FGBP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3816
•29 September 2020
FGBP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3816 (29 September 2020)
Division:GENERAL DIVISION
File Number: 2018/4445
Re:FGBP (No 2)
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Tigiilagi Eteuati
Date:29 September 2020
Place:Brisbane
The decision under review is affirmed.
...........................[SGD].............................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 200 Refugee visa – Applicant does not pass character test – whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCA 516
Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Singh [2020] FCA 1384
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
29 September 2020BACKGROUND
This is an application by FGBP (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister” or “the Respondent’) on 1 August 2018 to refuse to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class XB Subclass 200 Refugee visa.
The Applicant first arrived in Australia in 2007 as the holder of a Class XB Subclass 200 Refugee visa. The Applicant was 18 years old when he first arrived in Australia. The Applicant arrived with his sister.
The Applicant began offending in 2011, some 4 years after he arrived in Australia. He was first sentenced to a period of imprisonment on the 19 May 2014 when he was sentenced to 18 months imprisonment for wounding.
On 20 August 2014, the Department wrote to the Applicant indicating that after having considered whether to cancel the Applicant’s visa on character grounds, a decision had been taken not to cancel his visa under section 501 of the Act. That letter relevantly stated:
“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 the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”
[Emphasis in original]
On 15 November 2016, the Applicant was convicted of various offences stemming from three different offending episodes. The Applicant was convicted of assaults occasioning bodily harm - domestic violence offence and contravention of domestic violence order (on 20 September 2016) and sentenced to nine months imprisonment. The Applicant was also convicted of contravention of domestic violence order (on 15 September 2016) and breach of bail granted condition - domestic violence offence (on 20 September 2016) and sentenced to three months imprisonment. Finally, the Applicant was convicted of contravention of domestic violence order and wilful damage - domestic violence offence (on 27 August 2016) and sentenced to one month imprisonment. The three terms of imprisonment were to be served concurrently with an effective non-parole period of three months.
On 29 May 2017, the Applicant was convicted of wounding (on 13 March 2016) and sentenced to two years and six months imprisonment to be suspended for three years after serving five months imprisonment.
On 7 December 2016, while the Applicant was still in prison for the offences for which he was convicted on 15 November 2016, a delegate of the Minister cancelled the Applicant’s visa pursuant to section 501(3A) of the Act.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. Cancellation in these circumstances is mandatory: see Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCA 516, Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Singh [2020] FCA 1384.
On 20 December 2016, the Applicant sought that the cancellation decision be revoked.
On 1 August 2018, the Minister refused to revoke the cancellation of the Applicant’s visa.
On 8 August 2018, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision.
On 23 October 2018, the Tribunal affirmed the Minister’s delegate’s decision not to revoke the cancellation of the Applicant’s visa.
The Applicant applied for a Protection visa on 4 December 2018. That application was refused by the Minister’s delegate on 29 April 2019. The Applicant sought review of that decision in the Migration and Refugee Division of this Tribunal. On 3 July 2019, the Tribunal affirmed the Minister’s delegate’s decision to refuse the Applicant a Protection visa.
On 10 July 2019, the Federal Court, Anastassiou J, made orders by consent quashing the Tribunal’s decision of 23 October 2018 and directing the Tribunal to determine the Applicant’s application according to law.
Those orders were made on the basis that:
“The first respondent concedes that the decision of the second respondent is affected by jurisdictional error on the basis that the Tribunal failed to consider the applicant’s evidence and failed to make a finding in relation to the best interests of the applicant’s niece and nephew.”
