George and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 2454
•8 August 2023
George and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2454 (8 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3641
Re:Joshua Sonny Terrence George
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Senior Member Kira Raif
Date:08 August 2023
Place:Sydney
DECISION
The Tribunal Affirms the decision not to revoke the cancellation of the Applicant’s Special Category visa
........................[SGD]..............................................
Senior Member Kira Raif
Catchwords
MIGRATION – mandatory cancellation of visa – failure to pass character test – whether there is another reason why visa cancellation should be revoked - Ministerial Direction 99 – protection of Australian Community – nature and seriousness of applicant’s conduct – risk to Australian community – whether conduct engaged in by applicant constituted family violence – strength, nature and ties to Australia – best interests of minor children in Australia – expectations of Australian Community – legal consequences – impediments to removal – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pearson v Minister for Home Affairs [2022] FCAFC 203
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA
REASONS FOR DECISION
Senior Member Kira Raif
08 August 2023
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the cancellation of a Class TY Special Category (Temporary) Subclass 444 visa previously held by the Applicant.
The Applicant is a citizen of New Zealand, born in December 1996. He travelled to Australia in February 2016 and was granted the Special Category visa on arrival. Between January 2019 and May 2021, the Applicant was convicted of a number of offences described below. He was sentenced to 12 months imprisonment.
On 31 May 2022 the Applicants’ visa was cancelled under s. 501(3A) of the Act however, it was determined that he was affected by the judgment of the Full Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203.
Following the enactment of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), the Applicant’s aggregate sentence was considered to be treated as a term of imprisonment of 12 months or more and the Applicant was informed of that in a letter dated 17 February 2023. On 17 May 2023 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation. The Applicant is seeking review of that decision.
For the following reasons, the Tribunal has concluded that the decision dated 17 May 2023 not to revoke the cancellation of the Applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(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.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(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))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 23 January 2023, Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 99’) was signed, coming into effect on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2(2) of Direction 99 states that:
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The primary considerations which are set out in clause 8 of Part 2 of Direction 99 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 99:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[1]
‘Direction 65 [now Direction 99] 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’”[2]
[1][2018] FCA 594.
[2] Ibid, [23].
While these comments were made in relation to the earlier Direction, they apply equally in the present case.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked?
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Australian Criminal Intelligence Commission Report (and the NSW Police Criminal History Bail Report) relating to the Applicant. These indicate that the Applicant had been convicted of the following offences:
17/03/23
· Contravene prohibition / restriction in AVO
· Unlicensed for Class
Imprisonment 1 month & 16 days
S 10A conviction, disqualification
23/05/22
· Stalk or intimidate intending to cause fear of physical or mental harm (DV)
· Destroy or damage property
· Use offensive weapon with intent to commit indictable offence
· Contravene prohibition / restriction in AVO
· Common assault (DV)
· Assault occasioning actual body harm (DV)
12 months imprisonment
08/03/22
· Use offensive weapon with intent to commit indicatable offence
· Assault occasioning actual bodily harm
· Common assault
· Destroy or damage property
· Contravene prohibition / restriction in AVO
· Stalk / intimidate intend fear physical etc harm (domestic)
08/11/21
· Never licensed person drive vehicle on road (first offence)
Dismissed s. 10
29/07/21
· Use offensive weapon with intent to commit indictable offence
· Assault police officer in execution of duty
· Assault police officer in execution of duty cause actual bodily harm
· Stalk / intimidate intend fear physical harm (domestic)
· Assault occasioning actual bodily harm
· Stalk / intimidate intend fear physical etc harm (domestic)
· Assault occasioning actual bodily harm
· Contravene prohibition / restriction in AVO
Intensive correction order 11 months
28/05/21
· Use offensive weapon with intent to commit indictable offence
· Assault police officer in execution of duty without abh
· Assault police officer in execution of duty causing abh
· Stalk / intimidate intend fear physical harm
· Common assault
· Assault occasioning actual bodily harm
· Contravene prohibition / restriction in AVO
24/01/19
· Stalk / intimidate intend fear physical harm
12 months Community Corrections Order
The Tribunal finds that the Applicant has been sentenced to a term of imprisonment of 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
In his application for review the Applicant stated that he has a young family in Australia including two children and a baby on the way, as well as a step-son who relies on him for support. He wants to remain in Australia to support and look after them. The Applicant states that he feels he missed out on a lot of family time to ensure his family are not struggling financially and emotionally. His employer has offered him a job upon release, and he has his whole life in Australia. The Applicant states that he has guilt for not being present in his family’s life and leaving the burden on his partner. The Applicant states that being absent from his family for so long made him realise how valuable his freedom is and he will never reoffend as he has too much to lose.
