Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 808 (20 April 2023)
Division: GENERAL DIVISION
File Number: 2023/0754
Re:Sean Gray
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:20 April 2023
Place:Sydney

The reviewable decision is affirmed.
.................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – whether the applicant passes the character test – whether there is another reason why the cancellation decision should be revoked – ministerial direction no.99 – protection of the Australian community – family violence – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Country Information Report Zimbabwe, 19 December 2019
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
20 April 2023
Introduction

Mr Gray, the Applicant, is a 42-year-old citizen of Zimbabwe. He arrived in Australia on 30 November 2001 aged 20 and has not left since then.
He is seeking to have set aside the decision made on 6 February 2023 not to revoke the mandatory cancellation of his Resident Return (Class BB) (Subclass 155) visa under section 501CA(4) of the Migration Act 1958 (Cth) (the Act). The decision-maker found that the Applicant did not pass the character test as defined in section 501 of the Act, and there was not another reason why the original decision should be revoked.
The mandatory cancellation decision was made on 21 May 2020 pursuant to section 501(3A) of the Act because the Applicant did not pass the character test because he had a substantial criminal record as defined in subsection 501(6)(a) of the Act because he had been sentenced to a term of imprisonment of 12 months or more (subsection 501(7)(c) of the Act) and was serving a sentence of imprisonment, on a full-time basis in a custodial institution for an offence against a law of a State. The Applicant made representations in respect of that decision and on 6 February 2023 the delegate decided not to revoke the cancellation.
Issues
The issues are:
(a)Whether the Applicant passes the character test which is defined in section 501(6) of the Act; and
(b)If he does not, whether there is another reason why the cancellation decision should be revoked under section 501(CA)(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
Character test
The Applicant accepts that he does not pass the character test as defined in subsection 501(6) of the Act because he was sentenced to 11 years and six months’ imprisonment on 16 September 2016 for the following offences committed on 1 November 2014:
(a)Sexual intercourse without consent-SI;
(b)Wound person intend to cause grievous bodily harm (DV)-SI;
(c)Police pursuit – not stop – drive recklessly – 1st off-T2.
A further count of sexual intercourse without consent (DV)-S1 was taken into account on a Form 1 basis. Those offences will be referred to as the 2014 offences.
The Applicant was in prison from 1 November 2014 until the eight-year non-parole period ended on 31 October 2022, when he was transferred to immigration detention. His sentence expires on 30 April 2026.
Is there another reason why the cancellation decision should be revoked?
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and secondary considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act.
The primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct the applicant has engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)the expectations of the Australian community.
The decision-maker must also take into account the “other considerations” set out in Direction 99 where they are relevant. Those considerations include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Each relevant consideration will be considered in turn.
Primary considerations
Protection of the Australian community
There are two considerations in relation to the protection of the Australian community:
(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.
The nature and seriousness of the non-citizen’s conduct to date
In addition to the 2014 offences, the Applicant had offended on 22 April 2005, less than five years after he arrived in Australia. He pleaded guilty to, and was convicted of, aggravated sexual assault – inflict actual bodily harm on victim. A charge of take/detain person with intent to obtain advantage occasion actual bodily harm was taken into account on a Form 1 basis (the 2005 offences). He was sentenced to three years and four months’ imprisonment with a non-parole period of 21 months. He was in prison from 2 June 2006 to 19 November 2007. His parole period ended on 19 June 2009.
The following facts are taken from the sentencing judge’s remarks made on 2 June 2006.
The Applicant had been involved in a casual sexual relationship with the victim (Victim 1) from about November 2004. On 22 April 2005 at about 11:30am, the Applicant attended Victim 1’s residence. After watching television and talking for a few hours, they engaged in consensual sexual activity followed by attempted sexual intercourse twice which was unsuccessful because Victim 1 was not physically able to engage in intercourse. They discussed their relationship and its possible discontinuation, due in part to differences of ambitions and directions.
The Applicant became frustrated because he had not achieved orgasm. He took hold of Victim 1 by the shoulders as she sat on her bed, in an attempt to force her down. A struggle followed whereby the Applicant’s grip moved to Victim 1’s neck and he increased pressure on her neck which caused her to be unable to breathe. The struggle continued for about one minute. Victim 1 was able to call for help which alerted a neighbour who called the police.
The Applicant and Victim 1 fell onto the floor. The Applicant released his grip and they talked. He then had non-consensual penile vaginal intercourse with Victim 1. At some point, apparently reasonably shortly after this commenced, the Applicant realised he was ‘raping’ Victim 1 and stopped.
The facts relating to the take/detain person with intent to obtain advantage occasion actual bodily harm were that the Applicant used force to remove Victim 1 from the front door to keep her away from police and avoid apprehension.