The matter was heard on the 31 October and 1 November 2019. For the reasons below, the Tribunal has decided to affirm the decision under review. The Tribunal considers that this is the correct decision in this case.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that ‘may’ in s 501CA(4)(b) means ‘must’. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]-[39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
[Emphasis in original]
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 and A2 and the documents tendered into evidence by the Respondent and marked as exhibits R1 and R2. The evidence contained in these documents is discussed throughout this decision: see ‘Attachment A’ to this decision. In accordance with the submissions of the parties, the Tribunal has also tendered into evidence the Migration and Refugee Division’s decision dated 3 July 2019 affirming the Minister’s delegate’s decision to refuse the Applicant a Protection visa, and a transcript of the oral evidence given during the first hearing, respectively marked as exhibits T1 and T2.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
A National Police Certificate for the Applicant dated 21 June 2017 and the Queensland Court Outcomes for the Applicant dated 13 September 2018 show the following offences committed by the Applicant:
Court Court Date Offence Court Result Caboolture Magistrates Court 12 Oct 2017 Contravention of domestic violence order (on 06/08/2016) Convicted and sentenced to nine months imprisonment to be suspended for two years. Brisbane District Court 29 May 2017 Wounding (on 13/03/2016)
Convicted and sentenced to two years six months imprisonment to be suspended for three years after serving five months. Brisbane Magistrates Court 15 Feb 2017 Contravention of domestic violence order (on 06/08/2016)
Failed to appear outstanding warrants issued Brisbane Magistrates Court 15 Nov 2016 Assaults occasioning bodily harm - domestic violence offence (on 20/09/2016)
Contravention of domestic violence order (on 20/09/2016)
On all charges
Convicted and sentenced to nine months imprisonment concurrent
Contravention of domestic violence order (on 15/09/2016)
Breach of bail granted condition - domestic violence offence (on 20/09/2016)
On all charges
Convicted and sentenced to three months imprisonment concurrent
Contravention of domestic violence order (on 27/08/2016)
Wilful damage - domestic violence (on 27/08/2016)
On all charges
Convicted and sentenced to one month imprisonment concurrent
Brisbane Magistrates Court 15 Sep 2016 Failure to appear in accordance with undertaking (on 14/09/2016) Convicted recorded
fined $400
Brisbane Magistrates Court 16 Mar 2016 Common assault (on 03/10/2015) Convicted recorded
fined $450
Brisbane District Court
19 May 2014 Wounding (on/abt 19/05/2012) Convicted and sentenced to 18 months imprisonment Brisbane Magistrates Court 09 Jan 2013 Possessing dangerous drugs (on 28/07/2012)
Possess utensils or pipes etc for use (on 28/07/2012)
Possess property suspected of having been used in connection with the commission of a drug offence (on 28/07/2012)
On all charges
no conviction recorded
fined $350
Brisbane Magistrates Court 03 Dec 2012 Failure to appear in accordance with undertaking (on 07/11/2012) No conviction recorded
not further punished
Brisbane Magistrates Court 17 Jan 2012 Unauthorised dealing with shop goods (maximum $150) (on 11/06/2011)
Unauthorised dealing with shop goods (maximum $150) (on 28/06/2011)
On all charges
no conviction recorded
fined $300
Possessing dangerous drugs (on 01/12/2011)
No conviction recorded
Recognisance: $150
good behaviour period: four months
drug diversion
Brisbane Magistrates Court 30 Jun 2011 Contravene direction or requirement (on 25/05/2011)
On all charges with traffic matters
no conviction recorded
recognisance: $200
good behaviour period: three months
I am satisfied the Applicant has a substantial criminal record for the purposes of section 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months or more.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – 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 in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
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 relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… 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.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
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 provides that decision-makers should 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, subparagraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non‑citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The offences for which the Applicant received the longest terms of imprisonment were two wounding offences. The first wounding offence occurred on 19 May 2012. The Applicant was sentenced for that offence on 19 May 2014. The prosecutor in that matter outlined the agreed summary of facts for the Court. The prosecutor relevantly stated:
“…He invited the complainant to fight. The complainant agreed. There were standing in front of a unit complex.
There were blows exchanged. Your Honour, the defendant head-butted the complainant. He hit him in the face. The defendant kicked over a recycling bin. The defendant grabbed a bottle from the bin and swung it at the complainant. The complainant grabbed the lid of the bin to deflect the bottle, and he hit the defendant on the head with the lid of the bin. Your Honour, the defendant hit the complainant with the bottle. He hit him to the back left of the shoulder and he caused a deep wound to the back of the left shoulder. After that injury was caused, the defendant ran off. He dropped the bottle onto the ground, in front of another unit complex, and that was later picked up by police and a fingerprint was found on the bottle.
Your Honour, the complainant was taken to the hospital. The injury he suffered was a three-centimetre long laceration to the back of the shoulder, and it was a deep wound that extended down, penetrating down into his shoulder muscles. …”
In his sentencing remarks, the Sentencing Judge stated:
“…In sentencing you, I have had regard to the nature of the offence. 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 gentlemen, [victim’s name], 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. …”
The Applicant was sentenced to 18 months imprisonment but was released immediately on parole.
On 20 August 2014, the Department wrote to the Applicant indicating that after having considered whether to cancel the Applicant’s visa on character grounds, a decision had been taken not to cancel his visa under section 501 of the Act. That letter relevantly stated:
“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 the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”
[Emphasis in original]
The second wounding offence occurred on 13 March 2016. The Applicant was sentenced for that offence on 29 May 2017. That offence involved the Applicant wounding the victim with a piece of glass during an altercation. The Sentencing Judge stated:
“…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. I do take into account the fact that you have spent those five months in custody, however, and in the circumstances, it seems to me that it is appropriate to suspend the sentence after another five months in custody. …”
While the Applicant was on bail in 2016 in relation to the most recent wounding charge, the Applicant committed a number of serious domestic violence related offences, for which he was convicted on 15 November 2016 and 12 October 2017. While the Applicant’s wounding offences attracted longer sentences of imprisonment, the Applicant’s barrister described these domestic violence related offences as the Applicant’s most serious offences.
