Hancox and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3241
•6 September 2022
Hancox and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3241 (6 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5143
Re:Beau Jerome Hancox
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:6 September 2022
Place:Sydney
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – impact on victims – links to the Australian community – decision set aside and substituted
Legislation
Crimes Act 1900 (NSW) s 114
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 5
Family Law Act 1975 (Cth) s 4AB
Migration Act 1958 (Cth) ss 5G, 500, 501, 501CA
Cases
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ali and Minister for Home Affairs [2018] AATA 2512
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1967
Falzon v Minister for immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183
Leau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3090
Matthews v Minister for Home Affairs [2020] FCAFC 146
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PVFV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2651
R v JT [2007] NSWDC 377
R v Saunders [2017] SASCFC 86
R v Wood [1994] QCA 297
Shi v Migration Agents Registration Authority [2008] HCA 31
Slynt v Slynt [2017] FamCA 812
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90
Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Australian Institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story 2019
Concise Australian Legal Dictionary (6 ed, 2020) 'family'.
Department of Social Services, National Plan to reduce violence against women and their children, Fourth Action Plan 2019-2022
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
6 September 2022
On 13 July 2021 the Applicant, Mr Beau Jerome Hancox, was convicted of several offences (see below) which resulted in him receiving a custodial sentence of 13 months’ imprisonment. The Applicant is a citizen of New Zealand/Aotearoa.
This conviction led to the Minister (the Respondent) determining that the Applicant had a “substantial criminal record” under the provisions of the Migration Act 1958 (Cth) (the Act).[1] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more.
[1] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
This in turn led to the mandatory cancellation of his visa, of which he was notified on 21 July 2021.
As provided for under the Act, the Applicant made “representations” on 26 July 2021 for the revocation of the cancellation decision. On 15 June 2022 a delegate of the Minister decided not to revoke the cancellation.[2]
[2] Act s 501CA(4).
On 20 June 2022 the Applicant then appealed to this Tribunal for a review of that decision and the matter was heard on 29 and 30 August 2022. The hearing was conducted in person and both parties were legally represented.
Under paragraph 500(6L)(c) of the Act there is a specific time limit within which the Tribunal must make its decision, otherwise the Minister’s decision is taken to be affirmed. In this instance this Tribunal must make a decision by 7 September 2022.
The basis of any review
The Act provides that where a non-citizen fails the character test, their visa is subject to mandatory cancellation. As already noted, the imposition of a term of imprisonment of more than 12 months is taken to establish that the character test has been failed (s 501(3A)). Clearly, as a matter of law, this Applicant fails the character test.
Once a visa has been cancelled because of a failure to meet the character test, it may be effectively reinstated (the cancellation decision may be revoked) if there is “another reason” to do so (s 501CA(4)(b)(ii)).
The Applicant’s personal narrative [3]
[3] Details extracted from SFICs provided by both parties and Applicant’s Statement, Applicant’s Tender Bundle at 50-61.
The Applicant was born in New Zealand in March 1988 and moved to Australia on 27 January 1989. At this time, he was accompanied to Australia by his sister (Chani Gene Hancox) and they joined his mother, older (step) sister and step-father who were already Australian residents.
He holds a Special Category (Class TY) Subclass 444 (Temporary) visa which is available to all New Zealand citizens allowing for their permanent residence in Australia.
The Applicant completed schooling in Australia up to year 10, although he had some issues with his reading and writing. He participated in sports and played junior Rugby League from the age of about 12 until he was 16 years old.
He acquired several trade qualifications[4] which allowed him to work in the scaffolding industry and it appears that he was gainfully employed in that industry for many years with a positive work record and references from employers.[5]
[4] Applicant’s Tender Bundle at 50, Applicant’s Statement dated 24 August 2022 (Applicant’s Statement dated 24 August 2022) at [9]-[10].
[5] G-documents at 155, 156 and 162. The Applicant was employed by A Martin, Martin & Co, R Bluett, RTB Scaffolding and J Manu, Erect Safe Scaffolding.