Police forced entry via the front door. They noted an injury to Victim 1’s neck. The Applicant fled and handed himself into police the next day at 2:30pm. He participated in a record of interview and made full and frank admission to the offence. He told his probation officer that he was sorry for committing the offence and while hiding from police had time to think about the trauma he had caused Victim 1, and the shame he would bring to his family and so had surrendered to police.
A doctor examined Victim 1 immediately after the offence. There was a large area of erythema (redness), a superficial abrasion on each side of her neck, and a deep abrasion on her right elbow and left knee. There was noted tenderness to her back. There was erythema on her genitalia.
A clinical psychologist examined her and provided a report dated 14 February 2006. He concluded that Victim 1 was suffering from clinically significant levels of distress, with current symptoms of anxiety and depression, including persistent difficulties in achieving and maintaining sleep, recurrent nightmares, variously depicting a theme of strangulation, recurring episodes of intense anxiety and panic, and frequently recurring distressing thoughts and memories of 22 April 2005. She had ruminations about future assaults and possible death at the hands of her assailant, which frequently triggered intrusive thoughts. He thought that she could achieve sustainable and significant amelioration of her PTSD and depression if she completed the appropriate psychological treatment program.
The sentencing judge concluded that Victim 1 had suffered severely.
The Applicant provided a number of very supportive references, including from his mother. In summary, he was described as quiet, decent, hardworking, and honest, and his offending was out of character.
As a consequence of the 2005 offences, a delegate of the Minister considered whether to cancel the Applicant’s visa. The decision was made on 5 November 2007 not to cancel the visa but the Applicant was warned in writing that any further offending may lead to cancellation. On 6 November 2007, the Applicant signed an acknowledgement that he had received that letter.
The following summary is based on the sentencing judge’s remarks about the 2014 offences.
The Applicant and the victim (Victim 2) began their relationship in January 2012. About a year later they were arguing. In September 2013, Victim 2 accused the Applicant of sleeping with his ex-girlfriend (the mother of his two sons) which he admitted. They worked on their relationship. About that time, he moved in with Victim 2.
During a fight in October 2013, the Applicant started choking Victim 2 and said ‘I am going to stop. Are you going to listen to me?’ Similar events involving choking occurred in November and December 2013. The Applicant commenced counselling for his behaviour but did not recommence after Christmas. About April 2014, the Applicant fought with Victim 2 about her ex-boyfriend. She stopped sending emails or seeing friends. In July 2014, Victim 2 was out of work and there was a further argument. She got a permanent job in September 2014 and this appeared to calm things down.
On 31 October 2014, the Applicant and Victim 2 went to dinner and a movie. When he went to pay, he did not have his debit card. Victim 2 tried to pay but her card was declined. They returned to their flat. When Victim 2 was getting into bed they agreed they did not want to fight. She started dozing. The Applicant asked if she wanted him there, if she wanted to do this, presumably referring to their relationship. She asked if they could talk in the morning.
Between midnight and 12:30am (1 November), Victim 2 spoke to the Applicant. He started pulling his hair, banging his fists and pacing around. He started going through her phone, apparently concerned about her fidelity. They continued to argue. He went through the pockets of his work pants, removed his belt, and took the pants to the laundry. He returned to the bedroom. They continued to argue. He pulled Victim 1’s knees up so she was half sitting and half lying in the bed. He picked up his belt and lunged at her, trying to put the belt around her neck. She grabbed the belt. He whispered, ‘If you scream I will slit your throat’ and then ‘Are you going to listen to me?’ She nodded. He said ‘Where’s that big mouth now? If you say just one word.’ She remained quiet. He made her let go of the belt and he also let go. He told Victim 2 to take off her nightdress and underwear. He forced his penis into her mouth. (The Form 1 offence)
He pushed her down on the bed to have vaginal intercourse which she did not want but she remained quiet and did not struggle due to fears for her safety, but did complain that she was really sore. The Applicant made her kiss him twice, because the first kiss was not good enough. He ceased sexual intercourse. He told her to sleep, which she could not. At 6:45am she went to sleep on the couch in the lounge room. This is the sexual intercourse offence.
At 7am, the Applicant asked Victim 2 to help him get his van serviced that day. She agreed and went to the basement to call her mother in New Zealand. She told her mother that things were not okay with the Applicant. Her mother told her to call the police, which Victim 2 declined to do. Victim 2’s mother called the Applicant and asked what had happened. Her daughter was crying when she called. He said he did not know and would call back. She called him again but was cut off immediately. She then texted him, threatening to call the police if he did not respond. He did not.
Victim 2 got into the Applicant’s car with him and was driving. He told her to pull over. She got out of the car. He asked where the house keys were. She turned back to the car to get the keys and her phone and saw that the Applicant’s face was changing. He told her to come into the flat and that he wanted to talk to her. She followed him but felt uncomfortable. He started pulling her. Terrified, she pulled back, screamed, broke away and ran towards a main thoroughfare. She was trying to hide and rang triple 0.