The Respondent submits that the Applicant does not pass the character test. The Respondent submits that the primary decision should be affirmed, due to the seriousness of the offending and the fact that, should the Applicant offend again, he may harm the Australian community. The Respondent submits that the Applicant has been convicted of serious offences against his partner, his sister and others and in the short time he had been released in the community in late 2022 – 2023 he re-offended, suggesting a risk of reoffending. The Respondent submits that considerations that favour the non-revocation outweigh other considerations.
The Tribunal’s considerations are set out below with regard to Direction 99.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 99 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….
(2)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.
The nature and seriousness of the Applicant’s conduct to date
The Direction provides that violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets and, where available, the sentencing remarks.
There are before the Tribunal notes relating to the 2023 offences. It is stated that an ADVO was in place until April 2023 which prohibited the Applicant from approaching or having contact with his partner, who was identified as a protected person. The Applicant was observed to be driving a motor vehicle even though he has never had a NSW Driver’s license. It is stated that on 1 February 2023 the police attended the Applicant’s premises in relation to the above. The Applicant’s partner denied the Applicant was inside. When the police entered the premises, they located the Applicant on the premises and arrested him for breaching the AVO. It is stated that during the police interview, the Applicant made admissions to driving without a license and breaching the ADVO.
The Tribunal has considered the Police Facts Sheet in relation to the September 2021 offence of ‘never licensed person drive vehicle on road’ contrary to s. 53(3) of the Road Transport Act 2013. It is stated that on 14 September 2021 the police were patrolling a street and checking registration plates of vehicles. The police were alerted to a vehicle that was flagged as possibly being unregistered. The police followed the vehicle and observed the Applicant park near a shopping centre and walk towards the shopping centre. The Applicant told the police that it was his brother’s car and when asked to produce a driver’s license, he stated that he did not have one. The Applicant was compliant with police requests and was issued an infringement notice regarding driving an unregistered vehicle and never licensed person drive motor vehicle.
The Tribunal has considered the Police Facts Sheet in relation to the March 2022 offences. It shows that the Applicant had been in a domestic relationship with the victim, who was 8 months pregnant at the time. There was an ADVO in place, but they had been living together, with the victim initiating contact, contrary to the conditions of the ADVO. It is stated that that on 7 March 2022 the Applicant and the victim were at the victim’s residential address and the Applicant had requested the accused to boil some water for him. When she suggested he should do it for himself, the Applicant approached the victim and kicked her on the legs, punched the victim with both hands using a closed fist to her face and head multiple times. The Applicant ripped a fan which he used to punch holes in the walls. The Applicant threatened to smash the victim with the fan. The Applicant picked up a clothes line and used it to hit the Victim over her shoulder blade and he used the pieces of the walls that had come loose to hit the Victim multiple times over the head. The Applicant threatened the victim with words such as ‘bitch I will slaughter you’ and ‘I will put your head through a wall’. It is reported that as a result of the assault, the victim sustained multiple injuries including a large lump and bruising on her forehead, a bruise to her shoulder blade, red marks to her arms, hand and soreness to her head. The Victim reported being fearful for her safety. It is reported that the Applicant presented himself to the police on the same day and during an interview admitted the allegations.
The Tribunal has had regard to the Police Facts Sheet relating to the August 2020 offences. It is stated that on 19 August 2020 the Applicant and victim were at home. The Applicant threw a wooden baseball bat near the victim. It connected with the right side of the victim’s breast, causing pain and bruising. On another occasion on the same day, the Applicant and the accused had a verbal argument. While the victim was in the shower, the Applicant began to take toilet paper rolls off the toilet roll holder and he struck the Victim with the toilet roll holder on her abdomen, arm and thigh, this resulting in bruising on the victim’s abdomen and arm. It is reported that the Applicant had left the bathroom and returned with the baseball bat. He stepped into the shower and pressed his hand against the victim’s neck. On the same day, when the accused was out of the shower and was settling her child, the Applicant walked towards a victim with a kitchen knife. He stopped about 1.5 meters from the victim saying ‘I’ll fucking stab you bitch’, ‘I’ll kill you’ and ‘I’ll slit your throat’. At the time the Applicant held the knife about his shoulder and was swinging it around, causing the victim to feel fearful and threatened.
