Downes and Minister for Home Affairs (Migration)
[2019] AATA 6934
Downes and Minister for Home Affairs (Migration) [2019] AATA 6934 (27 March 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0146
Re:Aaron Downes
APPLICANT
AndMinister for Home Affairs
RESPONDENT
Decision
Tribunal:Member M Kennedy
Date:27 March 2019
Place:Adelaide
The decision under review is affirmed.
...........................[sgnd].............................................
Member M Kennedy
CATCHWORDS
MIGRATION – Mandatory visa cancellation – Request for revocation of cancellation – Character test – Substantial criminal record – Violent offences involving a woman – Sentence of imprisonment of 12 months or more – Protection of the Australian community – Expectations of the Australian community – Best interests of a child – Other considerations – Strong ties to Australia
LEGISLATION
Migration Act 1958 (Cth)
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
REASONS FOR DECISION
Member M Kennedy
This matter relates to an application for review filed by the applicant on 8 January 2019. The decision which is under review is that of a delegate of the Minister for Home Affairs dated 3 January 2019 to not revoke the mandatory cancellation of the applicant’s visa.
BACKGROUND
Mr Downes is a 34 year old citizen of New Zealand and is of Maori ethnicity. He was born in 1984. He first arrived in Australia in April 2005. Mr Downes returned to New Zealand in March 2006 and re-entered Australia in April 2006. At the time of the mandatory cancellation of his visa, the applicant held a Special Category (Class TY) subclass 444 visa.
The applicant has a significant history of criminal offending whilst residing in Australia, with his first recorded conviction registered on 8 February 2008 for dishonestly taking property without consent. Since that time, the applicant has committed a number of offences, largely involving damage to property, injury to person, domestic violence and breaches of court orders.
The applicant’s most serious offence was committed on 3 August 2010. The applicant attacked a pizza shop employee who he believed had made an insulting comment towards his then partner’s children. The applicant was drunk at the time. The applicant walked up to the employee and punched him in the face, causing him to fall to the ground. The applicant then kicked the employee in the head repeatedly whilst yelling at him. The employee suffered serious brain injuries and at the time of sentencing, over a year later, continued to suffer ongoing neuro-behavioural issues including loss of memory, difficulty swallowing, slower processing of information, dizziness, headaches and speech difficulties. On 3 October 2011, the applicant was convicted of, inter alia, unlawfully causing serious harm and was sentenced to 6 years and 9 months imprisonment.
Despite being issued a formal warning by the Department on 1 March 2013, and a decision not to cancel his visa at that time, the applicant’s offending has continued with the most recent offence taking place on 1 December 2017.
On 1 December 2017, the applicant, whilst intoxicated, brought his hands up to his current partner’s neck. At the time, the applicant was subject to a domestic violence order made on 21 January 2017 restraining him from causing harm, or from attempting or threatening to cause such harm, to his partner. The partner sought refuge with a neighbour. The neighbour was subsequently threatened by the applicant who threw a ceramic pot plant at him. On 13 February 2019, the applicant was convicted of ‘assaulting a female (offender a male)’ and ‘assault (threaten with weapon)’ and was sentenced to 6 months imprisonment.
On 23 February 2018, the applicant’s visa was cancelled by a delegate of the Minister under section 501(3A) of the Migration Act 1958 (the Act).
On 21 March 2018, the applicant made a request for revocation of the visa cancellation.
On 3 January 2019, pursuant to section 501CA(4) of the Act, the delegate decided not to revoke the decision to cancel the visa. The applicant subsequently lodged an application for review with the Tribunal.
Documentary evidence
I have taken into consideration the following documentary evidence noting that ‘A’ refers to ‘Applicant’ and ‘R’ refers to ‘Respondent’:
Exhibit No. Description A1 Statement of Ms C dated 15 February 2019 A2 Letter from M dated 18 February 2019 A3 Statement of MB dated 11 February 2019 A4 Letter from RS dated 18 February 2019 A5 Letter TL dated 8 February 2019 attaching Parole Order A6 Letter from CI dated 19 February 2019 attaching correspondence A7 Letter from M dated 13 March 2019 A8 Handwritten letter from M dated 13 March 2019 R1 G Documents R2 Supplementary G Documents LEGISLATIVE FRAMEWORK
Section 501 of the Act provides for the cancellation of a visa on character grounds.
Relevantly, where the Minister is satisfied that a person does not pass the “character test” because a person has a “substantial criminal record” and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State, the Minister must cancel the visa.[1] At the time of the primary decision, Mr Downes was serving a full-time sentence of imprisonment.
[1] Migration Act 1958, s 501(3A) (hereafter referred to as MA).
Mr Downes accepts in his written submissions that he does not pass the character test. For completeness, I note that the character test referred to in (3A) is outlined in section 501(6) of the Act which provides that a person does not pass the character test if the person has a substantial criminal record. A person will have a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2] Mr Downes’ conviction and sentence in relation to the assault on the pizza shop employee of itself constitutes a substantial criminal record for these purposes.
[2] MA, s 501(7)(c).
Where a visa has been cancelled under section 501(3A), the Minister has power, under section 501CA(4) to revoke the cancellation decision. That section provides that:
(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.
As mentioned above, Mr Downes does not contend that he passes the character test, and I find in any event that he does not do so on account of his conviction and sentence of 3 October 2011.
The remaining basis upon which the mandatory visa cancellation may be revoked is the sole issue in this review: that is, whether I am satisfied that there is another reason why the original decision should be revoked. My approach to the consideration of that issue is the subject of a Ministerial Direction.
DIRECTION NO. 79
Section 499 of the Migration Act authorises the Minister to give written direction to a body, such as the Tribunal, having functions or powers under the Act about the performance of its functions and the exercise of powers. I must comply with directions issued under this provision.
Ministerial Direction 79, at Part C, engages directly with the performance of my functions and exercise of my powers in reviewing Mr Downes’ revocation request. I am to treat the following as primary considerations:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community
Other considerations must also be taken into account. They are:
(a)international non-refoulement obligations;
(b)the strength, nature and duration of ties;
(c)the impact on Australia’s business interests; and
(d)the impact on victims and the extent of impediments.
Primary considerations are generally to be given greater weight than the other considerations.
