Hall and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 591
•20 May 2025
Hall and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 591 (20 May 2025)
Applicant:Gabriel David Butch Hall
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1485
Tribunal:Senior Member S Trotter
Place:Brisbane
Date:20 May 2025
Decision:The Tribunal sets aside the reviewable decision dated 24 February 2025, notified 25 February 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa and in substitution decides that the original decision to cancel the visa is revoked.
Statement made on 20 May 2025 at 8:41am
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct –- the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed - decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs [2019] 272 FCR 454
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Plaintiff M1/2021 v Minister for Home Affairs [2022] 96 ALJR 497
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCACFC 6Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
THE APPLICATION
This is an application by the Applicant for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent or Minister) on 24 February 2025, notified on 25 February 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) (the reviewable decision). All legislative references in these Reasons are to the Act unless stated otherwise.
BACKGROUND
The Applicant, born 1989, is a 35-year-old citizen of New Zealand who first arrived in Australia when he was 2 years old on 7 August 1992.
On 1 August 2024, the Applicant’s Subclass 444 visa was mandatorily cancelled pursuant to subsection 501(3A) on the basis that he had a substantial criminal record and, at the time of the decision, the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory (the original decision). The Applicant was notified of the cancellation decision and invited to make representations about revoking the original decision.
On 2 August 2024, the Applicant was released on parole and moved to immigration detention at the Brisbane Immigration Detention Centre.
On 27 August 2024, the Applicant requested revocation of the mandatory cancellation of his visa and made representations in that regard.
On 24 February 2025, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa with that decision notified to the Applicant and a Statement of Reasons provided on 25 February 2025. That is the reviewable decision before the Tribunal.
On 2 March 2025, the Applicant applied to the Administrative Review Tribunal (the Tribunal) seeking review of the delegate’s decision.
The Applicant and the Respondent’s representative participated in person in a hearing before me on 12 and 13 May 2025, with the Applicant giving sworn evidence. The Applicant was advised of his right to invoke the privilege against self-incrimination prior to him giving evidence and indicated that he understood this right.
On 12 May 2025, I also heard sworn oral evidence from the following witnesses called by the Applicant:
(a)Tracey-lee Davis (the Applicant’s mother); and
(b)Kiara Moore (the Applicant’s partner).
In addition to taking into account the oral evidence and submissions, the following documents were before me and marked as Exhibits (or for identification) as follows:
(a)Signed statement of Tracey-lee Davis dated 2 February 2025, marked A1;
(b)Signed statement of Pete-Michaela Hall (the Applicant’s sister) dated 4 February 2025, marked A2;
(c)Signed statement of Kiara Moore dated 4 February 2025, marked A3;
(d)Certificate of Completion dated 19 July 2024 in the Applicant’s name for a 6 Hour SSI Explore Program, an Education, Training and Programs Willingness to Engage form completed by the Applicant dated 7 May 2024 and a Relapse Prevention Plan completed by the Applicant dated 19 July 2024, all marked A4;
(e)Birth Certificate of the Applicant’s youngest son, marked A5;
(f)Respondent’s Statement of Facts, Issues & Contentions (SFIC) dated 28 April 20215, marked R1;
(g)Respondent’s Hearing Tender Bundle, comprising indexes and Tribunal G-Documents marked document HTB1 (pages numbered 1 to 119), Applicant’s Evidence marked documents HTB2 to MTB8 (pages numbered 120 to 127), Index and Respondent’s Submissions and Evidence including documents S1 to 152 (pages numbered 128 to 621), marked R2;
(h)Signed statement of George Bedford dated 4 February 2024, marked R3;[1]
(i)Signed statement of Gregory Macaskill dated 4 February 2024, marked R4;[2] and
(j)Three-page resume of the Applicant.[3]
[1] As discussed at hearing this statement was not included in the Respondent’s documents but was separately tendered by the Respondent’s representative at hearing upon seeking instructions that the document had been received by email by the Respondent from the Applicant on 4 February 2025. Although noted on the face of the statement to be dated 4 February 2024, I am satisfied that date is an error and the date should be 4 February 2025.
[2] Ibid.
[3] As discussed at hearing this document was not included in the Respondent’s documents but was separately tendered by the Respondent’s representative at hearing upon seeking instructions that the document had been received by email by the Respondent from the Applicant on 4 February 2025.
LEGISLATIVE FRAMEWORK AND ISSUES
Subsection 501(3A) relevantly provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to paragraph 501(6)(a), a person does not pass the character test if they have “a substantial criminal record”. Paragraph 501(7)(c) relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.[4]
[4] It is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant when determining the term of imprisonment - See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
The Applicant concedes that he does not pass the character test on the basis that he has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more as per subsection 501(7)(c). The Respondent in paragraph 18 of its SFIC refers to the Applicant being sentenced to 18 months imprisonment for the offence of ‘Enter premises and commit indictable offence’ committed on 29 December 2023, an offence for which the Applicant was sentenced on 4 June 2024. Additionally, however, it is not in dispute that on 4 June 2024, the Applicant was sentenced to a term of imprisonment of 21 months in respect of one count of ‘enter dwelling and commit indictable offence’ committed on 3 October 2023 and other offences. Further, as a result of cumulative sentences of one month for each of the three convictions (failing to appear in accordance with the undertaking of 1 March 2023, failing to appear on 11 April 2023 and failing to appear on 27 June 2023), the total sentence imposed was 24 months.[5]
[5] Exhibit R2, page 44 and 50.
I note that the delegate in the reviewable decision and the Respondent in written submissions, refer to the sentence imposed on the Applicant on 4 June 2023 as being 21 months[6] however I am satisfied that the three one-month sentences imposed by the magistrate were cumulative to the other sentences and that the actual total sentence imposed was 24 months.
[6] Exhibit R2, page 31 and Paragraph 19 of the Respondent’s SFIC.
The 24-month sentence was made up of concurrent and cumulative sentences for various offences including a breach of probation order on 15 August 2023, failure to give statutory declaration on 5 September 2023, fraud – dishonest application of property of another on 4 October 2023 (x 2), possessing dangerous drug on 30 December 2023, dishonestly induced delivery of property on 30 December 2023, possess utensils or pipes etc for use on 15 December 2023 (x 2), unlawful use of motor vehicles aircraft or vessels on or about 3 October 2023, enter premises and commit indictable offence on 29 December 2023, enter dwelling and commit on or about 3 October 2023, breach of order imposed on 15 August 2023, the aforementioned three failures to appear and a further failure to appear on 8 May 2024 (for which a conviction was noted without further punishment).[7]
[7] Exhibit R2, page 51.
The sentence of imprisonment was more than 12 months and it follows that the Applicant has a substantial criminal record and accordingly does not pass the character test. This was the basis upon which the Minister’s delegate found that the Applicant did not pass the character test and was not contested by the Applicant. The first criterion for mandatory cancellation of the visa in subparagraph 501(3A)(a)(i) is therefore met.
Further, the evidence shows, and it is not disputed that at the time of the original decision to cancel his visa on 1 August 2024, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution for offences against the law of the State of Queensland. The second requirement for mandatory cancellation of the visa is therefore satisfied pursuant to paragraph 501(3A)(b).
Both requirements having been met for mandatory cancellation of the visa, I am satisfied that the 1 August 2024 original decision to cancel the Applicant’s visa was legally effective[8] such that subsection 501CA(1) was enlivened permitting consideration of whether the mandatory visa cancellation can be revoked under subsection 501CA(4), which provides as follows:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
[8] XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCACFC 6.
It is not in dispute that the Applicant has made representations in accordance with the invitation of 1 August 2024. Paragraph 501CA(4)(a) is satisfied.
I have already concluded that the Applicant does not pass the character test and consequentially subparagraph 501CA(4)(b)(i) is not satisfied.
As identified by the Respondent in its SFIC, and not disputed by the Applicant, the issue before me is therefore whether, pursuant to subparagraph 501CA(4)(b)(ii), there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
CONSIDERATION
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In his revocation request of 27 August 2024,[9] the Applicant, amongst other things, provided details of his family who reside in Australia, detailed his relationship with minor children in Australia and detailed the impact upon his immediate and extended family in the event of a negative section 501 decision outcome.
[9] Exhibit R2, pages 61 to 77.
In considering whether there is another reason why the decision to cancel the Applicant’s visa should be revoked, pursuant to subsection 499(2A) I must comply with any written directions given by the Minister pursuant to subsection 499(1).
Pursuant to subsection 499(1), on 7 June 2024, the Minister issued Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) which commenced operation on 21 June 2024. I am required to comply with the Direction.