On 12 October 2017, the Applicant was convicted of contravention of domestic violence order and sentenced to nine months imprisonment to be suspended for two years. This offence was committed on 6 August 2016. The Queensland Police Service Court Brief in relation to this offence provides the following relevant allegations:
“…About 11pm the aggrieved has been woken up by the defendant who has wanted to have sex. The aggrieved has said no due her child being in the bed next to her. The aggrieved has gone to the bathroom and the defendant has followed her in and pushed the aggrieved to the ground and has held her down with her arms behind her back. The aggrieved was wearing tights and the defendant has taken these off and has started to have sex with the aggrieved. The aggrieved has yelled at the defendant to stop and the defendant has then put his hand across her mouth and slapped her with an open hand causing her pain to her lip and nose area. The defendant has only stopped due to the aggrieved calling out that the child had woken up and was standing at the bathroom door. The defendant has let the aggrieved up off the floor and the aggrieved has gone back to the bedroom and has sat on the bed where the defendant has followed her and slapped her again with an open hand causing bleeding from the aggrieved nose and mouth area. The defendant has then left the bedroom and has gone to the child’s bedroom and the aggrieved has called Police. …”
The above information contained in the Queensland Police Service Court Brief was read to the Applicant during the hearing. The Applicant admitted that the information contained in the Court Brief reflected what had occurred.
On 15 November 2016, the Applicant was convicted of a number of domestic violence related offences which had occurred while the Applicant was on bail for the most recent wounding offence.
The first two offences occurred on the 20 September 2016. The Queensland Police Service Court Brief in relation to these two offences stated:
“…The defendant began to yell at the victim and told her not to go and speak to the Police. The victim began to digitally record this argument using her mobile phone. The defendant then started pulling at the victim’s hair and slapping her face. The victim used her hands to try and shield herself from the assault. The defendant then punched the victim approximately five times in the head and neck before he took her phone from her. A number of these blows connected with the victim’s hands which were on top of her head. The victim felt immediate pain n receivbing [sic] these blows. The defendant told the victim that she was not going to leave her unit and refused to give her phone back. The victim remained in her room until moments before her friend arrived about 50 mins later.
…
Police observed that the victim had a laceration to her nose, a split lip as well as a swollen left hand. The victim stated that the defendant had caused the injuries to her left hand, her head, her neck and her lip and that they were all very sore. Police contacted the Queensland Ambulance Service who attended and transported her to the Mater Hospital with a suspected broken left hand. …”
On these charges the Applicant was convicted of assaults occasioning bodily harm -domestic violence offence and contravention of domestic violence order and sentenced to nine months imprisonment with a non-parole period of three months.
It is noted that the prosecution in the most recent wounding proceedings on 29 May 2017 relied upon these offences, indicating that these offences occurred while the Applicant was on bail for the wounding offence. The prosecution outlined the essential facts resulting in the Applicant’s convictions for assaults occasioning bodily harm - domestic violence offence, contravention of domestic violence order and breach of bail condition as follows:
“He then started pulling her hair, slapped her face and then hit and punch her about five times in the head and neck before he took her phone from her, and he injured her hand in the process, which was swollen when police attended, and she also had a laceration to her nose and lip as a result of that.”
On 15 November 2016, the Applicant was also convicted of contravention of domestic violence order and breach of bail granted condition - domestic violence offence. The Queensland Police Service Court Brief in relation to the contravention of domestic violence order, which occurred on 15 September 2016 relevantly stated:
“…The defendant remained on the bed for a short time before entering the bedroom and lying on the bed with the aggrieved and the child. The defendant then propositioned the aggrieved for sex and when the aggrieved refused the defendant became agitated and called the aggrieved a ‘prostitute’ and accused her of ‘sleeping around’. This altercation took place within view of the child.
Both parties moved out into the lounge room. The aggrieved, fearful of the defendants behaviour, asked him to leave. This further agitated the defendant was moved close to the aggrieved and verbally threatened to strike her. The aggrieved, believing that the defendant meant to assault her, moved away from the defendant and walked out of the unit to a nearby neighbour to have them contact Police however when she was unable to raise the neighbour she returned to the unit and contacted Police herself. The defendant continued to verbally abuse the aggrieved as she contacted 000. …”
For these offences the Applicant was convicted and sentenced to three months imprisonment.
Finally, on the same day the Applicant was convicted of contravention of domestic violence order and wilful damage - domestic violence offence (on 27 August 2016). The Queensland Police Service Court Brief indicates that these offences arose from the Applicant damaging the screen door of his former partner’s residence in an attempt to enter the premises in his former partner’s absence.
As all of the sentences of imprisonment imposed on 15 November 2016 were to be served concurrently, the effective sentence was nine months imprisonment with a non-parole period of three months.