When he was about 16 years of age, he commenced a relationship with Ms Cherelle Menniti. This relationship lasted some five or six years and resulted in the birth of the Applicant’s son (HH) in January 2012. It was the Applicant’s testimony that although there was a child born of this relationship, the parties never cohabited and neither ever made any financial contribution to the other. He describes this relationship as “a fling”.[6] However, it does appear that the Applicant, at least until his incarceration has been paying some $200.00 per week in child support.[7]
[6] Applicant’s Statement dated 24 August 2022 at [17].
[7] G-documents at 58.
At some time around July 2017, he commenced a relationship with his current partner (Amanda Louise Emily Egan). Ms Egan has two children by another partner, a son (RH) born in April 2007 and a daughter (AH) born in December 2010. They are described by the Applicant as his step-children, and although this is not legally the case, the Tribunal accepts and adopts this characterisation.
The Applicant has extensive family ties in Australia which is where the following members of his family reside: his mother (Dinnese Payne); stepfather (Richie Payne); his half-sister and sister (Tayla Payne, Chani Hancox respectively) and step-sister (Chantelle Mohi). He also has a minor brother (CFP) who was born in April 2005.
His more extended family in Australia includes a half-sister (Chelsea Koroi), together with two grandparents; five uncles/aunts; eight nephews/nieces; and 15 cousins.[8]
[8] G-documents at 103-104.
Although the Applicant has family still in New Zealand, it was his testimony, supported by that of his mother and sister than no significant contact has been maintained with them. In any case the Applicant and his father have not been on good terms, with the Applicant describing his relationship with his father when a child as basically “abusive”.
It thus appears that the “minor children” resident in Australia who are relevant in this application includes his biological son (HH); two step-children (RH and AH); his step-brother (CFP) and eight nephews/nieces.
Alongside the narrative of the Applicant’s family is the narrative of the Applicant’s drug use. In both his written and oral testimony, he has been open and frank about this. He told the Tribunal that he first started smoking marijuana at about nine years of age and then progressed to become a regular user of a range of “party drugs” including methamphetamines by the time he was 16 years old. In about 2013 he started using “ice” and developed a habit which eventually cost him about $400.00 a day to maintain.[9] Some of his acts of theft were undertaken in order to finance this drug habit.
[9] Applicant’s Statement dated 24 August 2022 at [53].
He made an effort to break his drug habit and was able to access a controlled programme of opioid addiction treatment using Suboxone. On his release from custody in 2020, he sought assistance via Narcotics Anonymous but, as he reports, support services were restricted during the height of the COVID-19 pandemic and lock-down and as a result he relapsed into dug use once again. Since he has been in immigration detention, he has recently resumed the Suboxone (depot injection) treatment programme.
The Applicant told the Tribunal that he has been “clean” for many months and that were he to be released into the community he would seek appropriate treatment and that this would be reinforced by the fact that his partner (Ms Egan) has a zero tolerance for drug use. Moreover, were he to resume work in his profession as a scaffolder, he knows that he would be subject to random drug testing as part of the protocols which now surround the operations of major employers in this sector.
The Applicant has a history of diagnosed depression and recent testing displays high levels of stress. He is on medication for these conditions.[10] He has a history of self-harm resulting in several instances of resulting hospitalisation. Although it is not before the Tribunal, the Sentencing Magistrate in July 2021 referred to a clinical report by a Dr Diamond upon which He Honour drew in determining the Applicant’s sentence.[11]
[10] Applicant’s Tender Bundle at 37, Letter from David Czitter (Registered Clinical Counsellor, International Health and Medical Services, Villawood Immigration Detention Centre).
[11] G-documents at 45.
Although, understandably, the Applicant could not remember some details of matters stretching back over a decade, the Tribunal found him be a generally forthright and credible witness.