He was running towards her. She called out to him to stop. He swung his left hand towards her. She tried to push him back. He swung and hit her in the stomach. She looked down and saw two wounds and that the Applicant was holding a small kitchen knife. He stopped, turned back and then back again towards Victim 2. She ran and screamed, jumped over a wall but found herself in a dead end. The Applicant pursued her and tried to stab her again. She hit his hand. He stabbed her in the right shoulder, and then in the back when she dropped her head. Neighbours came running and the Applicant ran off.
Victim 2 was taken to hospital. She was found to have suffered four main stab wounds in the upper abdomen, the lower rib area, the back and right shoulder. The wounds penetrated the skin but no deeper. There was a small scratch on her right upper leg. She was discharged on 5 November 2014. (The grievous bodily harm offence)
Following are the facts of the ensuing police pursuit.
At 7:34am on 1 November 2014, the Applicant rang the mother of his children telling her not to bring their children. After changing his mind, he asked her to bring their two children to his work address. He met her there. She left the children with the grandmother and got into his car. They drove for about an hour during which he told her he had stabbed Victim 2, and she told him to go to the police, before she got out.
At about 9:30am police detected the Applicant at Riverwood. They caught up with him and activated warning lights. He did not stop. The police pursuit began. At 9:35am, the Applicant rang his employer threatening to kill himself saying he had stabbed his girlfriend. His employer told him to stop the car and to get out with his arms in the air. The Applicant travelled at 95 kph in an 85 kph zone, pulling over after toll gates at Hammondville. A single police officer approached with his firearm drawn. The Applicant accelerated away. His employer called him, telling him to pull over. The Applicant said he had but the police were coming at him with guns. The Applicant left the M5 and travelled north on the M7. Police attempted to deploy road spikes, but he avoided them. They positioned themselves again, but he sped up, travelling at 150 kph until the police backed off and he reduced his speed to 130kph. Smoke and tyre debris started coming from the car and his tyres fully deflated shortly thereafter. He slowed to 10 kph and continued to travel at that speed to the Harbour Bridge and then onto Grosvenor, and then George and Goulburn Streets in the Sydney CBD, disobeying eight traffic light control signals, although police had already blocked traffic at those intersections.
Police finally stopped the Applicant outside the Sydney Police Centre at 10:58am, after one hour and 25 minutes and 140 kilometres, at speeds varying from 10 kph to 150 kph. The police had closed the Harbour Bridge and the CBD. The Applicant had called triple-0 saying he wanted to hand himself into a police station but wanted the police to back off. He brandished a knife towards police.
In an electronically recorded interview, the Applicant admitted to sexual intercourse without consent and that he had gone for Victim 2 with a knife because he was angry but had no intention of harming her.
The sentencing judge took into account Victim 2’s victim statement which he described as moving, and clearly indicated that significant distress and ongoing trauma was evident.
He said that the sexual assault arose out of a jealous and controlling rage and was a calculated attempt of subjugation and humiliation, and fell slightly above the mid-range of such offences. The offence was all the more disturbing because of the similar previous offence.
The sentencing judge made the following remarks about the wounding offence. It involved very disturbing elements. The attack was ferocious and sustained. It was not spontaneous, as the Applicant had chosen his weapon earlier. It was difficult to imagine Victim 2’s degree of foreboding and terror as the Applicant pursued, then stabbed her, and stabbed her again after she ran away into a dead end. The incident was extremely serious. The use of the knife was a significant aggravating factor. The offence was mid-range of objective seriousness.
The sentencing judge said that the police pursuit was just below the mid-range of offending.
The Applicant contended that the offences were serious.
The Australian Government and the Australian community view very seriously violent and/or sexual crimes, crimes of a violent nature against women, regardless of the sentence imposed, and acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed.
The sexual assault offences in 2005 and 2014 and take/detain person with intent to obtain advantage occasion actual bodily harm in 2005 and the wounding offence in 2014 were such offences. They were very serious.
Both occasions on which the Applicant offended were traumatic and degrading for the victims.
The 2005 and 2014 offences are of the same character but, disturbingly, the degree of violence escalated in the 2014 offending.
The sentencing on both occasions reflected the seriousness of the offending. Imprisonment is the last resort in the sentencing hierarchy. The 2005 offences were the Applicant’s first. He was sentenced to three years and four months’ imprisonment with a non-parole period of 21 months. The escalation of his offending in 2014 is reflected in the sentence of 11 years and six months, with a non-parole period of eight years.
Finally, the Applicant reoffended in 2014 despite having acknowledged in 2007 that the consequence of further offending may be the cancellation of his visa.
The police pursuit is of a different character to the Applicant’s other offences. I consider it to be serious because of the length of time it lasted, the distance covered, the danger and inconvenience posed to other road users, and the police resources tied up during the pursuit. Also, the Applicant brandished a knife at police.
The risk to the Australian community, should the non-citizen commit further offences