The Direction provides further guidance to me in terms of the objectives of the Act and the character provisions, the objective of the Government in protecting the community from harm as a result of criminal activity, including maintaining public confidence in the character assessment process.
The Direction sets out principles asserting Australia’s sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia, and that permission for non-citizens to remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law-abiding and respectful of Australia’s institutions and will not cause or threaten harm to individuals or the community.
The relevant principles against which I am to approach the exercise of my powers in this matter are that:
·the community expects that the Government can and should cancel visas of non-citizens if they commit serious crimes in Australia;
·a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia
·sometimes criminal offending or other conduct is so serious, and the harm that would be caused if it were to be repeated so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances even strong countervailing considerations may be insufficient to justify not cancelling the visa;
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating or contributing to the Australian community only for a short period of time; however, the community may afford a higher level of tolerance in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age; and
·the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a cancellation for minor children and other immediate family members in Australia are considerations in the context of determining whether the visa should be cancelled.
Before considering these principles and how they apply in these particular circumstances, I will provide a brief summary of the evidence I have received regarding the applicant’s background and life in Australia.
The applicant was born and grew up in New Zealand. He described his father as drinking a lot and being violent, although he said he never saw his father hit his mother with a closed fist. Mr Downes started drinking himself when he was 15 or 16 after his father had passed away. His drinking was however in a ‘happy environment’, although he was arrested for public intoxication.
Mr Downes observed that his mother’s authority over him was weak and his father was no longer there to impose discipline or to ground him. Mr Downes said he used marijuana but only up until about 18 or 19.
Mr Downes said his mother, grandmother and sibling continue to live in Whangerai and he remains in contact with them.
Before his first visit to Australia in 2005, Mr Downes had already been the subject of two convictions in New Zealand, namely disorderly behaviour and shoplifting.
Mr Downes travelled to Australia with a former partner, Ms A, who was both an Australian and New Zealand citizen. She had family in Adelaide. Mr Downes and Ms A had a child together, Child A. His relationship with Ms A broke down, and Ms A and Child A returned to New Zealand for a while.
Mr Downes acknowledged that it was accurate to say that Ms A left Australia to get away from him, after her mother had perceived in their relationship similarities to an abusive relationship she had fled. Mr Downes said he did not get on well with Ms A’s mother, and felt Ms A and her mother had spent too much time together. There was an altercation in which he pushed his mother-in-law. Mr Downes does not have any contact with Child A.
Mr Downes said that he started using methamphetamines in dealing with the breakdown of his relationship with Ms A. He lost his employment in Adelaide because he had arrived at work in an unfit state and was later told not to return. Mr Downes was convicted of alcohol-related and property offences in South Australia in 2008.
Mr Downes met another partner in Adelaide, Ms B. Ms B is an Aboriginal woman. She encouraged Mr Downes to relocate to her township on the basis that she may be able to assist him find work in a nearby mine through the Northern Land Council. Mr Downes had a child (Child B) with Ms B. Mr Downes has never met Child B in person as he was born a few weeks after he was arrested for the offence of assaulting the pizza shop employee. Mr Downes understands that Child B now mainly lives in Adelaide with an Aunty but does sometimes return to the township.
Mr Downes and Ms B would drink a lot. They had disagreements and a domestic violence order was placed on him. Mr Downes described himself as being intoxicated all the time without any real direction. Mr Downes was convicted of contravening the domestic violence order and also public disorder offences. He went to inpatient drug and alcohol rehabilitation in 2010 for three months, but committed his most serious offence three months after leaving rehabilitation. Mr Downes and Ms B’s relationship did not survive long after his incarceration.
Mr Downes met his current partner, Ms C, at a further rehabilitation program prior to his release from custody. Mr Downes and Ms C have a child together, Child C. Ms C has five children, but only Child C is in her care. The other children have been removed from her care by authorities. Ms C is an Aboriginal woman. She has had a very difficult life, and was convicted and imprisoned for the manslaughter of her mother. Mr Downes has had a close association with Ms C’s wider family, and has a ‘skin name’ pending confirmation through ceremony.
After being released from prison, Mr Downes committed further offences relating to driving and refusing to give a sample of blood. These offences were committed in breach of a bail agreement for an alleged offence against Ms C that was not proceeded with.
In 2018, Mr Downes was convicted of assaulting Ms C and damaging the property of a neighbour who had offered Ms C refuge. For this he was sent to prison, resulting in the mandatory cancellation of the visa.
I now turn to the considerations under Direction 79.
Primary consideration: The protection of the Australian community.
When considering the protection of the Australian community, decision-makers must have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Furthermore, remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding and will not cause or threaten harm to individuals or the Australian community.
I am to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[3]
The nature and seriousness of Mr Downes’ conduct
[3] Direction No. 79, [13.1(2)] (hereafter referred to as D79)
In considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, I am to have regard to factors including those set out in paragraph 13.1.1(1) of the Direction. The factors relevant to the applicant are:
·the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
·the sentence imposed by the courts for a crime or crimes (with the exception of the second dot point); and
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
I turn to consider first the conduct leading to Mr Downes’ conviction and sentence of 3 October 2011. It is convenient to reproduce extracts from the remarks of the sentencing judge. His Honour stated:
The Crown facts are not in dispute. On Tuesday 3 August 2010, you consumed Moselle at House 9, Dump Camp causing yourself to become intoxicated. At about 8:30PM you, your de facto partner, your de facto partner’s three children and your de facto partner’s cousin all walked along Paterson Street towards [the township] to purchase pizza from [the pizza shop].
Whilst walking, you said to your de facto partner: ‘I want to go to the pizza shop to smack one of the workers there’. Your partner told you: ‘Don’t be stupid’. You became upset on having heard from another person that some two weeks previously, the victim, an employee of [the pizza shop], had apparently said to your partner’s children: ‘Who’s your Daddy?’ The victim denies making such comment at anytime (sic).
As the group approached [the Hotel], about 200 metres south of [the pizza shop], you left the group, walking north briskly towards the pizza shop. You turned left into the Transit Centre and approached the main entrance to [the pizza shop]. You were breathing heavily, your head was bowed, facing the ground and you were clenching your hands into a fist. You entered the restaurant area of [the pizza shop] where you observed the victim mopping the floor in the pizza-making kitchen. You entered the kitchen and said to him: ‘Who’s your Daddy now?’ You punched him in the face causing him to fall to the ground. The victim screamed for help.
