FGBP and Minister for Home Affairs (Migration)
[2018] AATA 3971
•23 October 2018
FGBP and Minister for Home Affairs (Migration) [2018] AATA 3971 (23 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4445
Re:FGBP
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:23 October 2018
Place:Brisbane
The decision under review is affirmed.
......................[sgd]..................................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Refugee visa – where visa was cancelled under s 501(3A) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)CASES
Afu v Minister for Home Affairs
[2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection[2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, (2017) 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection[2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs[2018] FCA 919
Marzano v Minister for Immigration & Border Protection[2017] FCAFC 66, (2017) 250 FCR 548
Minister for Immigration and Border Protection v BHA17[2018] FCAFC 68
Minister for Home Affairs v Buadromo[2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs[2003] AATA 1336
YNQY v Minister for Immigration and Border Protection[2017] FCA 1466
REASONS FOR DECISION
Senior Member Theodore Tavoularis
23 October 2018
BACKGROUND
FGBP (“the Applicant”) arrived in Australia in 2007 on a refugee (class XB, subclass 200) visa.[1] In December 2016, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.[2] The Applicant subsequently applied for this cancellation to be revoked. In August 2018, a delegate of the Minister for Home Affairs (“the Respondent”) refused to revoke the cancellation of the Applicant’s visa.[3] The Applicant has applied to the Tribunal to reconsider this decision.
[1] Exhibit 3, G-Documents, G25, p 192.
[2] Ibid, G3, p 5.
[3] Ibid, G9, pp 100-112.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[5]
[4] [2018] FCAFC 151.
[5] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[6] I will address each of these grounds in turn.
[6] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, concedes that he does not pass the character test as he has a substantial criminal record. This concession was appropriately-made: in May 2017, the Applicant as sentenced to two and a half years’ imprisonment.[7] Although this sentence was suspended after the Applicant served five months’ imprisonment, it has long been established that what matters is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[8]
[7] Exhibit 3, G-Documents, G10, p 113.
[8] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(1)(a) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. [9]
[9] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[10]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[11]
[10] [2018] FCA 594.
[11] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
It is necessary to summarise the Applicant’s criminal history. The National Police Certificate[12] discloses the following offences (and resulting sentencing outcomes).
[12] Exhibit 3, G-Documents, G10, pp 113-115.
Date
Offence
Court Result
June 2011
Contravention of a direction or requirement of lawful authority
[Police Powers and Responsibilities Act 2000 (QLD)]
Traffic matters
On all charges, no conviction recorded, recognisance in the sum of $200 operative for a good behaviour period of three months.
January 2012
2 x regulatory offences: unauthorised dealing with shop goods
Offence pursuant to the Drugs Misuse Act 1986 (Qld):
-section 9: possession of dangerous drugs
On both charges, no conviction recorded, fined the sum of $300. Restitution ordered in the sum of $66.98.
No conviction recorded, entered into a recognisance in the sum of $150 operative for a good behaviour period of four months; placed on the drug diversion program.
December 2012
Breach of section 33(1) of the Bail Act 1980 (Qld) for failure to appear in accordance with undertaking
No conviction recorded, not further punished.
January 2013
Offences pursuant to the Drugs Misuse Act 1986 (Qld)
-section 9: possession of dangerous drugs;
-section 10(2)(a): possession of utensils or pipes, etc. for use;
-section 10(a) (1)(b): possession of property suspected of having been used in connection with the commission of a drug offence
On all charges, no conviction recorded, fined $350, with time to pay: 28 days.
May 2014
Breach of section 323(1) of the Qld Criminal Code 1899:
Unlawful wounding
Conviction recorded, sentenced to imprisonment for a term of 18 months with a parole release date set.
March 2016
Breach of section 335 of the Qld Criminal Code 1899:
Common assault
Conviction recorded, fined the sum of $450, in default of payment of fine, 18 days imprisonment.
September 2016
Breach of section 33(1) of the Bail Act 1980 (Qld) for failure to appear in accordance with undertaking
Conviction recorded, fined the sum of $400, with one month to pay the fine.
November 2016
Breach of the Domestic and Family Violence Protection Act 2012 (Qld):
-section 177(2)(b): contravention of domestic violence order
Breach of sections 29(1) and 47(9) of the Bail Act 1980 (Qld) for breach of bail granted condition consequent upon commission of further domestic violence offence
Breach of the Domestic and Family Violence Protection Act 2012 (Qld):
-section 177(2)(b): contravention of domestic violence order
Breach of Qld Criminal Code 1899:
-sections 469(1) and 47(9): wilful damage arising from domestic violence offence
On all charges, a conviction is recorded; sentenced to a term of imprisonment of three months to be served concurrently
With a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence – 56 days
On all charges, a conviction is recorded, sentenced to a term of imprisonment of one month to be served concurrently.
With a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence – 56 days
November 2016
Breach of Qld Criminal Code 1899:
-sections 339(1) and 47(9) – assaults occasioning bodily harm arising from domestic violence
Breach of the Domestic and Family Violence Protection Act 2012 (Qld):
-section 177(2)(b): contravention of domestic violence order
On all charges, a conviction is recorded; sentenced to a term of imprisonment of nine months to be served concurrently
With a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence – 56 days
February 2017
Breach of the Domestic and Family Violence Protection Act 2012 (Qld):
-section 177(2)(b): contravention of domestic violence order
Failed to appear; outstanding warrants for arrest issued.
May 2017
Breach of section 323(1) of the Qld Criminal Code 1899:
Unlawful wounding
Conviction recorded, sentenced to a term of imprisonment of two years and six months, to be suspended for an operative period of three years after serving five months in actual custody.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Respondent contended that the Applicant’s offending conduct is of a very serious nature.[13] I am inclined to agree. The Applicant’s history of criminal conduct is one of escalating severity and demonstrates an absence of insight into his offending together with a lack of respect for the authority of law enforcement.
[13] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), p 7, [26].
The Applicant has not sought to deny the seriousness of his offending. At the hearing, it was contended on his behalf that much, if not all, of his offending has derived from his issues with substance abuse. I note that these issues are unresolved. Putting that to one side, for reasons that follow, such a contention can only go so far. It certainly cannot justify the revocation of the Applicant’s visa.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
c) The sentence imposed by the courts for a crime or crimes;
d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
…
g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status…
Sub-paragraph (a) of paragraph 13.1.1 of the Direction provides that crimes of violence (which must surely include acts of domestic violence) are to be viewed very seriously. There is an undeniable element of violence in the Applicant’s history of offending.
In May 2017, the Brisbane District Court sentenced the Applicant for one count of unlawful wounding. In her sentencing remarks, Judge Richards apprehended the Applicant’s predisposition towards violent offending. Her Honour’s introductory remarks are revealing:
HER HONOUR: … you have pleaded guilty to a charge of unlawful wounding. Your criminal history shows that you have previous relevant convictions for violence, in particular, a wounding in 2012, for which you were sentenced for [sic] in 2014, where you received 18 months’ imprisonment with immediate parole, and offending since for assault occasioning bodily harm against your partner, where you were sentenced to nine months’ imprisonment[14]
[14] Exhibit 3, G-Documents, G14, p 148, lines 1-7.