The first matter to consider under Direction 99, when assessing whether a non-citizen represents an unacceptable risk of harm to the Australian community, is the nature of the harm that would be caused if that person engaged in further criminal or other serious conduct.
If the Applicant engaged in further offending, the harm that would be caused includes very serious physical and psychological harm to the woman victim, and if the offending continued to escalate, that harm may include death. The other kind of harm that would be caused is endangering and inconveniencing other road users, taking up police time and manpower, and endangering police.
The second matter to consider is the likelihood of the non-citizen engaging in further criminal or other serious conduct. That requires taking into account available information and evidence on the risk of that occurring and any evidence of rehabilitation. Weight is to be given to the time the person has spent in the community since their most recent offence.
The Applicant’s case is that he poses no further risk to the Australian community because he will not commit further offences or engage in other serious conduct. Since he was incarcerated in 2014, he has completed various educational programs in gaol to address his offending behaviour, has reflected on his behaviour in gaol, and has developed a genuine understanding of his offending and insight into the risk factors leading up to it. He has developed practical skills and strategies to address those risks and can manage them when he is released into the community. He has continued seeing a psychologist regularly since he has been in immigration detention.
The Applicant emphasised that his engagement with rehabilitation programs following the 2014 offences was very different from his engagement following the 2005 offences.
The psychiatrist who prepared a report for the Applicant in relation to the 2005 offences, concluded that the Applicant was in the low to moderate risk group for reoffending, perhaps made lower because it was his first offence. He considered that the Applicant had the capacity to engage in a rehabilitation program and to comply with supervision. He recommended that the Applicant pursue anger management and a sex offender rehabilitation program.
The Pre-Release Report stated that the Applicant expressed regret for committing the offence and that he was committed to addressing his offending behaviour by undergoing a sex offender treatment program. He was remorseful for his actions and the effects of his behaviour on the victim. He had not attracted disciplinary action whilst in custody.
The Applicant completed his rehabilitation program while he was on parole. The Treatment Summary and Risk Management Report dated 31 July 2009 prepared by a Clinical Psychologist, concluded that the Applicant fell in the moderate-low range for sexual reoffending.
The Applicant’s evidence was that he did not engage properly with the course because he was focussed on his work in Orange and had to drive back to Sydney to attend the course, as well as to get supplies for his work from time to time. He did not give the course his full attention and did not follow through with skills he had acquired. His engagement in rehabilitation following his 2014 offences was while he was in custody and could devote all his time and attention to the programs.
Despite having served a term of imprisonment, the psychologists’ assessment that the Applicant was in the low to moderate risk group for reoffending, undertaking the rehabilitation course, and the visa cancellation warning, the Applicant reoffended in 2014, more seriously than in 2005.
The Applicant claims that the Moderate Intensity Sex Offender Program (MISOP) that he participated in from 9 April 2021 to 27 May 2022 was extremely helpful for him.
The Applicant’s written submissions referred selectively to the MISOP Treatment Report of Mr Thomas Dornan, clinical forensic psychologist, dated 22 July 2022, as follows. The Applicant made significant gains and there is consistent evidence of change in attitudes and consistency in his development of strategies to manage his risks. He presented as motivated to engage in treatment and was genuine in his approach to making significant long-term change.
Mr Dornan’s report was comprehensive. He noted that the Applicant completed the MISOP program in the community while in parole after the 2005 offences and that the Applicant said that then, he ‘was just going through the motions’.
Dr Dornan concluded that combining the STABLE-2007 and Static-99R scores to generate a composite assessment of the risk/needs, the Applicant’s composite risk/needs level was in the ‘above average’ risk level. That is, out of 100 individuals convicted of sexually motivated offences with the same risk profile as the Applicant, 12 and 14 would be expected to recidivate sexually over three and five years respectively. Conversely, 88 and 86 out of 100 would not recidivate with a sexually motivated offence after three and five years in the community respectively.
Another way of describing risk of reoffending is using risk ratios. On that measure, the Applicant was expected to have roughly twice the rate of recidivism of the average individual convicted of a sexually motivated offence.
While reporting the Applicant’s significant gains and consistent evidence of change in attitudes and consistency in his development of strategies to manage his risks, Mr Dornan wrote that he would need to continue to demonstrate an ability to maintain those gains when he re-enters the community.
Following is a summary of Mr Dornan’s recommendations to assist the Applicant with risk management and reintegration:
·The Applicant be afforded supervised time in the community prior to his sentence expiry considering his risk level. He would benefit from being assisted to re-integrate into the community.
·It is strongly recommended that he develops a network of both professional and non-professional supports when in the community, potentially with the assistance of his Community Corrections Officer.
·Once stable in the community and supports are in place, the Applicant engage with a psychologist, focussing on trauma, problem solving and consequential reasoning deficits, poor self-esteem, affect/anger regulation, emotional coping, mood management, and behaviour regulation.
·He should be encouraged to socialise and spend time with prosocial others and develop his prosocial network.
·Considering his reduced intimate relationship skills, it would be beneficial for him to participate in relationship counselling should he enter another relationship.