As stated in paragraph 5.1(4) of the Direction, the purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA. I must have regard to the Direction in considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains eight principles which provide the framework within which decision-makers should approach their task, relevantly in relation to this application, of deciding whether to revoke a mandatory cancellation of a visa under section 501CA, as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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.
(5)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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen'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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in sections 8 and 9 of the Direction, where relevant.
Section 7 of the Direction states that in applying the considerations, information and evidence from authoritative and independent sources should be given appropriate weight, that primary consideration 8.1 should generally be given greater weight than other primary considerations, that otherwise primary considerations should generally be given greater weight than the other considerations and that one or more primary considerations may outweigh other primary considerations.
Section 8 of the Direction sets out five primary considerations that must be taken into account as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Section 9 of the Direction sets out three other considerations that must be taken into account including:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Section 9 of the Direction makes it clear that the Direction does not limit the matters that can be taken into account.
As stated by the High Court in Nathanson v Minister for Home Affairs [2022] HCA 26 (2022) 276 CLR 80 per Gordon J at [71]:
The Tribunal’s task under s 501CA(4) of the Migration Act was evaluative. In deciding whether there is “another reason” why a visa cancellation decision should be revoked, a decision-maker must evaluate representations made in response to an invitation issued under s 501CA(3)(b), assess and weigh relevant evidence and material, and weigh and balance considerations for and against revocation.
The Applicant contends that there is another reason why the mandatory cancellation of his visa should be revoked. In his revocation request the Applicant stated as follows in this regard (unedited):[10]
[10] Exhibit R2, page 63.
· I have lived in Australia since August 1992.
· I understand my offences have harmed the Australian community. I’m truly sorry and remorseful.
· All of my immediate family live in Australia.
· I attended both primary and highschool in Australia.
· I have a partner who is Australian.
· I have a newborn son.
· I call Australia home.
· I have close friends and support in the community and I am continuing my rehabilitation by participating in courses to better understand what lead to my offending and how I can do better.
· I look forward to being able contribute positively to the Australian community.
· Thank you for the opportunity to appeal my visa cancellation.
· I will submit more evidence as it becomes available.
I have taken into account each of the primary and other considerations identified in sections 8 and 9 of the Direction informed by the principles in paragraph 5.2 of the Direction and the other relevant provisions of the Direction as canvassed in the following paragraphs in considering the Applicant’s revocation request.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
For this Primary consideration, paragraph 8.1(1) of the Direction states that decision-makers should keep in mind:
(a)the safety of the Australian community is the highest priority of the Australian Government;
(b)the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; and
(c)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, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction states that decision-makers should give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant’s criminal or other conduct to date
As already noted, on 4 June 2024, the Applicant was convicted and sentenced in relation to a number of offences. The Applicant had also earlier been convicted in relation to various offences on 4 October 2018 and 15 August 2023.[11] The Applicant acknowledged at hearing that he has a substantial serious criminal history. In chronological order of court date, the documents in evidence show the Applicant’s criminal record includes as follows:[12]
[11] As acknowledged as appropriate at hearing by the Respondent’s representative, I have not had regard to a charge on the Applicant’s record for common assault from 25 January 2005, when the Applicant was a minor, a charge which was dismissed with caution.
[12] Exhibit R2, pages 43 to 45.
Court
Relevant
Court Date
Date of Offence
Offence
Sentence
Sutherland Local Court
4 October 2018
13 September 2018
Possess prohibited drug
Condition release order without conviction – 12 months
Southport Magistrates Court
15 August 2023
6 May 2023
Contravene direction of requirement police officer
No conviction recorded
Southport Magistrates Court
15 August 2023
10 June 2023
Dishonestly gain benefit/advantage
No conviction recorded on all charges
Probation – 18 months
27 June 2023
Failure to appear in accordance with undertaking
14 June 2023
Enter premises and commit indictable offence by break
13 June 2023
Stealing
20 May 2023
Unlawful use of motor vehicles aircraft or vessels – use
8 May 2023
Failure to appear in accordance with undertaking
6 May 2023
Breach of bail condition
11 April 2023
Failure to appear in accordance with undertaking
1 March 2023
Failure to appear in accordance with undertaking
3 February 2023
Possessing anything used in commission of crime defined in Part 2
3 February 2023
Possessing of a knife in a public place or a school
3 February 2023
Possess property suspected of having been used in connection with the commission of drug offence
3 February 2023
Possess utensils or pipes etc that had been used
3 February 2023
Possess property suspected of having been acquired for the purpose of committing a drug offence
1 February 2023
Unlawful possession of suspected stolen property
1 February 2023
Possess utensils or pipes etc for use
28 January 2023
Enter dwelling and commit
Southport Magistrates Court
15 August 2023
3 February 2023
Possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4
Sentence - imprisonment: 12 months suspended for 18 months concurrent
Time spent in pre-sentence custody 11 July 2023 to 14 August 2023 deemed as time already served
38. Southport Magistrates Court
4 June 2024
15 August 2023
Breach of probation order imposed on 15 August 2023
Resentenced for original offences from 15 August 2023
Sentence – imprisonment 12 months concurrent + 6 months concurrent + 1 month concurrent + 1 month cumulative + 1 month cumulative + 1 month cumulative
Parole Release Date – 4 August 2024
5 September 2023
Failure to give statutory declaration
4 October 2023
Fraud – dishonest application of property of another x 2
30 December 2023
Possessing dangerous drugs
30 December 2023
Fraud – dishonestly induces delivery of property
15 December 2023
Possess utensils or pipes etc for use
15 December 2023
Possess utensils or pipes etc that had been used
4 June 2024
3 October 2023
Unlawful use of motor vehicles aircraft or vessels – use
Sentence – imprisonment 12 months concurrent
Time spent in pre-sentence custody 19 January 2024 to 3 June 2024 deemed as time already served
4 June 2024
29 December 2023
Enter premises and commit indictable offence
Sentence – imprisonment 18 months concurrent
Time spent in pre-sentence custody 19 January 2024 to 3 June 2024 deemed as time already served
4 June 2024
3 October 2023
Enter dwelling and commit
Sentence – imprisonment 21 months concurrent
Time spent in pre-sentence custody 19 January 2024 to 3 June 2024 deemed as time already served
4 June 2024
15 August 2023
Breach of order imposed
Suspended sentence fully invoked
In considering the criminal charges for which convictions were recorded, I also took into account the following in the Applicant’s revocation request in response to question 10 (unedited):[13]
The factors that led to my offending were a crushing separation with the mother of my child having moved to the Gold Coast. I was separated from my support network of family and lifelong friends and I was embarrassed that my relationship failed and scared to ask for help. I stayed on the Gold Coast to continue having a relationship with my son but without the love and support of my family close by I spirlaed downward. Also having never been in trouble with the law, I was unprepared with how to deal with the system.
[13] Exhibit R2, page 73.
I had regard to the circumstances of each of the criminal charges for which a conviction was recorded against the Applicant. The circumstances of the charges are summarised in paragraphs 7 to 18 of the Respondent’s SFIC and I have had regard to all matters in those paragraphs. The Applicant did not take issue with any of the matters noted in those paragraphs.
In relation to the prior conviction on 4 October 2018, the details of the offending are set out in the court records[14] and were acknowledged by the Applicant at hearing as having occurred with him being picked up by the police at the place where he and a friend were getting drugs (methamphetamine). He said he had first used methamphetamine at a friend’s wedding and then used it a few times afterwards but nothing further happened after this occasion. He then did not use drugs again until late 2022/early 2023 following the breakdown of his relationship with Ms Nadin, the mother of his eldest son.
[14] Exhibit R2, pages 248 to 249.
In relation to the prior convictions on 15 August 2023, there are no sentencing remarks in evidence, however the Verdict and Judgment Record in evidence in relation to the convictions on these dates show that the relevant offences included several offences committed on 28 January 2023 (enter dwelling and commit), on 1 February 2023 (possessing dangerous drugs, possess utensils or pipes etc and unlawful possession of suspected stolen property), on 3 February 2023 (possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4, possessing anything used in the commission of crime defined in part 2, possession of a knife in a public place, possess utensils or pipes etc that had been used, possess property suspected of having been used in connection with the commission of a drug offence x 2), on 10 February 2023 (enter premises and commit indictable offence), on 1 March 2023 (failure to appear in accordance with undertaking), on 11 April 2023 (failure to appear in accordance with undertaking), on 6 May 2023 (contravene direction or requirement police officer and breach of bail condition), on 8 May 2023 (failure to appear in accordance with undertaking and unlawful use of motor vehicles aircraft or vessel), on 10 June 2023 (fraud – dishonesty gain benefit/advantage), on 13 June 2023 (stealing), on 14 June 2023 (enter premises and commit indictable offence by break), on 27 June 2023 (failure to appear in accordance with undertaking).