In terms of the violent aspects of this offence, her Honour noted:
Wounding offences normally start with sentences of about 18 months and then go up from there. Taking into account the fact that you have previous convictions for violence and a post-conviction for violence, and the fact that this was unprovoked and you clearly had the glass, that you cut the complainant with, in your hand for use as a weapon, and were very quick to use it in the circumstances of that night, it seems to me that a head sentence of two and a-half years is appropriate in this case.[15]
[15] Ibid, lines 27-35.
In May 2014, the Applicant was sentenced in the Brisbane District Court for an additional offence of unlawful wounding. The circumstances of this offending undeniably point to its seriousness. In his sentencing remarks, Judge Butler noted:
HIS HONOUR: I am sentencing you on the basis that you picked up a bottle that had rolled from the rubbish bin after you and the other gentleman… had exchanged some punches. You struck him with the bottle. I’m sentencing you on the basis that, at the time, you didn’t know that it was broken. As a result of striking with the bottle, you caused a wound to his left shoulder. The wound was three centimetres in length and it was quite deep, penetrating into the muscle.
He suffered from that. He had to go to hospital. He had to receive stitching to close the wound, and since that time, he lost a couple of weeks work and had to quit his job because he couldn’t turn up for work. He has a scar, and he’s suffered emotionally from the wound…
… it was foreseeable that you would cause injury to the person, striking him with a weapon. You were the one who initiated the action. You had followed him when he had left your house initially.[16]
[16] Ibid, G12, p 129, lines 25-38 and lines 44-47.
Having regard to sub-paragraph (a) of paragraph 13.1.1 of the Direction, I am of the view that the totality of the Applicant’s offences against the person of others must be viewed very seriously. His predisposition towards violence does not delineate between violence towards known persons (as evidenced by his conviction in 2014), nor towards random members of the public (as evidenced by his conviction in 2017), nor towards his domestic partner (as evidenced by the episodes of domestic violence offending for which he was came before the Courts in 2016 and 2017).
Sub-paragraph (c) of paragraph 13.1.1 of the Direction concerns itself with the sentence(s) imposed by the court/courts for a crime or crimes committed by the Applicant. As is often seen in matters such as this, the imposition of progressively more severe sentences across a given criminal history is suggestive of the fact that the removal of an individual from mainstream society is viewed by the courts as measure of last resort in any reasonably applied sentencing process.
In the early phases of the Applicant’s offending, he received the benefit of leniency from those sentencing him. He received the benefit of penalties involving the non-recording of a conviction, the imposition of fines and orders for restitution. As his offending increased in severity, particularly from 2014 onwards, the sentencing authorities had no alternative but to impose harsher penalties in the form of head sentences involving a custodial term.
As will be noted from the criminal history, the severity of the sentences imposed on the Applicant are commensurate with the increasing level of seriousness of his offending. Not once, but the sentencing courts seen fit to impose custodial terms for five separate offences, those terms of imprisonment being:
·May 2014 – 18 months’ imprisonment;
·November 2016 – nine months’, three months’ and one month’s imprisonment – all to be served concurrently; and
·May 2017 – two years and six months imprisonment.
The circumstances of the Applicant’s violent offending, be it against random members of the public, persons known to him in a social context or in the form of domestic violence, were not just very serious, they were potentially dangerous for the victims. None of his violent offending can be construed as a social scuffle or a bit of “push-and-shove”. The Applicant cannot explain away his offending on the basis of momentary lapses of self-control. Every circumstance of his violent offending was administered with a discernible intention to achieve an intended outcome.
He has a criminal history of finding himself before the Courts several times between June 2011 and May 2017. In round terms, this is a period of six years. Having regard to that six years (72 months), the Applicant has received custodial terms as follows:
·May 2014 - 18 months
·November 2016 – 13 months
·May 2017 – 30 months
Total: - 61 months
The period of 61 months equates to five years and one month. I note, though, that some sentences were served concurrently and some had early parole dates or were suspended after a shorter period of time. Given that his period of offending runs for a period of virtually six years, it becomes apparent that the sentencing courts have seen fit to impose a custodial period of five years and one month across the totality of his six year criminal history. Expressed as a percentage, the seriousness of his offending has caused law enforcement authorities to render his offending worthy of custodial punishment for 85% of the time between his first and last criminal Court appearances.
Accordingly, there can be no doubt that the sentences imposed by the court for crimes committed by the Applicant clearly point to the nature and seriousness of his criminal offending.
Sub-paragraph (d) of paragraph 13.1.1 of the Direction requires a decision-maker to look at the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. Even a cursory review of the National Police Certificate is demonstrative of an undeniable escalation in the seriousness of the Applicant’s offending. Prior to his Court appearance in May 2014, the Applicant’s offending primary involved a failure to respect lawful authority (in the form of breaches of bail or failing to follow a lawful direction or requirement), together with regulatory offences and low-level drug possession offences. The escalation of severity occurred from May 2014. His offending post this date involved serious transgressions against the personal rights and safety of other people.
There is a clear and undeniable difference in seriousness between the Applicant’s regulatory offending/minor drug possession/breaches of bail/failure to follow a lawful direction, on the one hand, and unlawful wounding, common assault, wilful damage and domestic violence offending, on the other.
To deny any trend of increasing seriousness is, to my mind, denying the obvious. Whatever factor or factors may be said to be causative of his offending, there is no indication that such factor are either under control or that they are otherwise the subject of some type of remedial treatment and/or management. The Tribunal can derive no assurance from the evidence placed before it at the hearing that the frequency of the offending and its trend of increasing seriousness will be ameliorated were the Applicant to have his visa cancellation revoked.
Accordingly, the only conclusion one can draw from an application of this sub-paragraph (d) of paragraph 13.1.1 of the Direction is that the frequency of the offending and its trend of increasing seriousness are factors confirming the very serious nature of the Applicant’s criminal offending to date.
Sub-paragraph (e) of paragraph 13.1.1 of the Direction requires me to consider whether the cumulative effect of the Applicant’s repeated offending is such as to render it serious. I certainly think it does. At the hearing, both the Applicant and his representative spoke of an intention to immediately commence rehabilitative treatment for the Applicant’s issues with alcohol and illicit drugs were he to be released back into the community with a visa. Whilst well-intended and commendable, this intention to seek out treatment does little to convince me that the Applicant has, or somehow will, overcome the propensities giving rise to the very serious nature of his offending to date.
I am not able to glean anything from the material before me that the Applicant has developed a quantifiable level of respect for lawful authority. Similarly, in the absence of independent and expert external intervention by an appropriately qualified person, one cannot be confident or certain that the Applicant’s readiness to resort to violence in his dealings with random members of the community or those closer to him in a social context, or in a domestic setting, has been overcome or removed as an element of his behavioural makeup. The Tribunal can thus not reach any level of satisfaction that the increasing trend of seriousness of his offending has somehow come to an end.
The increasing severity of his offending without external and expert independent medical intervention, leads me to the assumption that the Applicant cannot demonstrate an ability to distinguish right from wrong. Stated more particularly, one cannot be certain the Applicant has reached a stage of having genuine insight into exactly what it is that causes him to behave as violently as he has.