The Applicant’s offending record
The Applicant has committed a number of offences, albeit over a somewhat limited period of time. The Tribunal adopts the summary of offending as set out by the Respondent in its Statement of Facts, Issues and Contentions (SFIC) (at [18]):
(a) Common assault (DV);
(b) Send etc document threating death or gbh (DV);
(c) Break & Enter house etc steal value <= $60,000 x 6;[12]
(d) Commit s 114 offence, having previous conviction;[13]
(e) Goods in personal custody suspected of being stolen (not m/v);
(f) Possess housebreaking implements;[14]
(g) Destroy or damage property (DV) x 2;
(h) Contravene prohibition/restriction in AVO (Domestic) x 2;
(i) Posses prohibited drug;
(j) "Enter inclosed land not presc premises w/o lawful excuse"; and
(k) Enter dwelling with intent (steal) x 2.[15]
[12] Two of these offences were taken into account on Form 1.
[13] Section 114 of the Crimes Act 1900 (NSW) creates the offence of "being armed with intent to commit indictable
offence". The Applicant was also sentenced in relation to a call up of this offence on 10 April 2019.
[14] The Applicant was also sentenced in relation to a call up of this offence on 10 April 2019.
[15] One of these offences were taken into account on Form 1.
The Applicant points out that these offences were committed in what it describes as “distinct and short time periods”, namely:
(a) on 2 June 2013;
(b) in June 2017;
(c) in 2019; and
(d) between 17 and 20 July 2020, 1 November 2020, and 8 November 2020 (that is over a period of six days in 2020 for the Index Offending).[16]
[16] Applicant’s Statement of Facts, Issues and Contentions (SFIC) at [25]. Citations omitted.
The Applicant appeared before the Courts on five separate occasions:[17]
[17] Adapted from the SFICs from both Respondent and Applicant.
6 June 2013
The Applicant appeared at Waverley Local Court, charged with:
· 'Send etc document threatening death or gbh (DV)-T1',
for which he received 12 months' supervised probation; and
· 'Common assault (DV)-T2', for which he received two years' supervised probation, with a requirement to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation.
13 June 2017
The Applicant appeared at Waverley Local Court, charged with 'Break & Enter house etc steal value <= $60,000-T1', for which he received a community service order of 100 hours.
13 October 2017
The Applicant appeared at Downing Centre Local court, charged
with:
· 'Possess housebreaking implements-T2', for which he received a suspended sentence of nine months' imprisonment;[18]
· 'Goods in personal custody suspected of being stolen (not m/v)', for which he received 12 months' supervised probation; and
· 'Commit s114 offence, having previous conviction', for which he received a suspended sentence of 9 months' imprisonment.
10 April 2019
The Applicant appeared at Bankstown Local Court, charged with:
· a call up of his 'Possess housebreaking implements-T2'
· and 'Commit s114 offence' convictions;
· two charges of 'Destroy or damage property (DV)'; and
· two charges of 'Contravene prohibition/restriction in AVO (Domestic)'
for which he received a community correction order of nine months, with conditions imposed on the call up convictions that the Applicant attend a treatment program and attend counselling as directed.
25 March 2020
The Applicant appeared at Newtown Local Court, charged with:
· 'Enter inclosed land not presc premises w/o lawful excuse', for which he received a s10A conviction with no other penalty; and
· 'Possess prohibited drug', for which he received a sentence of five months' imprisonment, with a note that it had been determined not to call up his breached community corrections order but to treat the breaches as aggravating.
13 July 2021
The Applicant appeared at Central Local Court, charged with:
· two charges of 'Enter dwelling w/I (steal)-T1'; and
· five charges of 'Break & Enter house etc steal value <=$60,000-T1'; for which he received an aggregate sentence of 13 months' imprisonment.
[18] In his sworn evidence the Applicant stated that these “implements” were no more than the tools of his scaffolding trade.
The Tribunal has before it the Sentencing Remarks from the relevant presiding judicial officers in relation to the Court appearances of 10 April 2019 and 13 July 2021.
On 10 April 2019 Magistrate Schurr dealt with the Applicant’s plea of guilty to two lots of offending: a break and entry on 21 May and forced entry into a property that was also a breach of an AVO in 26 May 2018.[19] She was satisfied that the offences involved breaches of both a suspended sentence (imposed in October 2017) and a breach of a related good behaviour bond. However, Her Honour was at pains to remark:
…I see that there are alternatives to full-time custody, and that’s partly based on the excellent – in their own words – report from MERIT about Mr Hancox addressing not only his drug use but also undertaking relationship counselling, and also the sentencing assessment report which proposes a role for Community Corrections’ oversighting the steps that Mr Hancox has already taken himself.