You were wearing white sneakers. You stood over the victim and you kicked the victim’s head with your right foot repeatedly, while yelling: ‘Who’s your Daddy? Who’s your Daddy?’ The assault caused the victim to lose consciousness. A witness who was nearby ran to the area after hearing the victim scream for help. On the witness approaching, you ran out the same way you had entered. As you left the restaurant, a customer asked you what happened. You said: ‘He shouldn’t have said that to my family’.
…
The victim was taken to [the emergency department]. He suffered soft tissue external bruising over the left temporal region and the right occipital region, significant facial bruising to both orbits and jaw, a large swelling to the neck and upper airway.
…
A CT scan showed that he had suffered a left parietal subdural haemorrhage and right frontal contusion with no midline shift. He required intubation and ventilation care for about four days, before being extubated and referred from intensive care to the surgical ward on 13 August 2010.
…
The victim continues to suffer significant ongoing issues with neuro-behavioural sequelae, displayed in part by continuing difficulties with swallowing, memory loss, difficulties with balance, dizzy spells, daily left occipital temporal region headaches, slower information processing, difficulties with verbal fluencies and significant dystharia. As a result of his injuries the victim suffered serious harm. The victim has limited movement of his right arm as a result of a car accident some 18 months before the assault, and wore a brace around his arm at all times.
Later, his Honour found as follows:
Having considered those matters, I am satisfied beyond reasonable doubt that you did intend to cause your victim serious harm. I accept the Crown’s submissions as to your state of intoxication. Clearly you intended to assault the victim. I do not accept that this was an explosive and irrational outburst. In your mind the victim had cast what you considered to be a serious slur on your partner and her children and you wanted revenge. You clearly meant to kick the victim to the head numerous times. That is an activity which is inherently dangerous as everybody knows. I infer that you intended to cause him serious harm in the same sense that you intended to cause harm which is likely to be significant and longstanding.
In his evidence, Mr Downes explained that at the time he had been sensitive to the disadvantage he and Ms B were experiencing. He said he had learned of a remark made by the pizza shop employee to which he had taken offence. I note that Mr Downes has taken issue with an aspect of the Minister’s Statement of Facts, Issues and Contentions where the assault was described as ‘unprovoked’. Mr Downes takes issue with that characterisation of the circumstances as he considers that the victim had made vilifying and sensitive remarks towards Ms B and her children, and had asked a colleague to ‘call the police’ when he arrived, inferring that Mr Downes had done something wrong.
I note that the sentencing judge has left open the question of whether the victim had ever made the remarks Mr Downes believed he had made, and I think little turns on whether the assault can be characterised as ‘unprovoked’ or whether a better characterisation is that the assault was utterly unjustified. I have noted that the Judge had described the attack as unprovoked elsewhere in the sentencing remarks.
Of more significance was Mr Downes’ evidence to me that he had never intended to hurt his victim, but had intended merely to talk to him. I reject Mr Downes’ evidence in this regard because it is inconsistent with the findings of the sentencing judge, namely that Mr Downes wanted to “smack one of the workers there”. I note however that during the hearing when I put the findings of the judge to Mr Downes, he indicated his agreement to the proposition that it was a deliberate and planned assault.
Mr Downes says he feels very bad for the victim, and he did not intend for him to have the permanent injuries he now has.
I take into account that violent crimes are viewed very seriously under the Direction. This offence was unquestionably a very violent offence. The sentence imposed on Mr Downes was six years and nine months, with a non-parole period of three years and six months. I note the sentencing judge remarked that:
there must be a very significant sentence to punish you for what you did, to deter you and others from offending in this way in the future and to show the community that offending of this nature will not be tolerated.
It is clear from the remarks of the Judge that the offence was viewed very seriously by the court.
I turn to consider the circumstances of Mr Downes’ subsequent conduct for which he was convicted of offences. Two incidents resulted in subsequent convictions.
The first incident was on the night of Child C’s first birthday on 27 May 2017. At that time, Mr Downes was subject to bail conditions arising out of other alleged circumstances that did not ultimately result in a conviction. I add for completeness that these circumstances were the subject of evidence from Mr Downes and Ms C during the hearing (and Mr Downes was duly warned about his right against self-incrimination). The supplementary Tribunal papers contain statutory declarations made by Ms C in which she describes being the victim of a violent assault at the hands of Mr Downes on Christmas night 2016, purportedly corroborated by her relative. Ms C resiled from her statutory declaration during the hearing before me when she was asked about it. She said the incident she described in her statutory declaration didn’t happen and she only said it because she was angry. Mr Downes also denied that he assaulted Ms C in the manner described in Ms C’s statutory declaration. In the circumstances of the particular incident described, and in light of the evidence of Ms C and Mr Downes, I proceed on the basis that the particular incident did not happen, and its relevance is restricted to explain the circumstances in which Mr Downes came to be subject to bail conditions in relation to the events of 27 May 2017.
Mr Downes said that he was hoping to make contact with Ms C via a relative to see Child C for her birthday, but had become despondent when this did not appear to be happening. A friend had left a carton of alcohol which he consumed (in breach of a bail condition).
According to a statement of agreed facts on which Mr Downes was sentenced, Mr Downes then left his home (contrary to bail conditions) and drove in the town in a manner that caused the rear wheels of his vehicle to spin and leaving multiple tyre marks on the road. He lost control of his vehicle and collided with a tree. Mr Downes refused to submit to a breath test, and his agitated state was such that hospital staff refused to take a blood sample from him.
An officer in attendance at the incident has made a statutory declaration describing being informed that Mr Downes had requested residents who emerged from a nearby flat to help him push the car. When the residents had refused, Mr Downes had threatened to shoot them: ‘I’ve got a 30/30 would you like me to pull it out and shoot you’. The statutory declaration also mentions Mr Downes making remarks such as ‘you will know of me soon enough’ and ‘Allah akbar…the mosque is spreading the word to its people…we are all done’. It was observed that Mr Downes had a bag in his vehicle with items that could be used to make a bomb (in the opinion of another Police constable).