As regards the circumstances of the convictions against the Applicant on 4 June 2024, the sentencing remarks of Acting Magistrate Whitbread (the magistrate) on 4 June 2024[15] refer to the Applicant being sentenced for very serious offending, complicated by the fact that he had failed to take opportunities given to him. The magistrate noted the high rating given to the Applicant by Ms Moore in supporting him such that a conclusion was reached that when not on drugs, the Applicant is a good person. It was noted that the Applicant had committed a spate of offences over a fairly short period and that drugs had caused the Applicant to commit some serious offending. The magistrate noted that he had referred to the facts of the offending and that the only thing not before the court was the exact details of the drugs when the Applicant was given 12 months imprisonment on the previous occasion, but that it was clearly a significant amount of drugs, or a significantly serious offence, to involve that penalty. The magistrate noted that the sentence on the prior occasion was tailored to help the Applicant out and yet the Probation and Parole officer stated that the Applicant had given some lip-service to the probation officer/order. The magistrate stated that the Applicant breaking into people’s homes was particularly serious offending, notwithstanding that the Applicant was probably intoxicated by drugs at the time and stated that there had been significant loss and damage caused to members of the community, including violation of their homes. The magistrate further observed that although a large number of the offences were at the lower end of the scale, they showed a terrible prevalence of offending by the Applicant when on drugs. It was noted that the Applicant was committing serious offences while subject to parole and previous convictions for similar offences making things worse for him. The magistrate further noted the Applicant’s poor response to the previously imposed community-based order and that just turning up, sometimes, was not enough.
[15] Exhibit R2, pages 46 to 52
The Applicant at hearing confirmed the circumstances of all of the offending against a background of the breakdown of his relationship with Ms Nadin in 2022. He said that he was heartbroken and lonely. Initially he stayed in his car or hotel rooms but then ultimately obtained an apartment at Surfers Paradise on the Gold Coast, some distance from where Ms Nadin, the Applicant’s eldest son and Ms Nadin’s daughter were living at Nerang, but still close enough for him to have contact with the children. Initially he was having regular contact with the children including doing school runs when able to around his retail job and he was also taking the children out with him. This situation changed when his car was written off in an accident that was not his fault and because of subsequent insurance issues of the driver at fault delaying him having his own vehicle for transport. This resulted in difficulty having as much contact with the children as he had previously bene having. He was feeling very depressed and ashamed of the relationship breaking down – which was not of his choice. He started going out and met people in Surfers Paradise. He was a long way away from his childhood friends in Sydney. The people he was hanging out with were the wrong type of people and were doing drugs and also committing crimes, which was thought to be cool. He started using drugs; initially every few weeks, then just on days off work and then gradually all of the time. He spiralled out of control and eventually also lost his job and then, later, his apartment.
The Applicant gave detailed evidence about each of the offences in relation to which he was convicted. His evidence was that in relation to each of the crimes committed, his recollection is that he was under the influence of drugs on each occasion. He initially committed (break and enter) crimes as it was thought to be cool with the people with whom he was hanging out. In due course, there was also a financial incentive. The Applicant agreed that his offending became very regular and that despite opportunities being given to him including probation and being released after serving time from July to August 2023, he continued to offend, including break and enters, stealing offences and driving under the influence offences. The Applicant said that he tried to refrain from drug use when he was released, based upon time served, in August 2023. He felt at the time that his sentencing should have been harsher than it was. He said his first attendance on probation didn’t even involve a drug test which he thought it would. He said he thought there would also be more engagement on the part of the probation officers but acknowledged that he didn’t make genuine efforts to engage himself. He said that upon being released he was engaging with the same people. He was receiving Centrelink benefits when he was released and he was initially sober and was very remorseful but he went back to using drugs. He was living in his van at the time. He had started seeing Ms Moore on a casual basis earlier that year but he would only see her when he wasn’t using drugs as she was not ‘in to that scene’ at all. He agreed that he engaged in further offending after his release including further stealing and unauthorised use of a motor vehicle. The Applicant agreed that he continued to offend even after finding out that Ms Moore was pregnant, likely around November 2023. He became concerned at that time and realised he needed help quitting drugs. He then ended up being incarcerated again in January 2024 as a result of his continued offending and was ultimately sentenced on 4 June 2024 with time served recognised and parole granted from August 2024.
Traffic offences
In addition to criminal charges for which convictions were recorded, as referred to by the Respondent in its SFIC (at paragraph 5), the Applicant did not dispute that he has a traffic history including speeding (x3), using a mobile phone while driving, careless driving, failing to display p plates and driving with a relevant drug present.
8.1.1 – The nature and seriousness of the conduct to date
The nature of the Applicant’s offending is as outlined above.
The Respondent submitted, at paragraphs 41 to 43 of its SFIC, that the Applicant’s offending comprised 37 offences (with 34 committed in 2023) and the traffic history noted, including five instances of breaking into buildings and stealing property and two occasions related to vehicle theft. It was further submitted that the seriousness of the convictions is shown by the imposition of sentences of imprisonment, sentences of last resort. It was submitted that having regard to these matters, and the cumulative frequency of the Applicant’s offending that the Applicant’s conduct viewed as a whole should be considered very serious.
The Applicant accepts that his offending constitutes very serious offending including because it involved repeated offending.
In assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date as outlined, I have also had regard to the matters, as relevant, listed in paragraphs 8.1.1(1)(a) to (i) of the Direction.
Paragraph 8.1.1(1)(a)
Pursuant to paragraph 8.1.1(1)(a) of the Direction, regard must be had to:
(a)without limiting the range of conduct 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:
(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;
Notably, paragraph (iii) refers to acts of family violence regardless of whether there is a conviction for an offence of a sentence imposed. The Applicant disclosed in his revocation request that there is a current Protection Order in place with him named as respondent in relation to the aggrieved Ms Samantha Znebeanek,[16] as is also referred to in the Respondent’s SFIC, at paragraph 44, where it is noted that there is a Protection Order in place against the Applicant until 16 October 2028.[17]
[16] Exhibit R2, page 74
[17] Exhibit R2, page 141 to 143
The Applicant was questioned at length about the allegations of the Aggrieved in relation to the Protection Order and his relationship with Ms Znebeanek. The Applicant’s initial evidence to the Tribunal was that Ms Znebeanek was someone that he met on the Gold Coast when she was living in her van. His evidence was that he did not have a relationship with Ms Znebeanek but he agreed that he had been intimate with Ms Znebeanek and that it was possible that he was the father of a baby born to Ms Znebeanek in November 2023 (as best he understands). The Applicant was questioned about a letter dated 12 August 2023[18] from him that was provided to the Court in relation to his 15 August 2023 appearance. It was noted that, contrary to the Applicant’s initial oral evidence to the Tribunal, his letter to the Court contained contradictions in relation to both his relationship with Ms Nadin and his relationship with Ms Znebeanek.
[18] Exhibit R2, pages 445 to 447
The 12 August 2023 letter refers to the Applicant being contacted out of the blue, three years prior to that time, by an old girlfriend and being that told that he had a 10-year-old son, with him then moving to Queensland to be close to his son and he and the girlfriend reconnecting and then of his devastation when the relationship broke up in August 2022. The letter goes on to refer to Ms Znebeanek as his new partner and that he had not used drugs since he found out, in June 2023, that Ms Znebeanek was pregnant. The content of this letter was contradictory to the Applicant’s evidence to the Tribunal as to the circumstances of his relationship with both Ms Nadin and Ms Znebeanek. The Applicant said that he wrote the letter at the time so that his solicitor could hand it over to the judge. He said that the details of his relationship in the letter were not true and said he was trying to get out of trouble at the time. When queried what difference it would have made to have told the truth in the letter, in accordance with the evidence given to the Tribunal if that is contended what the truth is, the Applicant’s evidence was that part of the difficulty was that for the whole of his eldest son’s life, Ms Nadin had been claiming Centrelink benefits on the basis that she was a single parent. He said that there had been periods they weren’t living together, including from 2014 to 2018, but there had also been times they were living together. The Applicant said he was also saying things that weren’t quite true in relation to Ms Znebeanek with a view to helping himself. The Applicant suggested it was under his solicitor’s instruction. I rejected that suggestion by the Applicant and said that ultimately it was a matter for him what instructions he provided to his solicitor and the veracity of the information in the letter.