·The Applicant’s supervising officer is encouraged to use the Practice Guide for Intervention (PGI) tool during reporting appointments. Modules relevant to his needs: managing stress and anger, managing environment, interpersonal relationships, communications, conflict resolution, self-awareness, and general skills.
If the revocation decision were cancelled, the Applicant would be released into the community and subject to parole until 30 April 2026, a period of about three years during which there will be a degree of supervision and some of those recommendations may be implemented.
Mr Dornan’s risk assessment and the extent and nature of the recommendations to assist the Applicant to manage risk and to reintegrate into the community show that there is a real risk that the Applicant will reoffend.
The Applicant pointed to courses he had completed while in gaol to address his offending, other than MISOP: EQUIPS Domestic Abuse, EQUIPS Foundation, and EQUIPS Aggression. He regularly sees a psychologist in immigration detention and will begin an anger management course in the middle of April. He intends to see a psychologist when he is in the community.
It is relevant that there is no record of violence during his relationship with the mother of his sons, which began, according to the Applicant, before he went to prison on 2 June 2006. He was released on 19 November 2007 and his parole period ended on 19 June 2009. Thereafter he was in the community without any supervision for about two and a half years while that relationship continued, until about the end of 2011.
The Applicant expressed remorse, took responsibility for his offending, and stated that he would not reoffend when the cancellation of his visa was previously considered in 2007.
While he claims to have real insight into his offending, the reasons for it and his strategies to address them, his words and claimed intention are not reliable indicators of what he will do. He has been untested in the community. For example, will he have the time or be able to afford to see a psychologist? Will his commitment to work limit the time he has to pursue assistance in the community? Will he be motivated to pursue assistance? In addition to his history in relation to the 2005 offence, in about December 2013 he sought counselling after he had choked Victim 2 on about three occasions. He saw two different psychologists, because the first was too expensive, but did not continue after Christmas of that year. He recognised he needed assistance but did not pursue it.
The Applicant pointed to his very good record of behaviour while in prison to demonstrate that he has changed. It does not because his offending has occurred in the very different context of domestic relationships with women which did not arise in the prison environment. In any event, Mr Dornan took that conduct into account.
As far as protective factors assisting him not to reoffend, including work, his sons, and his supportive family, they were present in 2014 and therefore I give them no weight. Further, he has had no personal contact with his sons since about 2019 and no contact by telephone or other digital means since November 2022. The mother and his two sons have moved interstate. He proposes to take steps to regain contact with them when he is released.
It was suggested that the Applicant has also gained some insight from being attacked and seriously injured while in gaol. The following summary is based on the judge’s sentencing remarks for the 2014 offences. The Applicant was seriously assaulted on 24 April 2016 while in gaol by two persons who attacked without warning. He was kicked and punched repeatedly, including by a third person who joined in. Ultimately the attackers walked away. The motivation for the attack was the nature of his offending, including ‘rape’. The Applicant’s jaw was broken, requiring fixation of a plate and the addition of screws. He lost a tooth and suffered a fractured facial bone and wounding to the lip requiring suturing. He was later approached by another group which resulted in stricter protection for his safety. The sentencing judge remarked that the Applicant would remain in protection for almost the whole of his custodial period and that the Applicant was fearful for his personal safety and was suffering a high degree of stress.
The judge’s sentencing remarks were listed in the materials Mr Dornan had considered. I infer that he has taken it into account in coming to his conclusion, discussed above.
I give little weight to the assessment of the Applicant’s family members that he has been rehabilitated and will not reoffend. I prefer the evidence of Mr Dornan.
There is a real likelihood that the Applicant will reoffend.
The protection of the Australian community weighs heavily against revoking the visa cancellation decision.
Family Violence committed by the non-citizen
Direction 99 sets out the Government’s serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The Applicant has engaged in family violence in 2005 and 2014, that is sexual assault, of Victim 1, who was a woman with whom he was having a casual sexual relationship, and Victim 2, who was his girlfriend of more than two years. They were relevantly members of the Applicant’s family. He was having an intimate personal relationship with both victims.
As is apparent from the facts of the offences, they are very serious incidents of family violence which were traumatic and degrading for the victims.
The seriousness of the family violence escalated from the 2005 to the 2014 offences.
While I accept that the Applicant’s expressions of remorse and understanding of the impact of his behaviour on the victims are genuine, the question is how he will deal with future intimate relationships. He was remorseful after the 2005 incident but engaged in more serious family violence in 2014.
The Applicant has reoffended after being formally warned that his visa may be cancelled if he committed further acts of family violence. He was also aware of the criminal law consequences of family violence, having previously been imprisoned in 2006.
The Applicant’s claims to have been rehabilitated since the 2014 offending are not reliable, given his previous unsuccessful participation in the MISOP program, and that he is untested in the community.
The family violence committed by the Applicant weighs heavily against revoking the visa cancellation decision.
Strength, nature and duration of ties to Australia
