Gibbons and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2222
•12 July 2022
Gibbons and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2222 (12 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3297
Re:Brent Gibbons
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:12 July 2022
Place:Sydney
The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 21 April 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
...................................[sgd].....................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – expectations of the Australian community – other considerations – extent of impediments if removed – Impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501E
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
12 July 2022
1. On 25 April 2022, the Applicant applied to this Tribunal for review of the Delegate’s decision made on 21 April 2022 not to revoke a mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The Applicant was originally notified on 4 August 2021 that his visa had been cancelled under s 501(3A) of the Act because he did not pass the character test on the basis that he had a substantial criminal record as defined by the Act.
FACTS
2. The Applicant was born in 1967 in New Zealand and arrived in Australia at the age of 11 months in 1968. The Applicant came with his family. His parents are separated. His mother now resides in New Zealand with his sister. There are other family members in New Zealand, including cousins, nieces and nephews, although the Applicant says, and it is accepted by the Tribunal, that he now has no contact with any family members, including his mother and sister.
3. In Australia, the Applicant has a brother. On the evidence, he has a complex relationship with his brother that has included periods of disharmony. It may be, on the evidence, that the brother is now presently living in satisfactory domestic accommodation with a female person whom the Applicant knows but the evidence is so unsatisfactory that the Tribunal is only prepared to accept that the Applicant’s brother has, in the past, also ‘lived on the streets’, as has the Applicant. An assertion by the Applicant that the brother will provide some assistance to the Applicant is, on the evidence, rejected by the Tribunal for lack of any satisfactory basis for this assertion.
4. The Applicant has had many return trips to New Zealand and has, on occasions, resided there for over two years. Nonetheless, the Tribunal is thoroughly satisfied that the Applicant regards Australia as his home, and for reasons which will emerge below, because of the Applicant’s mental health issues, the Tribunal accepts that proposition and regards it as particularly significant in these proceedings.
5. The Applicant originally had the capacity to work and, in fact, pursued the trade of a boilermaker. In later years, however, it is clear, in the Tribunal’s view, that the Applicant’s mental health deteriorated to such an extent that he has, in fact, been incapable of working, at least from 2012. The Applicant is presently on a disability pension, apparently because of his mental health.
ISSUES
6. The two issues before the Tribunal are whether the Applicant passes that character test and whether there is, according to s 501CA(4)(b)(ii) of the Act, another reason why the original decision should be revoked.
7. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.
8. The sole issue for the Tribunal's determination, therefore, is whether it can be satisfied that there is another reason why the original decision should be revoked. As will be evident from the discussion and ultimate decision below, the Tribunal has found that there is another reason why the revocation of the mandatory cancellation should, in fact, be revoked and the Applicant’s visa re-instated.
RELEVANT LEGISLATION AND POLICY
9. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
10. Section 501CA(4) provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
11. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
12. Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.
13. The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.
14. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
15. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));
(b)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 (paragraph 5.2(2));
(c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));
(e)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).
16. Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.
17. Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).
(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).
(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).
18. These principles are of course dependent upon the facts and circumstances of each case.
19. The primary considerations are:
(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)The best interests of minor children in Australia (Primary Consideration 3); and
(4)Expectations of the Australian community (Primary Consideration 4).
20. The Tribunal must also take into account other considerations insofar as they are relevant.
These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims;
d)Links to the Australian community, including:
i) strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.
THE CHARACTER TEST
21. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.
22. For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.
23. In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.
EXERCISING THE DISCRETION
24. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.
Primary Consideration 1 – Protection of the Australian community
25. Paragraph 8.1 of Direction No. 90 provides:
(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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
26. Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant's conduct to date
27. Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):
(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);
(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
28. Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:
(1)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 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.
(2)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; and
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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Seriousness of offending and future risk
29. Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.
30. The Applicant’s mental health, in the Tribunal’s opinion, is inextricably bound up with his offending which the Tribunal regards as largely petty criminal behaviour fuelled by his drug addiction which in its turn, the Tribunal is thoroughly satisfied, is intimately connected to the state of his mental health which, on the evidence, is a schizoaffective disorder.
31. The Applicant’s mental health is severely compromised. This was thoroughly apparent during the course of the oral evidence given by the Applicant. The Applicant showed no signs of aggression or violence in the taxing questioning of him by the Tribunal and the appropriately gentle and thorough questioning by the Respondent’s representative.