The Applicant was also convicted of common assault on 16 March 2016 for kicking a man in the arm on 3 October 2015. The Applicant was fined $450 for that offence.
As the Applicant’s criminal record indicates, the Applicant was also convicted or found guilty of a number of other less serious offences including failure to appear in accordance with undertaking; possessing dangerous drugs; possess utensils or pipes etc for use; possess property suspected of having been used in connection with the commission of a drug offence; unauthorised dealing with shop goods; and contravene direction or requirement.
The Applicant has committed a number of violent offences in Australia, as outlined above. The Direction prescribes that crimes of violence are to be viewed very seriously. Crimes of violence against women are to be viewed very seriously. The Applicant has been convicted of a number of serious violent offences including serious violent offences against his female former partner.
The Tribunal considers that the sentences of imprisonment imposed on the Applicant are indicative of the seriousness of the Applicant’s offending, notwithstanding that the Courts appear to have been lenient to the Applicant regarding the time he has actually been required to serve in prison.
It does not appear that the Applicant has provided false or misleading information to the Department, such as to justify any significant increase in an assessment of the seriousness of the offending or its nature.
The Applicant has been convicted of multiple violent offences after being given a written warning about the consequences of further offending in terms of his migration status.
The Applicant has not been convicted of committing a crime while in immigration detention; during an escape from immigration detention; or after an escape from immigration detention.
The Tribunal has taken into account that some of the Applicant’s offences have been linked to alcohol and drug use and that the Applicant has attributed much of his offending to his use of alcohol and drugs. The Tribunal considers that these matters may provide part of an explanation for the Applicant’s offending. However, the Tribunal does not consider that these issues, of themselves, alter the nature of the Applicant’s offending, or its seriousness.
While it is difficult to gauge the cumulative effect of the Applicant’s repeated offending, it is safe to say that the Applicant’s violent offending has resulted in a number of members of the Australian community being subjected to violence with the resulting physical and psychological effects this kind of violent offending brings.
The Tribunal finds that the Applicant’s violent conduct is very serious.
In addition to the Applicant’s violent offences, the Applicant has committed a number of offences which were far less serious than the Applicant’s violent offences and that is reflected by the punishment meted out to the Applicant in the form of fines.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an applicant, the Tribunal must have regard to the two sub‑considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
(a)The nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community it is likely that the nature of the harm to victims would be that they would suffer from violent crimes including actual or grievous bodily harm, with potential lifelong physical and mental consequences and possibly death.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There is no expert evidence before the Tribunal as to the likelihood that the Applicant will reoffend.
The Tribunal has taken into account that the Applicant attended approximately three rehabilitation sessions which each lasted four or five hours. The Applicant indicated that the sessions related to drug and alcohol rehabilitation. He also said that there was some focus on domestic violence prevention.
The Tribunal has also taken into account the Applicant’s claims that he is now drug and alcohol free and that his time in jail and immigration detention has had a positive effect on him. The Tribunal has taken into account the Applicant’s evidence that he has been drug and alcohol free since being imprisoned in September 2016.
The Tribunal has also taken into account that the Applicant has claimed that he is remorseful for his conduct and will not reoffend again in Australia.
The Tribunal is not particularly persuaded by the Applicant’s arguments that he has refrained from committing offences while in prison and detention and that this shows he is no longer a risk to the community. The Tribunal is willing to accept that it may be the case that drugs and/or alcohol were available to the Applicant in prison or detention. If that is the case, it is commendable that the Applicant has not returned to drugs or alcohol during his detention. However, the Applicant’s most serious offending has involved wounding in public and offending against his former partner. These offences were committed outside of the confines of detention where the Applicant was not being closely monitored and where his former partner was not present. If the Applicant is released from detention, there will be no equivalent monitoring of the Applicant, drugs and alcohol will be readily available to him and he will have access to his former partner.
The Tribunal has placed significant weight on the Applicant’s lengthy and repetitive criminal history. The Applicant has committed numerous offences from 2011 to 2016.The Applicant has been sentenced to periods of imprisonment on 4 occasions. It does not appear that the Applicant has been at all deterred by the sentences handed down by courts over the years.
The Applicant has had no employment for most of the time that he has been in Australia. It appears that he has not been employed since he met his second former partner (“Partner B”) in 2012. It appears likely that the Applicant will remain unemployed, at least for some time, if he is allowed to remain in Australia.
The Tribunal has considered the statements provided in support of the Applicant including statements from the Applicant himself, the Applicant’s sister, his former partners, the President of the Liberian Association of Queensland, a pastor, and a social worker. The Tribunal accepts that the Applicant has a supportive sister who will try her hardest to ensure that the Applicant does not reoffend. The Tribunal also accepts that Partner B is likely to provide the Applicant with support especially in so far as it relates to the Applicant being involved in their son’s life.