…I am going to take no action on the breach of the s 9 bond so that has expired. For these current offences, as I say, all very positive. Could not have asked more of Mr Hancox in the almost 12 months that the matter has been before the Court.[20]
[19] Her Honour described the offences as occurring on “21 May this year” but this is an error as the offences were committed in May 2018, Respondent’s Tender Bundle at 5.
[20] G-documents at 37.
Despite this positive, not to say glowing, assessment from Her Honour, the Applicant nevertheless relapsed and reoffended, as indicated above.
He was then before the Court again on 13 July 2021 in a matter where the presiding Magistrate expressed her frustration with the Police Reports:
…police reports can be written in two ways, they can be written in a helpful way and they can be written in an unhelpful way. These ones are written in an unhelpful way…[21]
[21] Ibid at 40.
The Applicant was then before the Court on two counts. In relation to the first (break, enter and steal) Her Honour stated:
Obviously I regard that offence as falling below the midrange of objective seriousness
and in relation to the second (enter a dwelling with intent) Her Honour found it to:
fall just below the midrange objective seriousness…[22]
[22] Ibid at 44 and 45.
Her Honour took note of the fact that matters were:
aggravated by the commission whilst on bail for the first matter and on the subjective material it is clear that Mr Hancox at that point in time did have a drug use issue.
Her Honour continued:
It does appear from reading all of this material, and particularly Mr Diamond’s psychological report, that Mr Hancox is someone who has struggled with depression and anxiety for a lengthy period of time. Those conditions are conditions for which treatment is available but of course is challenging to get and particularly at the moment there are certain delays for people seeking assistance with those particular conditions.
I note that he has a drug an alcohol problem. The references from his friends and work colleagues confirm that Mr Hancox is someone who is capable of functioning in the community in a way which allows him to work and be a positive influence on other people’s lives. He has been frustrated by lack of contact with his children but of course it is always challenging for a person who has ongoing drug and alcohol issues to be an appropriate person to have in children’s lives because of course those children are living the only childhood they have and where a person is using and abusing drugs and alcohol, their ability to have a positive impact on their children’s lives is very limited.
It does appear that Mr Hancox understands this. I note that he has assessed himself as being a good person who has done stupid things. He appears to have some insight into his circumstances and he also appears, now that he is in custody, to have some insight into the impact of drugs on him and the impact of drugs on his ability to function as a positive person in the community.
He refers to the impact of work on him and in a sense the social impact of work on him and clearly Mr Hancox is someone who needs to focus on those positive aspects of his law abiding lifestyle rathe that on the negative aspect. He is fortunate to have the support of a supportive partner but certainly I would accept Mr Hancox does face some challenges in his life.[23]
[23] Ibid at 45-46.
Her Honour then imposed a sentence of imprisonment, on the basis that “the s 5 threshold has passed”[24] but that sentence was a relatively modest one of 13 months imprisonment and further accepted that in this case there were “special circumstances” which should be taken into account.[25]
[24] Ibid at 41. These being the remarks of Applicant’s legal representative
[25] Ibid at 46.
The Tribunal takes particular note of the sentencing remarks of both judicial officers and their evaluation of the Applicant as basically a person of good character, with increasing insight into the nature of his offending behaviour and especially of the aetiology of that being rooted in his misuse of alcohol and drugs, something accepted by both Magistrates.
There are no sentencing remarks available to the Tribunal in relation to the domestic violence matter which was dealt with by the Waverly Local Court on 6 June 2013, however there is a Police Statement of Facts in relation to that matter.
The Applicant disputes several of the claims made in that statement. For example, the statement refers to the Applicant’s behaviour involving his baby son (HH) as follows:
The victim (in this case the Applicant’s former partner) reached out for HH and as she did the accused (the Applicant) threw him into her arms.[26]
[26] Ibid at 59.
The Applicant both in his written statement and in his oral evidence flatly denies that any such incident took place or that he ever “threw” or otherwise harmed his son.[27]
[27] Applicant’s Statement dated 24 August 2022 at [59].