32. Aspects of the Applicant’s evidence exemplify a barely-controlled, serious mental health problem afflicting the Applicant. Examples from the evidence include the:
- promise of a multi-million dollar gift when he was 18 years of age which was to mature when he turned 65;
- insistence, which the Tribunal accepted as a genuine belief, of discovering the presence of explosives in garages; and
- belief of terrorist-related behaviour by certain persons.
33. Although the Applicant is presently on depot medication, that is, a medication for schizophrenia that he is required to take, and a variety of other medications, it is evident to the Tribunal that the Applicant’s mental health is presently still compromised to a very significant extent. The Applicant also suffers from diabetes.
34. The Applicant has a belief that he will be able to remain drug-free should he be released from custody and further, that he has plans to set up a suitable domestic relationship with his partner, K, who on the evidence, is also a drug addict, in the Tribunal’s opinion. The Applicant’s discussion of his plans for the future is sadly unrealistic and fanciful in the extreme, no doubt, a function of the Applicant’s mental health.
35. The Applicant has a history of offending. That history is set out below and appears as a table in the Respondent’s Statement of Facts, Issues and Contentions.
Court
Date
Offence
Result
Waverley Local Court
29/06/2021
Break and enter dwelling-house etc with intent (steal)-T1
Imprisonment: 10 months Commencing: 25/05/2021
Concluding: 24/03/2022 Non parole period: 3 months
Newtown Local Court
09/03/2021
Smoke in or on public passenger vehicle, train, public area
Fine : $50
Newtown Local Court
09/03/2021
Possess prohibited drug
Fine : $250
Sydney Drug Court
10/12/2020
Enter dwelling w/i (steal)-T1
Possess prohibited drug
(Call up)
Imprisonment (Aggregate): 12 months
Commencing: 14/08/2020 Concluding: 13/08/2021
Non-parole period with conditions: 4 months
Commencing: 14/08/2020 Concluding: 13/12/2020Indicative Sentence Release subject to supv
Sydney Drug Court
10/12/2020
Larceny value <=$2000-T2
Goods suspected stolen in/on premises (not m/v)
In house etc steal and break out value <= $60,000-T1
Break & Enter house etc steal value <=$60,000-T1
Break & Enter house etc steal value <= $60,000-T1
Agg B&E dwelling etc in company intend steal <=$60K-T1
Break & Enter house etc steal value <=$60,000-T1
Imprisonment (aggregate): 12 months
Commencing: 14/08/2020 Concluding: 13/08/2021
Non-parole period with conditions: 4 months
Commencing: 14/08/2020 Concluding: 13/12/2020
Indicative Sentence Release subject to supv
Sydney Drug Court
27/08/2020
Enter dwelling w/i (steal)-T1 Possess prohibited drug
(Call up)
Imprisonment (aggregate): 12 months indicative sentence Sentence suspended s7(3) Drug
Court Act
Sydney Drug Court
27/08/2020
Larceny value <=$2000-T2
Goods suspected stolen in/on premises (not m/v)
In house etc steal and break out value <= $60,000-T1
Break & Enter house etc steal value <=$60,000-T1
Break & Enter house etc steal value <=$60,000-T1
Agg B&E dwelling etc in company intend steal <=$60K-T1
Break & Enter house etc steal value <=$60,000-T1
Imprisonment (aggregate): 12 months indicative sentence Sentence suspended s7(3) Drug Court Act
Downing Centre Local Court
06/12/2019
Possess prohibited drug Enter dwelling w/i (steal)-T1
Community Correction Order: 12 months
Commencing: 06/12/2019 Concluding: 05/12/2020
Treatment programs: 12 months Commencing: 06/12/2019 Concluding: 05/12/2020
Continue Redfern Community
Mental Service treatments as directed by them
Waverley Local Court
09/01/2019
Larceny value <=$2000-T2
Fine: $200
Central Local Court
20/08/2018
Possess prohibited drug
Fine: $500
Downing Centre Local Court
19/07/2018
Possess prohibited drug
Fine: $1,000
Waverley Local Court
19/06/2018
Shoplifting-T2
Fine: $220 Property to owner
Downing Centre Local Court
13/03/2018
Dishonestly obtain financial advantage etc by deception-T1
(Call up)
Bond s9: 12 months to attend for counselling, educational development, drug or alcohol rehab. To participate in alcohol addiction counselling as directed. To participate in drug addiction counselling as directed.
