
Identification of the relevant minor children
Prior to an application of the factors speaking to the allocation of weight to this Primary Consideration 3, it is necessary to identify the minor children relevant to this discussion. The Applicant has two step-children from his wife’s previous marriage. The eldest, a male, now in his early twenties (“TG”), has commenced a carpentry apprenticeship in Australia. The other, a male child aged fifteen (“Child C”), currently resides with the Applicant and his mother in New Zealand. There are two biological children born of the relationship between the Applicant and his wife (“Ms Emma”). They are: a daughter aged nine (“Child CH”) and a son, aged almost two years (“Child A”). All four of these minor children are in New Zealand living with Ms Emma and the Applicant. These children are not, however, “in Australia” as required by the language of paragraph 8.3 of the Direction. This does not mean we will not consider the interests of these specific children. We will do so later in these reasons under the heading of a separately added Other Consideration (e).
With specific reference to the children falling within the auspices of paragraph 8.3 of the Direction, in his statement made on 3 December 2021, the Applicant says he has eleven minor nieces and nephews in Australia. Those children are not in fact children of any of his own siblings. He identifies those eleven nieces and nephews thus:[60]
“I also have 11 minor nieces and nephews in Australia. Although they are my cousins' children, I consider my nieces and nephews in accordance with Maori custom.”
[60] R1, G2, page 104, para [84].
In this statement, the Applicant speaks about being, “very close” with two of those, “nieces”:
“I am very close with two of my nieces:
a. [Child VW] (born 10 September 2009); and
b. [Child LW] (born 26 September 2010).
I have a good relationship with both of them because I saw them multiple times a week prior to my incarceration. They are at the same school as [Child CH[61]], so they would carpool with us, they would visit our house, or we would visit their house. As a result, my deportation would leave them feeling very upset.”
[61] This is a reference to the Applicant’s biological daughter, aged nine, who has recently relocated to New Zealand and currently resides with the Applicant. We will discuss the best interests of this particular child and the additional minor children/stepchildren who have also recently relocated to New Zealand to reside with the Applicant later in these Reasons under the heading “Other Consideration (e)”.
For the purposes of this Primary Consideration 3, we identify the relevant minor children in Australia to comprise the two abovementioned nieces: “Child VW” and “Child LW”. While the Applicant talks about, “11 minor nieces and nephews in Australia”, they are children of his cousins and are not nieces and nephews in the accepted sense. We will, however, analyse the extent of the Applicant’s connection to the abovementioned children VW and LW, respectively. While we do not entirely discount any connection the Applicant may have with the remaining claimed nine, “nieces and nephews in Australia”, the evidence seems almost entirely focused on children VW and LW.
The parties’ respective written contentions
The Applicant’s statement dated 3 December 2021,[62] mentions that he has a good relationship with both of his nieces as he saw them regularly prior to being incarcerated. They were at the same school as one of the Applicant’s children, so they regularly car-pooled, and the families visit one another frequently. While he states that they would be upset if he was deported, they have not seen him for some time now and both children are in their early teenage years. It is probable that they are, as most teenagers are at this age, absorbed in their own lives and may not be left as bereft as the Applicant presumes that they would be. Further, as mentioned in the Respondent’s Statement of Facts Issues and Contentions, the Applicant did not play a parental role in these children’s lives, nor has he ever been responsible for their day-to-day care.[63] Further, he has been absent from their lives for a considerable period since his incarceration, subsequent immigration detention and voluntary removal to New Zealand.
[62] R1, G2, pages 104-105; paras [84]-[86].
[63] R2, page 15, para [73].
It is, in our view, a notable feature of the evidence around minor children that there is no mention of these children (i.e., the children specifically referred to in the immediately preceding paragraph) that there is no mention of these children in any other witnesses’ written statements, including that of the Applicant’s wife.
The Applicant’s oral evidence
At the hearing, the Applicant gave evidence about his relationship with his two nieces during his evidence-in-chief. The tenor of this evidence was that they were close to his son as they went to school with him and that they miss their cousin. He stated that he had a, “good” relationship with them and that, “they’re happy to be around me.”[64] He went on to state that these two minor nieces would be affected insofar as, “I’d [the Applicant] be missed, but you know, the world wouldn’t stop, you know. But I think they’d be disappointed.”[65]
[64] Transcript (5 July 2022), page 22, lines 1-10.
[65] Ibid, page 24, lines 29-30.
The oral evidence of other witnesses
It is difficult to allocate any meaningful weight to the Applicant’s contention with respect to his relationship with his two minor nieces as no other witness made mention of them throughout their oral evidence.
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Sub-paragraph (a): the evidence indicates that the Applicant enjoyed a good relationship with his minor nieces whom he saw on a regular basis as they went to the same school as his children. However, he has never assumed day-to day care of these minor nieces, nor has he ever had any parental responsibilities for them. They have their own parents who presumably provide for them in these respects. Furthermore, the Tribunal notes that the Applicant has been absent from their lives for a considerable amount of time during his incarceration and subsequent detention. Consequently, we allocate this sub-paragraph only moderate weight in the Applicant’s favour.
Sub-paragraph (b): The requisite minor children referred to above are now in their early teens and have not had a great deal of contact with the Applicant for a couple of years now. They have their own parental role models and there is no evidence that the Applicant ever played any parental role in their lives. Furthermore, the Applicant has a number of unresolved issues in respect to his rehabilitation that may well prevent him from participating in their lives at the level envisaged by this sub-paragraph.
Sub-paragraph (c): It is difficult to ascertain what impact (if any) the Applicant’s prior conduct has had and that any future conduct will have, on both (or either) of the two minor nieces as the Applicant did not provide any insight on this point in his oral evidence. In addition, we did not hear oral evidence from these children’s parents. This sub-paragraph is, therefore, not relevant to any assessment of weight allocable to the Primary Consideration and is rendered neutral.
Sub-paragraph (d): There is paucity of evidence in relation to whether or not these children have been affected by the Applicant’s absence during his time in gaol, detention and now in New Zealand. The Applicant stated that they would be, “upset” if he was unable to return to Australia. However, no other reliable evidence was proffered such that we could allocate weight to this sub-paragraph. In any event, the Applicant can easily maintain contact with these children by way of telephonic and electronic means from New Zealand.
Sub-paragraph (e): As mentioned above, the Applicant has never fulfilled a parental role in relation to the abovementioned children who are presumably safely and adequately parented, as they have always been, by their biological parents. Therefore, no weight is allocable to this sub-paragraph.
Sub-paragraph (f): There was no evidence given to inform us of any view harboured by these children, or their parents for that matter, to assist with this sub-paragraph’s application. It is therefore not relevant and should be rendered neutral.
Sub-paragraph (g): For the same reason given in the above sub-paragraph, this sub-paragraph has no application and should be rendered neutral.
Findings and conclusion about the relevant minor children relevant to this Primary Consideration 3
We have had regard to the relevant and applicable factors in paragraph 8.3 of the Direction as those factors relate to each of the two relevant children – VW and LW – captured by the auspices of this Primary Consideration 3. Having regard to the totality of the evidence and whatever cumulative strength can be found for that evidence upon application of the relevant sub-paragraphs in paragraph 8.3(4) of the Direction, we find that this Primary Consideration 3 weighs moderately, but not determinatively in favour of revoking the decision to mandatorily cancel this Applicant’s visa.
primary consideration 4: expectations of the australian community
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[66] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[67]
[66] Direction No 90, para [8.4(3)].
[67] Ibid, para [8.4(4)]. Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
·breached the expectation in the immediately preceding sub-paragraph (a); or
·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
We are not of the view that the Applicant’s unlawful conduct in Australia falls within any of the immediately preceding categories described in sub-paragraph 8.4(2)(a)-(f) (inclusive) of the Direction. Thus, the nature of the Applicant’s offending does not engage any of these sub-paragraphs giving rise to a deemed Australian community expectation that the Australian government can and should refuse the grant of the visa sought.
The final question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4) and (5) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[68]
(c)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[69]
(d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.[70]
[68] Direction No 90, para [5.2(4)].
[69] Ibid.
[70] Ibid, para [5.2(5)].
First, with reference to the abovementioned sub-paragraph (a), the term, “limited stay visa” is not defined in the Act. However, the Act does classify visas into particular categories. Section 30 of the Act contemplates both (1) “permanent” visas, which permit a right to remain, “indefinitely”; and (2) “temporary visas”, which provide a conditional right to remain. “Limited stay”, as used in the Direction, seems to our minds, to be a reference to non-permanent or, “temporary” visas. This Applicant had a permanent visa, so this principle described in the abovementioned sub-paragraph (a) does not apply to determination of this application.
Second, with specific reference to the principle described in the abovementioned sub-paragraph (b), we note the Applicant has, for all intents and purposes, resided in Australia on a more or less permanent basis since February 2008, when he arrived here as a 24–25-year-old. He is currently 39 years old and will turn 40 in May next year. He has an impressive employment history in Australia.[71] He has fathered two biological children in Australia, and he has assumed a measure of significant parental responsibility for two stepchildren. His participation in, and contributions to, the Australian community have, in our view, not been “short”. It therefore follows that the Australian community’s tolerance for this Applicant’s offending is not lowered by this component of the principles in paragraph 5.2(4) of the Direction.
[71] R1, G2, page 92.
Third, with reference to the abovementioned sub-paragraph (c), the Applicant has resided in Australia since 2008 having spent over a third of his life here. This means the Australian community has a higher than usual tolerance of criminal or other serious conduct committed by this Applicant.
Fourth, with reference to the abovementioned sub-paragraph (d), we are of the view (and do find) that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-offending and (on the other hand) whatever countervailing considerations may work in his favour, is necessarily a principle referrable to the Australian community’s expectations for present purposes. We reach this view because we think the Applicant’s conduct, and the resulting harm from that conduct (at least thus far), has been of a sufficient magnitude to dispel or quash any applicable countervailing considerations.
We therefore arrive at a finding that the Australian community’s expectations are, to a very small extent, modified such that the community has a higher than usual tolerance of the criminal conduct committed by this Applicant. Be that as it may, because of (1) his repeated breaches of the Australian community’s expectations; and (2) the unresolved nature of his recidivist risk giving rise to an unacceptable risk of harm to the Australian community, we are of the view that the community expects the government can and should cancel this Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
other considerations
It is necessary to look at the Other Considerations non-exhaustively listed at paragraph 9 of the Direction.
Other Consideration (a): International non-refoulement obligations
As best we understood the written and oral material before the Tribunal, the Applicant does not suggest that his removal to New Zealand would result in a breach of whatever non-refoulement obligations Australia may owe him. This seems common ground between the parties[72] (also noting that at the Applicant presently resides in New Zealand). Accordingly, this Other Consideration (a) is not relevant to determination of the instant application and should be rendered neutral.
[72] See A1, page 14, para [62]; See R2, page 17, para [81].
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Our initial observation is to again mention that the Applicant has voluntarily removed himself to New Zealand. He is, of course, entirely at liberty to do so. But in doing so, it must surely impact on his capacity to now propound a position of facing impediments upon a return to New Zealand. Quite obviously, he is already there. That said, we are of the further view that it would be unsafe to entirely discount any consideration of this Other Consideration (b) on the basis that he voluntarily went to New Zealand about a month or so ago. Rather, we will configure our consideration of this element on impediments he will face if, via the outcome of this Application, he is compelled to remain there.
The Applicant’s written submissions
The Applicant’s SFIC adopts a position that this Other Consideration (b) is not relevant due to the Applicant’s voluntary removal to New Zealand. Yet, on the other hand, the further submissions is put such that he will suffer emotional and financial hardship in relocating himself and his family to that country. This confusing amalgam of submissions is put thus:[73]
“Other Consideration—Impediments to Return
[63] Pursuant to paragraph 9.2(1) of Direction No.90, the decisions maker is required to consider the impact of a decision not to revoke a cancellation made under s 501(3A) of the Act on the non-citizen if they are removed from Australia to their home country.
[64] The Applicant concedes that this consideration is not relevant given that he has elected to return to New Zealand prior to a decision being made, but submits that he will suffer emotional and financial hardship in relocating himself and his family to another country.”
[73] Ibid, page 14, paras [63]-[64].
Somewhat understandably, the Applicant’s Submissions in Reply formally retracts the above submissions[74] and in the alternative, propounds that this Other Consideration now has application to the Applicant’s circumstances. As we understood the substituted submission, the relevance of this Other Consideration is now oriented around economic imperatives impacting upon the Applicant’s capacity (and that of his wife, Ms Emma) to, “establish themselves and maintain basic living standards”.[75] This newly-propounded economic imperative is expressed thus:[76]
“[27] Both the Applicant and [Ms] Emma [redacted] have expressed concern that their incomes will be significantly reduced in New Zealand and that this will impact their ability to financially support themselves in New Zealand. Relevantly, this is their contemporaneous and very real experience as they struggle to obtain employment, housing and are concerned for their family’s future in New Zealand, particularly when they have the recent comparison of the lifestyle and opportunities (employment and education) that can, and was, lived in Australia.
[28] The Applicant instructs that he is looking at a reduction in pay from about AU$49.75 to NZ$25.00 to over NZ$30.00 per hour.
[29] [Ms] Emma [redacted] instructs that she is looking at a reduction in pay from AU$30.00 per hour to NZ$21.00 per hour. [Ms] Emma [redacted] also instructs that she has to pay NZ$500.00 to get her Australian Diploma of Children’s Services assessed by New Zealand standards, which they cannot currently afford.
[30] This is further impacted by their lack of industry connections in New Zealand that would assist them in finding work as opposed to Australia.
[31] Given the cost of living in New Zealand, this is a significant reduction in earning capacity given that the Applicant and [Ms] Emma [redacted] support three minor aged children.
[32] It is submitted that this impediment should weigh moderately in favour of revocation.”
[Tribunal redactions]
[74] A4, page 5, para [24].
[75] Ibid, paras [25]-[26]; citing Direction No 90, para [9.2(1)].
[76] Ibid, pages 5-6, paras [27]-[32].
The Applicant’s oral evidence
During his evidence in chief, the Applicant was asked whether he was currently working in New Zealand and he replied in the negative.[77] He explained his current inability to engage in remunerative employment thus:[78]
“MS LARSEN: And are you currently working?
APPLICANT: No.
MS LARSEN: Why is that?
APPLICANT: Because just at the moment it’s just - I don’t think to be honest I’m not healthy enough to work mentally at the moment. So it’s something that I’ll definitely - you know, I need to work, I will work towards but at the moment I’m not. I need to take the time to get myself right.”
[77] Transcript (5 July 2022), page 23, line 8.
[78] Ibid, page 23, lines 8-13.
The Applicant was asked about what sort of work he could do in New Zealand. His primary line of work prior to returning to New Zealand was in scaffolding. Prior to that, he had worked as an excavator operator in Australia. He spoke of scaffolding work not paying as well in New Zealand compared to the rates of pay for such work in Australia. He also spoke of a likelihood that, in the event of remaining in New Zealand, he would have to re-skill in one of his former trades that he did prior to scaffolding:[79]
“MS LARSEN: And what employment opportunities do you have in New Zealand?
APPLICANT: Not many. I’m going to have to probably reskill in an old trade that I pursued before I scaffolded. I won’t scaffold here because the money is just - it’s not even half of what I would get in Australia and the physical requirements, I just can’t - I can’t sacrifice my body for that amount of money so I’m going to have to try and do something else. I was an excavator operator for a while before I turned to scaffolding so it’ll have to be something that I’ll have to try and do here that I need to get my tickets. They’re around $1000 so, yes, I’m going to have to upskill and then try and find the work. Parole I hope will help me with that. Yes, there’s not a lot of work where I am, that’s for sure.
MS LARSEN: And what were you on in Australia?
APPLICANT: An hour?
MS LARSEN: Yes?
APPLICANT: Prior to COVID I was on close to $50 an hour.
MS LARSEN: And what are you looking at in New Zealand?
APPLICANT: Probably around 25 to $28 an hour. That’s an excavator operator. As a scaffolder you’re looking at probably $21 to $23 an hour. That’s for an advanced leading hand. Yes, that’s the max.”
[79] Ibid, lines 15-33.
He was asked about the comparative difficulty in sourcing remunerative employment in New Zealand compared to Australia, specifically, Sydney. It emerged from his evidence that if he is compelled to remain in New Zealand his prospects of finding employment seem questionable:[80]
“MS LARSEN: How easily do you think you can find work in New Zealand compared to Australia?
APPLICANT: It’s not even comparable. You know, work in Sydney, it’s hard. I mean obviously now that COVID is over, I hope it’s changed but, you know, before COVID if you didn’t have a job in Sydney then you weren’t looking hard enough. There’s plenty of work there. Here towards the, sort of the major cities, there’s probably a bit more work but, yes, it’s not even comparable.”
[80] Ibid, lines 35-41.
He was also asked about his current means of financial support in New Zealand and he responded thus: “I’m on the equivalent of Centrelink in New Zealand. I’m receiving a payment from them at the moment.”[81] Finally, he was asked about how an adverse outcome in this application would impact him. He gave evidence about the extent to which such an outcome would be upsetting but nevertheless said that he found solace in having his wife, Ms Emma, and their children with him in New Zealand:[82]
“MS LARSEN: How would being unsuccessful in these matters impact you?
APPLICANT: It’d be upsetting, you know. I spent so much time in Australia and became so comfortable. Sometimes being back here it sort of feels, you know, very alien. I’m willing to take responsibility for what’s happened, but, you know, losing these proceedings would be upsetting. The only thing that’s making it bearable at bearable at the moment is that I’m here and I’ve got my wife and my kids. You know, that’s - otherwise if I was doing this today from Villawood, I don’t think I’d even be able to talk. Being here in the presence, knowing that they’re here has - it’s the only advantage that it’s given me.”
[81] Ibid, lines 43-45.
[82] Ibid, page 24, lines 1-9.
The oral evidence of Ms Emma
The Applicant’s wife, Ms Emma, gave oral evidence at the hearing. To our minds, an aspect of her oral evidence can be said to speak to an impediment or impediments the Applicant will face if compelled to remain in New Zealand. First, Ms Emma spoke of difficulties the family would face in establishing independent residential lodgings in New Zealand. She spoke of the current uncomfortable and seemingly cramped circumstances whereby she, the Applicant, and the three minor children she took with her from Australia to New Zealand all reside in the home of the Applicant’s parents. This is how she explained this difficulty:[83]
“MS LARSEN: Thank you. And who are you currently living with?
MS EMMA: With DJYG’s mum and her husband.
MS LARSEN: In your view, how is your living situation?
MS EMMA: It’s not ideal. It’s quite challenging. They have the space, but, yes, with [Mr B – the Applicant’s father] health condition at the moment, it’s - his mother is under a lot of pressure and stress - and I think us being here is just adding to that pressure and stress. [Mr B] has had a couple of outbursts where he’s got quite aggressive. We’ve had to have the police here twice since we’ve been here. And he is, kind of, feeling that it’s our fault because we’re here, that - because she was in the process of trying to get him into nursing home care. It sort of coincided at the same time. So, now he’s under the impression that we are the reason for her wanting him to go into residential care, which isn’t the case. It just happened to all happen at that one time, so, yes. And I think obviously then living alone, to now having an extra five people, is quite challenging. She’s quite set in her ways and routines; they both are. And I think with the dementia, routine is very, very important. So, we’ve got to - you know, we know we can’t have a shower until after 10.00 am. You know, little things like that, which once we’re working I don’t know how that is possibly going to work. At the moment it’s okay, because we haven’t got employment. But once, you know, we all need to be out of the house by seven or eight in the morning, that clash is, yes, it’s - so we’re trying our best to just live around their routine. And we’ve got a downstairs bedroom for [the Applicant] and I. So we all spend a lot of time downstairs so we can try to give them their space.”
[Tribunal redactions]
[83] Ibid, page 60, lines 13-36.
There seems little to cavil with the proposition that the Applicant’s relationship with his adult stepson, TG, has been, over the last twelve or so years, and continues to be, a proximate and current relationship. There seems little or no doubt that TG has been adversely impacted as a result of not just the Applicant’s voluntary removal to New Zealand, but the consequent removal of his mother and three other minor siblings. To his credit, TG has prioritised his career in carpentry/building and has elected to remain in Australia to further his career. That said, while one should be grateful to the parents of his friend at whose home TG resides, those arrangements are simply not the same thing as him residing with his stepfather of the last twelve years (i.e., the Applicant), his biological mother and his siblings.
The state of the evidence around TG is such as to lead us to a safe finding that the strength, nature, and duration of the Applicant’s ties to his immediate family in Australia (his adult stepson TG) necessarily carries a moderate, but not determinative, level of weight in favour of revocation. We reach this finding on the basis that TG is either an Australian permanent resident or a person who has a right to remain in Australia indefinitely.
In his PCF, the Applicant identifies Ms Emma as a member of his family in Australia. This PCF was, of course, completed at a time prior to Ms Emma’s relocation (with the three minor children) to New Zealand. We proffer the following words of caution with reference to people who comprise, “any family or social links” the Applicant may have with Ms Emma. Of course, the adult stepson, TG, is a member of the Applicant’s immediate family in Australia and the extent of the Applicant’s continued absence in New Zealand upon him has been dealt with.
The position in relation to Ms Emma is less clear. Of course, she is a member of the Applicant’s, “immediate family”, but she is not, “in Australia”. In the last one-two months, she relocated to New Zealand with the three minor children. No criticism of Ms Emma’s decision to do so is intended by these Reasons. But the reality is that she is presently in New Zealand with the Applicant. The difficulty with the evidence of Ms Emma arises from the uncertain basis upon which it is propounded. In the Applicant’s reply, it is said that, “…the evidence of [Ms Emma] and the Applicant is that they are likely to return to Australia once [Child C] finishes his high school education [in New Zealand]…”.[103]
[103] A4, page 6, para [35(a)].
This submission had its echo in the oral evidence that Ms Emma gave at the hearing. During her evidence in chief, she spoke of a “chance” that she and her family might move back to Australia if the Applicant is given his visa back:[104]
“MS LARSEN: Thank you, Ms Emma. And is there a chance that you and your family might move back to the Australia if the applicant is given his visa back?
MS EMMA: Yes, definitely. Yes. We definitely would highly consider it. I think if we were able to just go back to the same schools, the same area, yes, at this time our main focus is trying to keep [Child C] settled, because he was in a bad place mentally. We’ve got him to a point where he’s quite stable. So I think his decision around it would be probably what guides us. If he wanted to go, we would go straight away. If he wanted to finish school here, we would wait until he finishes. Because he’s only got two and a half years. We don’t want to disrupt his schooling any further, because he’s got really, really great potential and he has high aspirations. He wants to do a science degree, but he still is quite passionate about doing that at Wollongong University, so I don’t know how that will go, but, yes, we’ll be guided by him, I think, only because we, yes, we don’t want to go back to where he was mentally six months ago, because it was quite scary.”
[Tribunal redaction]
[104] Transcript (5 July 2022), page 63, lines 14-28.
To our minds, the position in relation to Ms Emma’s evidence became more opaque when she said the following:[105]
“MS LARSEN: Yes, okay. Thank you for that. So in your most recent statement - and, sorry, in your evidence in the tribunal today - you’ve mentioned that at this stage it’s your family’s preference at this stage to stay in New Zealand until [Child C] finishes high school, because as you told the tribunal today [Child C] appears to be quite settled in his new school, and you would like for [Child C] to have the opportunity to finish school and not have any further disruptions to his schooling at this stage. Is that correct?
MS EMMA: Yes, well I think it’s - it’s - I mean, at present we haven’t let our minds go to if he was to get it back, because we’re trying to give the kids some stability. And, you know, if we tell them now there’s a possibility we could go back to Australia and then it’s not successful, that’s like a double whammy for them. So, you know, we’re just sort of trying to give them as much stability as we can in these circumstances. So, I mean, if [Child C] - yes, ultimately I feel if [the Applicant] was to get his visa back, that we would have to discuss it as a family, because we haven’t discussed that with [Child C], [Child Ch] – [TG] is obviously aware, but, yes. And then - and then if he wanted to go back, which I - it’s kind of like they’re all trying to be tough and be positive, and that’s sort of what we’re all being like. Because we still have to live. So we’re just trying to be positive. But, yes, ultimately if he was given the decision he could move back to Bulli, back to his old high school, back to his old friends, or stay here. I’m not - I’m pretty confident he would want to go back to Australia. But we haven’t gone there with him, because we don’t want to give them any hope of, yes.”
[Tribunal redactions]
[105] Ibid, page 66, lines 3-24.
To our minds, the language of the Direction is temporal in terms of taking into account the strength, nature, and duration of the Applicant’s ties to a specific immediate family member in Australia at the time of this decision. Plainly, Ms Emma is not currently in Australia. Her evidence is, given all the difficult circumstances confronting her, opaque when it comes to her being able to say when, if at all, she would return with the children to Australia. Put at its highest, the suggestion in her evidence seems to be that if the Applicant is not successful in this application, she will return to Australia with the minor children, perhaps at the conclusion of Child C’s secondary school education in New Zealand. This is also dependent upon whether Child C gains entry into a particular tertiary institution in Australia.
To our minds, the auspices of paragraph 9.4.1(1) of the Direction cannot be applied on a contingent basis. It can only be safely applied to ascertain an Applicant’s ties to an immediate family member where that person is in Australia at the time of the relevant decision. It cannot be safely applied in respect of an immediate family member who expresses a contingent aspiration of possibly returning to Australia but leaving behind her spouse in New Zealand in circumstances where her spouse (the Applicant) is not successful in this application. For this reason, we cannot safely include in these Reasons any assessment of the extent to which the Applicant can be found to have a measure of strength, nature and duration of ties to Ms Emma as a specific immediate family member.
With further reference to Ms Emma, there is an additional submission put on her behalf to the effect that continued cancellation of the Applicant’s visa causes her to be with him in New Zealand and thus denies her the opportunity to live in her country of birth which is also the county in which she has been raised. The short point here is that it has always been open to Ms Emma to remain in Australia. We appreciate that difficulties arising from the Applicant’s visa status has caused her to deal with significant adversity including, but not limited to, having to make the dreadful choice of abandoning her own family and the life she has known in Australia and to then leave Australia with the three minor children to be with the Applicant in New Zealand.
Be all of that as it may, it is nevertheless open to Ms Emma (as it has always been) to remain in Australia with her three minor children, her adult child, her own immediate family and friends around her, and in the line of work she has done during her time in Australia.
2 Strength, nature, and duration of “other ties” – length of residence
Two necessary enquiries are referable to ascertaining the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia (on a permanent basis) with his family in 2008. We have earlier detailed his movements in and out of Australia from January 1994 to June 2022. For the period April 2008 to June 2022, the Applicant spent something in the order of just over fourteen years of that period in this country.
Next, it is necessary to refer to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those sub-elements compels us to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia (on a permanent basis), with his family, in April 2008. His first conviction in an Australian court occurred in October 2009 – approximately eighteen months after he settled here. He arrived in Australia as a 24–25-year-old and began his offending here as a 26-year-old. A period of approximately eighteen months post-arrival/settlement can be construed as being, “soon after arriving in Australia”. The first of these two tempering sub-elements does not assist the Applicant and, if anything, militates against him.
The second of the two tempering sub-elements requires an assessment of the extent of the Applicant’s positive contributions to the Australian community. We have already found the Applicant has an impressive history of remunerative employment in Australia. His PCF details a virtually continuous history with remunerative employment for virtually his entire time in Australia. He can be safely found to have contributed positively to the Australian community as a result of income tax he would have paid on income derived from that employment. He has also volunteered to coach rugby union for the Burwood Pirates Rugby Union Club.
Accordingly, this second tempering sub-element can be applied in favour of the Applicant because of his impressive history of engagement with remunerative employment and because of his involvement in community rugby union. This second temper sub-element assists the Applicant in terms of allocating a moderate, but not determinative, level of weight to his other ties to Australia.
3 Strength, nature, and duration of “other ties” – family and other social links
The Applicant is estranged from his paternal family except for his below-mentioned uncle Mr RA and aunty Ms LST.[106] In his PCF, the Applicant said the following about his other ties to Australia comprising family and social links:[107]
[106] R1, G2, page 108, paras [6]-[7].
[107] Ibid, page 101, para [32].
“Support and Ties to Australia
[32] I have family in Australia, including:
a. my wife, [Ms Emma] (born … 1982);
b. my adult stepson, [TG] (born … 2002);
c. my uncle, [Mr RA];
d. my aunty, [Ms LST];
e. my cousin, [Ms KW]…;
f. my cousin, [Ms BA];
g. my cousin, [Mr NE]; and
h. three other cousins.”
[Tribunal redactions]
We have already dealt with the extent to which the Applicant has (or does not have) ties to his adult step-son, TG, and Ms Emma. We have reviewed the written material from providers of statements and/or letters of support on behalf of the Applicant. While none of these deponents/statement-makers were called to give oral evidence at the hearing, we will, out of an abundance of caution, make reference to those statements:
·the Applicant’s abovementioned uncle [Mr RA] has provided a written statement, dated 9 September 2021. He is aware of the Applicant’s history of sexual abuse at the hands of his grandmother. He speaks positively of the parental role performed by the Applicant as well as the Applicant’s volunteering work in the area of community sport. While not expressly referring to any adverse impact he would experience consequent upon the Applicant’s removal from Australia (or continue absence in New Zealand), Mr RA concludes his written statement thus:[108]
“I understand that [the Applicant] will need support when he is released into the community and part of his rehabilitation will be continuing psychological treatments. [The Applicant] has expressed to me his remorse for the crime and understands the hardships his incarceration has had on his family. He seems motivated and committed to recognising his wrong doings and learning new behaviours and kills. I have remained in contact with [the Applicant] during his time incarcerated and will support him into the future.”
·the Applicant’s abovementioned aunt [Ms LST] has also provided a statement. It dates from 10 September 2021 and whilst she did not give oral evidence at the hearing, her statement records the following about the extent of her bond with the Applicant:[109]
“[The Applicant] has been a fundamental part of my life and family over the last 8 years. He has been involved in most of our family events, including Christmas, Birthdays, household working bees or family trip to Vietnam. I established a food business on a Construction Site which he assisted me to set up in 2016. [The Applicant’s] daughter goes to the same school and my grandchildren and he often would take them all on recreational activities.
I have maintained a strong connection to [the Applicant] during his incarceration. I have visited him face to face in the Correctional Centre on a few occasions, as well as Video link and phone calls. I also assist his daughter [Child CH] with letter writing to [the Applicant]. Obviously, Covid is making it difficult for sustained family relationship building.”
·there are respective statements from the Applicant’s mother[110] and his brother,[111] but both of those deponents cannot be said to be family or social links with people in Australia who are Australian citizens or who otherwise have an indefinite right to remain in Australia as both the Applicant’s mother and brother reside in New Zealand.
[108] A2, pages 208-209.
[109] Ibid, pages 211.
[110] Ibid, pages 212-213.
[111] Ibid, pages 214-215.
It can be safely found that the Applicant does have a measure of other ties to members of the Australian community who could likely suffer an adverse impact either by his removal to New Zealand or his continued absence in that country. Caution should be exercised with the extent to which any weight can be allocated to the above dot-pointed statements. This is because none of those deponents/statement-makers had their evidence tested in cross-examination at the hearing. Subject to this sole conditioning factor, it is safe to allocate a moderate, but not determinative, level of weight in favour of the Applicant pursuant to this Other Consideration (d).
(2) Impact on Australian business interests
We are mindful that paragraph 9.4.2(3) requires an assessment of the Applicant’s links to Australia with particular reference to any impact his removal may have on “Australian business interests”. We are of the view (and we find) that this element of Other Consideration (d) is not relevant. Our understanding of the material is that neither side is propounding its relevance either.[112]
[112] See A1, page 15, para [70]; see also R2, page 19, para [93].
Weight allocable to Other Consideration (d): links to the Australia community
First, with reference to the strength, nature, and duration of the totality of the Applicant’s ties to Australia, we are of the view, following an analysis of its three above-referred elements, that the evidence points to the allocation of a moderate, but not determinative, level of weight in favour of the Applicant. Second, the additional part of this Other Consideration (d) (impact on Australian business interests) is not relevant. Overall, we are of the view that the Applicant’s links to the Australian community carry a moderate, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Further Other Consideration (e): Minor children of the Applicant not in Australia
Can we take the interests of these minor children into account?
As mentioned earlier, it is not possible to take the interests of these three minor children into account under the auspices of Primary Consideration 3. It relates to the best interests of minor children in Australia affected by this decision. As we know, Ms Emma voluntarily relocated to New Zealand with these three minor children approximately one-two months ago. Be that as it may, we feel compelled to address the best interests of the three minor children of the Applicant and Ms Emma. Each of those children are Australian citizens.[113] There seems little doubt that we are able to do so. Paragraph 9(1) of the Direction makes it clear that, “these considerations are included but are not limited to…” the items or factors listed at paragraph 9(1)(a)-(d), respectively. Further, this Tribunal has taken the interests of precisely such children into account in determining an application broadly on all fours with this one.
[113] A2, page 16, para [75].
We say “broadly” because in that matter[114] the Applicant remained detained in Australia and the Applicant was propounding a position that his release from Australian-based detention would, in turn, facilitate a return of the subject minor children back to Australia from New Zealand. On this basis, it was propounded on behalf of the Applicant that the best interests of those subject minor children would be served if the Applicant had his Australian visa status restored to him so that he could be reunited with them. That contention was ultimately rejected by the Tribunal. In the instant facts, the subject minor children are already with the Applicant in New Zealand.
Who are the relevant minor children?
[114] Tewhare and Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at paras [156]-[162].
Ms Emma was previously the domestic spouse of a Mr TG who is the biological father of her two sons comprising:
·Child C, born April 2007; and
·The abovementioned adult step-son, TG, born June 2002.
Ms Emma separated from Mr TG in or about 2010.[115] Mr TG met a quite unfortunate end. He was the victim of a punching incident by another person at Surfer’s Paradise on 19 December 2021. Mr TG was taken to the Gold Coast University Hospital in a critical condition and was placed in a medically induced coma.[116] Mr TG eventually succumbed to his injuries and his life support system was switched off on 26 December 2021. His funeral occurred on 14 January 2022.[117]
[115] R1, G2, page 108, para [4].
[116] Ibid, page 117, paras [3]-[4]; see also A4, pages 224-25.
[117] See generally R1, G2, page 125.
Ms Emma commenced a relationship with the Applicant in January 2011 and she and the Applicant were married on 25 April 2014. She and the Applicant then had two children of their own. They are:
·Child CH (born August 2012); and
·Child A (born August 2020).
Therefore, the three relevant minor children for present purposes comprise Child C (aged fifteen), Child CH (aged nine) and Child A (aged one). It would be unsafe to challenge the weight of the evidence suggestive of the Applicant being a constant presence and active participant in the lives of all four of the children/stepchildren that have been and/or remain under the joint care of himself and Ms Emma. This evidence can only be read in one way – that is, in favour of the Applicant.
On what basis is it contended that restoration of the Applicant’s visa status to remain/return to Australia is in the best interests of the subject minor children?
We should say that we have experienced difficulty in understanding the basis of how it is contended to be in the best interests of the three subject minor children for the Applicant’s Australian visa status being restored to him. They are not in Australia. Ms Emma took the three subject minor children with her and voluntarily relocated to New Zealand where they have been reunited with the Applicant. We again acknowledge the dreadful choice Ms Emma had to make in this regard. But the dreadful nature of that choice does not necessarily militate in favour of any finding about the best interests of those three minor children.
In the Applicant’s SFIC, the contention seems to be put in the following terms:[118]
[118] A1, page 19, para [85].
“[85] In circumstances where:
(a) the minor children are all Australian citizens;
(b) the minor children have lived in Australia their whole lives;
(c) the Applicant has a close relationship with his minor children and is a critical part of their family unit;
(d) the minor children did not wish with migrate to New Zealand but their parents made this decision as a direct result of the emotional, financial, and practical hardship resulting from the Applicant’s immigration detention which was exacerbated by a traumatic event (the unexpected death of [Mr TG]); and
(e) the children would likely return to Australia in the event the Applicant’s visa cancellation is revoked;
the Applicant submits that the best interests of his minor children is for the Applicant and themselves to be able to return to Australia, and this should be afforded significant weight in favour of revoking the Applicant’s visa cancellation. It is submitted that this other consideration has determinative weight.”
[Tribunal redaction]
The Direction contemplates and addresses the best interests of minor children in Australia on the basis of a prospective removal of an unsuccessful applicant from Australia. What seems to be pressed upon the Tribunal now is a contention that we are to make some kind of finding on the prospective or contingent possibility that return of the Applicant’s visa to him will result in a virtual automatic return of the entire family (the Applicant, plus Ms Emma, plus the three subject minor children) to Australia. The evidence goes no higher than a prospective or contingent return to Australia which is expressed by Ms Emma thus:[119]
“The likelihood of our other children returning to Australia is very high and we have strained relationships if [the Applicant] is not given back his visa. If [the Applicant] was to get his visa reinstated we would be likely to return to Australia immediately or once [Child C] finishes his high school education if he does settle into schooling there so as not to disrupt his senior years of school.”
[Tribunal redactions]
[119] A2, page 217.
In her oral evidence, Ms Emma spoke about the extent to which Child C has settled into his new school life in New Zealand. She said:[120]
“[Child C] has actually surprised us and settled quite well. He’s - he - we - because of his circumstances, and he was not in a very good place mentally, we really looked into the high schools available to ensure we got a school that would suit him. Because, yes, because if he experienced any bullying or anything, we thought that could really impact him. So, we found a small Christian high school. And so his father’s - his paternal family - did all of the reference letters and got all that documentation that was required. So the school he’s at, there’s only 15 children in his year. So, it’s quite a small school and it’s actually suiting him quite well. He’s very intellectual and it is - it seems Australia is quite ahead in the education. So he is finding it extremely easy and says it’s like work from two or three years ago that they learnt in Australia. So that’s probably the only negative, but he is happy to go, and we are pleased with how it’s going for him.”
[Tribunal redaction]
Allocation of weight
[120] Transcript (5 July 2022), page 61, lines 19-31.
Put at its highest, Child C has expressed an aspiration to attend university in the future. As a consequence, it is pressed on the Tribunal that the children are likely to return to Australia in the event the Applicant’s Australian visa status is restored to him. Doubtless, the relocation of the children (specifically, Child C and Child CH) has, to whatever measurable extent, disrupted their education. That said, they are attending school in New Zealand and they are doing so with both of their parents present in that country and with the benefit of at least some measure of family network/support in that country.
On the one hand, while it may be accepted that it is in the best interests of the Applicant’s minor children (specifically, Child C and Child CH) for the non-revocation decision to be set aside, it would, to our minds, be unsafe to allocate any significant or determinative weight to this additional Other Consideration (e) in circumstances where:
(1)any return of the subject minor children from New Zealand to Australia seems predicated on an aspirational and yet-to-be realised contingency of Child C securing a place at an Australian university; and
(2)the Applicant’s evidence has been that the family will not relocate to Australia in the event the non-revocation decision is not set aside by this Tribunal; and
(3)Ms Emma’s evidence about it being highly unlikely that the family will become separated in the event of an adverse outcome for the Applicant in this application; and
(4)It can be logically presumed that the Applicant’s relationship with the subject minor children will remain unchanged regardless of the outcome of these proceedings. In other words, if this Tribunal restores his Australian visa, the Applicant and his family will (on one version of the evidence) promptly return to Australia or (on another version of the evidence) may return to Australia dependent upon the academic results of Child C. If this Tribunal does not restore the Applicant’s Australian visa status, then the whole family will remain in New Zealand.
For these reasons, we certainly do not think that any weight allocable to this Further Other Consideration (e) is in any way determinative or dispositive. It attracts a moderate, but not determinative, level of weight in favour of restoration of the Applicant’s visa status to remain/return to Australia.
Findings: Other Considerations
We summarise the respective weights we have allocated to each of the Other Considerations (nominated in the Direction[121]) relevant to the present matter:
(a)International non-refoulement obligations: not relevant;
(b)Extent of impediments if removed: is of a certain, but not determinative, level of weight in favour of revocation;
(c)Impact on victims: not relevant
(d)Links to the Australian community: is of a moderate, but not determinative, level of weight in favour of revocation; and
(e)Minor children of the Applicant not in Australia: is of a moderate, but not determinative, level of weight in favour of revocation.
CONCLUSION
[121] Plus, Other Consideration (e) which we have added as part of our consideration.
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration 1: weighs very heavily against revocation;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a moderate, but not determinative level of weight in favour of revocation; and
·Primary Consideration 4: weighs heavily against revocation.
·We have outlined the weight attributable to the Other Considerations.[122] We are of the view (and we find) that the combined weights we have allocated to Primary Consideration 3 and Other Considerations (a), (b) and (d), respectively,[123] are not sufficient to outweigh the combined very heavy and heavy weights we have respectively allocated to Primary Considerations 1 and 4; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
[122] Including the additional Other Consideration (e) which we have identified as, “minor children of the Applicant not in Australia”.
[123] Including the weight we have allocated to Other Consideration (e): minor children of the Applicant not in Australia.
Consequently, we cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 26 April 2022, to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 185 [one-hundred-and-eighty-five] paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Member Angela Julian-Armitage
.............[SGD]...............
Associate
Dated: 11 August 2022
Date of hearing:
5 and 6 July 2022 Solicitor for the Applicant:
Ms Meka Larsen, Solicitor
Samuta McComber LawyersSolicitor for the Respondent Ms Gabrielle Ho, Lawyer
Clayton UtzANNEXURE A – EXHIBIT LIST
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
R1
Section 37 T Documents (pages 1 – 251)
R
Various
18 May 2022
R2
Respondent’s Statement of Facts, Issues and Contentions (pages 1 – 20)
R
17 June 2022
17 June 2022
R3
Respondent’s Submission RE: Two-Day Rule Application (pages 1 – 2)
R
22 June 2022
22 June 2022
R4
Respondent’s Supplementary Tender Bundle (pages 1 – 37)
R
Various
4 July 2022
R5
Applicant’s Supplementary Tender Bundle (Amended) (pages 231 – 244)
R
Various
5 July 2022
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 – 20)
A
3 June 2022
3 June 2022
A2
Applicant’s Tender Bundle (pages AA1 – AA217)
A
Various
3 June 2022
A3
Applicant’s Submission RE: Two-Day Rule Application (pages 1 – 4)
A
23 June 2022
23 June 2022
A4
Applicant’s Submissions in Reply (pages 1 – 6)
A
29 June 2022
29 June 2022
A5
Applicant’s Supplementary Tender Bundle (pages AA218 – AA230)
A
30 June 2022
30 June 2022
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
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Judicial Review
-
Procedural Fairness
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Statutory Construction
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Natural Justice
-
Jurisdiction
1
7
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