The Police report itself is problematic in terms of containing statements such as “HH appeared shocked by the yelling” when clearly the Police were not present and had no basis upon which to make claims about how the baby “appeared” or reacted.
In the absence of any sentencing remarks, it is not possible to ascertain what the Court accepted as evidence and what it did not. Hence it is not safe for the Tribunal to simply accept one challenged written statement against denials in both written form and sworn testimony.
The Tribunal recognises that it is prohibited from in any way “going behind” the findings of a Court in relation to the determination of its verdict as far as this (or any) Applicant is concerned,[28] although:
That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.[29]
[28] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
[29] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at [653] per Fisher and Lockhart JJ
In this application the Tribunal has attempted to ascertain the details of when, where, why and how the AVO which was found to have been breached in the court hearing of 10 April 2019, relating to an offence committed in May 2018, was made in the first place. There is nothing before the Tribunal which sheds light on this. What is before the Tribunal is that the Applicant’s partner, Ms Egan, who was the subject of the AVO, provided both written and compelling oral evidence (under oath) that she had never sought an AVO against the Applicant. Ms Egan was very clear in stating that she had called the Police to their home on a number of occasions to assist her with what she described as “mental health issues” involving the Applicant and it must be assumed that on one of these occasions the Police had issued an AVO.[30] Neither Ms Egan nor the Applicant appeared to have recall of such an AVO being issued, nor its contents. The Tribunal also notes that when a further AVO was taken out by the Police on 20 July 2020, Ms Egan took steps (successfully) to have it revoked.[31]
[30] This conclusion is supported by the comments of the Delegate in making their original decision not to revoke the cancellation as recorded in [81] of their Reasons. G-documents at 24.
[31] Ibid at 211.
The charge of breaking and entry and damage to property should also be understood in the light of the evidence from both the Applicant and Ms Egan, that what occurred was that Ms Egan had locked herself out of her apartment and asked the Applicant to break a window so that she could gain access. The Applicant then covered the broken window with cardboard and some form of tape, and he then smashed these when he “forced entry” into the property which he was not supposed to enter as a condition of the AVO in question. In relation to both matters it is also important to note that the Sentencing Magistrate made it explicit that, “there is no allegation of breaching of assault or threats of assault”[32] which must also refer to the AVO conditions.
[32] G-documents at 37.
Evidence given at Tribunal hearing
Apart from the Applicant, a number of witnesses appeared to present evidence of their support.
The Applicant
The Applicant had supplied the Tribunal with several lengthy statements and also relied on a letter addressed to the Presiding Magistrate dated 24 May 2021.[33] In his oral evidence he was taken through the details of his criminal offending, during the course of which he:
·stated in relation to the incident involving his confrontation with Ms Menniti he had never deliberately hit her, he had only slapped her arm to defend himself as she tried to remove the baby from his arms; he admitted that he had thrown a thong at her, hitting her on the leg and he denied ever being violent or rough with the child;
·confirmed details of his relationship with Ms Menniti which are set out below;
·gave an account of his drug using record which has been outlined above;
·outlined his plans to seek admission to a rehabilitation programme based at Victory House (Tweed Heads) and presented a letter from the establishment, dated 27 July 2022 indicating their willingness to accept him as a patient;[34]
·indicated that he had several offers of post-release employment from employers in the scaffolding business in both Sydney and Gladstone (Qld);
·confirmed that he had continued to pay child support for HH until the time of his incarceration and that he would resume doing so while also seeking a Court Order to regularise his access to his son;
·linked his offending behaviour with his misuse of drugs and indicated steps he would take to stay “clean” and
·repeated both this sense of shame and remorse for his actions and his devotion to his son and step-children together with his appreciation of the support given him by Ms Egan and other members of his family.
[33] G-documents at 117.
[34] Applicant’s Tender Bundle at 24.