The cumulative effect of his repeated offending leads one to the conclusion that his offending days are not yet over, and that the time he has spent in custody has not somehow made him “learn his lesson” as he contended in his oral evidence. Whether or not he has learnt a lesson or has otherwise been convinced to change his ways is yet to be demonstrated by (a) the Applicant himself in the context of time spent in the community; and (b) any independent and expert medical or other evidence detailing diagnosis, treatment and ongoing management of the factor(s) arising from abuse of alcohol and illicit drugs that seem to be the primary motivators behind his very serious offending history to date.
Sub-paragraph (g) of paragraph 13.1.1 of the Direction compels a decision maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status. This factor does no favours for the Applicant. The material shows he was warned about the adverse consequences to his migration status arising from his offending.
In mid-July 2014, the Respondent for what appears to be the first time considered cancelling the Applicant’s visa. Ultimately, the Respondent found that it was not appropriate to cancel the Applicant’s visa at that time. The decision not to cancel the Applicant’s visa was sent to the Applicant in a letter dated 20 August 2014. The terms of the letter could not be clearer:
NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958
On 14 July 2014, the Department of Immigration and Border Protection notified you that the visa which authorises your continued stay in Australia may be liable for cancelation under Section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class XB, Subclass 200 Refugee visa will continue to provide you with permission to remain in Australia. However, the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.[17]
[underlining in original]
[17] Ibid, G23, p 187.
The letter was forwarded by pre-paid registered post and the Applicant signed a confirmation of his acceptance of that correspondence on 26 August 2014. There can be no question the Applicant did not receive this letter, nor can there be any contention that he did not understand its contents. He confirmed as much in his oral evidence before me. It is worth reproducing the terms of the acknowledgement signed by the Applicant confirming receipt of the Respondent’s letter of warning:
I… acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501 (2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.[18]
[18] Ibid, G24, p 190.
Despite the terms of the letter of warning and the terms of the acknowledgement he signed, the Applicant continued, indeed, intensified his offending. From the date he received this letter of warning until his final appearance before lawful authority in May 2017, the Applicant saw fit to further offend as follows:
·March 2016 – common assault
·September 2016 – failure to appear in accordance with undertaking
·November 2016 – breaches (x3) of domestic violence order
o– assaults occasioning bodily harm
o– breach of bail conditions – commission of domestic violence offence
o– wilful damage
·February 2017 – breach of domestic violence order
·May 2017 – unlawful wounding
I am of the view that the respective content and terms of both the Respondent’s letter of warning and the acknowledgement signed by the Applicant, could not have been clearer. The Applicant has flagrantly disregarded both the warning and the terms of his undertaking. He has completely ignored what he was told about the adverse consequences of his offending on his migration status. Accordingly, the Applicant’s failure to listen to the Respondent’s warning is demonstrative of a “very serious” element to his offending, particularly in circumstances where the terms of the warning were explicit, and the seriousness of his crimes escalated after receiving the warning.
Sub-paragraph (h) of paragraph 13.1.1 of the Direction directs a decision maker to look for evidence and determine whether, in the case of a non-citizen who is in Australia, that non-citizen committed a crime while in immigration detention. In cross-examination, the Applicant was taken to an incident that occurred towards the end of last year, during which the Applicant was in immigration detention. The incident arose during the Applicant’s participation in a game of cards with fellow detainees. The Applicant recalled the card game and further recalled that one of the detainees participating in the game, an Iranian person, apparently said something adverse about the Applicant’s mother.
The Applicant agreed that a verbal and physical altercation ensued, resulting in the calling of a “Code Black” procedure by the detaining authorities. As best as I understood the evidence, a “Code Black” procedure involves the adoption of certain pre-emptive measures by the detaining authorities on the assumption that an adverse event was about to happen. In evidence given under cross-examination, the Applicant agreed he pushed the Iranian detainee. The Applicant sought to downplay the circumstances of the incident on several grounds. According to the Applicant:
·the only thing transpiring from the incident involved him being moved away from the Iranian detainee to another section of the facility;
·neither he nor the Iranian detainee wanted to “press charges”
·he was good friends with the Iranian detainee whom he pushed, giving rise to the “Code Black” incident; and
·the two men are now back on speaking terms and it is otherwise “all good” between them.
While the abovementioned “Code Black” incident cannot be categorised as “a crime committed while the non-citizen was in immigration detention”, it did, nevertheless, trigger a reactive response in the detaining authorities and did result in the deliberate separation of the Applicant from the detainee whom he pushed. Perhaps more to the point, this incident is yet another demonstration of the Applicant’s readiness to resort to physical or violent means to either make a point or resolve an impasse.
As mentioned earlier, the Applicant says he wants a chance to come back into the community and to immediately engage with rehabilitative treatment. One wonders about the veracity of that evidence in circumstances where even the strictly controlled and monitored environment of immigration detention has not caused any reduction in the Applicant’s propensity to immediately resort to a violent solution for any disagreement or problem presented to him.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs of paragraph 13.1.1 of the Direction are relevant to this decision, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. I have looked at the whole of the Applicant’s criminal history. Being fair to him, the Applicant’s offending which was dealt with prior to May 2014 was not particularly serious. However, there is a different dimension to the offending which was dealt with after May 2014. From that time, the Applicant’s offending took a serious and violent turn. His acts of violence had the potential to impact anyone who came into his orbit, whether they were random members of the public, his so-called friends, or his partner and the mother of his child. That phase of his offending can only be described as being “very serious”.
I cannot detect any trend in the Applicant’s criminal history, especially from May 2014 onwards, militating in favour of any different or lower characterisation of his offending. Indeed, in addition to the major acts of violence, there has been a recurring theme of the Applicant being charged for refusing to submit to lawful authority in various ways – this class of offending reared its head in 2012, September 2016, November 2016 and February 2017. This constitutes four instances of a refusal to accept lawful authority across a six-year criminal history. It is of no small significance that the latter three offences all occurred after the Applicant had received his formal warning from the Respondent about the consequences of future offending.
Upon (1) an application of the relevant sub-paragraphs of paragraph 13.1.1 of the Direction to the Applicant’s conduct giving rise to his criminal history; and (2) taking a longitudinal view of that history in the absence of any rehabilitative or other measures having been taken to ameliorate the conduct predisposing the Applicant to offending, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that a decision-maker should 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 assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:
(i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(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.
The totality of the Applicant’s conduct is such as to lower the Australian community’s tolerance for any risk of future harm this Applicant may cause, given the increasing seriousness of his offending. The trajectory of his offending is such that, were it to be repeated, it would likely be so serious that any risk of such repetition would be unacceptable to the Australian community.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
As alluded to earlier, the Applicant is readily disposed towards violent means of resolving an impasse or problem in his life. He does not discriminate when selecting the victims of his violence – they have been members of the public, people known to him as a part of a social circle and his de facto partner in a domestic setting. The violent circumstances of the offending that came before the courts for sentencing in May 2014 and May 2017 (the Applicant’s two glassing offences) could, quite conceivably, have resulted in much more serious injury being occasioned by the recipients of that violence. It could also have seen them killed. These incidents did not involve minor scuffles or disagreements. They involved the Applicant deliberately inflicting serious and disabling harm to the victim. A mere push or pulling on another’s clothing is one thing. However, there is not, and can never be, anything benign about the striking of another person with a weapon (be it a broken beer bottle in 2014 or a glass in 2017).