However, any support that the Applicant is likely to have in the community must be tempered by the fact that the Applicant had similar levels of support in the community previously while he was offending. Of particular concern is that much of the Applicant’s offending was committed against Partner B. At the hearing, the Applicant indicated that he and Partner B were still in a relationship. However, Partner B indicated that any romantic relationship between the two was over. She said that the extent of the relationship going forward would be that she wanted their son to have access to his father. She indicated that if the Applicant were allowed to remain in Australia, he would not live with her, that he would live with his sister.
The Tribunal is concerned that while the Applicant and Partner B are no longer in a romantic relationship, it appears that the Applicant will continue to have access and proximity to Partner B. In the past, domestic violence orders have been unsuccessful in preventing the Applicant from committing serious acts of violence against Partner B. On two occasions in the presence of their child.
The Tribunal has also placed significant weight on the fact that in 2014 the Applicant was given a written warning about the consequences of further offending in terms of his migration status. The Applicant went on to commit multiple serious violent offences after having received the warning. He was well aware that committing further offences may result in his visa being cancelled. Rather than preventing the Applicant from offending, his offending only became worse.
The Tribunal is satisfied that given the Applicant’s intensive criminal history and his failure to cease offending despite being convicted of offences, being subjected to domestic violence orders and being warned that further offending may result in the cancellation of his visa, there remains a real risk that the Applicant will continue to commit offences including violent offences against members of the Australian community if he is allowed to remain in Australia.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent conduct is very serious. The nature of the Applicant’s offending involves repeated violent conduct against members of the Australian community.
The Tribunal has found that, if the Applicant were to commit further violent offences in Australia, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences and possibly death.
The Tribunal has found there is a real risk that the Applicant will engage in violent crime in the future if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. The Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Subparagraph 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 the cancellation of the Applicant’s visa. Subparagraphs 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 of age 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.
Subparagraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has two children in Australia.
The first child is almost 10 years of age. He is the son of the Applicant and a former partner (“Partner A”).
The Applicant’s second child is seven years of age. He is the son of the Applicant and Partner B.
The Applicant was with Partner A from 2007 until that relationship ended in 2011. Their child was born in 2010.
The Applicant’s relationship with Partner B began in 2012. Their son was born in 2013.
Partner A provided a statement which was before the Tribunal and gave evidence at the first hearing before the Tribunal. Partner B provided statements which were before the Tribunal and appeared at both hearings before the Tribunal.
Partner A indicated that although her relationship with the Applicant ended in 2011, the Applicant maintained a close relationship with their son. The Applicant gave evidence that while he has been in immigration detention he has maintained contact with the 10-year-old and they speak several times a week by telephone or video.
The Tribunal accepts that the Applicant has a close relationship with his 10-year-old son, and that they have maintained a close relationship over the years including when the Applicant has been in jail and detention. The Tribunal accepts that the Applicant has provided support for his 10-year-old son including some financial support over the years.
The Tribunal accepts that although the Applicant has not resided with his son for a number of years, the Applicant’s relationship with his son is a parental one. However, primary parental responsibility for the 10-year-old has been provided by Partner A.
I accept the evidence of Partner A indicating that the child dearly wishes for the Applicant to remain in Australia.The Tribunal accepts that the 10-year-old would be very upset if his father were removed to Liberia. The Tribunal accepts that there is a very good chance that the 10‑year‑old would never see his father again. The Tribunal accepts that, while the 10‑year‑old may be able to maintain contact with his father by telephone or electronic means, that this is no substitute for being able to spend time with his father in person.
The Tribunal also accepts that it is unlikely that the Applicant will be able to provide the same level of financial support to his son as he has been able to in Australia.
The Tribunal has also considered that Partner A would be very upset if the Applicant had to leave Australia as it would mean that her son would have to grow up in Australia without his father. The Tribunal accepts that Partner A’s distress may have a negative emotional effect on the 10-year-old.
There is no evidence that the Applicant has ever been abusive to his 10-year-old son.
The Tribunal has considered that the best interests of the 10-year-old child will be influenced by whether the Applicant continues to commit offences especially serious violent offences. That is, whether the Applicant is likely to play a positive parental role will depend in large part on whether the Applicant continues to commit offences in Australia. The Tribunal has already found that there is a real risk that the Applicant will continue to offend if he is allowed to remain in Australia.
However, overall, the Tribunal finds that it is in the best interests of the Applicant’s 10‑year‑old child for the Tribunal to revoke the cancellation of the Applicant’s visa so that the 10‑year-old can continue to have a close personal relationship with his father in Australia. The Tribunal places significant weight on the best interests of the Applicant’s 10‑year-old child in the Applicant’s favour.