In oral evidence the Applicant conceded that his offending towards his partner was serious and that she would have been scared by his actions. The Applicant admits that the offending occurred in the presence of a child and that his son would have also been scared by his actions.
It is reported that on 23 August 2020 the Applicant and the Victim were shopping. The Applicant became aggressive with the victim. After exiting the store, the Applicant used his foot to kick the victim to the back of her knee, causing pain.
It is reported that there was a verbal argument between the Applicant and the victim. The Applicant reportedly stated ‘if you come home I’ll baseball bat you’. The victim felt threatened and scared for her safety and intimidated. The Applicant continued to argue with the victim on the bus. The Applicant punched the victim in the face, causing the victim some discomfort.
The Tribunal has had regard to the Police Facts Sheet in relation to the May 2021 offences. It is stated that in August 2020 an AVO was served listing the Applicant as the defendant. In September 2020 the police was notified of the possible breach of the AVO by way of the Applicant contacting the victim. At the time the Applicant was in custody at Parklea Correctional Centre. He had added the victim’s number to his call list. The victim (who is the person in need of protection identified in the AVO) later admitted to having contact with the Applicant. The Applicant’s phone log revealed 23 phone calls made to the victim between 5 and 11 September, speaking on 15 occasions.
The Applicant told the Tribunal that he made contact with his wife because he wanted to know about his children. The Applicant acknowledged that he had ignored the AVO when making contact with his wife and that he was aware of the breach when he made the calls.
The Facts Sheet states that on 4 January 2020 the Applicant and others were watching television in the loungeroom and due to an incident, the police were called. When the police arrived, the Applicant’s sister stated that the Applicant had assaulted her. While the police were arresting the Applicant, he stated to the victim ‘you fucking wait bitch. You fucking wait. I’ll fucking get you killed. I’ll fucking kill you cunt’. It is reported that the Applicant broke the grip of the police and ran to the balcony before the second handcuff was secured. The arresting officer sustained cuts and bleeding to his right hand. The Applicant picked up a gardening pitchfork, raised it and threw it in the direction of the victim, stating ‘I’ll fucking get you, you cunt’. The Applicant attempted to grab a terracotta plant pot on the ground. The police officer drew his firearm, and the pot was dropped and smashed. The Applicant attempted to punch the arresting officer and was capsicum sprayed. As the Applicant was being placed in the police car, he became angry, cocked his head back and exhaled sharply from the nose, causing nasal mucus to land on the body armour of the arresting officer.
In oral evidence the Applicant told the Tribunal that he was angry and had ‘snapped’. The Applicant told the Tribunal that he cares about his sister.
The Tribunal has had regard to the sentencing remarks of Magistrate McCarron of 28 May 2021 in relation to the charges of armed with intent to commit indictable offence, stalk / intimidate intend fear physical harm, common assault and assault occasioning actual bodily harm. Her Honour states that the facts can only be said to fall towards the mid to upper range of objective seriousness. He had attacked the victim at a vulnerable time whilst she was in the shower, held her neck, had thrown toilet rolls at her and had hit her with a bat. Her Honour notes that the situation was aggravated by the fact that it took place at the victim’s home. Her Honour noted that the sentence of imprisonment is of last resort, but she had formed the view that the Applicant’s violent conduct calls for denunciation, general and specific deterrence and to recognise the harm done to the victim.
The Tribunal has had regard to the Police Facts sheet in relation to the September 2017 offences. It is stated that on 19 February 2017 the victim was in a shopping centre with her family. At about 6:20pm the victim walked towards the amenities area, and the Applicant followed her and turned towards the Female toilet. While the victim was in the cubicle she saw two hands ‘hanging on the top of the cubicle’ and the top of a male person’s head over the dividing wall between her cubicle and the next. The victim became scared and made a noise. Later on, the Applicant exited the female toilets and ran from the shopping area.
It is reported that on 19 August 2018 the accused was in the shopping centre and followed another female towards the Female toilet. When another person walks into the toilet, the Applicant had immediately exited the female toilets and moved towards the male toilets but continued to the watch the hallway. When the victim exited the toilets, the Applicant walked towards her and followed her out of the amenities areas, causing the victim to become fearful.