Ms Amanda Egan
Ms Egan, the Applicant’s current partner gave evidence as to the effect that her relationship with the Applicant had been on foot for about five years while conceding that it had often be a troubled one. Nevertheless, she spoke particularly of the Applicant’s love for his biological son and his positive role as a “father” to each of her children. She indicated the considerable negative impact of Applicant’s absence on both herself and specifically on her children. She made it clear that she was prepared to give the Applicant every support possible, including relocating (with the children) to New Zealand, although this would be a great strain/sacrifice for her/them.
She made it clear that she had “zero tolerance” for drug use and should the Applicant relapse into such behaviours, “there would be no relationship”. She expressed fears for the Applicant’s mental health should he be returned to New Zealand and in particular raised the prospect of him self-harming.
Apart from the possible impact of the Applicant’s return to New Zealand consequently involving her relocation to join him, she gave detailed testimony of the extent to which her brother Mitchell Egan was dependent upon her as his primary carer following a serious motor vehicle accident which had left him unable to look after himself and had involved the partial amputation of one limb. Her evidence about Mitchell Egan’s condition and level of dependency was supported by a letter from that gentleman.[35]
[35] Ibid at 68.
Importantly, she affirmed that she had never been fearful of any threat or violence or harm from the Applicant; she had never applied for any AVO against him; she was resentful of the fact that Police had imposed an AVO when she had called them to seek support for “mental health issues” involving the Applicant; and she had taken steps to have any AVO revoked whenever she could.
Ms Dinnese Payne
Ms Payne, the Applicant’s mother travelled from Queensland to appear in person before the Tribunal and to provide details further than those provided in her written statements of 19 August 2021 and 22 August 2022.[36] She confirmed details of the Applicant’s difficult early life in New Zealand and his struggles with mental health problems in Australia. She indicated that if the Applicant were allowed to remain in Australia and enter a rehabilitation facility in Tweed Heads she would move into a property which the family own there and which is now occupied by one of her daughters. In the event the Applicant were removed to New Zealand, she would leave her husband and younger son (CFP) to join him there because she feared that without family support, he would self-harm and she would “never forgive herself” if this eventuated.
[36] G-documents at 138; and Applicant’s Tender Bundle at 43 respectively.
Ms Payne gave the Tribunal details of the family members in Australia; the lack of family support available in New Zealand; the nature of the close relationship of the Applicant with all his children; and the impact which the Applicant’s removal would have on all of them.
When pressed by the Respondent’s representative as to why family support had not appeared to be forthcoming previously in a way which might have ameliorated the Applicant’s problems and prevented his offending, she replied to the effect that none of them were aware of the depth of the problem, the extent of his drug use and that “strong men” in her culture tend not to speak out about their problems or reach out for help. Her view was that her son needed “help not punishment”.
Mr Richie Payne
The Applicant’s stepfather gave evidence by audio-visual link from Gladstone where he works as the Operations Manager of a large national engineering firm. Apart from confirming various details about the closeness of the Applicant’s relationship with his children and other family members he indicated that he supported, although would be grossly impacted by, any decision by his wife to relocated to New Zealand to support her son. He made it clear that he was in a position to offer the Applicant employment as a scaffolder in Gladstone and explained to the Tribunal the extensive programme of random drug testing which is enforced in his place of employment. Mr Payne also affirmed that HH had visited the family in Queensland and on a number of occasions (last time being in 2021) spent Christmas with them.
Ms Chantelle Mohi
The Applicant’s eldest (step) sister gave evidence as to the strength of the relationship between the Applicant and his children and his own positive role in the life of her own children (TRD and JTD) who are now aged 14 and 13 years respectively. The family has recently relocated from the Gold Coast to resume living in Sydney and she expects this relationship to develop further. She gave evidence of knowing of the problems of her brother’s addiction and mental health problems but feeling unable to do anything about them. She attributed this in large part to “a breakdown in communications so we did not understand how much he was struggling”. She was otherwise unaware of the nature of his offending behaviour.
In relation to each of the members of the family who gave evidence at the Tribunal, the Tribunal is satisfied that their evidence was reliable and credible, that they provided honest and truthful answers and was each witnesses of some credibility.