Supv NSW prob service
Downing Centre Local Court
13/03/2018
Possess prohibited drug
Fine: $400
Waverley Local Court
04/04/2017
Enter inclosed land not presc premises w/o lawful excuse
Fine: $110
Waverley Local Court
04/04/2017
Goods in personal custody suspected being stolen (not m/v)
Bond s9: 6 months
The defendant is not to enter premises and related garage of 13/43 Albion St, Waverley NSW
Waverley Local Court
04/04/2017
Drive, licence suspended under s 66 Fines Act - 1st off
Bond s10: 12 months
Waverley Local Court
04/04/2017
Enter inclosed land not presc premises w/o lawful excuse
Fine: $110
Waverley Local Court
29/08/2016
Fail to appear in accordance with bail acknowledgment (BENCH -
NON CONVICTION - 63312079)
Fine: $110
Waverley Local Court
29/08/2016
Dishonestly obtain financial advantage etc by deception-T1
Fine: $550
Bond s9: 18 months Compensation: $3,216
Waverley Local Court
13/07/2016
Goods in personal custody suspected being stolen (not m/v)
Fine: $220 Property to owner
Waverley Local Court
23/09/2015
Drive, licence suspended under s 66 Fines Act - 1st off
Bond s10: 9 months
Waverley Local Court
22/04/2015
Possess prohibited drug
s10A conviction with no other penalty
Drug to be destroyed
Broken Hill Local Court
23/05/2005
Destroy or damage property
Bond s9: 12 months supv nsw prob service
Accept supervision of Broken Hill Mental Health Team and Probation and Parole ServiceCompensation: $1,011
Busselton Court of Petty Sessions
23/03/1998
False name and/or address
Fine: $100
Fremantle Court of Petty Sessions
02/12/1997
Disorderly conduct
Fine: $40
Lithgow Local Court
13/11/1997
Fail to quit lic premises
Fine: $200
Lithgow Local Court
13/11/1997
Fail to leave premises by person previously turned out
Fine: $200
Lithgow Local Court
13/11/1997
Malic damage
Fine: $300
Court Costs: $51
Wyong Local Court
04/05/1995
1. Enter enclosed lands
Fine: $150
Court Costs: $46
Wyong Local Court
04/05/1995
2. Self admin proh drug
Fine: $100
Wyong Local Court
04/05/1995
3. Possn proh drug
Fine: $250
Court Costs: $46
Woy Woy Local Court
09/02/1993
1. Place feet on seat
Fine: $50
Woy Woy Local Court
09/02/1993
2. Travel by trail without previously having paid fare
Fine: $50
Blacktown Local Court
14/02/1991
1. High PCA
Fine: $400
Licence disqualification: 6 months
Blacktown Local Court
14/02/1991
2. Not produce licence
Fine: $30
Blacktown Local Court
14/02/1991
3. Unreg MV
Fine: $70
Carnarvon Court of Petty Sessions
04/07/1990
Excess 0.08%
Fine: $300
Licence disqualification: 3 months
Waverley Local Court
29/04/1987
1. Steal from person
Self: $500
Good behaviour: 3 years
36. It is plain to the Tribunal that this Applicant’s offending is relatively petty, although it has increased in seriousness and is quite obviously drug-related. That conclusion has, in part, been drawn from the oral evidence of the Applicant at hearing as well as the objective evidence before the Tribunal.
37. In the Tribunal’s opinion, the Applicant does not display characteristics of a violent offender, although it is noted, and it will be discussed below, a quite minor domestic offence of family violence was committed in New Zealand in 2004 against his sister. The circumstances will also be reviewed below.
38. The Applicant’s offending is apparently relentless, unassisted by offers of probation and benefits of the parole system which is meant to be of great assistance in the rehabilitation of offenders. This Applicant’s offending continued as late as 2020 despite the benefits being given him of rehabilitative treatment through the Drug Court. The Applicant was ultimately sentenced to a term of imprisonment and was also further sentenced to a term of 10 months imprisonment as late as June 2021. The offending behaviour increased in seriousness over time. Such sentences of imprisonment were, in the Tribunal’s opinion, inevitable having regard to the continuing history of behaviour by the Applicant and any reduction in his criminal behaviour that, as the Tribunal has already mentioned, has at its heart, the interrelationship between drug addiction and the Applicant’s mental health.