As regards the allegations of family violence made by Ms Znebeanek supporting the Protection Order, as detailed at the records of Queensland Corrective Services produced under Summons,[19] the Applicant rejected all allegations stating that the allegations only came about because Ms Znebeanek’s mother attended at the Runaway Bay police station to return his goods that Ms Znebeanek had held whilst he was incarcerated from July to August 2023. On questioning, the Applicant although disagreeing with the details of the allegations, did acknowledge some of the general factual scenarios as having occurred. However, he further contended that Ms Znebeanek was likely further motivated in making false allegations against him to obtain a Protection Order, because of the priority that she would receive for public housing as the aggrieved in relation to a Protection Order.
[19] Exhibit R2, pages 532 to 535
The Direction at paragraph 4(1) defines ‘family violence’ as meaning “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful”. A member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
While the Applicant’s evidence to the Tribunal was that his relationship with Ms Znebeanek was casual, he did not dispute that he had been intimate with her and that he was possibly the father of her baby. I am satisfied and find that Ms Znebeanek was a member of the Applicant’s family for the purposes of consideration of the Protection Order.
I note that the Applicant denies the detail of the offending alleged in relation to the Protection Order and that no convictions have been made in relation to any of the allegations. Oral submissions on behalf of the Respondent at hearing in this regard were that the fact of the Protection Order alone is not necessarily reflective of family violence having been proven. On this basis I have not had regard to there being any acts of family violence by the Applicant for the purposes of paragraph 8.1.1(1)(a) of the Direction.
The oral submissions of the Respondent were that the circumstances surrounding the Protection Order were nonetheless of concern with respect to the broader actual circumstances of the case and of the Applicant. As discussed with the Applicant at hearing, I hold concerns about the reliability of his evidence generally given the inconsistencies in his evidence to the Tribunal as compared to as set out in the 12 August 2023 letter to the Magistrates Court and his willingness previously to not represent the whole truth ‘to get out of trouble’ which concerned me was behaviour he could repeat, including in evidence to the Tribunal. Ultimately, I accept the evidence of the Applicant as to his relationships with Ms Nadin and Ms Znebeanek as given to the Tribunal, and not as set out in his 12 August 2023 letter to the Magistrates Court, including because of the substantiation of aspects of those relationships provided by Ms Davis in evidence. Nonetheless, the circumstances canvassed do not reflect favourably on the Applicant.
Paragraph 8.1.1(1)(b)
Pursuant to paragraph 8.1.1(1)(b) of the Direction, regard must be had to:
(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:
(i) causing a person 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;
Examples of vulnerable members of the community that are given are the elderly and the disabled. The types of crimes or conduct set out in paragraph 8.1.1(1)(b) of the Direction are not directly relevant to the Applicant’s circumstances.
Paragraph 8.1.1(1)(c)
Pursuant to paragraph 8.1.1(1)(c) of the Direction, regard must be had to:
(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;
As already noted, the Respondent’s submissions included that the imposition of sentences of imprisonment, a sentence of last resort, are indicative of the seriousness of the Applicant’s offences, a submission which I accept.
Paragraph 8.1.1(1)(d)
Pursuant to paragraph 8.1.1(1)(d) of the Direction, regard must be had to:
(d)the impact of the offending or other conduct on any victims and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
There is no evidence before the Tribunal as to the impact of the Applicant’s offending on victims and their family, other than as noted by the magistrate in sentencing remarks on 4 June 2024 as already noted (significant loss and damage caused to members of the community, including violation of their homes). The Applicant did not dispute that there would have been an impact – both psychologically and financially – upon victims of his break and enter and stealing offences, people whose homes have been broken into and whose belongings were stolen.
These impacts, recognised by the Applicant, are consistent with the conduct being very serious conduct.
Paragraph 8.1.1(1)(e)
Pursuant to paragraph 8.1.1(1)(e) of the Direction, regard must be had to:
(c)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
As submitted by the Respondent, at paragraph 43 of its SFIC, there was a very high frequency of offending by the Applicant, escalating throughout 2023, and only ceasing during his incarceration between July and August 2023 and then his further upon his incarceration from January 2024.
The frequency of the Applicant’s offences in a relatively short time frame is concerning. I accept the Applicant’s submissions that the offending happened following a time of stress and upheaval and following a breakdown of the relationship from Ms Nadin. However, this does not detract from the seriousness of the offending.
Further, the Applicant also has a not insignificant traffic offending history in a relatively short time frame, largely corresponding with the timing of his other offences. None of the traffic offences resulted in injury to others, or to the Applicant himself. Although the traffic offences are ostensibly of a more minor nature than the Applicant’s other offending, the nature of, and one of the reasons for traffic rules, is that breaches can result in harm to members of the Australian community. The frequency of the traffic offences by the Applicant in such a short period are of concern given the potential harm that can result from offences of this nature.
Paragraph 8.1.1(1)(f)
Pursuant to paragraph 8.1.1(1)(f) of the Direction, regard must be had to:
(d)the cumulative effect of repeated offending;
Given the frequency of the Applicant’s offending throughout 2023, I find that the cumulative effect of the Applicant’s repeated offending, which would have impacted several members of the community adds to the seriousness of the conduct.
Paragraph 8.1.1(1)(g)
Pursuant to paragraph 8.1.1(1)(g) of the Direction, regard must be had to:
(e)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
There is no evidence to suggest that the Applicant has not disclosed prior criminal offending to the Department.
Paragraph 8.1.1(1)(h)
Pursuant to paragraph 8.1.1(1)(h) of the Direction, regard must be had to:
(f)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).
There is no evidence to suggest that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of his migration status. I accept the Applicant’s evidence that the first time he became aware of the possible consequences for his migration status was upon his imminent release from incarceration, and transfer to detention, at the beginning of August 2024.
Paragraph 8.1.1(1)(i)
Pursuant to paragraph 8.1.1(1)(i) of the Direction, regard must be had to:
(g)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
This paragraph has no application in the circumstances of the Applicant’s conduct.
Conclusion: The nature and seriousness of the conduct
The Applicant acknowledges and accepts that his offending overall constitutes very serious conduct including because of the frequency and repetitive nature throughout 2023.
The Respondent contends that the Applicant’s offending should be considered very serious.
I have had regard to each of the subparagraphs in paragraph 8.1.1(1) of the Direction to the extent relevant. Having regard to the matters canvassed in relation to each relevant paragraph, I find that the Applicant’s offences are all very serious, particularly in the context of the frequency and repeated nature of the offences throughout 2023 and that the Applicant’s overall criminal and other conduct to date is very serious.
8.1.2 – The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states that in considering the need to protect the Australian Community from harm, I 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 and that 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.
As required by paragraph 8.1.2(2) of the Direction, in assessing the risk to the Australian community, I have had regard to the following factors cumulatively where relevant:
(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct;
(b)the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(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.
8.1.2(2)(a) – the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
As regards the nature and seriousness of the criminal offending, the Applicant accepted that the offending constituted very serious offending given that it impacted members of the Australian community. I am satisfied that continued offending of the nature of breaking and entering and stealing would cause harm to individuals and the Australian community, including psychologist and financial harm.
8.1.2(2)(b) – the likelihood of the Applicant engaging in further criminal conduct or other serious conduct
In taking into account this factor, I am required to have regard to:
(i)information and evidence on the risk of the Applicant re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence.
Information and evidence on the risk of re-offending
As regards subparagraph 8.1.2(2)(b)(i) of the Direction, there is limited information and evidence before me as to the risk of the Applicant re-offending.
The Applicant in his revocation request states as follows in relation to information about his risk of reoffending (unedited):[20]
I don’t believe there is a risk of me offending in the future as Im aware of the affect that will have on my friends and family. Being separated from my kids has shown me how precious life is and how much it means for them to have their father present. Using the knowledge Ive gained I can use a relapse prevention plan and utilise the support of my loved ones to ensure I never offend again.
[20] Exhibit R2, page 73
Otherwise, the information is that following a period of incarceration from July to August 2023, the Applicant continued to offend upon release.
Evidence of rehabilitation
The Applicant in his revocation request states as follows in relation to courses or programs completed by him to avoid further offending (unedited):[21]
I have completed a rehabilitation program with Drug Arm and participated in a peer group in detention called Break Free. Drug Arm has taught me how important support is and how to make use of a relapse prevention plan. Both of these courses have helped me understand my offending ensuring it won’t happen again.
[21] Exhibit R2, page 73
The Applicant has provided documentary evidence demonstrating that he completed a 6-hour SSI Explore Program whilst incarcerated which included the preparation of a relapse prevention plan by him.[22] The Applicant’s evidence included that he was limited in what rehabilitation courses were available to him when incarcerated. He said he signed up for everything available, including a more extended SSI Explore Program but the 6-hour program was the only one for which he was accepted when incarcerated. He further stated that more rehabilitation options have been available to him in detention and he takes every opportunity available and attends a weekly program.
Conclusion: the likelihood of the Applicant engaging in further criminal conduct or other serious conduct
[22] Exhibit A4
The Respondent’s written and oral submissions included that the Applicant has a clear history of resorting to drug use when stressed, that there is an absence of evidence that he has taken meaningful steps to address the underlying causes of his offending or substance use and that he has not spent any time in the community since his most recent offending such that the Applicant remains an ongoing moderate to high risk of reoffending.
The Applicant submitted that despite the identified issues, he now is very aware of the consequences of his offending, including the implications for his migration status. He said that he has identified that he cannot again live on the Gold Coast, where he was influenced in a negative manner and that his immediate plans if releases to the community would be to live with his mother in Sydney and to get himself set up and save money, noting that he would also have the support of his childhood friends in Sydney. He said one of his childhood friends, Mr Bedford, has indicated that work will be available to him to assist him in re-establishing himself. The Applicant said that, ultimately, he and Ms Moore will be looking to reside together but the focus initially will be on his rehabilitation which is best supported for him back with his mother. The Applicant also spoke of rehabilitation and support options he has explored that he could avail upon release, including an Advanced Health Plan to access 10 sessions of psychological counselling and connecting with either Alcoholics Anonymous or Narcotics Anonymous (although is preference would be to connect with Alcoholics Anonymous as his view is that he should restrain from associating with others that may have drug issues). Ms Davis’ and Ms Moore’s evidence was consistent with these plans expressed by the Applicant.
In the absence of independent psychological evidence in relation to the Applicant’s risk of re-offending, I am limited to considering the above matters in relation to the Applicant’s risk of reoffending. I accept as conceded by the Applicant that there cannot be said to be no risk. However, I am also not satisfied that the evidence supports that the risk is high notwithstanding the Applicant’s continued reoffending after release from incarceration in August 2023. I am satisfied that the Applicant genuinely was not aware of the consequences for his migration status of his offending until August 2024 and I put some weight on the rehabilitation courses he has undertaken whilst incarcerated and detained, albeit limited. Having regard to all of these matters, I conclude that the likelihood of the Applicant engaging in further criminal or other serious conduct upon release to the community cannot be assessed as less than medium.
8.1.2(2)(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.
This factor has no application in the circumstances.
Conclusion: The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Applicant acknowledges that there can never be no risk of him committing further offences or engaging in other serious conduct, but submitted that having had the opportunity to reflect over an extended period of being incarcerated and detained (over 16 months in total), now being aware of the consequences to his migration status (which he was not aware of prior to August 2024), having had the benefit of rehabilitation courses during his time away from the community, and having the support of his partner Ms Moore and his family, particularly his mother, Ms Davis are all factors supporting that he is a low risk of re-offending.
The Respondent raised concerns in this regard with the seeming lack of knowledge of Ms Moore and Ms Davis, up to an acknowledged few days prior to the hearing, of the extent of the Applicant’s offending. Whilst Ms Moore and Ms Davis might not be aware of all of the exact detail of the Applicant’s offending, I am satisfied that they are generally aware of the very serious nature of his offending and, further, are committed towards supporting the Applicant in the community and with rehabilitation. I am further satisfied based upon the statements of Mr Bedford and Mr Macaskill that the Applicant will also have the support of long-term friends including as regards employment. Nonetheless the Applicant’s offending was repeated and has not been retested in the community.
I have cumulatively had regard to the nature of the harm to the individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in further criminal or other serious conduct, which I have assessed as not less than medium, in assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. I consider there is a risk of future harm given the assessed medium likelihood of the Applicant engaging in further criminal or serious conduct which cannot currently be categorised as below medium. The nature of the Applicant’s offending included repeated offending. I find that the offending is very serious and there is a risk not able to be assessed below medium of the Applicant reoffending.
Conclusion: Primary consideration 1 – protection of the Australian community from criminal or other serious conduct
The Respondent submitted, at paragraph 53 of its SFIC, and the Applicant accepts, that overall Primary consideration 1 must weigh heavily against the Applicant.
Having had regard to the nature and seriousness of the Applicant’s conduct (which I have assessed as very serious) and the risk of him reoffending (which I have assessed as not below medium), I conclude this consideration weighs heavily against revocation of the original decision to mandatorily cancel the Applicant’s visa.
PRIMARY CONSIDERATION 2 – WHETHER THE CONDUCT ENGAGED IN CONSTITUTED FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia and that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 8.2(2) of the Direction continues to state that this consideration is relevant in circumstances where:
(a) A non-citizen has been convicted of any offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; 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 being considered under section 501 or section 501CA has been afforded procedural fairness.
Conclusion: Primary consideration 2 – whether the conduct engaged in constituted family violence
As already noted, paragraph 8.2(2) of the Direction is relevant if there has been a conviction for an offence involving, or proven, family violence or there is independent evidence that the Applicant has been involved in the perpetration of family violence and that he has been afforded procedural fairness.
I am satisfied that there is Protection Order dated 18 October 2023 naming the Applicant as the respondent in relation to certain allegations made by Ms Znebeanek as has been canvassed earlier in these Reasons. However, none of the Applicant’s convictions were for offences involving family violence nor is there independent evidence that the Applicant has been involved in the perpetration of family violence alleged by Ms Znebeanek. I note the Respondent’s representative’s oral submissions at hearing in relation to this consideration that it should be considered as neutral by the Tribunal contrary to its previous written submissions, at paragraph 54 of its SFIC, that it must weigh significantly against the Applicant.
Having regard to these matters, and in particular to there not being any convictions against the Applicant in relation to family violence, I conclude that Primary consideration 2 is neutral in terms of a decision to revoke cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
8.3(1) – impact of decision on Applicant’s immediate family members
Paragraph 8.3(1) of the Direction requires me to consider any impact of the decision on the Applicant’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.
The Applicant’s request for revocation, as confirmed by his oral evidence, identified the following persons as the Applicant’s immediate family members living in Australia:
(a)Kiara Moore, the Applicant’s partner;
(b)Tracey-Lee Davis, the Applicant’s mother
(c)Michael David Hall, the Applicant’s father;
(d)Pete-Michaela Hall, the Applicant’s sister;
(e)Codie Spring, the Applicant’s brother;
(f)the Applicant’s oldest son; and
(g)the Applicant’s youngest son.
Some of these immediate family members are identified in the Applicant’s revocation request as being Australian citizens, while some are identified as being New Zealand citizens. The Applicant’s partner, Ms Moore, is an Australian citizen. The Applicant’s evidence included that although New Zealand citizens, the Applicant’s parents were both granted permanent residency of Australia on 7 August 1992.[23] I am satisfied that some if not all of the Applicant’s immediate family members in Australia are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
[23] Exhibit R2, pages 67 and 72
I note that there was also oral evidence at hearing that the Applicant may be the father of Ms Znebeanek’s daughter, born in November 2023. However, the Applicant’s position was that he is not sure of the child’s paternity and other than one sighting of the then newborn baby in November 2023 when he was shopping, he has had no contact with Ms Znebeanek’s daughter and does not seek to have her taken into consideration when considering his position.
The Applicant’s revocation request included as follows in relation to his relationship with his partner, Ms Moore and in response to describing any current impact on family members and/or any likely impact on his partner and his family in the event of a negative decision outcome (unedited):
We met at a gathering in 2022 became close and stayed in contact. We have been together since April 2023. We have a son … born on [../8/2024]. Our plans for the future are to move in together as a family and build a life together.
The cancellation of my visa has had a big impact and been devastating for Kiara. She has had to raise our son alone without the physical support from me shes needed. If my revocation is unsuccessful she will be heartbroken and suffer immensely having to raise our son on her own and not having a chance to build a life together.
…
The current and ongoing impact of my visa cancellation has been devastating on my family. We are all close and not having me in their lives has been hard for them especially on the kids as I’m the glue that holds us all together. My parents are nearly at retirement age and they fear I won’t be there for the remainder of their lives and their grandkids will miss out on a loving relationship they cherish.