I infer that none of Mr Downes’ remarks connoting Islamic terrorism were taken seriously as to their substance by the Police, nor did anything arise out of the Police constable’s opinion that items in Mr Downes’ possession could be used for making a bomb. In relation to the remarks attributed to him, Mr Downes accepted that he made such remarks at the time and they were inappropriate. Mr Downes said he made the remarks because the only weapon he had was his mouth. These matters do not appear to have formed part of the agreed facts on which Mr Downes was sentenced and Mr Downes was not charged with offences relating to the making of the threatening remarks or any items in his possession, but I raised the content of the statutory declaration with Mr Downes during the hearing. The statutory declaration refers to observations being made by the officer leading him to suspect that Mr Downes had consumed illicit drugs. Mr Downes said he had only consumed alcohol.
As a result of this incident, Mr Downes was convicted of breaching his bail agreement, failing to provide a blood sample, damaging the surface of a public road and driving without due care. He was fined $500 and disqualified from driving for 12 months. The penalty imposed by the court in relation to this offending was not significant – but the circumstances of the offending involving intoxication, the dangerous use of a motor vehicle and in the context of making aggressive and threatening remarks are all of relevance and concern to my deliberations.
The next incident resulted in Mr Downes being convicted of assaulting a female where the offender is a male, and a further assault in the form of threatening with a weapon and damage to property. Mr Downes was given a total effective sentence of six months imprisonment, but was ordered to be released after serving 3 months and 14 days. A month later, Mr Downes asked the court to order that he serve the full six months when he became aware that it was intended to place him in immigration detention upon release, in circumstances where he wished to remain in the town to be near Ms C and Child C.
The incident itself is addressed in sentencing remarks of 13 February 2018, with more detail from a statement of agreed facts. I note from the sentencing remarks that Mr Downes appears to have initially pleaded not guilty, but changed his plea after Ms C gave evidence against him.
From the statement of alleged facts that formed the basis of Mr Downes’ plea, it is accepted that:
This domestic violence order is current up until the 24th of January 2018.
On Friday the 1st of December 2017 the defendant and Ms C consumed an unknown amount of alcohol at [their residence], causing the defendant to become intoxicated.
At about 11pm that night the defendant and Ms C were sitting in the front yard of [their residence] when the defendant without warning put his hands up towards Ms C’s neck and causing her to feel threatened. Ms C grabbed the defendant’s hand and he stopped.
A short time later Ms C has left the location and sought refuge at [the neighbour’s] house who resides directly across the road. The defendant has followed Ms C across the road while yelling out to her.
Once across the road the defendant picked up a large ceramic pot plant sitting at the front of [the neighbour’s] house and has thrown it onto the ground causing it to break.
The defendant then left the location before returning a short time later with a large rock. The defendant has thrown this rock at [the neighbour’s] vehicle.
The defendant then walked over to the locked front gate at [the neighbour’s] residence and started kicking and punching it in an attempt to gain entry.
After having no success at opening the gate the defendant has left the location for a short period of time before returning with another rock. The defendant has thrown this rock at [the neighbour’s] car multiple times causing extensive damage to the rear window and boot.
The defendant then walked over to where the broken pot plant was located and picked up a large piece of the pot throwing it towards [the neighbour] narrowly missing him.
The defendant again walked over to the front gate of [the neighbour’s] residence and told him that when he gets out of gaol he will come and bash him for letting [Ms C] inside.
…
At the time of the above offending the domestic violence order was current and had not been varied or revoked.
In addressing this offending in his evidence, Mr Downes told me that he had been using methamphetamines in 2017, and Ms C had been upset. As to the incident, Mr Downes said he had just received a taxation return and had been consuming beer. He described becoming isolated within his own thoughts, and gave vague evidence about what had been the germ of an argument with Ms C at the time. He said that he believed Ms C had approached him in an affectionate way which he had rebuffed in the way described as him putting his hands towards her neck. He had only later noticed that she had gone and then he saw her sitting in the house across the road. Mr Downes said he became angry because he suspected she was ringing the Police. He became angrier when his neighbour would not get Ms C to come outside and talk to him. Mr Downes said he could not recall telling his neighbour that he would bash him for letting Ms C inside. Mr Downes said that alcohol was in control of his thought patterns at the time.
In accordance with the Direction, I take into account that Mr Downes’ last offence was an offence of violence towards Ms C and also his neighbour who had intervened to offer her protection. The Direction provides that such an offence is to be viewed very serious on two bases: that it is a crime of violence and, also, that it is a crime of a violent nature against a woman. I am to view that crime as very serious regardless of the sentence imposed. In any event, the imposition of a custodial sentence indicates to me that the Court viewed the offence as very serious in any event.
Considering Mr Downes’ offending as a whole, I note a level of frequency in his violent offending, and have considered the cumulative effect of his violent offending.
There are three further matters to be considered in considering the nature and seriousness of Mr Downes’ conduct.
First, noting that I am to take into account whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[4] it was pointed out that Mr Downes did not disclose his criminal convictions in New Zealand on his incoming passenger cards.
[4] D79, [13.1.1(g)]
Mr Downes said in response to this line of questioning that it wasn’t in his mind and he did not have a clear understanding as to what a conviction was. He said that at the time of signing his incoming passenger cards, it was a quick thought process. In response to the proposition that it had been a deliberate step to mislead Australian authorities, Mr Downes denied it had been deliberate.
I am not convinced by Mr Downes’ explanation in this regard and reject his evidence to that effect. The questions posed on the incoming passenger card are clear enough, and the process of being convicted of a criminal offence is of a nature that the recipient of the conviction is aware that it has happened. I take into account these early instances of the provision of false or misleading information to immigration authorities.
Secondly, noting that I am to take into account that a crime committed in immigration detention is serious[5], an adverse incident in immigration detention was the subject of evidence before the Tribunal. The incident involves Mr Downes using abusive language towards immigration detention centre staff who had intervened when he had decided to change his accommodation.
[5] D79, [13.1.1(1)(i)]
Mr Downes’ explanation about the situation was that he had become frustrated when requests to move accommodation had not been dealt with, and he had felt under pressure by other detainees to change rooms. The circumstances of this incident do not appear to amount to an offence. As I understand it, Mr Downes was not reported over this incident, and I note the record of the incident reveals it was closed without any further action being taken. While the incident reflects poorly on Mr Downes’ capacity to communicate with people in frustrating circumstances, it is not an incident that impacts on my view of the nature and seriousness of Mr Downes’ overall conduct.
In that respect, I view the nature and seriousness of Mr Downes’ conduct as very serious indeed. Mr Downes has engaged in repeated violent conduct, including violent conduct towards women. I take into account that Mr Downes’ most serious violent conduct relates to the assault on the pizza shop employee, and in that sense there is no pattern of escalation from that time – but nor is there any demonstrated pattern of improvement.
Thirdly, and of particular significance in my view, I am to take into account whether a non-citizen has re-offended since being formally warned, or since otherwise being made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status[6]. It is clear from the records before me that Mr Downes was considered for visa cancellation as a result of his conviction of 3 October 2011. Exhibit R1 contains correspondence from the Department to the applicant expressly warning him that visa cancellation will be reconsidered if he were to commit further offences, and disregard of the warning will weigh heavily against him if his case was reconsidered.
[6] D79, [13.1.1(1)(h)]
Mr Downes accepted he had been warned. He said that he did not have the warning in mind after he was released, and had become absent-minded with his immigration circumstances. Mr Downes said he didn’t ignore the warning but had forgotten the conditions.
As foreshadowed in that correspondence, the existence of the written warning to Mr Downes arising out of the consideration of visa cancellation in 2013 does indeed weigh heavily against him in circumstances where he has subsequently committed offences that I am to view as serious under the Direction.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) of the Direction provides that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I am to have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
In considering the risk to the Australian community, I must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[7]
[7] D79, [13.1.2]
It was accepted by the Minister’s counsel that Mr Downes showed a degree of insight in his evidence to the Tribunal as to the causes of his criminal conduct, in particular the influence of alcohol and other drugs, and the critical need for him to address his behaviour. It was however also noted that Mr Downes has had difficulty putting his insights into practice when regard is given to his pattern of offending. The Minister’s counsel observed that Mr Downes’ appears to be trapped in a vicious cycle of stress, drinking, violence and remorse. I agree with those observations based on the totality of the evidence before me.
As to the nature of the harm to individuals or the Australian community should Mr Downes reoffend, I can reach no other conclusion than the risk being very great indeed. Mr Downes has multiple convictions for violent offending, and the victim of his most serious offence has been left with permanent brain injury. I place significant adverse weight on this observation.
Submissions were also made in relation to Mr Downes’ convictions relating to the dangerous use of a motor vehicle. Although Mr Downes was convicted of failing to provide a blood sample, his own evidence to the Tribunal was that he was intoxicated. The penalty imposed by the Court in relation to this incident was remarkably light, but I do accept the submission that the misuse of a motor vehicle while a person is intoxicated places the entire community at risk.
I am not satisfied that Mr Downes’ evidence in relation to his offending justifies a reconsideration of my opinion that, should Mr Downes reoffend, the consequences on individuals within the Australian community are potentially very grave.
In this regard I have turned my mind to Ms C’s circumstances. She was a victim of his most recent offending. It was clear throughout Mr Downes’ evidence that he was very concerned for Ms C and for Child C. Nonetheless, in circumstances where Mr Downes was convicted for an assault against Ms C, I have considered that the nature of the harm should Mr Downes reoffend violently in the future is such that Ms C is particularly vulnerable.
As to the likelihood of Mr Downes reoffending, there is no expert opinion evidence before me addressing his risk of recidivism, other than references in the sentencing remarks to a report of a Dr Walton. It is apparent that the sentencing judge was not particularly impressed with the quality of that report, and it provided the Court with little assistance. None of the witnesses who gave evidence to the Tribunal on behalf of Mr Downes purported to be qualified to give expert evidence on the applicant’s risk of recidivism.
I therefore find myself considering Mr Downes’ risk of reoffending by reference to his pattern of offending, including breaches of intervention orders and bail arrangements, and his remarks in the course of the hearing regarding his resolution to change his behaviour and not reoffend.
As to those sources of evidence, I place greatest weight on his pattern of offending. In the course of the hearing, Mr Downes described attending rehabilitation on two occasions, including an instance of intensive inpatient rehabilitation. In both cases, Mr Downes concedes that he recommenced using alcohol and methamphetamines after attending the rehabilitation course. I also note that Mr Downes committed offences involving intoxication and violence within the short term of completing rehabilitation courses. I place no favourable weight on Mr Downes’ participation in rehabilitation courses in light of this history. His participation in such courses has not changed his behaviour.
I note that Mr Downes has participated in an Aboriginal Building Connections programme, the Holyoake Group Counselling Programme at Yongah Hill Immigration Detention Centre and was selected as a peer support volunteer. I have noted Mr Downes’ favourable drug and alcohol screening while in prison and immigration detention and Mr Downes’ evidence to me that alcohol and drugs are readily available within the detention centre. While the favourable drug screen reflects positively on Mr Downes, I place greater weight on his inability to refrain from alcohol while in the community, and in particular after release from prison and having attended rehabilitation courses previously.
I accept as genuine Mr Downes’ expressed commitment to making a new start with Ms C and Child C. It is indeed useful that Mr Downes recognises and was able to speak about the adverse effect of alcohol on his criminal offending. I accept that Mr Downes genuinely intends to make the changes he wants to make – but unfortunately I question his capacity to give effect to that genuine intention in light of his demonstrated incapacity to address his offending. The link between alcohol and violent behaviour was remarked upon by the sentencing judge on 3 October 2011, and by the next sentencing judge on 13 February 2018. What is absent is evidence of a sustained change in behaviour. My primary consideration in this respect is not Mr Downes’ rehabilitation but rather the protection of the Australian community, including Ms C.
I am of the view that Mr Downes presents a very real risk to the Australian community because the nature of the harm inflicted by his offending is very great, and there is a very real chance that he will offend again in a similar way given that previous interventions have not prevented him from further violent offending.
I view the risk to the community presented by Mr Downes as an unacceptable risk.
The best interests of minor children in Australia
The second primary consideration which I need to turn my mind to is the best interests of minor children in Australia. Paragraph 13.2 of the Direction provides the following guidance:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the chid.
(2)This consideration only applies if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long period 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 the parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has three children who are all Australian residents. The children have different mothers. Child A was born in July 2006 and is now 12 years old. Child B was born in August 2010 and is now 8 years old. Child C was born in May 2016 and is now 2 years old.