The Applicant was 20 years old when he arrived in Australia in 2001 with his mother and two younger sisters. His older brother arrived in 2010. He regards Australia as his home. He has worked as a bicycle mechanic and air conditioner technician when he was not in prison. The evidence shows that his former employer was very supportive of him during the commission of the police pursuit offence in 2014. The Applicant donated to the Save the Children foundation before being imprisoned.
While in prison after the 2014 offending, he was employed in the prison warehouse.
His mother, older brother, and one of his two younger sisters gave written and oral evidence. They have bonded more closely as a family since they arrived in Australia.
The Applicant also has two cousins in Australia. There was no evidence from them.
The Applicant said that all his relatives in Australia are Australian citizens. The Respondent did not contend that they did not satisfy the criteria to be considered.
His mother will be devastated if the Applicant returns to Zimbabwe. She turns 70 years old this year. She blames herself for the Applicant’s offending because she did not spend sufficient time with him when he was a child. He spent a lot of time with his grandmother.
His mother suffered a brain aneurysm in 2017 and underwent major surgery. She is a very experienced registered nurse. She realises that her condition can recur or the titanium clip in her brain may give way. She has been advised not to travel to areas such as Zimbabwe, which do not have appropriate adequate medical services. If she became ill there, she would have to travel to South Africa for care. The feasibility of doing that is questionable, in terms of cost. It is unlikely that she will travel to Zimbabwe to see her son.
A general assertion was made that her health would be adversely affected. She has just spent three months travelling alone in the United States and works casually. Apart from her history of aneurysm, her general health seems quite good.
Depending on conditions in Zimbabwe, which have deteriorated in recent years, the Applicant’s older brother and sister may visit Zimbabwe. His sister returned in 2022 for a family wedding and had previously returned in 2016 and 2018.
The Applicant mentioned the possibility of living in another African country or Thailand, but his criminal history may be an impediment to such a plan. It is unnecessary to consider this possibility further because it would be speculation.
The Applicant’s mother, older brother and younger sister may communicate with him by social media or telephone but the evidence was that conditions in Zimbabwe can be problematic for such communications and expensive.
Both the Applicant’s sister and brother would be adversely impacted emotionally if the Applicant returned to Zimbabwe. His sister described the Applicant as a father figure when they came to Australia. I am not persuaded that their health would be impacted.
I give little weight to the impact on his sister who did not give evidence and who lives in Melbourne, or to his cousins who also did not give evidence. There was scant evidence about the strength, nature, and duration of his ties with his cousins.
His mother, brother and sister who gave evidence, will support the Applicant financially if he returns to Zimbabwe. This will be a burden on each of them, but particularly on his mother who is planning to retire and will have more limited financial resources. His mother and sister already provide financial assistance to family members currently in Zimbabwe.
The Applicant’s two sons are aged 14 and 10. He currently has no contact with them. He last saw them in person in 2019. Before that, they had visited him with their mother, while he was in gaol. They had also sent him cards and letters. It is apparent that their mother had helped them to do so and when she fell out with their father, that communication ceased. In November 2022, the Applicant received a text message from his older son’s telephone, that his son wanted some space from him. Currently he does not have a positive, loving, and ongoing relationship with his sons.
The Applicant plans to take steps to re-initiate contact and gain shared custody of his sons if he is released into the community. What steps, if any, he would be able to take to resume contact with them if he returned to Zimbabwe are not apparent. Having said that, he has never lived as a family with either of his sons. He spent some days of the week with his older son and the child’s mother for about three years until the relationship ended in 2011. After that, he had contact with his sons in the community until he was arrested on 2 November 2014. He has been in gaol or immigration detention ever since.
The evidence suggests that the Applicant had a stronger relationship with his older son than with his younger son.
If the Applicant returns to Zimbabwe, his sons will lose the opportunity to see him in person, probably until at least they turn 18 and perhaps decide to visit him. Their capacity to develop their relationships with their father will be confined to the telephone or social media and subject to conditions in Zimbabwe affecting such communications.
The longer there is no contact with his sons, the more difficult it is likely to be to re-establish a relationship with them. If the Applicant returns to Zimbabwe, re-establishing a relationship with either will be made much more difficult than if he remained in Australia where he can access the legal system and earn an income in employment. The evidence suggests unemployment in Zimbabwe is over 90%. If he has limited financial means, communication by telephone and social media may be limited.
Non-revocation of the cancellation decision and the Applicant’s consequential return to Zimbabwe would adversely impact his sons.
The Applicant has no other social links or ties to the Australian community.
The Respondent contended that the following matters should be taken into account. The Applicant arrived in Australia on 30 November 2001 at the age of 20 and has resided here since then, but it should be given less weight in circumstances where he did not spend his formative years in Australia and began offending relatively soon after his arrival.
This is a reference to paragraph 8.3(4) of Direction 99 which begins:
Decision-makers 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)the length of time the non-citizen has resided in the Australian community, noting that… (Emphasis added)
This consideration is not relevant in this case because the Applicant has no other ties to the Australian community. The matters specified in paragraphs 8.3(4) are not specified in in paragraphs 8.3(1), (2) or (3), which have been addressed above.