The Applicant’s and Ms Moore’s evidence at hearing was consistent with the impact described in the Applicant’s revocation request. The Applicant additionally said that although his mother is in quite good health, his father (who is separated from his mother) is not in good health and that if the Applicant were removed to New Zealand, he thinks his mother will be able to visit but that his father’s age, health and financial situation is such that he will likely be unable to visit and he will never see his father again. The Applicant said that it would impact their family unit forever if he was removed to New Zealand.
Statements from the Applicant’s family members in evidence included the following as to the impact upon them if the Applicant was removed to New Zealand:
(a) Tracey-lee Davis (the Applicant’s mother)[24] – ‘We would be absolutely devastated as would his children if he gets deported I think it would impact his children and even my other grandchildren severely as he is close to all of them’.
(b) Pete-Michaela Hall (the Applicant’s sister)[25] – ‘he has missed his new baby boys start to live, hasn’t been there to support his older son and could miss out on so much more. Its also been hard for my son [the Applicant’s youngest nephew] not having the uncle he loves so much around and hard for me to explain why he isn’t able to see his uncle…If my brother Gabriel is sent to New Zealand it will destroy our family and have long lasting negative effects on the kids’.
(c) Kiara Moore (the Applicant’s partner)[26] – ‘To sum it up if Gabriel is deported from Australia to New Zealand, I will be distraught and heartbroken. I love Gabriel with my whole heart. Not only will I suffer lifelong emotional hardship and sadness but our son will never have the chance of having his father around to love nurture and help him grow. His development will be affected and he will not know the unconditional love of a father. He will be stripped of this before he is even given a chance at life. Our child and the children from his past relationship will be adversely impacted on an emotional, physical and mental level. If his father is deported from Australia our son is less likely to develop a strong relationship with his brother and cousins. Gabriels parents, sibling, nieces and nephews will also suffer very considerable hardship if Gabriel is deported. Not only will His children be denied the opportunity to develop a sustainable close relationship with their father and I know for a fact deeply loves them. But the relationship he has with his nieces and nephews whom he adores will be heavily impacted and they will be stripped of a loving family member’.
[24] Exhibit A1
[25] Exhibit A2
[26] Exhibit A3
Ms Davis and Ms Moore gave evidence at hearing as to the impact of the decision on the Applicant’s immediate family members which is consistent with the above statements and was that there would be significant devastating impact.
In addition to the above matters, I will deal with the best of interests of the four minor children in the Applicant’s immediate family more in my discussion of Primary consideration 4.
8.3(2) – strength, nature and duration of any other ties that the Applicant has to the Australian community
As regards paragraph 8.3(2)(a) of the Direction, I must have regard to how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
i.less weight should be given where the Applicant began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing to the Australian community.
The evidence shows that the Applicant has lived in Australia since he was a young child, arriving at the age of two, having arrived with his parents and siblings in 1992 and that his offending, other than one conviction in 2018, did not commence until 2023, when the Applicant was aged 33. Having regard to these circumstances and paragraph 8.3(2)(a) of the Direction, more weight should be given to the time the Applicant has spent contributing to the Australian community.
The Applicant’s revocation request includes details of the strength, nature and duration of his ties to Australia as including that he attended primary and high school in Australia and that all his employment, which was largely continuous from 2009 to 2022 has been in Australia.[27] The Applicant also stated as follows in relation to his positive contributions to the Australian community:[28]
I have worked my whole adult life in retail as a sales specialist. I will attach a copy of my resume. I have volunteered as a rugby coach for the Nerang Roosters through R U OK? Liasion with Puma.
[27] See also Exhibit R5
[28] Exhibit R2, page 75
As regards paragraph 8.3(2)(b) of the Direction, I must have regard to 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.
As regards other family links, in addition to immediate family already canvassed, the Applicant’s request for revocation, as confirmed by his oral evidence, identified the following persons as the Applicant’s family members living in Australia:
(a) Serene Spring, the Applicant’s sister-in-law;
(b) Lindsay Franks, the Applicant’s brother-in-law;
(c) Tane Hall, the Applicant’s cousin;
(d) Cole Hall, the Applicant’s cousin;
(e) Cheyanne Davis, the Applicant’s cousin;
(f) Aaron Patea, the Applicant’s cousin;
(g) Virginia Patea, the Applicant’s aunt;
(h) the Applicant’s eldest nephew (his brother’s son); and
(i) the Applicant’s youngest nephew (his sister’s son).
Some of these other family members are identified in the Applicant’s revocation request as being Australian citizens, while some are identified as being New Zealand citizens. I am satisfied that at least some of the Applicant’s other family members in Australia are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
I am satisfied based on the evidence that in addition to having strong relationships with his immediate family in Australia that the Applicant also has relationships with extended family members in Australia. I am further satisfied that the Applicant has social and other ties in Australia, including to close friends from his childhood years (as evidenced by the statements of Mr Bedford[29] and Mr Macaskill[30]).
[29] Exhibit R3
[30] Exhibit R4
Conclusion: Primary consideration 3 – the strength, nature and duration of ties to Australia
Written submissions on behalf of the Respondent acknowledge the family relationships identified by the Applicant in Australia, although it is suggested that whilst the Applicant has relationships with his mother and sister, they are not close relationships. Further, it is noted that although the Applicant has had contact with his eldest son in the community, his eldest son lives with Ms Nadin (his mother) and the Applicant has not spent any time in the community since his youngest son was born. The Respondent concedes that this consideration weighs in the Applicant’s favour but submits that it should be afforded moderate weight given the evidence suggests a limited relationship with his mother and sister, and limited involvement with his children.
Oral submissions at hearing on behalf of the Respondent continued to be that the evidence suggests that while they clearly have an ongoing relationship with the Applicant, the relationship with his mother and sister is not very close and as regards his sister, they appear to have a limited ongoing relationship. It was submitted that there was little evidence of the relationship of the Applicant with his father and his brother. Further it was submitted that the Applicant has had limited contact with his eldest son for a number of years and the Applicant’s evidence was that if he remains in Australia, he has no intention of continuing to live on the Gold Coast where his eldest son lives, with no suggestion that his eldest son will move from the Gold Coast, such that the relationship with his eldest son is likely to be of little difference, and will continue to be more by electronic means, whether the Applicant remains in Australia or not. It was also noted that the evidence seemed to suggest a somewhat difficult relationship between the Applicant and his eldest son’s mother, Ms Nadin, from whom the Applicant has been separated since 2022. Consistent with the written submissions, it was maintained that moderate weight only should be attributed to this consideration.
The Applicant submitted that he has very strong ties to Australia including very close relationships with family members and also with Ms Moore, his partner. His evidence and Ms Moore’s was that they communicate several times a day and write copious letters to each other. Further, whilst acknowledging that his rehabilitation plans necessarily mean that he will not be residing in the same state as his eldest son, and likely not in the same town/city as his youngest son, at least initially, that his ability to have contact with both of them, including for example on school holidays with his eldest son, is much greater being in Australia. The Applicant submitted that very significant weight should be placed on this consideration.
Having regard to the considerations required by paragraph 8.3 of the Direction as outlined in the preceding paragraphs, I am satisfied that the Applicant has very strong ties to Australia. I am satisfied that the Applicant and Ms Moore have a continuing and strong relationship, which has persisted despite the Applicant’s incarceration and detention and in difficult circumstances, with an obvious joint commitment to the best interests of their son, which they both see being best served by them being a family unit. I reject the Respondent’s submissions that the Applicant does not have close relationships with his mother and sister. Ms Davis’ evidence at hearing made it very clear that although there was a period of less regular contact throughout 2023, the usual relationship between her and the Applicant is very close and that she is very involved with the Applicant’s future plans and is committed to his rehabilitation. I am satisfied that the Applicant has a close relationship with his sister and accept, as noted in her statement, that she was not available to attend the hearing to give evidence because she has a young son and is expecting (a baby) again.[31] I am also satisfied, based upon the Applicant’s oral evidence at hearing, that he has a good relationship with his father and brother. The Applicant’s father and brother both live in Sydney. The Applicant acknowledged he is not in much contact with his brother but said that he is in contact with his father, although mainly by text, because his father is not ‘much of a talker’. He said his father is aware of his criminal convictions and circumstances, similar to his mother’s awareness. Whilst the Applicant may have less contact with them than he does, for example, with his mother and sister, I am satisfied that the Applicant enjoys good relationships with them, particularly with his father. Further, I accept the Applicant’s evidence that his father’s circumstances are such that if the Applicant is removed to New Zealand, he is unlikely to ever see his father again due to the limitations on his father’s ability to travel overseas.
[31] The Applicant’s oral evidence at hearing was that his sister is approximately 30 weeks’ pregnant and is experiencing some medical (auto-immune) difficulties.