The circumstances of his domestic violence offending, too, are on the serious end of the spectrum. He acted violently towards his partner in front of their child when she turned down his sexual advances. The circumstances of this offending – for which the Applicant was sentenced in November 2016 – is best-described by the partner’s evidence.
The Applicant’s partner gave evidence at the hearing. Despite what she has endured at the hands of the Applicant, she told the hearing that she was still in a relationship with the Applicant. In explaining the circumstances of his conduct one evening in September 2016, giving rise to his domestic violence and other offending, the partner said these things:
·The Applicant came home late one evening after a night out with his friends;
·Upon arriving home, he located his partner lying in bed with their child (then aged two years). Both the partner and their child were sleeping;
·The Applicant made amorous advances towards his partner and demanded she engage in sexual activity with him;
·She refused and he became aggressive consequent upon that refusal. She said, “He started to slap me”;
·She asked him to leave the house and when he refused to do so, she walked away from the bed and headed towards the bathroom and closed herself in the bathroom;
·He forced his way into the bathroom and tried to have his way with her by forcibly holding her hands behind her back in an effort to “initiate” sexual activity; and
·He desisted from dealing with her in this way in the bathroom because their child suddenly appeared in the doorway of the bathroom and the Applicant’s conduct was in full view of the child.
The partner gave further evidence about another incident of domestic violence that occurred in 2016, involving his infliction of a severe beating upon her, primarily in and around the region of her face. With regard to that incident, she said:
·She was due to attend the local police station to provide a statement to the police about the Applicant’s domestic violence conduct;
·The Applicant tried to stop her from attending the police station to give that statement;
·As part of that effort to stop her, the Applicant seized her mobile phone and switched it off. The police noted she was late for her appointment to give the statement but were unable to contact her because her phone was switched off; and
·Consequent upon the police being unable to contact her, they attended her residence and, upon gaining entry, noticed the injuries and swelling to her face that had been administered by the Applicant in his effort to stop her giving the statement;
Perhaps the most interesting and pertinent component of her evidence involved what she had to say about likely factors behind the Applicant’s offending. At the time of this domestic violence offending, she said the Applicant “had a problem with drugs.” She said he smoked “weed” (which I will presume to be a reference to cannabis). Perhaps more significantly, she said the Applicant was also a user of “ice” (a reference, I presume, to crystal methamphetamine) and that when he did so, “he gets crazy when he gets on the drugs”. It seems from the evidence that most of the Applicant’s drug use is of marijuana, though. The Applicant’s partner laid much of the blame for the Applicant’s drug use – and the related offending – at the feet of the Applicant’s social circle, saying that although she would let him into her house while high, she did not allow his friends entry, presumably for fear of the possible consequences of their being in her home.
Of relevance to later aspects of this consideration, the Applicant’s partner told the Tribunal that the Applicant’s abuse of illicit substances came to the fore particularly after the birth of their child (actually the Applicant’s second child) in 2013. She gave no indication that his abuse of these substances had been the subject of external intervention or management and control by and suitably qualified and independent medical or other expert. It is clear from the evidence of the Applicant’s partner that his issues with illicit substances remain unresolved and, further, that were he to be returned to the community, he would not have the capacity to avoid returning to abusing those substances.
The resulting inference in relation to the domestic violence offending is that, were he to be returned to the community, there is a genuine likelihood of him committing further acts of domestic violence and that the nature of the harm to his current or future partners would be undoubtedly significant.
In my view, an assessment of the nature of the harm resulting from further criminal or other serious conduct by this Applicant is informed by the following factors:
·He has a demonstrated lack of insight into the nature of the harm that his violent offending has occasioned on others;
·This lack of insight extends to the potential catastrophic outcomes that could have and may in future result from his very serious and violent conduct;
·His propensity towards adopting a violent solution to an impasse or challenge that is presented to him;
·His demonstrated refusal to accept, respect and defer to lawful authority, whose purpose it is to protect the community from the danger presented by very serious and violent conduct of the type he has perpetrated;
·His demonstrated inability to experience a deterrent effect from custodial terms of imprisonment imposed upon him in 2014, noting he received further custodial terms – each of them significantly lengthy terms – again in 2016 (13 months) and May 2017 (30 months);
·His failure to moderate his behaviour in circumstances where:
oHe has the “benefit” of a deterrent effect imposed by the courts in terms of how they have sentenced him;
oHe has significant parental and familial responsibilities for a partner and the four year old child by that partner, as well as a child by a previous partner; and
oHe has received (and ignored) a warning from the Respondent to stop offending or there would otherwise be adverse consequences for his migration status; and
·A failure to engage with a rehabilitative process to identify, address, treat and manage the symptomology – most likely, illicit substance abuse – behind his propensity to offend and, indeed, to do so in a very serious and violent way.
The Tribunal had the benefit of evidence from witnesses such as the abovementioned current partner of the Applicant, the former partner of the Applicant, and the Applicant’s sister. Each of these witnesses were mature, circumspect and reasonable people. They gave the expected self-serving evidence about the Applicant. I will address their evidence in greater detail later in these reasons. I refer to these people for the specific purpose of finding that the Applicant would, I have little or no doubt, have been repeatedly told by good and reasonable people such as these witnesses, to moderate his behaviour and to seek whatever external assistance was necessary in order to engage in a form of behavioural rehabilitation.
The Applicant’s conduct clearly demonstrates that he has ignored (1) whatever inclinations of his own he might have to seek such treatment; (2) the deterrent effect of sentences imposed upon him by the courts; and (3) the urgings of people such as his current and former partners to get his life in order.
Having regard to the totality of his history with its evolving level of seriousness, I am of the view that, should the Applicant reoffend in a similar manner, the risk that he would pose to a member of the general public, a person within his own circle of friends/acquaintances, or in a domestic setting, would be very significant. That harm could result in others suffering anything from financial loss to serious physical or psychological injuries or, conceivably, death. I am therefore of the view that the potential future harm he may cause to members of the Australian community is very significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Paragraph 13.1.2(2)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to that risk.
At the hearing, there seemed to be two primary themes to the Applicant’s evidence. First, he sought to re-cast or re-define the circumstances leading up to the violent offences he committed as situations where he had been, as it were, ’led into the fray’ and offended consequent upon such circumstances. This is not borne out (in terms of the 2014 and 2017 incidents) by the factual circumstances surrounding those offences, nor is it indicated in any sentencing remarks by the respective judicial officers who sentenced him for those offences. There is nothing in the contention that the Applicant was led or induced into violently dealing with those victims. Likewise, the evidence of the Applicant’s partner and the victim of his domestic violence offending is clear: she did nothing to induce his dreadful conduct towards her in 2016, and the Applicant’s evidence at the hearing seeking to downplay the circumstances of that domestic violence offending should be dismissed outright.
Secondly, the Applicant said his offending days were behind him and that he wanted to return to the community to (a) immediately engage in a rehabilitative process; and (b) play a meaningful role in the household he shares with his partner and to be a responsible parent for both of his children. I do not doubt the Applicant feels a level of regret for his past pattern of behaviour. I am, however, concerned with his rather puerile and unconvincing evidence seeking to downplay the circumstances of his involvement in the violent offending incidents for which he has been sentenced. In these circumstances, I find it difficult to accept that the Applicant has reckoned with his offending and its consequences in such a way as to be truly rehabilitated. While his evidence does communicate an apprehension that things have now gone well and truly awry for him, it is difficult to be convinced that he has or will put things in place such as to significantly lower the likelihood of him engaging in further criminal or other serious conduct.
To my mind, the assessment of any likelihood of the Applicant engaging in further criminal or other serious conduct can be based upon three factors. First, it is necessary to have regard to the longitudinal nature of the history itself. Viewed in total, that is, from its inception in 2011 until its present culmination in 2017, the offending is not abating and neither is its seriousness. The seriousness is actually increasing. There is no expert or other independent evidence before the Tribunal which addresses this first factor.
Secondly, the Applicant has had the benefit of ameliorative interventions that are designed to assist him to see the errors of his ways at various stages of his offending history. None of those have changed his conduct. He has had the benefit of (1) the non-recording of convictions when it would otherwise have been open to a sentencing court to record a conviction; (2) immediate releases on parole; (3) suspended sentences; (4) written warnings from the Respondent telling him his visa was in peril if he did not change his offending ways; and (5) actual imprisonment, be it in the form of corrective detention or, as now, immigration detention.
In spite of these interventions, his offending not only continued unabated, but increased in seriousness. Clearly, warnings have done nothing to curb the Applicant’s offending. As was noted earlier, he was brazen enough at the hearing to either impliedly or actually take issue with the submissions made by his lawyers on his behalf at previous sentencing hearings and to try to downplay his offending, in particular, his appalling domestic violence offending against his partner by saying her injuries were caused by her “falling over a step” (in relation to the 2016 offending). The obvious inference to be drawn is that the Applicant has not learnt his lesson and that he does not view or respect lawful authority with the same measure of deference as the overwhelming majority of the remainder of the Australian community.
Thirdly, he speaks of having a lower likelihood of offending because he wants to immediately avail himself of rehabilitation and to find legitimate remunerative employment to support the household he conducts with his partner. Such a contention is difficult to sustain in circumstances where he has not commenced any rehabilitation nor has he identified any person or clinic that can administer that rehabilitation. For all we know, he could come back into the community and never engage in rehabilitation. While I will not engage in supposition, it is nevertheless significant that there is no evidence before me to the effect that Applicant has cavilled with the seriousness of his offending and its impact on others. Further, there is nothing from any past employer or potential employer telling us what sort of work he has done and how employable he is. As the evidence currently stands, he has next to no employment prospects were he to be released back into the Australian community, say, tomorrow.
Looking at all of the above evidence and analysis holistically, one simply cannot say that the Applicant has “turned a corner” with his offending. I am not satisfied that he has shown much remorse for his serious offending or has taken steps to rehabilitate himself. Clearly, too, the receipt of an official warning had no impact on the Applicant other than to cause his offending to escalate in terms of seriousness and frequency. Indeed, it is to my mind damning that there is such strong commonality between two of his assaults, one of which occurred prior to the warning, and the other of which occurred after its receipt. In each circumstance, he injured another with a glass object while drinking. I therefore find that there is a high likelihood that the Applicant will reoffend in the same manner that he has in the past – that is, in a very serious way.
Conclusion: Primary Consideration A
To summarise, my finding is that the Applicant’s demonstrated unwillingness or inability to control or moderate his behaviour or to otherwise understand the adverse consequences arising from his offending conduct points to a strong likelihood that he will engage in further serious conduct if returned to the Australian community. It is also quite likely that harm would be occasioned to others were he to re-offend and that such harm would be both substantial and serious, as has been the harm caused by his offending to date. In consideration of all relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of the Applicant’s visa being refused.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years old at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has two minor children, one by a former partner and one by his current partner. The children are two sons respectively aged eight and five years old. Thus, the provisions of paragraph 13.2(1)-(3) are activated such that I am required to make a determination about whether a refusal to revoke the mandatory cancellation of the Applicant’s visa is, or is not, in the best interests of the two relevant children.
The Applicant, in his written submissions, mentioned his nieces and nephews as well. However, no evidence was led as to their interests, so I cannot make a finding as to how the revocation or non-revocation of the Applicant’s visa would affect them.
Paragraphs 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of the factors include:
·(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there have been long periods of absence, or limited meaningful 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;
·(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 other ways they could maintain contact;
·(e) Whether there are other persons who already fulfil a parental role in relation to the child;
·(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
·(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
I acknowledge the genuine possibility that both of the Applicant’s children will be impacted by this decision. However, that possibility must be tempered by the reality that the Applicant’s time has in, in turn, been impacted by his absence while in one form of custody or another and as a result of the end of his relationship with the mother of his elder child.
I turn now to an application of the above-mentioned factors appearing at paragraph 13.2(4) of the Direction. Sub-paragraph (a) refers to the nature and duration of the relationship between the children and the Applicant. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between an applicant and their children. As noted by the Respondent,[19] there is limited evidence regarding the nature of the care and parental guidance that the Applicant has provided to the children. In their evidence, both the former and current partners talked about the Applicant having some level of active engagement with their respective children. Their evidence did not contain anything about the Applicant playing some kind of strongly supportive role in the parenting of either or both children.
[19] Exhibit 2, Respondent’s SFIC, p 11, [44(b)].
It can be understood that the Applicant’s relationship with his former partner has been at an end for some time. The Applicant told the hearing that she has since re-partnered and that it is therefore difficult for him to have liberal amounts of time with the eight year old child. That evidence is understandable but it stands on its own and is not supported by any kind of parenting plan or court order in relation to the Applicant’s time with his eldest child. The evidence pointed to an “as and when” scenario governing the Applicant’s time with the eldest child.
In her evidence, the Applicant’s current partner spoke about having a desire to commence and progress her studies in the area of social work. While she spoke of the Applicant in a domestic context – both in terms of his domestic violence offending and his more moderate conduct – she did not say anything about him assuming any measure of responsibility for the care of the younger child so that she could progress her studies. Once again, the inference I drew from her evidence was that the Applicant’s parental role with the youngest child is on an “as required” basis, as and when the Applicant finds himself in the domestic dwelling he shares with his partner.
In my view, this factor is most squarely and convincingly addressed by reference to submissions made on behalf of the Applicant during the sentencing hearing for his May 2014 offending. When addressing the sentencing court about the personal antecedents of the Applicant, his legal representative said (in 2014) “He has a child from a previous relationship who is four years of age, who resides with that child’s mother, and he does not have much contact with them.”[20] Having regard to the abovementioned evidence as a whole, I am of the view that sub-paragraph 13.2(4)(a) of the Direction points to there being limited meaningful contact, certainly between the Applicant and the eldest child, and considerable periods of absence between the Applicant and the younger child. Accordingly, the nature and duration of the relationship between the Applicant and both the children is not a factor militating in favour of any return of the visa to him on the basis that it would be in the best interests of the children to do so.
[20] Exhibit 3, G-Documents, G11, p 124, lines 15-17.
Sub-paragraph 13.2(4)(b) points a decision-maker to an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time until the children turn 18. As mentioned above, there is relatively scant detail in the evidence about what sort of role the Applicant has played in the lives of both of the children thus far. I accept he can play a more limited role in the life of the eldest child given that the Applicant is no longer in a relationship with the mother of his elder child and that she has re-partnered. The younger child was born in 2013. The Applicant has been in corrective detention since May 2017. Between the birth of the younger child (mid-2013) and December 2016, the Applicant spent something like three months in custody, specifically from September 2016 until December 2016. Therefore, for the just over five years of the youngest child’s life, the Applicant has been in corrective custody or immigration detention for something like third of that child’s life.
The children have, between them, a cumulative period of 23 years before they are each over 18 years of age. Given (1) the unresolved nature of the factors predisposing the Applicant to offend and my finding of a significant likelihood that he will re-offend; (2) the absence of any remotely formal or enforceable parenting orders or regime between the Applicant and his former partner for the elder child; and (3) the absence in the evidence of his current partner of any detailed parenting role the Applicant plays in the youngest child’s life, I have difficulty in ascertaining the extent of any positive parental role the Applicant is likely to play in the lives of his children until they attain the age of 18 years.
The evidence is devoid of any consistent parenting role performed by the Applicant for either or both of the children. At the hearing, he spoke of sometimes travelling some distance from Brisbane where the Applicant’s former partner and their child previously resided so that he could spend time with his elder child. Despite that, there is no reference in the evidence of the Applicant spending overnight time with the eldest child nor is there any reference to him spending “block periods” of school holiday time with him or that he has taken either or both children away for a weekend, for example. Neither mother of the children spoke of the Applicant taking any active interest in any sport or recreational activity done by the children such as taking them to their football matches or to a professional football match, for example.
Having regard to the totality of the Applicant’s role in the lives of both children thus far, I have difficulty in applying this factor (b) to any consideration of whether restoration of the Applicant’s migration status is in the best interests of the children.
Sub-paragraph 13.2(4)(c) of the Direction involves an assessment of any negative impact on the Applicant’s prior conduct, and any likely future conduct, on the children. At the hearing, both mothers gave evidence of the negative impact of the Applicant’s prior conduct on each of the children. The Applicant’s former partner told the hearing of the eldest child’s anticipation of receiving either a text or video message from the Applicant and of his sadness when told that the Applicant would not be available to attend a given milestone in the child’s life. Meanwhile, the Applicant’s current partner provided the graphic evidence of the dreadful circumstances of the Applicant’s domestic violence offending, particularly the episode where he pinned both of her arms behind her back in an effort to have his way with her in the bathroom and for all of that appalling conduct to be witnessed by the youngest child who was standing in the doorway to that bathroom.
There can be no question that the Applicant’s prior conduct has had a negative impact on both children, if purely by forcing him to be removed from their lives. What sort of impact can his future conduct have upon them? I have found there is a strong likelihood that he will return to his offending ways. On that assumption, it is quite likely his conduct will have a negative impact on them in any number of ways, two of which immediately spring to mind based on what can be observed from the past. First, were the Applicant to re-offend, it is more than likely that a sentencing court would impose a custodial term, given his serious previous offending. That would see him taken out of the lives of the children such that any time he spends with them would be reduced to either prison visits or some other kind of electronic messaging or contact – assuming it is allowed by the given custodial facility.
Secondly, were he to re-offend in a domestic setting against the Applicant’s current partner, not only is there nothing before the Tribunal to convince me that she would not be adversely impacted, there is similarly nothing before me to say that such further domestic violence offending would not somehow capture the youngest child into its orbit. I have difficulty in applying this factor (c) to any assessment of the impact of non-revocation on the best interests of the children in the absence of any type of independent and expert third-party assessment of the impact of the Applicant’s conduct – both past and possibly future conduct – would have on either or both of the children. The only evidence in this regard is the subjective evidence of the Applicant’s current and former partners and that evidence, on its own, is not to my mind sufficient to properly ground the assessment required by this factor (c).
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact with his children in other ways. As mentioned earlier, the Applicant’s former partner gave evidence of the maintenance of both text and visual real-time contact between the Applicant and his eldest child. While she did not speak about it in explicit terms in her evidence, there is every reason to expect that his partner would be conducive to facilitating similar contact between the youngest child and the Applicant in the form of real-time contact via Skype and other digital platforms. While not conceded by the Respondent, I think it is reasonable to conclude that were the current regime of separation between the Applicant and the children to be maintained as a result of him not having his migration status restored, it would result in certain adverse effects on the children. Accordingly, this factor (d) would, to an extent, militate in favour of revocation of the decision to cancel the Applicant’s visa.
Factor (e) of paragraph 13.2(4) of the Direction asks the question of whether there are persons who already fulfil a parental role in relation to the children. Clearly, there are. Both children reside with their respective mothers who fulfil the parental role in relation to each of them. In her evidence, the Applicant’s current partner said she has found it and would find it difficult to raise the youngest child on her own. As I understood her evidence, this difficulty primarily derived from (1) the economic burden of meeting recurring household expenditure from a single income source; and (2) her being trapped in a spiral of reliance on government benefits to make ends meet when she could – with the support of the Applicant in a parenting role – obtain qualifications in the social work area and thus obtain remunerative employment doing that type of work.
I do not doubt the truthfulness of the evidence of the Applicant’s current partner. However, it is very difficult for me to utilise that evidence and to favourably apply this factor (e) to the present circumstances. This is because there is next to nothing in the evidence about what kind of substantive role the Applicant has played in the lives of either or both of the children to date. Ad hoc visitations by the Applicant with the eldest child is not indicative of him having played any positive parental role to date, nor is an absence of something like two years out of the five-year life of the youngest child.
In his evidence, the Applicant spoke about collecting the eldest child from the Applicant’s former partner several years ago and placing him in the care of his sister. He said this occurred because she was having “issues in her life” which prevented her from being the primary carer of the eldest child. The Applicant then said when his former partner had resolved her issues he removed the eldest child from the care of his sister and returned him to her primary care. I mention this part of the Applicant’s evidence because, to my mind, it is indicative of his approach to parenting. When the Applicant’s former partner was dealing with her issues, he did not take it upon himself to become that child’s primary carer. He made sure his sister took that role. When the former partner was feeling better, he returned the child to her primary care. What can be gleaned from this evidence is that at no stage did the Applicant assume responsibility of the primary care of the eldest child.
In terms of “other persons” who fulfil a parental role in relation to the child, regard must also be had to the evidence of the Applicant’s sister. At the hearing, she spoke of “being there to support him 100 per cent” if he were to return to the Australian community. In her written evidence,[21] she spoke of wanting to “…take care of … his sons”. At the risk of repeating myself, it should be remembered that the Applicant’s sister became his first port of call when the need arose regarding urgent primary care for the elder child in the circumstances of the issues then preventing the Applicant’s former partner from acting as the primary carer of that child.
[21] See Attachment 3 to Exhibit 1, Applicant’s SFIC – Statement of the Applicant’s Sister dated 19 September 2018.
There are clearly “other persons” who already fulfil a parental role in relation to the children. Accordingly, this factor (e) does not militate against the best interests of the children if the Respondent’s decision remains undisturbed.
Factor (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. There is nothing in the evidentiary bundle before the Tribunal by way of independent evidence detailing the views of both or either of the children. Both mothers have spoken of feelings of anticipation if the children spend time with the father and sadness when he is removed from their lives. The only known views of the children are those that are provided by their respective mothers’ evidence. While this evidence is entirely subjective and, technically, hearsay, the additional difficulty is that both children are of such a young age (aged eight and five respectively) that any views they were to express now cannot be relied on with any level of certainty, especially in circumstances where those views are not vetted by independent, suitably trained and expert people.