39. There is no doubt, in the Tribunal’s mind, that although in terms of seriousness of offending the Applicant’s offending is at the very much lower end of the scale of seriousness, the Applicant will continue to offend should he remain in Australia. That is evident because although he has been offered assistance in the past by way of Court-ordered assistance, he has not or has not been capable of taking advantage of that assistance.
40. Furthermore, there is no convincing evidence, in recent times or in the past, of the Applicant ever having a demonstrated participation in drug rehabilitation programs in particular that have been, or can be said to have been, successful. The Tribunal notes that the Applicant pursued an anger management course whilst in custody in recent times.
41. Although the Applicant says, and the Tribunal accepts it as a correct statement of fact, that he genuinely wishes to reform and believes that he is capable of reform, the fact of his past conduct and failures in particular, and the intervention of his mental health in the overall make up of his behaviour, demonstrates without doubt, in the Tribunal’s opinion, that the Applicant will continue to offend.
42. That, however, is not an end of the matter. It is not simply the risk of re-offending that the Tribunal is required to assess but the risk of the type of offending.
43. In the Tribunal’s opinion, the type of offending which the Applicant will undertake in the future is precisely that of his past offending and limited to that offending, that is, petty crime related to his drug addiction. There is no likelihood, in the Tribunal’s opinion, even taking into account the offences in New Zealand of domestic violence and a common assault, that he is likely to commit those sorts of offences in Australia. Those New Zealand offences are remote in time and have not been replicated in Australia.
44. Of considerable importance, in the Tribunal’s opinion, is the interaction of the Applicant’s mental health with his offending. The Tribunal is of the opinion that the Applicant must be regarded as having considerably less culpability for his offending behaviour because of the mental health effect on that behaviour, that is, his schizoaffective disorder. This opinion is emphasised, if it is necessary to repeat the Tribunal’s view, by the Applicant’s own conduct and oral evidence in the hearing itself.
45. Ultimately, the Tribunal is of the view that the Applicant’s offending is, overall, not particularly serious and at the lower end of the scale of criminal behaviour. It has been caused fundamentally by the Applicant’s mental health problems.
46. The Tribunal is further of the view that the Applicant will almost certainly continue to offend in the future. However, that offending will be to the limited extent of his offending in the past which amongst other things, does not demonstrate any offences of violence and which offending is purely personal in the sense that the Applicant has offended for his own drug addiction. That is not to say that the Tribunal does not recognise that such offending does not have some effect on the public in general. Such offending, however, and its effects on the Australian community the Tribunal regards as quite limited, having regard to the entirety of this Applicant’s past offending.
47. This consideration obviously must weigh against the Applicant and although it is a primary consideration, there are other matters which relate to other considerations under Direction No. 90 which hold more powerful sway in the Tribunal’s opinion.
Primary Consideration 2 – Family violence committed by the non-citizen
48. Paragraph 8.2(1) of Direction No. 90 provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.
49. Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).
50. Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
51. Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
52. There are offences of domestic violence in New Zealand, one that relates to the Applicant’s sister. The disposition of that matter by the Court demonstrates it was a low level of family violence. There is no other evidence of domestic or family violence disclosed in New Zealand, or elsewhere, although there are some offences including an assault described as common assault in New Zealand, the circumstances of which are not clear.
53. This consideration weighs against the Applicant by virtue of an offence of domestic violence but the Tribunal recognises that this was committed in 2004 and has not been repeated. Furthermore, the sentence discloses or suggests that the offence which involved throwing a book, according to the Applicant, at his sister in retaliation for what she did, should not be treated as a serious example of family violence. The Tribunal does not treat the evidence before the Tribunal of family violence as a determinative matter in this hearing.
Primary Consideration 3 – Best interests of minor children in Australia
54. Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.
55. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).
56. Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
57. Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
58. The evidence does not disclose that this consideration is relevant.
Primary Consideration 4 – Expectations of the Australian community
59. Paragraph 8.4(1) of Direction No. 90 provides as follows:
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 not to allow such a non- citizen to enter or remain in Australia.
60. Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
61. 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 (sub- paragraph 8.4(3)).
62. 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 (sub-paragraph 8.4(4)).
63. This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.
64. It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
65. The relevance of the Applicant’s mental health operating as it does on his past offending, the Tribunal has found, means that in this case, although this consideration must of course weigh against the Applicant, its weight is diminished on that account and on account also of the Applicant having lived in Australia since he was 11 months of age.
OTHER CONSIDERATIONS
66. A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
International non-refoulement obligations
67. The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.
(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6)It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
68. There is no evidence to indicate that this consideration is relevant to this review.
Extent of impediments if removed
69. Paragraph 9.2(1) of Direction No. 90 provides:
(1)Decision-makers must consider the extent of any impediments that the noncitizen 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.
70. The Tribunal accepts the Respondent’s submissions, in a superficial sense, that there are relatively few impediments to the Applicant being returned to New Zealand. The Applicant is a citizen of that country and has returned there on numerous occasions. The Tribunal notes that the Applicant has deliberately lied on his incoming passenger cards when returning to Australia about his criminal convictions in Australia. The latter matter is something the Tribunal has taken into account in the overall seriousness of the Applicant’s offending.
71. A person who is returned to their country of origin after effectively a lifetime living permanently in Australia would necessarily experience disruption in an emotional, social and economic sense in trying to re-establish themselves in their country of origin. The Applicant is in no different a position looking at this matter superficially.
72. There is another extremely important issue at play, however, in the Tribunal’s opinion, in relation to the Applicant’s return to Zealand and the impediments involved.
73. The Applicant suffers a severe mental health illness and although it may be able to be treated in New Zealand, the fact of being sent back to New Zealand from Australia, in the Tribunal’s opinion, would affect the Applicant to a very great extent.
74. The Tribunal has formed this view from the oral evidence given by the Applicant in these proceedings when questioned on this topic.
75. The Tribunal is in no doubt that should the Applicant be returned to New Zealand to live on a permanent basis, that is, effectively to be deported, it would be such a blow to his mental health that it is likely to have severe and quite devastating consequences to the Applicant in terms of his mental health.
76. This consideration, therefore, is a powerful matter and the Tribunal considers one of particular weight in the Applicant’s favour.
Impact on victims
77. Paragraph 9.3(1) of Direction No. 90 provides:
Decision-makers must consider 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…
78. There is no evidence to indicate that this consideration is relevant to this review.
Links to the Australian community
79. Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.
9.4.1. The strength, nature and duration of ties to Australia
(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)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, 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 non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
80. The Applicant has lived in Australia since he was 11 months old and it is perfectly clear from his evidence, despite the somewhat unrealistic view he has of a future in Australia (which has been informed of course by his mental health issues), that he regards Australia as his home. The Applicant has worked in Australia and in the Tribunal’s opinion, he is, in all aspects of his life, completely attached to Australia.
81. In the Tribunal’s opinion, the attachment of the Applicant to Australia by virtue of the length of time in which he has lived in this country and affected as it is by his mental health issues, means that this consideration, in this Applicant’s case, weighs particularly heavily in the Applicant’s favour.
9.4.2 Impact on Australian business interests
(3)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.
82. There are no relevant business interest considerations on the evidence.
CONCLUSION
83. Although the Tribunal recognises that the Applicant is likely to re-offend in the future, the extent of that re-offending has been discussed above and it is not at a serious level that will likely affect other members of the community to any great degree. The level of seriousness of the Applicant’s offending which has been discussed above, is very much at the lower end of the scale of criminal conduct, lessened even more so by the Tribunal’s view that the Applicant’s offending should be viewed against the background of mental illness which the Tribunal has found has informed and affected his criminal offending. Simply, the Applicant should be regarded as being less culpable for his criminal conduct.
84. The two considerations discussed above of Extent of Impediments and the Links to Australia, specifically, the length of time the Applicant has spent in Australia combine, in the Tribunal’s view, to outweigh other considerations that weigh against the Applicant and operate as another reason why the Applicant’s visa should not remain cancelled.
Order
85. The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 21 April 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
....................................[sgd]....................................
Associate
Dated: 12 July 2022
Date of hearing: 29 June 2022 Applicant: Mr Brent Gibbons Solicitors for the Respondent: Ms C Campbell, HWL Ebsworth Lawyers
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