Having regard to all of the evidence and submissions in relation to this consideration, I conclude that Primary consideration 3 weighs very heavily in favour of revoking the original decision to cancel the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4 of the Direction requires me to determine whether a non-revocation decision is, or is not, in the best interests of a child (under the age of 18 at the time) affected by the decision.
Paragraph 8.4(4) of the Direction sets out a number of factors that must be taken into consideration, where relevant, in considering the best interests of a relevant child as follows:
(a)the nature and duration of the relationship between the child and the 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);
(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;
(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;
(d)the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the children (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
It was submitted on behalf of the Applicant that the best interests of the following children under the age of 18, all of whom are Australian citizens, would be affected by the decision:
(a)his eldest son (born June 2011) the Applicant’s biological son;
(b)his youngest son (born August 2024), the Applicant’s biological son;
(c)his oldest nephew (the son of the Applicant’s brother); and
(d)his youngest nephew (the son of the Applicant’s sister).
As to the likely effect that any separation from the Applicant would have on his nephews, I am satisfied that there would be some impact upon them given the long-standing familial-like ties, albeit possibly minimal.
The evidence suggests that both of the Applicant’s nephews have other persons, their parents, that already fulfill a parental role in relation to each of them.
There is no direct evidence of the known views of the Applicant’s nephews.
There is no evidence that the Applicant’s nephews have been exposed, or are at risk of being, subject to, or exposed to family violence perpetrated by the Applicant or have otherwise been abused or neglected by the Applicant in any way.
There is no evidence that the Applicant’s nephews have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct, other than the general impact that might be expected of being separated from an uncle whilst he has been incarcerated or in detention.
Having had regard to the above factors in relation to the best interests of the Applicant’s nephews, I am satisfied that non-revocation of the original decision to cancel the Applicant’s visa is not in their best interests.
Minor children – other
There was also discussion at hearing of two other minor children of potential relevance.
The Applicant’s evidence was that during a break in their relationship between 2014 and 2018, Ms Nadin gave birth to a daughter in 2016, in relation to whom the Applicant played a stepfather role upon resumption of his relationship with Ms Nadin in 2018. The Applicant’s evidence was that he had a close relationship with Ms Nadin’s daughter and that he continued to see her, together with his eldest son (her half-brother) after the breakdown of his relationship with Ms Nadin at the end of 2022. The Applicant acknowledged at hearing that he has had no real contact with Ms Nadin’s daughter for quite a period of time, that her biological mother and father both play parental roles in her life but said that he will always include Ms Nadin’s daughter in his life to the extent he is able. The Applicant submitted that the biggest effect it would have on Ms Nadin’s daughter if he were removed to New Zealand is the impact it will have on her half-brother, his eldest son. The Applicant said he did not list Ms Nadin’s daughter in his revocation request as a minor child impacted by the decision but that he loves Ms Nadin’s daughter. However, he acknowledged that Ms Nadin did not want her daughter having a relationship with him going forward and did not seek to rely upon the impact the decision would have on Ms Nadin’s daughter as a relevant consideration. On this basis, I have not had regard to the best interests of Ms Nadin’s daughter as a minor child that may be affected by the decision.
Further, as already noted earlier in these Reasons, although there is a possibility that Ms Znebeanek’s daughter is his biological daughter, the Applicant has had no contact with her since her birth in November 2023 (other than a sighting whilst shopping) and the Applicant does not seek to have her taken into consideration when considering his position. On that basis, I have also not had regard to the best interests of Ms Znebeanek’s daughter as a minor child that may be affected by the decision.
Conclusion: Primary consideration 4 – the best interests of minor children in Australia
The Applicant submitted that it is clear from the evidence that the best interests of minor children in Australia, particularly his two sons, are met by him remaining in Australia and he is able to play a direct parental role for each of them such that this consideration weighs very strongly in favour of revocation. He submitted that the maximum possible weight should be put on this consideration because from his point of view it is ‘all about the kids’.
The Respondent’s written submissions included that the Applicant’s sons already have mothers who fulfill a parental role and who have done so for a notable period without the Applicant (paragraph 61 of the Respondent’s SFIC). As regards the Applicant’s nephews, it was submitted that there is no evidence that they are minor children to which the consideration relates and that, in any event, they are not dependent on the Applicant nor do they have regular interaction or any ongoing meaningful relationship such that no consideration should be attributed to their best interests. In conclusion the Respondent submitted that this consideration should be given moderate weight (in respect of the Applicant’s sons).
I acknowledge the Respondent’s concerns in relation to the bad example that the Applicant’s past behaviour would be for minor children, particularly his sons. Nonetheless as I have recognised, the Applicant has lived in Australia for the majority of his life, and all of his adulthood, and but for one year of that time was gainfully employed throughout adulthood and other than the 2018 conviction had no criminal history until 2023. I recognise these matters and the Applicant’s genuine remorse and desire to play a positive parental role in the lives of all four of the noted minor children and particularly in the lives of his sons. Further, I recognise to the extent able the Applicant has retained ongoing relationships with both of his sons. I recognise the desirability of a biological parent playing an active role in a child’s life to the extent possible, including when in a partnership with the child’s biological mother but also when not. I conclude that it is in the best interests of the minor children canvassed, and in particular the Applicant’s sons, that the decision to cancel the Applicant’s visa is revoked. I conclude that Primary consideration 4 weighs very heavily in favour of revoking the original decision to cancel the Applicant’s visa.
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction says that 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 he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[33]
[33] Paragraph 8.4(1) of the Direction
Paragraph 8.5(2) of the Direction says that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not 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, relevantly:
(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.
Paragraph 8.5(3) of the Direction states that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined as follows:[34]
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.
Conclusion: Primary consideration 5 – expectations of the Australian community
[34] This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185
The Respondent’s written submissions, at paragraph 66, included that it is not for the Tribunal to determine for itself what the community’s expectations are in a particular case and, at paragraph 68, are that Primary consideration 5 must weight significantly against revocation of the visa cancellation decision.
The Applicant acknowledged at hearing that he understands that the expectations of the Australian community weigh significantly against him.
Consistent with the Respondent’s submissions and the approach adopted as correct in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [24], I acknowledge that it is not for the Tribunal to determine for itself what the community’s expectations are in a particular case.
The Applicant has breached the Australian community’s expectation that non-citizens obey Australian laws while in Australia. I have found that the Applicant engaged in serious conduct in breach of this expectation. I find that the Australian community expects that the mandatory cancellation of the Applicant’s visa is not revoked. I conclude that Primary consideration 5 weighs heavily against revocation of the original decision to mandatorily cancel the Applicant’s visa.
OTHER CONSIDERATION 1 – LEGAL CONSEQUENCES OF THE DECISION
Paragraph 9.1 of the Direction requires me to take into account the legal consequences of the decision, relevantly in relation to this matter, in relation to revocation of the mandatory cancellation of the Applicant’s visa.
Paragraph 9.1(1) of the Direction states:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Pursuant to sections 189 and 198, unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable. Pursuant to section 501E, a non-citizen whose visa has been cancelled is barred from applying for any visa other than a Protection visa or a Bridging R visa while in the migration zone. Further, a person whose visa is cancelled under section 501 will not be able to satisfy a necessary Special return criteria set out in Criterion 5001 of schedule 5 of the Migration Regulations 1994 for the grant of most if not all visas which would enable him to re-enter Australia in the future.
Conclusion: Other consideration 1 – legal consequences of the decision
No submissions were made by the Applicant in relation to Other consideration 1.
The Respondent’s written and oral submissions were that there is no evidence to suggest that the legal consequences of the decision are relevant and submitted that this consideration is not applicable.
The relevant legal consequences of affirming the reviewable decision not to revoke the mandatory cancellation of the Applicant’s visa would be that the Applicant would be liable to be removed from Australia as soon as reasonably practicable, he must remain in detention until removed, is not able to apply for any other visas and will not be able to return to Australia at any future time. These are the intended consequences of the cancellation of a visa under section 501.
The Applicant did not raise any matters relevant to this consideration other than the extended separation, in some cases permanent, from family members which may necessarily follow if he is never able to return to Australia. I have canvassed this concern and attached weight to it as part of my consideration of Primary considerations 3 and 4 and attach no further weight to it in having regard to Other consideration 1.
I conclude that Other consideration 1 is of neutral weight in terms of a decision to revoke cancellation of the Applicant’s visa.
OTHER CONSIDERATION 2 – EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2 of the Direction requires me to consider the extent of any impediments that the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in New Zealand.