Child A
In his evidence, Mr Downes confirmed that he has no contact with Child A, who lives with her mother. It was apparent from Mr Downes’ evidence that he has had little contact with Child A for most of her childhood. I will now consider the specific matters provided for at 13.2 of the Directions.
Mr Downes’ evidence about Child A is such that less weight is to be given to the best interests of Child A because there is no existing relationship and there has been a long period of absence with limited meaningful contact.
Although I noted Mr Downes to make aspirational statements about having a relationship with all his children, given the duration of the absence of any meaningful relationship, I do not consider it likely that Mr Downes will play a positive parental role for Child A in the future.
Given the absence of a relationship for most of Child A’s life, there has been little impact on Child A of Mr Downes’ conduct which has led to the automatic cancellation of his visa. I do however note that Mr Downes accepted that Child A’s mother returned to New Zealand in order to remove herself from Mr Downes.
I do not consider that there will be any tangible effect arising out of the separation from Child A given that Mr Downes and Child A do not have contact, other than to render more difficult the development of a meaningful relationship with Child A that Mr Downes aspires to. Child A has travelled to New Zealand in the past and may do so in the future if she or Mr Downes wish to re-establish contact. It is apparent that she has family from both sides in New Zealand. Likewise, if in the future Child A and Mr Downes wish to communicate, there is no impediment to them doing so by telephone or internet, although I accept Mr Downes’ contention that telephone contact is not a perfect substitute for face to face contact. I consider it a largely moot point in the case of Child A in circumstances where Mr Downes has had neither form of contact with Child A in any event.
I accept that Child A’s mother fulfils a parental role in respect of her.
Child A’s views are unknown to me. There is no evidence of abuse or the experience of emotional trauma in respect of Child A.
Child B
Mr Downes does not have contact with Child B, and confirmed in his evidence that he has never met Child B in person as Child B was born after his incarceration. In response to questions asked of him, Mr Downes indicated he did wish to make contact with Child B and thought it may be easier as he is now free to leave the Northern Territory (Child B primarily resides in South Australia), but also confirmed that he had not taken any steps towards reaching out to Child B previously, and nor had Child B initiated any contact with him.
Like the case with Child A, Mr Downes’ evidence about Child B is such that less weight is to be given to the best interests of Child B because there is no existing relationship and nor has there ever been any meaningful contact.
Although again I note that Mr Downes has made statements consistent with having a wish to have a relationship with all of his children, including Child B, these statements are aspirational and contrast with demonstrated behaviour. In circumstances where Mr Downes has not made any recent attempt to make contact with Child B, and has not met Child B in person, I consider that the extent to which Mr Downes is likely to play a positive parental role in the future is remote.
Given the absence of any meaningful relationship or contact between Mr Downes and Child B, there has been little direct impact on Child B of Mr Downes’ conduct which has led to the automatic cancellation of his visa, other than bringing about the circumstances of Mr Downes’ incarceration and the breakdown of the relationship with Child B’s mother.
I do not consider that there will be any tangible effect arising out of the separation from Child B given that Mr Downes and Child B do not have contact and have not had contact to date. I accept that Mr Downes’ absence from Australia will make the task of initiating contact, and particularly face to face contact, substantially more difficult than it would otherwise be.
I do not know who performs a parental role in respect of Child B. Mr Downes understood that Child B spends much time in South Australia in the care of relatives. While I do not know who performs a parental role in respect of Child B, it is clear that Mr Downes has not done so.
Child B’s views are unknown to me. There is no evidence of abuse or the experience of emotional trauma in respect of Child B.
Child C
Child C is nearly three, and is in the care of Ms C. Mr Downes has maintained contact with Ms C and Child C during his incarceration. Prior to his incarceration, Mr Downes lived with Ms C and Child C and performed a direct parental role.
Mr Downes’ role in providing for Ms C and Child C is complex. Two witnesses gave evidence to the Tribunal about this issue: M and MB, and I also heard directly from Ms C. All witnesses assisted the Tribunal to understand the complexities of Ms C’s and Child C’s situation.
It is artificial to consider Child C’s best interests in the absence of also considering Ms C’s circumstances.
Ms C explained in her written statement that she has been subjected to lots of violence and alcohol abuse. Her first partner was a violent alcoholic and she was beaten often. Ms C spent three and a half years in prison for the manslaughter of her mother arising out of a drunken fight. Ms C had four children from her previous relationship. These children were all taken from her care.
Ms C refers to experiencing a lot of pressure and expectations from her extended family. As I understand it, and as confirmed by B and MB, this pressure is consistent with Ms C’s traditional Aboriginal culture. It is difficult, if not impossible, for Ms C to say ‘no’ or place limits on intrusions from members of her extended family. As I understood from Ms C’s evidence, there is also an added layer of complexity over her relationship with her family arising from the death of her mother.
Ms C explained that when Mr Downes was living with her, he would enforce limits on the impositions of other members of Ms C’s family. Ms C explained in her evidence that without Mr Downes, members of her family might come to her house and take food intended for Child C, but they would not have done that if Mr Downes was present. In this way, Ms C views Mr Downes as a provider and a protector for Child C.
MB is a social worker and a former colleague of Ms C. She spoke with some familiarity about Mr Downes’ and Ms C’s family circumstances, but has not directly worked with Mr Downes. MB works for an agency that aims to stop violence in Aboriginal communities. It is through MB’s occupation that she worked with Ms C upon her release from prison.
MB explained that Ms C is working very hard to ensure that Child C is not taken from her care by government authorities, and has been facing difficulties, consistent with the evidence Ms C gave, since Mr Downes’ incarceration and detention. MB points out that most of Ms C’s extended family are homeless, and so impose upon Ms C who has government housing. MB observed things were better for Ms C and Child C when Mr Downes was around. MB believes it would not be feasible for Ms C to relocate as she is connected with country and culture.
M also gave similar evidence regarding the difficulties faced by Ms C in providing care for Child C and the positive influence Mr Downes has had in this regard.
I have mentioned above that I view this situation as complex, because while I accept the evidence of the witnesses in this regard, it cannot be said that Mr Downes’ influence on Ms C and Child C is entirely positive, because it remains the case that he was convicted of assaulting Ms C, and confirmed in his evidence that Child C was home at the time of the incident. It is also the case that previously Mr Downes had been made subject to a domestic violence restraining order to protect Ms C.