The Tribunal accepts that the Applicant has an even closer relationship with his seven‑year‑old son. The Tribunal accepts that the Applicant is in contact with his seven‑year-old son daily by telephone or video. The Tribunal accepts that, prior to being detained in September 2016, the Applicant spent a lot of time with his seven-year-old son. This appears to have been so, notwithstanding that there were domestic violence orders preventing the Applicant from attending upon Partner B’s home.
The Tribunal accepts that before the Applicant was detained in September 2016, he would spend most weekends with his son and his sister’s four children, at his sister’s home. The Tribunal accepts that in the past Partner B has been heavily reliant on the Applicant to help care for their child including by providing financial support.
The Tribunal accepts that although the Applicant has not resided with his son for a number of years, the Applicant’s relationship with his son is a parental one. However, primary parental responsibility for the seven-year-old has been provided by Partner B.
I accept the evidence of Partner B indicating that the child dearly wishes for the Applicant to remain in Australia. The Tribunal accepts that the seven-year-old would be very upset if his father were removed to Liberia. The Tribunal accepts that, there is a very good chance that the seven-year-old would never see his father again. The Tribunal accepts that, while the seven-year-old may be able to maintain contact with his father by telephone or electronic means, this is no substitute for being able to spend time with his father in person.
The Tribunal also accepts that it is unlikely that the Applicant will be able to provide the same level of financial support to his son as he has been able to in Australia.
The Tribunal has also considered that Partner B would be very upset if the Applicant had to leave Australia as it would mean that her son would have to grow up in Australia without his father. The Tribunal accepts that Partner B’s distress may have a negative emotional effect on the seven-year-old. The Tribunal accepts that Partner B has been abandoned by her family in Australia owing to her relationship with the Applicant. The Tribunal accepts that Partner B dearly hopes that the Applicant will be able to remain in Australia, notwithstanding the violent offences that he has committed against her in the past. She told the Tribunal that she considers that the romantic relationship between her and the Applicant has ended. However, apart from some support that she receives from the Applicant’s sister, she has no other support in Australia. She wishes for the Applicant to be able to remain in Australia so that her son can grow up here with his father and so that the Applicant can help her, both financially and otherwise, raise their son. Partner B had previously been undertaking tertiary studies and the Applicant looked after their son while she did so. Partner B indicated that she had to give up her studies as there was no one else to care for her son.
The Tribunal has considered that the best interests of the seven-year-old child will be influenced by whether the Applicant continues to commit offences especially serious violent offences. That is, whether the Applicant is likely to play a positive parental role will depend in large part on whether the Applicant continues to commit offences in Australia. Indeed, Partner B indicated that if the Applicant continued to commit violent offences, including against her, that it would not be in the interests of her son for the Applicant to remain in Australia. However, she was confident that the Applicant would not reoffend as she believed he had not consumed alcohol or drugs for a number of years while he has been detained. She also believed that his time in jail and immigration detention would have had a salutary effect on him. As mentioned previously, the Tribunal has found that there is a real risk that the Applicant will continue to offend if he is allowed to remain in Australia.
There is no evidence that the Applicant has ever been directly abusive to his seven-year‑old son. However, the seven-year-old was present on two occasions when the Applicant was abusive to Partner B, the seven-year-old’s mother. If the Applicant were to remain in Australia and continue to offend against Partner B, the Tribunal considers that this would have a negative impact on the seven-year-old.
However, overall, the Tribunal finds that it is in the best interests of the Applicant’s seven‑year-old child for the Tribunal to revoke the cancellation of the Applicant’s visa so that the seven-year-old can continue to have a close personal relationship with his father in Australia. This conclusion is consistent with the evidence of a social worker who provided a statement in support of the Applicant on 12 December 2016.
The Tribunal places significant weight on the best interests of the Applicant’s seven-year‑old child in the Applicant’s favour.
The Applicant has three nieces aged 15, 10 and eight who live in Australia. He also has a nephew who is almost two years of age. They are the children of the Applicant’s sister.
The Tribunal accepts that the Applicant has a close and continuing relationship with these children. The Tribunal accepts the evidence of the Applicant’s sister that the Applicant currently speaks with the children by telephone or video about twice a week.
The Tribunal accepts that, prior to the Applicant being detained in 2016, he would spend most weekends with his nieces and his seven-year-old son. Of course, at that point his nephew had not been born. The Tribunal finds that the Applicant’s relationship with his nephew is not as close as the relationship he has with his nieces.
The Tribunal accepts that the Applicant would spend time with the children at his sister’s house and that he would help with chores around the house. The Tribunal also accepts that the Applicant would take the children on outings, including to fast food restaurants and to play sport. The Tribunal accepts that the Applicant was particularly close with his 10-year-old niece.
Tribunal accepts that the Applicant’s nieces and nephew will often ask after him, wanting to know when they can see him again.
The Tribunal finds that the Applicant’s relationship with his nieces and nephew are not parental relationships but rather his relationship to them is one of a close uncle.