In oral evidence, the Applicant initially admitted to having committed these offences. When it was pointed out that in his interview with the psychologist he said it was a case of mistaken identity, the Applicant changed his evidence and said that he did not commit the offences and pleaded guilty to “get these out of the way”, because he was young and did not understand the system.
The Tribunal finds that much of the Applicant’s conduct involved intimidation, violence and threats of violence towards women, including his partner, his sister and unknown members of the community. There was also an assault towards a police officer. Some of the offending resulted in a custodial sentence. The Tribunal has formed the view that the offending was very serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it could be repeated may be unacceptable.
In this case, the offending involved violence and threats of violence in relation to his partner and violence towards others. It is recorded that on one occasion the Applicant’s son was present and observed the offensive behaviour towards his mother. The Tribunal is of the view that there could be significant harm to women experiencing violence and significant harm to children who are either victims of such violence, or who observe violence perpetrated by or against their parents. There is also harm to the community if members of the public cannot safely go about their business. The Tribunal finds that, should the Applicant engage in further criminal or other conduct of the same nature, the harm to others could be significant.
The Tribunal has considered the risk of the Applicant reoffending and the evidence of rehabilitation achieved.
The Tribunal has had regard to the report prepared by Kris North, forensic psychologist, dated 7 October 2020. Ms North refers to the Applicant referring to impoverished family background and his early exposure to family violence. The Applicant reported past use of methamphetamines prior to coming to Australia but denied any use of this drug for the past five years. He disclosed using cannabis frequently prior to his arrest but had expressed a desire to maintain abstinence in the future. It is stated that the Applicant had identified issues in managing his anger and underlying anxiety, assessed as having stemmed from childhood trauma. Ms North has formed the view that the Applicant’s behaviour in offending was related to his early trauma as he identified being triggered by family violence issues. Ms North refers to risk factors such as prior offending of violent nature, breach of a community supervision order, low educational attainment, antisocial family member (father’s past incarceration) and history of drug abuse. Ms North refers to protective factors such as stable employment history, stable accommodation, supportive family members, motivation to address drug use and anger issues, expressed remorse for offending and accepted responsibility. Ms North states that she has assessed the Applicant as being a low risk of recidivism, noting that he had expressed remorse and accepted responsibility for his behaviour. Ms North recommends future treatment to address the Applicant’s difficulties in managing anger, underlying anxiety and comorbid substance use. Ms Kris states that should he engage in such treatment and continue to enjoy the support of his family and partner, the risk could be further reduced. (The Tribunal is mindful that the report was prepared before the most recent offending was known to the writer.)
The Tribunal has had regard to the Sentencing Assessment Report prepared in May 2021 by Ms Carla Winkley of the Department of Corrective Services. It is stated that at the time of the offences there was an AVO in place for the protection of his wife, who was the victim of his offences. It is stated that upon release, the Applicant intended to live with his grandmother and to return to his employment in a warehouse. He has received positive feedback for his work at the correctional centre. The report indicates that the Applicant’s criminal history commenced in 2017 and he displays a history of personal and domestic violence related charges. He received an adverse case note while in custody in January 2021 for non-compliance with an officer’s direction and in February 2021 he was charged for failing to wear appropriate footwear. With respect to the Applicant’s attitude, the report states that the Applicant expressed his remorse that he took his anger out on his wife and identified his need to improve his anger management skills. He also acknowledged his drug and alcohol use probably contributed to the offending, although he believed his mental health was the main contributing factor. It is reported that the Applicant had verbalised limited insight into his impact, stating that his behaviour would ‘maybe’ have scared the victim. The report states that the Applicant has been assessed at a medium risk of reoffending.
The Tribunal has also had regard to the Sentencing Assessment Report prepared by Ms Lauren Palczewski in October 2020. It is stated that the Applicant’s family have expressed their ongoing support for him, and he intended to reside with his aunt, uncle and brother upon release. With respect to the Applicant’s attitudes, it is stated that he reported becoming angry and frustrated with the victim due to her admission that she was returning to a violent relationship, and he was concerned for her well-being. He identified that he had initially acted out of concern and then anger as the offence occurred. It is stated that the Applicant expressed remorse for being disrespectful towards his sister and the police and stated that he accepted full responsibility for his actions during the offence. It is noted, however that he had demonstrated limited insight into the consequences of his actions upon the victims. It is noted that the Applicant was referred to counselling in the past but had never engaged with any intervention or program. The risk of reoffending has been assessed as medium – low. (That report was also prepared prior to the most recent offending taking place.)