The consideration, the strength, nature and duration of ties to Australia, weighs significantly in favour of revoking the cancellation decision.
Best Interests of minor children in Australia
I have outlined above the circumstances of the Applicant’s two sons, J and T, who are aged 14 and 10 respectively.
The only evidence that the Applicant has provided financially for them was that of his sister who said that the mother of the boys had asked the Applicant for $500 for toys for them at some stage.
The evidence of the Applicant’s mother and sister was that the boys and their mother have moved interstate.
The sooner the Applicant can restore contact with both his sons, the better for the future of their relationships. There is a better chance of that occurring if he remains in Australia where he may be able to obtain a court order to effect that result, although that may take some time. He said that Legal Aid had told him to wait to take any action until he is released into the community.
The Applicant’s offending has resulted in limited personal contact with his sons because of his lengthy stint in gaol followed by immigration detention. Consequently, both his sons have been exposed to a gaol environment when they visited him, which is not an ordinary incident of childhood. There is a real risk that he will reoffend and be imprisoned again. That would be a further barrier to him regaining contact with his sons.
There is no evidence from either child. Given the lack of personal contact with both children since January 2019, separation from their father by his return to Zimbabwe would have little impact on either child apart from making it more difficult to be reinstated. Until November 2022, the Applicant was communicating with J at least, by telephone. It is not clear whether the decision to cut off communication was J’s or his mother’s. If the Applicant returned to Zimbabwe, he could communicate with both his sons by telephone or social media, subject to conditions in Zimbabwe limiting such communications, and subject to their wishes or those of their mother.
The mother of J and T has always played the full-time parental role in their lives.
The evidence suggests that the Applicant’s relationship with J was closer than that with T, prior to contact ceasing. It is in the best interests of both J and T that the cancellation decision be revoked, but I give greater weight to the best interests of J than to those of T, because of that closer relationship.
However, given the increasingly limited meaningful contact with both his sons over a long period of time during his imprisonment and immigration detention, taking into account the changes to that contact in January 2019 and then November 2022, this consideration only weighs moderately in favour of revocation of the cancellation decision.
Expectations of the Australian community
Paragraph 8.5 of Direction 99 ‘is about the expectation of the Australian community as a whole’. Paragraph 8.5(4) provides that ‘Decision-makers should proceed on the basis of the Government’s views as articulated’ in paragraphs 8.5(1), 8.5(2) and 8.5(3), ‘without independently assessing the community’s expectations in the particular case’.
Paragraph 8.5(1) of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. As a norm, 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 expects the Government not to allow that person to enter or remain in Australia.
Paragraph 8.5(2) of Direction 99 provides that, in addition, non-revocation of the mandatory cancellation of a visa 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 continue to hold a visa. In particular, the Australian community expects that that the Australian government can and should cancel their visas if they raise serious character concerns through conduct of certain kinds.
Relevantly, they are acts of family violence, or commission of serious crimes against women, that is, crimes of a violent or sexual nature.
Paragraph 8.5(3) of Direction 99 says that those two expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Given the Applicant’s repeated acts of sexual violence against women, which were also instances of family violence, the Australian community would expect that he should not continue to hold a visa and the Australian government can and should cancel his visa.
The Applicant’s contention that taking into account the Applicant’s circumstances, the Australian community would give him a second chance, is not a matter that this consideration allows to be taken into account. Paragraph 8.5(4) of Direction 99 does not permit a decision-maker to independently assess the community’s expectations in a particular case.
This consideration weighs heavily against revoking the mandatory cancellation of the Applicant’s visa.
Other considerations
The relevant other considerations raised by the evidence and the parties, are ‘legal consequences of the decision’ and ‘extent of impediments if removed’.
Legal Consequences of the decision
The Applicant did not claim that he is subject to a non-refoulement obligation and the circumstances do not suggest that such a claim is available to him. Therefore, the only relevant consideration is paragraph 9.1(1) of Direction 99 that requires decision-makers to 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.
I am mindful of the legal consequences of finding that there is not another reason to cancel the revocation of the Applicant’s visa.
I give this consideration neutral weight.
Extent of impediments if removed
This consideration is about the extent of any impediments that the Applicant will face in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of Zimbabwe.
The Applicant is 42 years of age. He spent the first 20 years of his life in Zimbabwe. He will confront no substantial language or cultural barriers. He and his sister suggested that he may be discriminated against on racial grounds in Zimbabwe. The Department of Foreign Affairs and Trade (DFAT) Country Information Report dated 19 December 2019 assesses that ‘white Zimbabweans’ face a moderate level of official discrimination. Long-standing government practice and rhetoric continues to limit their access to state-sector employment opportunities.
The Applicant claims that being returned to Zimbabwe would cause him severe hardship of separation from his family and social network, the low prospect of getting a job and the limited healthcare services.