I turn to consider the factors regarding the best interests of Child C in the context of the evidence I have mentioned.
I accept that the nature and duration of the relationship between Child C and Mr Downes is substantively different to that of the other two children. I accept that Mr Downes has had a close relationship with Child C since her birth, and has maintained contact with Child C during his incarceration and detention.
The extent to which Mr Downes is likely to play a positive parental role in Child C’s future is bound up with the complexities I have mentioned above. I consider that, in the situation described to me, Mr Downes would play a very important and positive role as provider and protector for Child C, if he were to permanently address his problem with drinking and the use of illicit substances like methamphetamines, and also address his propensity towards violence, including violence against women. The alternative, if he does not do so, is that he is likely to put Child C at risk of harm, or witnessing harm to her mother. Mr Downes would not play a positive parental role in Child C’s life if he could not address the factors that have resulted in his offending previously.
On the evidence before me, I have decided above that there is a very high risk that Mr Downes will commit violent offences in the future, and Mr Downes has so far been unsuccessful in addressing his problem with alcohol. Therefore, I consider on balance that it must also follow that it is less likely that he will play a positive parental role for Child C for that reason.
I have no direct evidence about the impact on Child C of Mr Downes’ violent conduct towards Ms C other than the confirmation that it took place when she was present. As mentioned above, the impact of any similar conduct in the future is likely to be negative.
In considering the likely impact of any separation on Child C, I consider that if Child C remains in Australia with her mother and without Mr Downes, the impact will be significantly adverse. I accept the observations and explanations made by Ms C, MB and M that Mr Downes’ physical presence in the household has benefited Child C in the way described. Additionally, I do not overlook the involvement Mr Downes has had with Child C in a parental role since her birth, and accept that Child C is likely to have been distressed already at Mr Downes’ absence, even taking into account her young age.
In the conclusion of his submissions to the Tribunal, Mr Downes explained that he wished to return to New Zealand in any event with Ms C and Child C. That scenario was confirmed to be his ultimate objective, or best case scenario. He wished to have his visa reinstated so he could assist Ms C with New Zealand immigration paperwork, and explained his fear that he would be unable to adequately convince Ms C to emigrate to New Zealand if he was located offshore and unable to effectively influence her. Mr Downes’ evidence in this regard arose late in the proceedings, but Mr Downes told me it had been discussed with Ms C and some preliminary enquiries had begun with the New Zealand authorities.
There are obvious barriers to Mr Downes’ preferred ultimate outcome. First, it was mentioned in evidence that Ms C as an Aboriginal woman is closely connected to country. I accept this. It is possible that Ms C may not wish to relocate to New Zealand or may not follow through with current steps that I understand have already been commenced.
Secondly, Ms C will be of character concern to the New Zealand authorities herself in light of her conviction for manslaughter and may be denied entry. I accept it is unlikely that Child C will travel to New Zealand without Ms C in the foreseeable future.
The Minister’s counsel provided assistance to the Tribunal by explaining in general terms the provisions under New Zealand law which provide for a largely unfettered discretionary capacity for character waiver. On balance, I have decided that I cannot assume that such a waiver will be granted, and in considering the best interests of Child C, I have assumed instead that Ms C will not join Mr Downes in New Zealand. In other words, I have considered a worse case scenario in this regard. To avoid doubt, this is not a prediction per se, but rather what I consider to be the correct approach to my considerations under the Direction in circumstances where there are real and substantial barriers to Ms C and Child C relocating to New Zealand as Mr Downes belatedly explained was his preferred outcome overall. I proceed therefore on the basis that if the visa is not reinstated, Mr Downes and Child C will remain physically separated for the foreseeable future, and Child C will remain in Ms Cs care in the complex situation already described.
I take into account the capacity of Mr Downes and Child C to maintain a form of contact by telephone and internet. There are no barriers to this taking place other than Child C’s young age. I also accept the contention from Mr Downes that such contact is a poor substitute for a direct parental role in Child C’s life.
I take into account that Ms C also fulfils a parental role for Child C.
Child C’s views are unknown to me but I note again she is of a very young age.
There is no evidence that Mr Downes has abused Child C in any way, nor is there any evidence that Child C has experienced trauma arising from Mr Downes’ conduct.
I proceed on the basis that the bests interests of all three children is served by the visa being reinstated, because in each case the aspiration Mr Downes has expressed to have a relationship with all three children is best served by Mr Downes remaining in Australia.
However, in the case of Child A and Child B, I place very little weight on this factor because of the absence of any meaningful relationship Mr Downes has had with these children, and the remote prospect that Mr Downes will play a positive parental role for these children in the future.
The situation in relation to Child C is quite different, and complex. I consider it is in Child C’s best interest that Mr Downes returns to his parental role in respect of her, and the prospects of this taking place are best achieved through the revocation of the visa cancellation. I place significant weight on this consideration in respect of Child C, but as explained above it is tempered by the evidence before me as to Mr Downes’ violent assault on Ms C and my view that there is a high risk that Mr Downes will repeat conduct of that nature in the future.
Nonetheless, I proceed on the basis that Child C’s best interests are a primary consideration, and I attach significant weight to my conclusion that Child C’s best interests are served, on balance, by Mr Downes remaining in Australia.
Expectations of the Australian community
Paragraph 13.3 of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concern or offences is such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
I note, as explained in Afu and Minister for Home Affairs [2018] FCA 1311, the concept of community expectations is not a matter to be measured as though it is a provable fact, but rather an assessment of community values made on behalf of the community by the executive government. I am obliged to consider this factor in line with the norms expressed in the Direction.
In Mr Downes’ case, I have concluded that the nature of the harm inflicted by his offending is very great, and there is a very real chance that he will offend again in a similar way. As such I have concluded that the risk to the community presented by Mr Downes is an unacceptable risk.
I have also characterised Mr Downes’ previous offending as very serious offending on the basis of its characteristics of violence, and a crime of a violent nature against women. His offending is of a nature, in my view, that the community would expect that Mr Downes should not hold a visa. I have formed these views applying the norms expressed within the Direction.