There is before the Tribunal the Intensive Correction Order Breach Report. It notes that the Applicant was subject to the Community Corrections Order from July 2021 to June 2022 and breached the order by committing further offences. It is stated that the Applicant is a medium risk offender, and it refers to ongoing substance abuse, anger management and domestic violence. It is noted that despite the re-offending, his response to supervision was considered satisfactory and the Applicant is reported to have demonstrated positive progress with regard to his attitude and behaviour. He had commenced the EQUIPS program in February 2022 to target issues with domestic violence and his participation had been satisfactory. The report notes that the March 2023 charges are of a similar nature and appear to indicate an increased risk of reoffending and escalation in seriousness. It is stated that the Applicant’s past criminal offending has been closely related to his substance use, impulsivity and aggression.
The Applicant has provided a number of character references, including a work reference letter and statements from relatives. The Applicant’s partner also provided a statement to the Tribunal in support of the revocation request. The Tribunal acknowledges that evidence and gives it some weight. In his submission to the Tribunal the Applicant refers to the presence of his family in Australia, in particular his love for his children and the need for his ongoing presence in Australia to support his family.
The Applicant acknowledged in oral evidence that his drug and alcohol use had been problematic but states that he has done some counselling when he was released from prison. The Applicant provided to the Tribunal a report by Liz Wheeler, counsellor / psychotherapist at ADRA Community Centre dated 28 June 2023, which indicates that the Applicant had been a client of the Centre in 2021 and was referred by Community Corrections to address anger management. He had attended four sessions (by the time the report was written in 2023). It is stated that the Applicant had cooperated throughout the counselling process, acknowledged that he had dealt inappropriately with difficult situations and expressed a willingness to learn better ways of coping. The Applicant concedes, however, that despite these sessions, he had re-offended. He told the Tribunal that he intends to engage in further counselling although there is no evidence before the Tribunal to indicate that he had made any arrangements at present to do so.
The Applicant’s partner, Ms George, states that the more recent offending did not harm anyone, as the Applicant was not speeding (only driving while unlicensed). She states that the Applicant used her car and had breached the AVO but there was no harm to her, and she felt safe in his presence in the time he was out of detention. The Tribunal acknowledges that evidence, but the Tribunal’s concern is that the Applicant did breach the law and committed offences when he was in the community for only a short time (he was released in December 2022 and taken into custody in February 2023) and despite having previously made undertakings not to engage in criminal conduct. Ms George submits that if given more time, the Applicant could have proven that he had reformed but given the 2023 convictions, the Tribunal does not accept that is necessarily the case. Ms George also told the Tribunal that the Applicant appreciates what he has and the risk of being deported, but the Tribunal notes that the most recent offending occurred when the Applicant was already aware of these consequences.
The Applicant explained to the Tribunal that he wanted to see his partner and the children and wanted to discuss their future together, but he also concedes that he knew that he was not allowed to have contact with his partner. The Applicant told the Tribunal that he was not committing a serious crime. The Applicant states that he is ‘at the best he has ever been’ and there has been a big improvement. He states that his other charges were more serious, suggesting the most recent ones (which includes the breach of the AVO) are insignificant. The Applicant’s evidence indicates that he lacks insight into his offending. The Applicant’s evidence also indicates that he places his own interests above his legal obligations and that he may readily choose to break the law if he decides it suits his interests.
Ms George told the Tribunal that she does not believe there is a risk of reoffending. She talked about their plans for the ‘bigger and better’ future (buying a car and a bigger house) and she told the Tribunal she felt safe when living with the Applicant most recently. She states that after his last release from prison, the Applicant had returned to work, he does not smoke and is now drug free and has ‘calmed down’. She does not believe the Applicant would engage in criminal offending. The Tribunal is prepared to accept that Ms George genuinely feels that way but, noting the past history of the Applicant’s offending, the Tribunal does not find that evidence persuasive.