I accept that he will find it very difficult to return to Zimbabwe and leave his mother, brother and sister who live in Sydney. They have become a close family since they arrived in Australia. Unfortunately, despite their support, he offended and reoffended.
Losing the possibility of personal contact with or seeking shared custody of his sons, will be a severe blow to the Applicant.
He contended that he is relatively young and can contribute to the Australian community through his work in relation to a different consideration. I accept that is so. He was highly regarded by his employer of seven years at the time of the 2014 offending. He has the capacity to work if he returns to Zimbabwe, subject to work being available.
Knowing that he may be returned to Zimbabwe, the Applicant obtained a Certificate 3 in Warehousing Operations, while in prison. He also obtained a licence to operate a forklift truck and a UEESS00098 Restricted – Electrical safety testing of electrical cord connected equipment and cord assemblies, while in prison. He has a Certificate 3 in Refrigeration and Air Conditioning. While in prison, he has worked as clerk/team leader in a warehouse, and as a head machinist/team leader in a textiles warehouse. He was a bicycle mechanic before his first term of imprisonment.
The evidence of his family members was that unemployment is very high in Zimbabwe and it will be very unlikely that he will find a job. They will have to support him financially.
The Respondent provided country information to demonstrate that there is a lack of primary source information about employment in Zimbabwe and a significant proportion of the economy is informal.[1] This is consistent to an extent with the evidence of the Applicant’s family members that relatives in Zimbabwe have ‘side hustles’. However, their evidence was that those family members are finding it very hard to make a living and only one of their relatives could assist the Applicant if he returns, by providing short-term accommodation. His mother and sister are providing financial support to relatives in Zimbabwe. I accept their evidence. It is consistent with the available country information. The Applicant may find it very difficult to get a job. His family members in Australia will support him financially. I do not consider that they will allow him to become destitute.
[1] Department of Foreign Affairs and Trade, Country Information Report Zimbabwe, 19 December 2019.
He may have difficulty maintaining telephone/social media contact with his family because of the cost, which would be detrimental to his well-being.
The medical and economic support services in Zimbabwe are not to the standard of those in Australia. The Respondent contended that the country information suggests that the healthcare system in Zimbabwe is overburdened. It is worse than that. Zimbabweans seeking healthcare are generally required to bring their own drugs, syringes, bandages and water and pay for their treatment in US dollars. There are limited facilities and services available for those with mental health issues. They are often not properly diagnosed and do not receive adequate treatment.
The Applicant emphasised that he had worked very hard to address factors that had contributed to his offending behaviour and that removal from Australia will adversely impact on those factors. In Australia, if released, he would be on parole for another three years under supervision. He will not have the same access to psychological or other supports in Zimbabwe that he would in Australia. Given Mr Dornan’s recommendations, it is likely that without such support and supervision, his risk of reoffending will be higher.
The Respondent accepted that Zimbabwe has a high incidence of petty and violent crime relative to Australia but contended that the security situation would not prevent the Applicant from re-establishing himself there. DFAT’s current travel advice in respect of Zimbabwe advises travellers to exercise a high degree of caution.
The DFAT country information report states:
High levels of unemployment and ongoing shortages of basic goods, ongoing power cuts, medical supplies, fuel, and foods, have contributed to a high level of theft and other crime nationwide. Armed robberies, assaults, and other violent crimes occur frequently, particularly at night and in high-density urban areas, and gender-based violence is common.
The security situation is an impediment that the Applicant will face as he seeks to establish himself in Zimbabwe. It is not a situation he has had to face in Australia.
The Applicant claims to fear for his life because his offences made news headlines on the internet and are known in Zimbabwe. I give this claim little weight for the following reasons. The headlines were probably in 2014 when he committed the offences, given that his police pursuit closed the Sydney Harbour Bridge and the Sydney CBD. At latest they would have been in September 2016 when he was sentenced. While the information may still be available, his name does not seem to be unusual. It seems unlikely that a person would be motivated to undertake an internet search, that it would be successful, or if it was, that a person would be motivated to attack him. Given the lapse of time, I think it unlikely that a person would remember the information and be motivated to attack him for that reason. The general security situation will be a greater impediment to the Applicant.
For the above reasons, I give significant weight to this consideration.
Conclusion
The primary considerations protection of the Australian community, family violence committed by the Applicant, and expectations of the Australian Community which weigh in favour of not revoking the visa cancellation decision, outweigh those considerations that weigh in favour of revoking the decision: the strength, nature and duration of ties to Australia, best interests of minor children in Australia affected by the decision, and the extent of impediments if removed to cancel the Applicant’s visa reviewable decision.
For those reasons, there is not another reason to revoke the visa cancellation decision.
DECISION
The reviewable decision is affirmed.

I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[sgd].....................................
Associate
Dated: 20 April 2023

Dates of hearing:

Solicitor for the Applicant:

4-5 April 2023

Mr B Nazer, Byron & Associates

Counsel for the Respondent:

Solicitor for the Respondent:

Ms M Donald, Sparke Helmore

Mr M Burnham, Sparke Helmore

[2023] AATA 808

20 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction