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

[2020] AATA 239

ETWK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 239 (20 February 2020)

Division:GENERAL DIVISION

File Number(s):      2016/1813

Re:ETWK

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:20 February 2020

Place:Sydney

The Tribunal decides that:

1. the decision under review, being the decision of a delegate of the Respondent dated 5 April 2016 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958, is set aside; and

2.    in substitution, the cancellation of the Applicant’s visa is revoked.

...............................[sgd]...................................

Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – cancellation of visa on character grounds under s 501(3A) – crimes including theft, damage to property and assault – whether discretion to revoke mandatory cancellation of visa should be exercised – considerations under Direction No. 79 – protection and expectations of the Australian community – where offences were due to drugs and alcohol – where applicant has shown he has reflected and rehabilitated – where risk of reoffending is moderate – best interests of minor children in Australia – where applicant has close connection to children – where children impacted if mother leaves with applicant – whether there are other considerations – where applicant has strong ties to Australia – where applicant will face impediments if deported – where family impacted due to deportation – decision set aside and substituted

CASES

CVN17 v Minister for Immigration and Border Protection [2019] FCA 13

Minister for Home Affairs v Omar [2019] FCAFC 188

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

20 February 2020

1. The applicant arrived in Australia in 2001 with his mother and his two elder brothers. They arrived here after a judge in New Zealand directed the issue of passports to the three sons without the consent of their father, the mother’s former husband. The applicant is the youngest of the three sons of the mother and her then husband.

2. The reason for the issue of passports without the consent of their father was that the father was a danger not only to the applicant’s mother but also his sons. He had put them in life-threatening situations and had told the applicant’s mother he would kill them all. The judge in New Zealand took the view that travel to Australia for the applicant, his mother and his brothers were in their best interests.

3. The applicant has a short but serious criminal history stemming from offences which he committed in his late teens. His brothers have not had any trouble with the law and are in good standing in the community in full employment.

4. One of the applicant’s brothers is a married with two small children, who have a very close relationship with the applicant’s mother (their grandmother) and with their uncles, including the applicant.

5. Some sixteen years ago, the applicant’s mother became the partner of an older man, who became the surrogate father of the applicant and his two brothers, while maintaining close links with his own two children and with his own grandchildren. The mother’s partner gave evidence before me.

6. The applicant’s mother and her partner are the foster parents of two young children aged 10 and 12, and have had care of them for two years. The Victorian Department of Health and Human Services recently approved them as foster parents of the two children for the next two years. The children had a traumatic childhood before they came to the home of the applicant’s mother and her partner. They changed schools on many occasions and were very obese when they came there. Today, they have shed a lot of weight after the applicant’s mother and her partner encouraged healthy eating habits and they have stability in their school and their school results have improved.

7. In a confidential session, I was told by the applicant’s mother some of the details of the behaviour of her former husband, which to this day are not fully known to the applicant or to his brothers. Those matters are dealt with in confidential reasons which I have published only to the parties, at the request of the applicant’s counsel. They show a very shocking state of affairs, and why the applicant’s mother feared and still fears her former husband.

8. Despite those facts, the applicant’s mother said she would, if the applicant is deported to New Zealand, go with him to make sure that he is safe. That would divide an extremely close family, with possibly devastating effects on the grandchildren and on the foster children. It would cause great grief to all family members for her to go, as she feels she must.

9. The stakes are therefore very high in these proceedings.

   DIRECTION NO. 79

10. The case must be examined in the context of Direction No. 79 (‘the Direction’), an instrument binding decision makers, including this Tribunal, which states a number of mandatory considerations which a decision maker must take into account. The Direction cannot, and does not, determine what weight will be given to those considerations. 

11. The considerations are not exhaustive and to those of the Direction, there must be added any other relevant consideration. Those considerations include, in a case such as this relating to a request to revoke the mandatory cancellation of a visa, relevant representations made on behalf of the applicant in support of the application for revocation.

12. This is the second time this matter has been heard in this Tribunal. Different representatives were involved in the hearing before me than those who appeared on the earlier occasion. Before me in Melbourne last month, many matters were explained that was not known to the member of this Tribunal who heard the proceedings earlier, and which were also unknown to the delegate who made the reviewable decision. The evidence and submissions made before me, if placed before the Minister, viewed as a whole, would be described as mandatory considerations to be taken into account in considering revocation: see Minister for Home Affairs v Omar [2019] FCAFC 188 at [34]. The same is true before the Tribunal either for that reason, or because of the duty to take into account all of the facts and circumstances proved in evidence before the Tribunal. In any event, there is, speaking generally, a close connection between the considerations in the Direction and the matters covered in the evidence and submissions before me.

13. I also have the benefit of the Federal Court decision given on appeal from the earlier decision of this Tribunal: CVN17 v Minister for Immigration and Border Protection [2019] FCA 13. Both parties in presenting their cases before me have borne in mind the decision in leading evidence either in chief or in cross-examination.

14. To make clear what I have drawn from the provisions of the Direction, I will take its provisions first. Its object stated in clause 6.1(4) is to provide guidance to decision makers who, amongst other things consider whether to revoke the mandatory cancellation of a visa.

15. The applicant is a person whose visa was the subject of mandatory cancellation, because he was, at the time, dealt with for an offence and having imposed upon him a sentence to imprisonment of three years. His visa was cancelled while he was serving that term of imprisonment in gaol in Victoria.

16. After stating certain general guidance in clause 6.2 and certain principles in clause 6.3 of the Direction, the Direction enunciates in clause 8 some matters affecting the exercise of discretion. Clause 13 of the Direction states primary considerations to be taken into account, which will generally prevail over other considerations, although they may tend to different directions. The other considerations are at large but will include, to the extent to which they are relevant, matters mentioned in clause 14.

    Protection of the Australian Community

17. The first-mentioned primary consideration is the protection of the Australian community, which includes the nature and seriousness of the conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Those matters are specified in clauses 13.1, 13.1.1 and 13.1.2 of the Direction respectively. The offending and its context, including the sentencing remarks should first be discussed.

18. The applicant came to Australia when he was 6, and he is now about to turn 26. His most serious offending took place when he was 19, and led him to spend three years in the Victorian prison system. Because he was taken into immigration detention after his release from prison, he has now not been at liberty for more than six years.

19. The relevant offending took place in Geelong when he was affected by marijuana, and much alcohol. The offence was a spur of the moment affair, and his temper was short. He told me that the incident followed abuse of his then girlfriend by the victim, but that fact does not diminish the criminality of his conduct. He punched the victim with a knife. The knife caused an injury which required surgery the following day and from which the victim recovered. However, if the knife attack had been placed differently, the attack might have caused more serious injury. The applicant then had difficulty managing his anger. He had, over his teenage years in the Gold Coast and at Geelong, progressively became addicted to drugs and would engage in binge drinking.

20. He declined to spend three hours with a psychologist charged with making a report to the County Court of Victoria. As a result, the judge had little assistance from the psychologist when sentencing him. Cross-examined about this matter, the applicant said that he had acted stupidly, and knew that the psychologist’s report could have been useful to him at his sentencing hearing.

21. He said his time in gaol, followed by a time in detention, has enabled him to reflect carefully on the thoughtless way in which he had behaved in the serious incident and in the lead-up to his sentencing.

22. The sentencing judge, Campton J, fixed a non-parole period of 15 months, but the applicant was not given parole, apparently because the applicant faced the possibility of deportation.

23. The other offending of the applicant as an adult was as follows:

    (a)On 3 September 2012, he was convicted by the Beenleigh District Court in Queensland of offences of stealing and robbery, for which he was given sentences of 7 days and 6 months, each sentence being suspended for one year;

    (b)On 7 April 2015, he was convicted by the Geelong Magistrates Court in Victoria of intentionally damaging property, theft from a shop, two charges of unlawful assault and of behaving in a riotous manner in a public place. For those offences he was fined a total of $800.

    (c)The last offences were committed while he was on bail, waiting to be dealt with by the County Court of Victoria for his most serious offence.

24. The applicant, by his counsel, acknowledged the correctness of several incident reports dated in early 2014 recording arguments, yelling, and shouting between him and his then girlfriend. The incidents led to no police action being taken against either party and did not involve violence.

25. Having regard to the rulings of the Federal Court on appeal from the earlier Tribunal decision, material was not placed before me about any misconduct of the applicant as a child, and I do not have regard to any such matter: see CVN17 v Minister for Immigration and Border Protection [2019] FCA 13 at [101].

26. The applicant had been employed in several occupations since he left school in the Gold Coast just before he turned 16. He had been an apprentice chef, and worked in a variety of manual occupations, prior to his incarceration, including working as a landscaper, a roof tiler, and a bricklayer. He was about to start working as a scaffolder with one of his brothers when he was incarcerated.

27. The applicant embarked on his gaol sentence at the age of 19 years. His mother told me that she was anxious that he be sent to gaol rather than to juvenile detention. She hoped that he would benefit from the courses available to him in prison and grow up. Both those hopes seem to have been realised.

28. In gaol in Victoria, the applicant underwent the Exploring Change Program (a course which is done before entering into other courses) and the Moderate Intensity Violence Intervention Program (an anger management course). He found them beneficial to him. His two elder brothers, who are very close to the applicant, have the same opinion, as does his mother. He then did a drug and alcohol course in late 2015. While in detention, he has not been offered any courses, except when he was at Yongah Hill in Western Australia, where he undertook a drinking interdiction program. Learning that he faced deportation and losing the earlier proceedings in the Tribunal caused him to be very depressed and he has been taking anti-depressants now for some years.

29. The applicant was elected to represent the Yongah Hill Immigration Detention Centre at DCC meetings. DCC meetings are attended by representatives of detention centres and immigration and detention centre authorities to discuss issues relating to the detention centres. He has also been a DCC representative for the MITA detention centre in Victoria. The confidence in him, which those elections suggest, is consistent with his improved character, as he has matured.

30. I had the opportunity to sum up the applicant in the witness box. I also heard evidence from the persons who know him best, his mother, his brothers and his mother’s partner. They all think that not only has he benefited from the courses he took, especially the violence course, but that he has matured a great deal. They have all kept close contact with him in gaol, in detention on those occasions when he has been in Victoria and by telephone and skype when he was in Western Australia. The brothers told me that they have noticed a complete change in him. He seemed to me to have good insight into what was wrong with him at the time of his offending. He now manages his anger, using counting techniques taught to him in the Moderate Intensity Violence Intervention Program. From time to time he has been challenged by other detainees who are frustrated with detention and has not reacted.

31. He said that his mind has cleared as he has ceased regular use of illegal drugs and his heath improved with regular exercise. He expressed remorse for his offending, referring not only to the direct victim, but to the police and ambulance drivers who were the first responders. He told me that both in the prison and in detention he has seen the consequences of recidivism amongst persons whom he knew, and is conscious of that danger both for him and the effect reoffending would have on his family.

32. Drugs prescribed for other prisoners in the gaol (which the applicant described as “bupe”) were on several occasions taken by the applicant when in gaol. That use ceased altogether when he entered detention in 2016 and he has been entirely drug free since that time.

33. He attributes much of his earlier misconduct and offending to the fact that he was taking drugs in his teenage years. He said that he did not realise at the time how much damage the drugs were doing to him.

34. His mother, both his brothers and his mother’s partner have a strong desire to support him if he is released into the community. His mother explained that she knew less about the effects of drug-taking at the time of his offending than she now knows. The mother’s partner said that he will be watching carefully for any warning signs if they occur.

35. I also heard evidence from a psychologist with experience in reporting for various courts and who interviewed the applicant recently. She believes that his prospects of avoiding reoffending are pretty good, if he follows a regime that she recommends. She wants him to be seen by a general practitioner, who will prepare a mental health plan, then to be regularly seen by counsellors in anger management, and drug and alcohol dependence, so as to reinforce for him the learning which he has already undergone in prison. She says he has good insight into the causes of his offending. At the present time, she regards the risks which he poses of reoffending as moderate, despite the seriousness of his earlier behaviour.

36. The applicant’s mother has already arranged a local general practitioner to prepare a mental health plan for him and to engage local counsellors with experience in anger management and in drug and alcohol prevention. The applicant approves of all those steps and wishes to participate in them.

37. As a matter of precaution, the applicant’s mother also intends that the applicant be reviewed by a psychiatrist. He is currently suffering from anxiety and depression, for which he takes medication.

38. A family friend has offered the applicant employment as a scaffolder. That man, who lives five minutes away from the mother’s address, would pick him up in the mornings on the way to work. A brother, who is also a scaffolder, says that he believes he could also help him obtain such a job working alongside him.

39. The family will offer him continuing support, and they desire his return as much as he desires constant contact with them. It is intended that he would live with his mother and her partner and the two foster children, for a year or more after his release.

40. His past offending carries an obvious risk that he may offend again, as would be the case with any offender, especially a person who had behaved violently. Speaking generally, I accept the description proposed by the psychologist that described the risk as moderate. However, it seems to me that there is good reason to hope that the applicant will remain drug-free and will remain able to control any anger he experiences, especially if he refrains from heavy use of alcohol and remains drug-free. His strong desire to no longer fail his family was evident in the witness box, and the support he will have from his family and from professionals if he is released from detention will be substantial. He is fully aware that further offending is likely to result in his deportation, with all that deportation entails. The psychologist who interviewed him told me that there is an ample cohort of counsellors available in Geelong. His recent behaviour in detention occasioned no criticism by the respondent. The respondent did not suggest any misbehaviour in cross-examination of the applicant.

41. The offending was serious but took place in circumstances which will in all likelihood not occur again.

    The best interests of minor children in Australia

42. It is clearly in the best interests of the applicant’s nephew and niece and his foster siblings that the applicant not be deported, for two main reasons.

43. First, the applicant’s mother has decided that if the applicant is deported she will probably go with him, despite all the difficulties that will cause her family and extended family. She feels that she could never forgive herself if something happens to him if he is in New Zealand. She has followed news about the outcomes for former Australian residents who are sent back to New Zealand, and believes that some of them find themselves on the streets, or returning to a life of crime, and some of them do not survive, without the support of their families who remain in Australia.

44. She knows very well that her departure to New Zealand with her son would cause a huge impact on her foster children, who would not be allowed to leave the country, and on her boys, grandchildren, her partner and his grandchildren. The position with the foster children if she left is unclear. If the department allows her partner to care for the foster children alone that would at least give them stability. She says she can’t have her son being on the streets and struggling any more. She said “he has done it hard for six years and I want him back.”

1. The foster children are 12 and 10. When the foster arrangements started two years ago, they were very obese. They had been traumatised by their earlier childhood. The elder foster child had been through 17 schools and the younger one had been through 11 schools, as their parents moved around. Their school grades suffered. They are now in a stable environment with the applicant’s mother and her partner, and have school stability as well. The applicant’s mother and her partner have encouraged healthy eating. The younger child has caught up to where he should be in school work, and the older child is still a bit behind. They say they want to stay with their foster parents until they are adults. They were described as beautiful, polite children. The applicant’s mother said that she would be mortified if she had to leave them, and that the effect on them would be huge. The two foster children now form an integral part of the applicant’s family. They meet the applicant’s nephew and niece, aged 19 months and 3 years, his brothers, and the partner’s five grandchildren, aged 2, 8, 13, 8 and 4, very regularly. They have contact with the applicant as described below.

2. Two foster children with a traumatic past and a haven at present should obviously not be put under stress by separation from their present circumstances, or from their foster mother, who plays an integral and essential role in their well-being. The witnesses told me that the applicant’s mother is the centre of the family.

3. The applicant’s partner is in a greater dilemma than the mother in deciding what he should do. He is unclear whether the Victorian department would permit him to be their sole carer. He is 65, some fifteen years older than the applicant’s mother. He would not willingly leave any part of his family an extended family behind. He may choose to go with the applicant and his mother to New Zealand at least initially, but if so, feels that he would soon return.

4. The consequence of the mother’s decision would cause great devastation to her family, including her foster children, her grandchildren, and her partner’s grandchildren as apparent above. While I am to regard the factors in 13.2(4) when considering the best interests of the children, I am not limited to them. The overarching consideration is what is in the bests interest of the children. Although indirect, there exists a strong connection between the applicant being deported, the mother leaving with the applicant and the disruption it will cause the children.

5. In any event, the mother’s commitment to leave with the applicant would also be a strong other consideration in favouring revocation of the cancellation.

6. Secondly, the foster siblings of the applicant know the applicant well. He has known them since they were babies, because the mother of the foster children once had a relationship with one of the applicant’s brothers. The mother of the foster-children has from time to time stayed with the applicant’s family. When the applicant’s mother and her partner visit the applicant personally, they are generally accompanied by the foster children and also by the applicant’s nephew and niece, and interact with him. The nephew and niece cannot understand why he is unable to leave with them.

7. If the foster siblings lost personal contact with the applicant altogether, that would make a real change to their settled habits. If he is released, they will have close contact with him as the foster brother, closest to their own age, likely for a year at least, and in this close family, that would be very beneficial.

8. The applicant’s mother has recently been diagnosed with bowel cancer and is to undergo exploratory surgery at this time. If her life is shortened, the applicant’s presence in the house could be all the more important.

9. The applicant’s niece and nephew, particularly the girl aged 3, have developed a close relationship with the applicant through their visits to him in detention when he has been in Melbourne and by telephone and skype contact. When they visit they want him to come home with them. They interact a lot with the applicant. Their father looks forward to time they will spend with the applicant if he is released from detention. If personal contact becomes impossible because of deportation, their contact with a close relative would be much diminished.  Their father told me he would be devastated if the applicant was deported, and the nephew and niece would sense that fact.

10. It is accordingly in the best interests of the nephew and niece that the applicant not be deported. If their grandmother were also lost to them they would be very disturbed. Great love exists between them and their grandmother. Such a separation would bring them great sadness.

11. There is in the case of some of the grandchildren of the mother’s partner no contact to date with the applicant, but regular and frequent contact between the children of the extended family, including the foster children. There is also regular and loving contact between the partner’s grandchildren and the applicant’s mother. The partner’s grandchildren would have regular contact with the applicant if he was released from detention and such contact would be beneficial for all of them. If their grandfather were absent for some time to be with the applicant’s mother in New Zealand as he said he would, depending on its duration, they would be adversely affected.

12. In short, it is in the best interests of all of the involved children for the applicant to be released into the community. The importance of his release is greatest in the case of the foster children, but quiet significant in the case of his nephew and niece, and still significant in the case of the partner’s grandchildren, especially if they find contact cut off from their own grandfather, and the applicant’s mother.

    The expectations of the Australian community

13. This consideration is now understood to refer to expectations stated in the Direction rather than expectations gauged by the Tribunal and will generally favour affirmation of the reviewable decision. I have regard to the Government’s views as expressed in clause 13.3 of the Direction.

    OTHER CONSIDERATIONS

14. Of the “other considerations” expressly mentioned in the Direction it is the strength, nature and duration of ties, and the extent of impediments if removed which are relevant.

15. The other considerations are not stated exhaustively and are to be supplemented by any other relevant consideration. One other relevant consideration is that the whole family would be adversely affected by the deportation of the applicant. If, as is probable, his mother elects to go with the applicant, the effect on the applicant’s other family members, including especially the foster children and the mother’s grandchildren, will be even more adverse. The foster children rely heavily on her support and love and the indirect effect upon them of his deportation represents a cogent humanitarian reason not to deport the applicant.

    The strength nature and duration of ties

16. The applicant has lived in Australia since he was six, for the last twenty years. He has very strong ties with all his family, including and especially with his mother, his brothers, and his mother’s partner, in addition to the ties with the children mentioned above. His brothers both told me that they would be devastated if he were deported. They have remained in daily contact with him even while he was in detention in Western Australia. They told me that they have great faith in his prospects of rehabilitation, have found him to be much more mature than he was at the time of his offending, and they have faith in his prospects of rehabilitation. They expect him to be rehabilitated and will offer whatever support he needs to which they can provide. This family has a large number of children all of whom may, to a greater or lesser extent, depend on the adult members of the family including the applicant, if he is released from detention.

    Extent of impediments if removed

17. The applicant’s mother indicated that none of the family members in New Zealand would likely assist his assimilation if he were deported. She herself, assuming good health, could no doubt assist him in New Zealand, albeit with a consequence of personal risk to herself from her former husband, who has proved himself to be a very violent man. There is also an uncertain prospect of personal income and with great anguish about those she would leave behind, especially her foster children and grandchildren whom she loves dearly, and possibly her partner of sixteen years. The effect of the evidence in the case is that the applicant is likely to benefit from the support his family could offer in Australia, which may not be available to him, or not available to the same extent in New Zealand.

    EXERCISING THE DISCRETION

18. It seems to me that the considerations favouring affirmation of the decision, that is, the expectations of the Australian community, and, the risk that he might reoffend, which is not high, and which is, as explained above, no worse than moderate, are heavily outweighed by the damage that would be done to the infant children, and to the very undesirable division of a large and very close family which would be the likely result of his deportation.

19. In my opinion the correct and preferable exercise of discretion is to revoke the cancellation of the applicant’s visa.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 20 February 2020

Date(s) of hearing:	22, 23 and 24 January 2020
Counsel for the Applicant:	Mr T Farhall
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Solicitors for the Respondent:	Clayton Utz