Factor (g) of paragraph 13.2(4) of the Direction looks for evidence that the Applicant has abused or neglected the children in any way, including physical, sexual and/or mental abuse or neglect. I am mindful of the specific episodes of domestic violence between the Applicant and his partner. I am also mindful that their child witnessed at least one specific event of domestic violence by the Applicant against his mother. That said, there is no evidence of deliberate, intentional or wanton abuse of either of the children by the Applicant. I will not afford any weight to this factor.
Factor (h) of paragraph 13.2(4) of the Direction looks for evidence that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. I could not locate any evidence to this effect in relation to the eldest child. I am hard-pressed to believe that some measure of trauma would not have been occasioned upon the youngest child when he witnessed the unfortunate bathroom scene when the Applicant had his partner’s hands pinned behind her back in an effort to have his way with her. However, and perhaps luckily for the Applicant, there is no independent assessment from an expert identifying or measuring any trauma experienced by the youngest child as a result of being at/or near one or more acts of domestic violence by the Applicant. There was a noticeable silence in the Applicant’s partner’s evidence about any adverse impact on the youngest child as a result of witnessing the domestic violence incident in the bathroom. Accordingly, this factor (h) is of little or no weight and is not determinative of any finding about Primary Consideration B.
Conclusion: Primary Consideration B
I am of the view that the best interests of the Applicant’s minor children in Australia do not weigh in favour of revocation of the decision to cancel his visa. This finding is based on:
·The evidence as a whole – given its largely subjective nature from the respective mothers of the children and the absence of any expert or other evidence about any effect on the children were I to endorse the Respondent’s decision;
·My earlier findings as to (1) the seriousness of the Applicant’s offending conduct to date; and (2) the significant risk to the Australian community were he to offend;
·A holistic application of these factors at paragraph 13.2(4) such that only one of them – factor (d), and even then, minimally – militates in favour of revoking the cancellation decision.
I am therefore of the view that the best interests of the Applicant’s minor children do not weigh in favour of revocation and, at best, weighs slightly marginally in favour of the Applicant.
Primary Consideration C
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending, his lack of engagement with the rehabilitation process and his consequential lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, I think the question of whether this Applicant should retain the right to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.
I think the essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in 2007 aged 18 years and then found himself before the criminal courts in Australia on a significant number of times from June 2011 until May 2017;
·The increasing nature of seriousness inherent in his offending has caused him to be the subject of the imposition of lawful authority on:
oJune 2011;
oJanuary 2012;
oDecember 2012;
oJanuary 2013;
oMay 2014;
oMarch 2016;
oSeptember 2016;
oNovember 2016;
oFebruary 2017; and
oMay 2017
·He has committed offences in the following areas:
oOffences indicating a refusal to submit to lawful authority (five offences);
oDrug offences (four offences);
oOffences of violence (four offences);
oDomestic violence (four offences);
oOffences against the personal and property rights of others (three offences);
·He has been in custody on a continuous basis from May 2017;
·For the six-year period of his criminal history running from June 2011 to May 2017, the sentencing courts have imposed a cumulative custodial period of five years and one month. As mentioned earlier, the seriousness of his offending has been such that the sentencing authorities have considered his offending worthy of punishment by way of custodial terms for 85 per cent of his six-year criminal history;[22]
·The Applicant has received a letter of warning telling him that his continued offending would adversely impact upon his migration status in this country; and
·There is nothing before the Tribunal from a medical or other independent expert, either (1) providing a process of identification for diagnosis of the factors giving rise to the Applicant’s propensity to offend; or (2) providing a demonstrated regime of treatment and management of those factors such that the Tribunal can take some measure of comfort that the Applicant is not likely to further offend. Put another way, the Applicant’s issues with alcohol and illicit substances (and anything else in his psychological profile) remain unresolved and untreated. There is no certainty that he will not offend in future, and if he does, that his offending will be any less violent and dangerous than it already has been.
[22] That is, in the form of head sentences.
I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae designed to assist a decision maker in reaching decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[23]
[23] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Of course, the passage of time informs and even alarms any reasonable member of the Australian community. Times and circumstances change, which sometimes spawns an alteration in the community’s apprehension of how a specific statutory power ought be applied. Global circumstances have definitely changed since the early 2000s. Its effect on how Courts and Tribunals have sought to apply s 501 of the Act (and more particularly, paragraph 13.3(1) of the Direction) is palpable, particularly in more recent decisions.
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[24] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
[24] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[25]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[my underlining]
[25] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[26] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[26] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving repeated custodial terms for his lengthy record of serious offending, such that he should not now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending and its undeniable trend of increasing seriousness;
(ii)His repeated refusal to accept and submit to lawful authority. This is evident from several aspects of his offending profile, including, but not limited to, his various breaches of lawful orders and requirements imposed upon him, be it in the form of a grant of bail, a requirement to appear or a requirement to not breach the explicit terms of a domestic violence order;
(iii)His refusal to take heed of the Respondent’s reasonably worded letter of warning. Despite the warning letter and his own undertaking, he continued to offend and, indeed, offend more seriously than before he received the letter and entered into the undertaking;
(iv)His ready recourse to violence as a means of resolving a problem or impasse presented to him, including, perhaps most seriously, in a domestic setting;
(v)His unresolved issues with alcohol and, as per the evidence of his partner, marijuana and ice;
(vi)My assessment of the significant risk of substantial harm to the Australian community were he to reoffend;
(vii)A complete absence of any participation in a rehabilitative process, with only some unconvincing submission about getting into such a program were he to be released back into the community;
(viii)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in a current context.
I therefore find that the Australian community would consider that this Applicant has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that this Applicant should continue to hold a visa.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, prove himself both to his own immediate family and in the community more broadly. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[27]
[27] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant came to Australia in 2007, aged 18 years. He commenced offending four years after coming here, when aged 22 years. His offending has only stopped as a result of him being placed in either corrective custody or immigration detention. The history runs from June 2011 until May 2017. That history saw him before lawful authority in every single one of those years, except for 2015, although he did commit a common assault offence in October 2015 (which went before a sentencing court in March 2016).
In terms of remunerative employment, he has not been entirely dilatory while in Australia. The submissions made on his behalf at his sentencing hearing in May 2017 are instructive:
…In relation to his employment history… he’s previously worked at the Metro Hotel as a room attendant and has also worked for the Brisbane City Council… footpath maintenance. He… also has a Certificate II in constructions which he received from the multi-cultural community centre, and a Certificate I in civil construction which he obtained whilst working at the Brisbane City Council.
He also… has done a first aid course through the Salvation Army. In relation to his schooling, he instructs that he completed up to grade 10 whilst he was awaiting a decision with respect to his future… He… hasn’t studied any further since then;… he has done an English course at TAFE…[28]
[28] Exhibit 3, G Documents, PG13, p 145, lines 19-32.