The Applicant’s request for revocation included the following responses relevant to this consideration:[35]
(a)He is 35 years of age;
(b)He does not have any diagnosed medical or psychological conditions;
(c)He is not currently being treated by any doctor/health professional/counsellor;
(d)His primary concerns if he were to return to his country of citizenship are that he has no support network in New Zealand because he moved to Australia in 1992 and he won’t be able to see his kids and the rest of his immediate family because they live in Australia;
(e)Other problems he would face if he has to return to New Zealand are just trying to find work, accommodation and having to start his life over again and being worried about his mental health without his family.
[35] Exhibit R2, pages 61 to 77.
Conclusion: Other consideration 2 –extent of impediments if removed
The Applicant at hearing recognised that he could resettle in New Zealand if he had to but said that his main concern was his children. The Applicant said that he accepts, as submitted by the Respondent, that this consideration should only be afforded minor weight.
The Respondent’s written submissions included reference to the Applicant having some extended family who continue to reside in New Zealand and noting that although the Applicant has not lived in New Zealand since about two years of age, there are no apparent language or cultural barriers with his movement records suggesting that the Applicant has returned to New Zealand on a number of occasions up until 2015. It was submitted that if returned to New Zealand, the Applicant could maintain basic living standards having access to broadly comparable social security and healthcare to that available in Australia with the Applicant still being quite young, having no health conditions and being able to seek support from extended family in New Zealand. It was conceded that some weight should be attributed to this consideration in favour of the Applicant but that it only be minor weight. Oral submissions on behalf of the Respondent were consistent with these written submissions, including that it was recognised that there was some impediment to the Applicant maintaining basic living standards in New Zealand in the context of the time that passed since he last lived there and his support there.
I am satisfied that there would be some impediment for the Applicant if removed from Australia to New Zealand in that he would have to establish himself there in circumstances where he has not lived there since the age of two and his only ties are extended family. However, given the Applicant’s relatively young age, his good health, the lack of substantial language or cultural barriers, a comparable social security and healthcare system in New Zealand, the presence of some of the Applicant’s family, albeit extended, in New Zealand and the Applicant’s recognition that he could resettle in New Zealand if he had to, I conclude that Other consideration 2 is only of minor weight in favour of revoking the original decision to cancel the Applicant’s visa.
OTHER CONSIDERATION 3 – IMPACT ON AUSTRALIAN BUSINESS INTERESTS
I must consider any impact on Australian business interests of a decision to affirm the reviewable decision.
Conclusion: Other consideration 3 – impact on Australian business interests
No submissions were made by the Applicant in relation to Other consideration 3.
The Respondent’s written and oral submissions were that there is no evidence to suggest that the impact on Australian business interests is relevant and submitted that this consideration is not applicable.
I accept that there is no evidence to suggest that the impact on Australian business interests is relevant and conclude that Other consideration 3 is of neutral weight in terms of a decision to revoke cancellation of the Applicant’s visa.
ANY FURTHER CONSIDERATIONS
In response to question 14 (Any other information) in his revocation request, the Applicant stated as follows (unedited):[36]
I would like the decision maker to consider that all of my offences are recent and I have no prior criminal history that my offences don’t align with my character that I’ve lived a healthy life as a lawful member of the comunity. That I’m truly sorry for my actions. I have spent my time in custody learning from my mistakes. I have used the time to rehabilitate myself to understand what lead to my offending to ensure it doesn’t happen again. That I’m filled with remorse my actions affected the safety of the community and I’m ashamed of my offences. That I will pose no risk of future offending. That my kids deserve to grow up with their father present in their lives.
[36] Exhibit R2, pages 76 to 77.
I have considered the matters raised by the Applicant in ‘Any other information’ in canvassing the Primary and Other considerations and am satisfied that no new considerations outside of those listed in the Direction require consideration.
CONCLUSION
For the reasons set out above, I have made the following findings about the considerations in the Direction:
(a) Primary consideration 1, protection of the Australian community from criminal or other serious conduct, weighs heavily against revocation of the original decision to cancel the Applicant’s visa;
(b) Primary consideration 2, whether the conduct engaged in constituted family violence, is of neutral weight against revocation of the original decision to cancel the Applicant’s visa;
(c) Primary consideration 3, the strength, nature and duration of ties to Australia, weighs very heavily in favour of revocation of the original decision to cancel the Applicant’s visa;
(d) Primary consideration 4, the best interests of minor children in Australia, weighs very heavily in favour of revocation of the original decision to cancel the Applicant’s visa;
(e) Primary consideration 5, expectations of the Australian community, weighs heavily against revocation of the original decision to cancel the Applicant’s visa;
(f) Other consideration 1, legal consequences of decision, is of neutral weight against revocation of the original decision to cancel the Applicant’s visa;
(g) Other consideration 2, extent of impediment if removed, is of minor weight in favour of revocation of the original decision to cancel the Applicant’s visa; and
(h) Other consideration 3, impact on Australian business interests, is of neutral weight in considering whether to revoke the original decision to cancel the Applicant’s visa.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding the current Direction).[37] Relevantly, the Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. While the Court was considering Direction No. 90, its observations would apply to the Direction (Direction No. 110). The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[38]
[37] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[38] At [35].
Written submissions on behalf of the Respondent, at paragraph 76 of its SFIC, were that the Tribunal should find that the protection of the Australian community, family violence and the expectations of the Australian community outweigh the considerations in favour of revoking the cancellation decision. Given the Respondent’s position in oral submissions that Primary consideration 2 is actually of neutral weight, I took the Respondent’s final submissions to be that it is the protection of the Australian community and the expectations of the Australian community which outweigh considerations in favour of revoking the cancellation decision such that there is not ‘another reason’ why the mandatory visa cancellation decision should be revoked.
As already canvassed the Applicant’s oral submissions in relation to Primary consideration 1 included that he acknowledges the seriousness of his crimes and the damage caused to the Australian community and understands why this consideration weighs significantly against him. However, the Applicant stated that he has lived in Australia since he was two years of age and has done all of his schooling in Australia, all of his immediate family including his two sons live in Australia and his whole life has been in Australia except for some short holidays to New Zealand several years ago. The Applicant submitted that more than moderate consideration contended by the Respondent should be given to Primary considerations 3 and 4 and the highest possible weight should be given to his ties to Australia and his minor children in Australia. The Applicant said that he is not sure how weighing the considerations works but that his whole life is on the line and if his visa cancellation is not revoked, it will affect their family unit forever and in particular his children.
I have had regard to the eight principles set out in paragraph 5.2 of the Direction and note that the safety of the Australian Community is the highest priority of the Australian Government. The higher tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community (paragraph 5.2(6) of the Direction) applies to the Applicant given that he has lived in the Australian community for most of his life, that is from two years of age. I have had regard to clause 7 of the Direction and have taken into account that Primary consideration 1 (protection of the Australian community) is generally to be given more weight than other primary considerations and that, otherwise, primary considerations should generally be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations. I note that the process of assigning greater weight to Primary consideration 1 over the other Primary considerations does not require me to automatically assign greater weight to Primary consideration 1 and that the other Primary considerations can in fact be given greater weight than Primary consideration 1. I also note that the weight to be attributed to considerations is a matter for the decision-maker and requires that the individual facts and circumstances of the case be taken into account.
I have weighed and balanced the various Primary and Other relevant considerations outlined in the Direction against each other. In doing so, I have a lingering concern in relation to the identified inconsistencies between the information provided by the Applicant to the Magistrates Court and to the Tribunal as regards the details of his relationships with Ms Nadin and Ms Znebeanek but ultimately accept the evidence as given to the Tribunal.
I find that the Primary considerations of the Applicant’s ties to Australia, the best interests of the minor children and the extent of impediments if the Applicant is removed to New Zealand (and particularly the first two of those considerations) combine to outweigh the protection of the Australian community and the expectations of the Australian community.
It follows that I am satisfied that there is another reason why the original decision should be revoked such that subparagraph 501CA(4)(b)(ii) is met. I have previously found earlier in these Reasons that subparagraph 501CA(4)(a) is met. It follows that subsection 501CA(4) is met overall and the original decision not to revoke the mandatory cancellation of the Applicant’s visa is revoked pursuant to subsection 501CA(4).
DECISION
The Tribunal sets aside the reviewable decision dated 24 February 2025, notified 25 February 2025, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa and in substitution decides that the original decision to cancel the visa is revoked.
Dates of hearing: 12 and 13 May 2025 Solicitors for the Applicant: Self-represented Solicitors for the Respondent: Mr M Hopkins, Mills Oakley Lawyers
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