I accept the evidence of the Applicant’s sister indicating that each child wishes for the Applicant to remain in Australia.The Tribunal accepts that each of the children will be very upset if the Applicant is removed from Australia. The Tribunal accepts that the children’s mother, the Applicant’s sister will be very upset if her brother is removed from Australia. The Tribunal accepts that this in turn may have an adverse emotional effect on the children.
There is no evidence that the Applicant has ever been abusive to any of his nieces or nephew.
The Tribunal finds that it is in the best interests of each of the Applicant’s nieces and his nephew for the Tribunal to revoke the cancellation of the Applicant’s visa. The Tribunal places moderate weight on the best interests of the Applicant’s nieces and nephew in the Applicant’s favour.
There is no direct evidence of any of the children suffering any trauma arising directly from the Applicant’s conduct.
Conclusion: Primary Consideration B
The Tribunal finds that it is in the best interests of each of the Applicant’s two children for the Tribunal to revoke the cancellation of the Applicant’s visa. The Tribunal places significant weight on the best interests of these two children in the Applicant’s favour.
The Tribunal finds that it is in the best interests of each of the Applicants nieces and his nephew for the Tribunal to revoke the cancellation of the Applicant’s visa. The Tribunal places moderate weight on the best interests of these children in the Applicant’s favour.
Overall, the Tribunal places significant weight in the Applicant’s favour on this consideration.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
These principles were confirmed by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in subparagraph 6.3(5) and (7) of the Direction, can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see subparagraph 13.3(1) of the Direction. This expectation was breached when the Applicant committed numerous offences between 2011 and 2016.
The Tribunal has considered and taken into account the principles in paragraph 6.3 of the Direction including:
·the principle that the Australian community expects that the Australian government should cancel the visas of non-citizens if they commit serious crimes in Australia (see subparagraph 6.3(2) of the Direction); and
·that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia (see subparagraph 6.3(3) of the Direction).
The Tribunal has considered that Australia may afford a higher level of tolerance to criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age (see subparagraph 6.3(5) of the Direction). In circumstances where the Applicant has not lived most of his life in Australia, and has lived here from the age of 18, the Tribunal does not consider that the Applicant is to be afforded a higher level of tolerance.
There is some evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community (see subparagraph 6.3(7) of the Direction). There is evidence that he has had some limited employment in Australia prior to 2012. The Applicant has also claimed to have been active in the African community including participating in church activities, sports and providing advice to community members. The Tribunal also considers that the Applicant has provided support to his sister, his former partners, his children and his nieces.
The Tribunal has also considered that if the cancellation of his visa is not revoked this will have a negative impact on his sister, his former partners, his children and his nieces and nephew.
Conclusion: Primary Consideration C
Overall, given the serious nature of much of the Applicant’s offending, the real risk that he will reoffend, and notwithstanding the negative effects on the Applicant’s family members in Australia if the cancellation of his visa is not revoked and the lengthy time the Applicant has spent in Australia, the Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal places significant weight on this consideration in favour of non‑revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under subparagraph 14(1):
(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.
(a) International non-refoulement obligations (and claims of harm or hardship)
The Applicant conceded that he is not a person in respect of whom Australia owed international non-refoulement obligations at international law. The Tribunal accepts this concession. The Tribunal considers that this consideration is of neutral weight.
The Tribunal notes that the Applicant applied for a Protection visa on 4 December 2018. That application was refused by the Minister’s delegate on 29 April 2019. The Applicant sought review of that decision in the Migration and Refugee Division of this Tribunal. On 3 July 2019 the Tribunal affirmed the Minister’s delegate’s decision to refuse the Applicant a Protection visa.
The Tribunal notes that the Applicant is prevented from lodging a further application for Protection visa by section 48A of the Act unless the Minister exercises his personal discretion under section 48B of the Act to allow the Applicant to re-apply for a Protection visa.
As matters stand, if the non-revocation decision is affirmed, in the absence of the exercise of one of a number of Ministerial discretions, the Applicant will be removed from Australia as soon as reasonably practicable: see sections 189, 196 and 198 of the Act.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the noncitizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2007 when he was 18 years old. He has lived in Australia ever since. The Applicant began offending some 4 years after his arrival when he was about 23 years old.
There is some evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community (see subparagraph 6.3(7) of the Direction). There is evidence that he has had some limited employment in Australia prior to 2012. The Applicant has also claimed to have been active in the African community including participating in church activities, sports and providing advice to community members. The Tribunal also considers that the Applicant has provided support to his sister, his former partners, his children and his nieces.
The Tribunal accepts that the Applicant’s sister and his two children would be devastated if the Applicant were removed from Australia. The Tribunal also accepts that the Applicant’s two former partners would be very upset if the Applicant were removed from Australia as it would effectively mean that each of their children would be likely to never see their father again. The Tribunal also accepts that the Applicant has a close relationship with each of his nieces and his nephew and that they would be adversely affected if the Applicant were to be removed from Australia. The interests of each of the children have been considered separately above under the best interests of children consideration.