The Tribunal is mindful that by the time of the most recent convictions, the Applicant had undertaken counselling, had made an undertaking not to reoffend and, following the initial cancellation of his visa in May 2022, the Applicant was put on notice that offending may affect his visa and the opportunity to remain in Australia. The fact that the Applicant continued to offend and disregard the Australian law, indicates, in the Tribunal’s view, that there remains a real possibility that the Applicant will reoffend again, and that risk has not been mitigated by the past counselling, claimed abstention from drugs or other matters to which the Applicant and his partner refer.
It is also of significant concern that both the Applicant and his partner seem to think that only violent offending is serious while other offending is inconsequential. The Applicant told the Tribunal he is “at the best he has ever been”, and his partner repeatedly told the Tribunal that he has done nothing wrong despite the 2023 convictions. They do not seem to appreciate that any breach of the law is problematic and not only those that they themselves consider to be serious. In the Tribunal’s view, that lack of insight suggests a real possibility of future reoffending.
Having regard to all these matters, and while acknowledging the various reports and opinions that are before the Tribunal, the Tribunal is of the view that there remains a risk of reoffending. That risk is a real risk and is not an insignificant risk.
Having regard to the nature of the Applicant’s past convictions involving violence in the context of a domestic relationship, offending against female members of the public and his sister, as well as an assault on a police officer, and the Tribunal’s view that there remains a real risk of reoffending, the Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
The Applicant had been convicted of offending that involved domestic violence. The Tribunal finds that the conduct engaged in constitutes family violence. This factor also weighs heavily against the revocation.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
The Applicant had been residing in Australia since February 2016, for approximately seven and a half years. His partner and children, two siblings, as well as his extended family (including grandparents, aunts, uncles, cousins, nieces and nephews) live in Australia. The Applicant provided to the Tribunal a number of photographs depicting him with family and he told the Tribunal he has a good relationship with his family.
The Applicant’s youngest brother Terrence provided a statement to the delegate. He states that the Applicant’s only family live in Australia. Terrence refers to the support he had received from the Applicant and the difficult upbringing they had. The Tribunal accepts that evidence. The Tribunal accepts that the Applicant has strong family ties in Australia, as well as social and employment ties. His family members, including his partner and children, are Australian citizens. The Tribunal has formed the view that this consideration weighs heavily in favour of revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. 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 refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has three minor children residing in Australia and his partner is presently pregnant. He repeatedly told the Tribunal that he wants to be a good father (stating that he himself never had a father). The Tribunal is mindful, however, that some of the offending in relation to the Applicant’s partner occurred in the presence of his son and when Ms George was pregnant. The Tribunal is of the view that it is not in the best interests of any child to observe or experience family violence perpetrated by or against their parents.
The Applicant told the Tribunal that he does not want his children to grow up without a father like he did, and he states that his children would be affected if he is to leave Australia. He refers to having a close relationship with his children. The Tribunal accepts that the separation of the Applicant and his children may have an adverse effect on the children, although the Tribunal is also of the view that if the Applicant were to remain in Australia and to again engage in family violence in relation to his partner, this is also likely to have a detrimental effect on his children.
The Applicant told the Tribunal that he also has a good relationship with his nieces and nephews. There is little other evidence before the Tribunal about the Applicant’s relationship with, or interactions with these children and on the limited evidence before it, the Tribunal does not accept that the best interests of these children would be adversely affected if the Applicant’s visa remains cancelled.
The Tribunal accepts that the Applicant has a meaningful relationship with his children and the Tribunal also accepts that the Applicant wants to maintain that relationship.
Overall, the Tribunal has formed the view that it is in the best interests of the Applicant’s children to maintain a close relationship with the Applicant (provided it is free of family violence). The Tribunal accepts that it is in the best interests of the Applicant’s children if the cancellation of the Applicant’s visa is revoked.
That consideration weighs heavily in favour of the revocation.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[3] which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]
[3][2019] FCAFC 185 (‘FYBR’)
[4] See 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.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct, the community expectations would weigh heavily against the revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding. He has not made any claims that could indicate that non-refoulement obligations arise in this case.
The cancellation of the visa under s. 501 means that the Applicant will not be entitled to be granted another visa and will not be able to return to Australia to see his children or be with his family or for any other reason.
The Tribunal is of the view that consideration weighs somewhat in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 27 years of age. The psychologist report refers to the Applicant having an Adjustment / Anxiety Disorder but there is no evidence that the Applicant had sought, is receiving or intends to receive, treatment.
There would be no cultural or language barriers if the Applicant was to live in New Zealand where he lived until his arrival in Australia in 2016.
The Applicant’s mother lives in New Zealand. He told the Tribunal he has a good relationship with his mother, although he does not talk to her regularly and there is a statement before the Tribunal from the Applicant’s mother. The Applicant also refers to his ongoing employment in New Zealand before his arrival in Australia, as well as his employment in Australia. There is a statement from his former employer. The Applicant told the Tribunal he had worked in a warehouse and his skills may be transferable. The Applicant suggested that there might not be much work in New Zealand, but that statement is unsupported by any probative evidence and the Tribunal does not consider the Applicant would be unable to find gainful employment in New Zealand (if that is what he claims).
The Tribunal acknowledges that the Applicant has been living in Australia for a number of years and may have to re-establish himself in New Zealand but there is no apparent reason why he would not be able to do so.
Both the Applicant and his partner spoke about lack of family support in New Zealand. Ms George’s evidence is that she needs the Applicant to remain in Australia and to help her look after the children. (The evidence before the Tribunal is that Ms George and the children would not relocate to New Zealand if the Applicant is removed.) She refers to having other commitments and lack of family support. The Tribunal accepts that separation from his family in Australia may cause hardship to the Applicant and his family members.
The Tribunal finds that there may be some impediment if the Applicant is removed from Australia. The Tribunal finds that this consideration weighs in favour of the revocation.
Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal concerning the impact on victims other than the Applicant’s partner. The Applicant’s partner has given evidence supporting the Applicant, referring to him as the family’s ‘protector’. Ms George told the Tribunal that their previous run-ins had escalated resulting in the offending conduct. She has expressed her desire for the Applicant to remain in Australia and help her raise the children.
The Tribunal acknowledges that evidence, while also acknowledging the evidence in the police reports cited above indicating that Ms George felt fearful as a result of the Applicant’s conduct when the offending conduct took place.
The Tribunal gives this consideration some (albeit marginal) weight in favour of the revocation.
Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
(1)‘Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal concerning any business interests. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant has committed serious offences, being repeated domestic violence offending against his partner, some of which was committed in the presence of their minor child. The Applicant committed violent offenses with respect to his sister, despite claiming that he was upset about her being in a violent relationship. He had assaulted a police officer and also committed offences against female members of the public. The Tribunal has found these to be very serious offences. The nature of his past offending is such that the Applicant’s conduct is against the expectations of the Australian community.
The Tribunal has found that the Applicant has little insight into his conduct and feels that non-violent offences are insignificant. The Tribunal is not satisfied that the Applicant is now rehabilitated and finds that there remains a real risk of reoffending.
The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation. The fact that the Applicant had engaged in family violence also weighs strongly against the revocation.
The Tribunal places significant weight on the best interests of the Applicant’s minor children. The Tribunal accepts the evidence that the Applicant wants to maintain a relationship with his children and the evidence of his partner that she needs, and relies on, the support provided by the Applicant (and unavailability of other support). The Tribunal accepts that if the cancellation is not revoked, there will be very limited opportunities for the Applicant to maintain a meaningful relationship with his children. The Tribunal accepts that it is in the best interests of the Applicant’s minor children if the cancellation of the Applicant’s visa is revoked (provided the Applicant does not engage in further family violence towards the children’s mother). That weighs strongly in favour of the revocation.
Another factor that weighs in favour of the revocation is the strength, nature and duration of the Applicant’s ties to Australia. The Applicant’s partner, children, siblings and extended family live in Australia. Since 2016 when the Applicant had migrated to Australia, he has formed social, family and employment ties. The Tribunal has formed the view that the extent and duration of the Applicant’s ties to Australia weigh strongly in favour of the revocation.
The Tribunal has formed the view that there may be some impediment if the Applicant is removed from Australia. The legal consequence of the decision is that the Applicant would be unable to return to Australia and be with his partner, children and others. These considerations weigh in favour of the revocation.
Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. In the particular circumstances of this case, The Tribunal has decided that these considerations outweigh other considerations that weigh in favour of the revocation.
The Tribunal has decided that there is no other reason to revoke the cancellation. The Tribunal finds that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Special Category visa.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kira Raif
.......................[SGD].................................................
Associate
Dated: 08 August 2023
Date(s) of hearing:
01 August 2023
Advocate for the Applicant:
Ms George
Solicitors for the Respondent:
Charlotte Saunders, Minter Ellison
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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