Other considerations: strength, nature and duration of ties
When considering the strength, nature and duration of ties to Australia, I must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).[8]
[8] D79, [14.2]
I take into account that Mr Downes first arrived in Australia as an adult in 2005. I accept that Mr Downes has lived in Australia since that time, and this is a substantial period. However, I also note that Mr Downes was first convicted of offences (albeit comparatively minor offences having regard to his subsequent offending) in 2008. Mr Downes has also spent a substantial proportion of his time in Australia incarcerated or on parole.
I have limited evidence of any positive contribution to the Australian community by Mr Downes. Mr Downes referred to being employed in a lens factory during his early time in Adelaide, and having intermittent employment whilst living in the Northern Territory. I have also had regard to the statement (located in Exhibit R1) of LP concerning Mr Downes’ employment as a maintenance person and gardener at an Aged Care facility in an identified Aboriginal community in central Australia for a period in 2017 in which she describes Mr Downes as ‘a reliable and good worker’.
However, in the context of Mr Downes’ overall criminal record, I am not satisfied that favourable weight should be given to Mr Downes arising out of the duration of his residence in Australia.
As to the strength, nature and duration of Mr Downes’ family or social links with Australian citizens and permanent residents, I have recounted above the nature of Mr Downes’ relationship with Ms C and her extended family. I accept that Mr Downes and Ms C have had and continue to have a genuine and committed relationship with each other. I accept that if Mr Downes is not permitted to remain in Australia, this will cause significant distress and hardship to Ms C.
I have taken into account carefully Mr Downes’ evidence about his relationship with Ms C’s extended family, noting he has a skin name subject to confirmation at ceremony. He is known by that skin name amongst Ms C’s family. Mr Downes was not categorical either way when asked if he identified or had been accepted as an Aboriginal person, but I have considered Mr Downes connections to Ms C’s family as it has been recounted to me by Mr Downes. I observed also that in responding to questions about Child B’s circumstances, it appeared that Mr Downes also had some connections with his former partner’s family. I note also that Mr Downes has been employed in central Australia, including at an aged care facility in an Aboriginal community. I accept that Mr Downes has substantial connections with indigenous Australia in these ways.
I consider that the nature of Mr Downes’ connections with Australia, primarily through his connection to Australian citizens and parts of the indigenous communities in central Australia to be significant, notwithstanding that less weight is to be given to this factor where Mr Downes began offending soon after arriving in Australia, and there is only limited evidence demonstrating periods of positive contribution to the community. I consider this factor weighs in favour of revoking the visa cancellation.
Other considerations: impact on victims
There has been no evidence provided to the Tribunal addressing the impact of a decision not to revoke the visa cancellation on the victim of Mr Downes’ most serious violent offence. I can therefore place no weight on this consideration in that respect.
As already mentioned, the impact of a decision not to revoke the visa cancellation on Ms C, who is also a victim of Mr Downes’ offending, is mixed. Nevertheless, it is clear that Ms C wishes to have the visa cancellation revoked. I have taken into account Ms C’s circumstances in this regard as explained elsewhere in these reasons.
Other considerations: extent of impediments if removed
Mr Downes confirmed that he has family support in New Zealand and does not envisage any difficulties finding work should he return there.
Having regard to Mr Downes’ age and health, the absence of any language or cultural barriers and the social and economic support that is available to Mr Downes in New Zealand, I consider there is no impediment facing Mr Downes if removed, and this factor weighs against revoking the visa cancellation.
Other considerations: International non-refoulement obligations and Impact on Australian businesses
Mr Downes raised no concerns regarding Australia’s non-refoulement obligations in response to my explanation of this factor to him. Similarly, no evidence has been provided putting Australia’s business interests in issue in this review.
Assessment
I have taken into account Mr Downes’ oral submissions at the hearing, the matters set out in his written outline, and his reply to the Minister’s contentions.
The written submissions show a degree of insight into the causes of his offending, and set out the programmes Mr Downes has participated in to address his offending. I have noted that Mr Downes has asked that I place weight on the interests of his Australian citizen partner and daughter, in addition to his other children and relatives who live in Australia. Mr Downes contends that he now deserves a chance to prove himself, and Ms C has forgiven him.
In his oral submissions to the Tribunal, Mr Downes again demonstrated his recognition of the seriousness with which domestic violence is viewed by the community. Mr Downes submitted that the Australian community would give him a second chance if he recognised the severity of his offending, in circumstances where he had been absent minded about the previous warning given to him.
Mr Downes submitted that it is in the best interests of Child C to allow him to stay, and it would be better to allow him the chance to contact his children in person rather than over the phone. Mr Downes emphasised the financial support he had given to Ms C in addition to the support he had given her in dealing with difficulties with her family, and believed his presence provided hope for Ms C and Child C to escape these difficulties.
Mr Downes contended he had strong spiritual ties to Australia, which he may also use as a powerful tool if he were to return to New Zealand. Mr Downes asked that he be given a second chance and emphasised his strong belief that he would stop his offending behaviour and implement strategies to become a better person.
The Minister’s submissions on the application for the Direction were straightforward. The Minister contends that the first two primary considerations outweigh all other considerations. The Minister contends that Mr Downes poses an unacceptable risk to the community, having demonstrated no capacity to address the cycle of stress, drinking, violence and remorse, and a history of disrespect for institutions and Australia’s law enforcement framework. The Minister contends that the protection of the community should be viewed as paramount in this matter, and outweigh the best interests of Mr Downes’ children.
After much reflection, I have decided I agree with the Minister’s contentions. I have however hesitated on account of my conclusion that the best interests of Child C is served by allowing Mr Downes to remain. Ultimately, I am persuaded that the other two primary considerations outweigh Child C’s best interests in all the circumstances. In particular, where Mr Downes in my view represents an unacceptable risk of harm to the community on account of the nature of his offending and the real chance that it will again be repeated, I consider the Australian community would expect that Mr Downes not be permitted to remain in Australia. This is particularly so in my view where Mr Downes has previously been warned about visa cancellation arising out of violent offending, yet has then committed a violent offence against a woman.
I am to decide if there is any reason why the decision to cancel Mr Downes’ visa should be revoked, with my consideration of this issue exercised in accordance with the Direction.
For the reasons expressed, I do not find that there is another reason to revoke the visa cancellation, and I affirm the decision under review.
I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy
...................[sgnd]............................
Associate
Dated: 27 March 2019
Date of hearing: 18-19 March 2019 Representation for the Applicant: Self-represented Representation for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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