The Tribunal is also willing to accept that if the Applicant were to remain in Australia, he would be likely to provide emotional and other support to his family members, especially his sister and his children. The Tribunal has taken into account that his family members, have had to make do without the Applicant’s direct support for some time as a result of his imprisonment and detention.
Overall, the Tribunal finds that the Applicant has lived here for a significant amount of time, since he was 18. The Tribunal accepts that the Applicant has strong ties with his family members in Australia. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
This consideration is not relevant in this matter and the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
It is likely that this consideration was envisaged to take into account any expressed views of members of the Australian community, in a particular victims or members of their families, on the impact on them of a decision not to revoke the cancellation of an applicant’s visa.
This appears to be a rare case where a victim of some of the Applicant’s most serious offending has sought for the cancellation of the Applicant’s visa to be revoked. That is, that a decision not to revoke the cancellation of the Applicant’s visa would have a severe negative impact on the victim of the Applicant’s offending. In this case, the Applicant’s former partner, Partner B, is the victim of some of the Applicant’s most serious offending. The Tribunal has also found that she is also a potential victim of any future violent offending.
Partner B has expressed that she dearly wishes for the Applicant to be able to remain in Australia. The main reason for this is because the Applicant is the father of her child and she believes that it is clearly in the best interests of her child that his father remains in Australia to provide him love and support and also to provide for him financially.
The Tribunal notes that it does not have any evidence of the impact of the decision not to revoke cancellation on any other victims of the Applicant’s offences, or their family members.
The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. The Tribunal places low weight on this consideration in the Applicant’s favour.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen's age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant is now 31 years of age and claims that he has no ongoing medical conditions which require treatment. He did indicate that he had suffered a hand injury at some point but indicated that it had not prevented him from working.
The Applicant was born and raised in Liberia until he was 12 years old. As such, the Tribunal considers that it is unlikely that there would be substantial language or cultural barriers for the Applicant in Liberia.
The Applicant claimed that he has completed a Certificate I in construction, a Certificate II in housekeeping/hospitality and a Certificate III in English. It also appears that he had some limited employment with the Brisbane City Council and a hotel prior to 2012.
The Applicant’s sister indicated that her husband’s family lives in Liberia, but she said that they would be unable to assist the Applicant upon his return. Similarly, while the Applicant’s sister indicated that she was willing to provide the Applicant with some financial support if he remained in Australia, she would be unable to do so if he returned to Liberia. That being the case, the Tribunal accepts that the Applicant would be without any family support or community network upon arriving in Liberia. There is no evidence that the Applicant would be supported by the Government of Liberia as he has been in Australia. As the Applicant has claimed, and the Tribunal has accepted, re-establishing himself in Liberia will be difficult and challenging for the Applicant.
The Tribunal has also taken into account that the Applicant has some anxiety about returning to Liberia because when he left there as a 12-year-old, it was a war-torn country. Both of his parents went missing in Liberia. The Applicant concedes that any subjective fears that he may have are not well-founded. However, the Tribunal places weight, in the Applicant’s favour, on the fact that he understandably has some anxiety about returning to Liberia given the circumstances in that country when the Applicant left.
The Tribunal has also considered that, owing to the current COVID-19 pandemic, there may be delays in removing the Applicant from Australia. That may result in prolonged, but not indefinite detention.
The Tribunal finds that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will reoffend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation, notwithstanding the hardship to the Applicant’s family that non-revocation would cause and the length of time that the Applicant has spent in Australia.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of his two sons, his three nieces and nephew, weighs significantly in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of Australia’s international non‑refoulement obligations is a neutral consideration in this case.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the consideration of impact on victims weighs in the Applicant’s favour and has attributed low weight to this consideration. Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
.............................[SGD]..........................................
Associate
Dated: 29 September 2020
Date of hearing:
31 October and 1 November 2019
Counsel for the Applicant:
H Glenister by video link
Solicitor for the Respondent:
A Cunynghame in person
Sparke Helmore Lawyers
Attachment A
EXHIBIT REGISTER
File No: 2018/4445................................................................................................................
Between: FGBP (No.2).......................................................................................... (Applicant)
And:Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs........................................................................................................... (Respondent)
Heard on: 31 October and 1 November 2019
At: Brisbane..................................................................................................................
Exhibit Number Description of Evidence A1
Statement of the Applicant (undated) filed 28 October 2019
A2
Email from the Applicant’s sister (undated) filed 28 October 2019
R1
Bundle of relevant documents including G Documents
R2
Summons Records
T1
Migration and Refugee Division decision dated 3 July 2019
T2
Transcript of previous Tribunal proceedings dated 17 October 2018
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