While he has a work history of sorts, it seems undeniable that the majority of his adult life has been dominated by his criminal and other offending. I can take no confidence from the virtually complete lack of evidence that some type of employment will be available to him such that it will consume him in a way that deflects his attention away from behaving as he has done in the past towards the responsibilities and requirements of such employment. Although he has worked and obtained qualifications before, there is little or nothing before the Tribunal indicating that employment or an employer awaits his return, or that he is readily employable in a given field.
I have taken into account that each of his former partner, his current partner and his sister have spoken favourably of him. It would be trite to surmise that he has made absolutely no contribution to the Australian community during his time here. However, none of his supporting witnesses spoke with any conviction or certainty that he would not reoffend. Indeed, the Applicant’s current partner spoke with a fully understandable and barely concealed contempt about the Applicant’s domestic violence conduct and how he behaves when abusing either alcohol or illicit substances, most particularly marijuana.
My greatest concern arising from the factual circumstances of this matter is that the issues giving rise to this Applicant’s propensity to offend remain unresolved. His previous offending has been so serious that the only prediction one can make about the likelihood of his offending in future is (1) that he indeed is likely to reoffend; and (2) if he does, the consequences will most likely be very serious. In these circumstances, I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust it reposed in him when he first came here.
The Applicant speaks of having an extra chance to come back into the community and remain in Australia. He has had those chances, be it in the form of initially less harsh sentences and by way of a written warning from the Respondent. He has ignored each of those chances or opportunities and actually conducted some of his most serious offending after he had the benefit of those things. I am of the view that a reasonably minded member of the Australia community would conclude that there is little more that our community can do for him.
I therefore do not consider that the Australian community would be prepared to give this Applicant a chance to be released from immigration detention and to resume his life here.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “other considerations” disclosed in the Direction:
(b)International non-refoulement obligations;
(c)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[29]
[29] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 of which provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm…
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R Class WK) visa…
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s offending or other serious conduct in deciding whether or not he non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[30] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[30] [2017] FCAFC 96, (2017) 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction no 75”), provides guidance of the assessment of Protection visas. At Part 2 of Direction no 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction no 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[31] In Greene v Assistant Minister for Home Affairs,[32] Logan J referred to Direction no 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[33]
[31] [2018] FCA 650.
[32] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Hime Affairs [2018] FCA 1487.
[33] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant has been residing in Australia on a Class XB, subclass 200 Refugee visa. This visa is distinct from Protection visas, and is not a visa the holding of which would bar a person from applying for a Protection visa.[34] Accordingly, I find that the Applicant may still apply for a Protection visa. In that process, the decision-maker would be bound by Direction no 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
[34] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
As the Applicant is already on a Refugee visa, it seems like there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that that assessment was made before the Applicant came to Australia, more than a decade ago. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali, “The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).”[35]
[35] Ali v Minister for Immigration and Border Protection (2017) 248 FCR 456, [2017] FCAFC 96, [33].
As things stand, the Applicant has given evidence that his parents were killed when he was a child in his country of origin. While the Respondent sought to highlight possible inconsistencies in this story in the cross-examination of the Applicant, those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor more than a decade ago that his claims for a refugee visa were genuine. However, the Applicant’s sister gave evidence at the hearing that she has since returned to their country of origin just a couple of years ago. This undermines the idea that Australia owes the Applicant non-refoulement obligations. However, without more evidence, I cannot totally discredit the notion that he is owed non-refoulement obligations. I therefore find that this consideration has some weight in favour of the revocation of the cancellation of the Applicant’s visa.
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction no 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations which present evidence indicates exist favour revocation. Consequently, I find that this other consideration weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
The Respondent appropriately concedes that the Applicant has some ties to Australia.[36] The Respondent also acknowledges that “…there would be some impact on the applicant’s immediate family members if the cancelation decision was not revoked.”[37]
[36] Exhibit 2, Respondent’s SFIC, p 15, [58].
[37] Ibid, [60].
The Applicant has the following family members currently residing in Australia: his first child by his former partner, his second child by his current partner, his sister, his brother-in-law, four nieces or nephews and two cousins.[38] It is clear that the strength, nature and duration of the Applicant’s ties to Australia are both palpable and significant. Consistent with paragraph 14.2(1)(b) of the Direction, this Other Consideration favours the Applicant.
[38] Exhibit 3, G-Documents, G17, p 169.
However, this finding must be tempered by the factors appearing at section 14.2(1)(a) of the Direction. The Applicant arrived here as an 18 year old, yet began offending relatively soon after coming here when aged 22 years. The unfortunate aspect of his offending history has seen it dominate virtually the entirety of his adult life. It can be fairly said that his criminal offending has featured so significantly in his adult life thus far that it has adversely affected his capacity to contribute positively to the Australian community.
Consequently, while this Other Consideration (b) may, to an extent, weigh in favour of revocation, its weight is not particularly strong.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration is of relevance in determining this Application.
(d) Impact on victims
While there is commentary by judicial officers sentencing the Applicant at various points of his offending history, there are no actual victim impact statements (or equivalent) for any of the people who fell afoul of the Applicant’s very serious conduct. Similarly, there is nothing by way of a victim impact statement (or equivalent) from his partner, who has clearly felt the adverse effects of the Applicant’s domestic violence conduct. However, she clearly loves him and has said she wants to continue her relationship with the Applicant.
The Respondent has not called any evidence of the impact the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on the Applicant’s victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
Despite my initial misgivings, the evidence evolved in such a way that it is likely that the Applicant will be able to establish himself and maintain basic living standards if returned to his country of origin. The Respondent makes a submission that the Applicant would have the same social, welfare and medical services and state protection as other citizens of his country of origin, and, further, that he is a young man with no apparent significant health concerns.[39] However, the Respondent has not called or provided any evidence as to what this would be, or how it differs from the Applicant’s circumstances in Australia.
[39] Exhibit 2, Respondent’s SFIC, p 15, [61].
I accept that the Applicant’s sister has returned to their country of origin for her wedding, even though she entered Australia as a refugee. This, to my mind, means that the level of impediments faced by the Applicant are not as great as they might be. However, it would be inappropriate for me to go any further than this.
Against this point, I must weigh the Respondent’s concession that “…the applicant may face some difficulty in re-establishing himself in [his country of origin] due to his long residence in Australia…”, my finding is that the Applicant would certainly face short term hardship, but I cannot find that this hardship would be insurmountable.
Consequently, I am of the view that this Other Consideration (e) weighs slightly in favour of revocation of the decision to cancel the Applicant’s visa.
Conclusion: Other Considerations
With reference to these Other Considerations, the application of the Other Considerations in this matter can be summarised as follows:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength, nature and duration of ties: to an extent, weighs in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs neither in favour of nor against the Applicant;
(e)Extent of impediments if removed: weighs slightly in favour of the Applicant.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. Primary Considerations A and C weigh heavily in favour of non-revocation. Primary Consideration B weighs slightly in favour of the Applicant. I have outlined the effect of the Other Considerations above. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant weight I have attributed to Primary Considerations A and C. Accordingly, a holistic view of the considerations in the Direction favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 149 (one hundred and forty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.....................[sgd]...................................................
Associate
Dated: 23 October 2018
Date of hearing: 17 October 2018 Advocate for the Applicant: Mr K Thhaker Solicitors for the Applicant: Get My Visa Advocate for the Respondent: Mr M Hawker Solicitors for the Respondent: Sparke Helmore
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