Raymond Bluett
Mr Bluett is the owner of RTB Scaffolding and has been a long-time friend of the Applicant. He provided two written references and gave personal evidence about both the skills of the Applicant as a scaffolder[37] and as a great father and uncle. He indicated that he had expected the Applicant to be available to join him in his scaffolding business at the end of his prison term, but that these plans had been thrown into disarray when the Applicant was then taken into immigration detention. He was still anxious for the Applicant to be released into the community and to join him as an employee.
[37] G-documents at 156 and Applicant’s Tender Bundle at 38.
Other family members and supporters
Written submissions in support of the Applicant were received by the Tribunal from the Applicant’s grandmother (Lynette Rennie); his younger brother (CFP); his younger siblings (Chani Hancox, Tayla Payne and Chelsea Koroi).[38]
[38] G-documents at 161, 135, 145, 167 and 159 respectively.
Other submissions were received from relatives (Helen Wharekawa, Selina Wharekawa, Marlene Wharekawa), friends (Robert Wright, Jemma Tiliakos, Christine Spurr, Patrick Higgins, Katinka Scott, Reece Close, Julian See and Cassandra Nelson) and work colleagues (John Nau, Ashley Martin).
The decision before the Tribunal
The Tribunal must make a simple determination – whether the cancellation of the Applicant’s visa is the “correct or preferrable”[39] decision to be made on the basis of the evidence before the Tribunal.
[39] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister[40] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[41]
[40] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[41] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
On 8 March 2021 Ministerial Direction Number 90 (MD90) came into effect and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
Ministerial Direction 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Subparagraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[42]
[42] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [43] to arrive at a final determination.
[43] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases definitively) on one particular side.
It is important to understand what the Ministerial Direction is and what it is not. In the Preamble to the Direction, it states clearly as an “Objective”: (emphasis added)
5.1(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[44]
primary considerations
[44] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Protection of the Australian Community and Family Violence
Under this criterion the tribunal must give specific attention to
·the nature and seriousness of the non-citizen's conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters. Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour. This list also draws attention to it being a serious offence to provide false or misleading information to the Department.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[45] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[45] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[46]
[46] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[47]
[47] Ibid.
Obviously, there are two sets of offending to be considered. The first of these involves acts of violence, especially those perpetrated against women/family members. Any act of family violence (see below) must be regarded as a serious offence, and the Ministerial Direction specifically requires the Tribunal to disregard any sentence attached to such offences (at 8.1.1(c)).
The second tranche of offences involves essentially low-level crimes against property. The Applicant relates this offending to his need to finance his drug habit.
Overall, the offences cannot really be characterised as “frequent” nor do they gather any “cumulative effect”, nor do they involve misleading the authorities (MD90 at 8.1.1(d), (e) and (f)). It is true the sentences increased over time, but this appears to be in large part as a result of the “aggravation” of the offences because they were committed while on bail – itself of course a matter of some weight.
There are no reports from Corrective Services or the Courts which contain any formal assessments of the Applicant’s risk of reoffending. As such the Tribunal feels free to draw its own informed conclusions. To the extent that the property offences were grounded in the Applicant’s drug use, the Tribunal feels confident that the Applicant will address this underlying problem successfully and that this will mitigate against reoffending, as will the prospect of deportation which the Applicant has faced throughout these proceedings.
The evidence before the Tribunal from Victory House and the testimony of members of the family in relation to their relocation to Tweed Heads to support the Applicant in his rehabilitation efforts is impressively in his favour.
The Tribunal equally feels confident that the Applicant will not reoffend in terms of committing any further acts of family or domestic violence. The circumstances of the offences involving Ms Menniti are not likely to arise again and his relationship with Ms Egan is of a quite different nature and their commitment to each other and their family appears solid and protective.
The risk of reoffending is mitigated by the degree to which an offender displays some degree of insight into their unacceptable previous behaviour and the extent to which they have undertaken positive steps to improve their understanding of their personal, social and civic responsibilities.
Each of the sentencing Magistrates gave the Applicant credit for his efforts in this regard.[48] The Applicant’s SFIC (at [35(b)]) sets out the extensive list of courses undertaken, and certificates obtained by the Applicant addressing issues of anger management, depression, drugs and alcohol use, decision-making and basic parenting, among other things.
[48] G-document at 37 and 46.
The Tribunal also accepts that the Applicant’s expressions of remorse and regret are and have been genuine and that his own characterisation of himself as “a good person who has done stupid things”[49] is basically correct.
[49] G-documents at 46.
In terms of this criterion the Tribunal must find that it counts against the Applicant but that it does so to only a limited extent.
Family violence
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the non-citizen engage in further acts of family violence.
There is no doubt as to where this Tribunal stands in relation to matters of family or domestic violence.
In XNBW Senior Member Illingworth described domestic violence as a "scourge", a "plague and a "pernicious blight" upon the community.[50] I explained in Mendoza that:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[51]
[50] Ali and Minister for Home Affairs [2018] AATA 25112 at [113]; R v JT [2007] NSWDC 377 at [1]; and Slynt v Slynt [2017] FamCA 812 at [1] respectively.
[51] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
The Court in R v Saunders[52] stated in relation to intervention orders that:
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.
[52] [2017] SASCFC 86 at [37].
The Tribunal also notes the comments of the Court of Appeal of Queensland regarding the importance and significance of domestic violence orders to the effect that:
Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them.[53]
[53] R v Wood [1994] QCA 297.
These proceedings of course have nothing to do with the issue of punishment, which has already been determined and over which this Tribunal has no remit,[54] but it is important to emphasise that breaches of DVOs are themselves matters of utmost seriousness. Subsection 501(2) “does not authorise the cancellation of a visa for the purposes of deterring other non-citizens from criminal conduct”[55] but the potential consequences of such conduct need to be clearly understood by offenders.
[54] Falzon v Minister for immigration and Border Protection [2018] HCA 2 at [15].
[55] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [76].
It is important to emphasise that family violence, according to the Ministerial Direction encompasses far more than simple acts of physical violence or aggression. The Direction (at 4.1) states:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends, or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
In Vu the Full Federal Court drew attention to the decision of the Supreme Court of the United Kingdom which held that the term “domestic violence” included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.[56]
[56] Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90 at [55] citing Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433.
In Leau Senior Member Fairall made the important point that MD90 refers to “family violence” when he said, referring to the National Plan to reduce violence against woman and their children[57] and a report from the Australian Institute of Health and Welfare:[58]
“There is no doubt that the terms ‘family violence’ and ‘domestic violence’ are used almost interchangeably in ordinary discourse. But as explained in these Reports, the concepts are neither synonymous nor coterminous – they overlap and are used for different purposes. The National Report states that the term ‘family violence’ is ‘broader’ than ‘domestic violence’; and the AIHW report notes that domestic violence is a subset of family violence.”[59]
[57] Department of Social Services, National Plan to reduce violence against women and their children, Fourth Action Plan 2019-2022.
[58] Australian Institute of Health and Welfare, Family, domestic and sexual violence in Australia: continuing the national story 2019.
[59] Leau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3090 at [64].
Specially, the AIHW report Family, domestic and sexual violence in Australia: continuing the national story 2019, defines family and domestic violence is as follows (emphasis added):
“Family violence refers to violence between family members, typically where the perpetrator exercises power and control over another person...
For this report, domestic violence is considered a subset of family violence and typically refers to violent behaviour between current or previous intimate partners. In some data collections, domestic violence is used more broadly and can include violence between any family members.”
There is then a matter for the Tribunal to consider; that is, whether the acts of domestic violence committed against Ms Cherelle Menniti constitute acts of family violence for the purposes of the Ministerial Direction.
The status of Ms Menniti
Ms Menniti played no part in the proceedings of the Tribunal, however her presence in the evidence was a matter of some moment.
The evidence about the relationship of the Applicant and Ms Menniti amounts to this:
·The exact date of when they met is uncertain. In his written statement the Applicant claimed that it was when he “was 16 to 17 years old”[60] that he commenced a relationship with Ms Menniti although in his oral testimony he said that he was 14 or 15 years of age when they actually first met.
[60] Applicant’s Statement dated 24 August 2022 at [14]. That would give a date around 2004/2005.
·The Applicant then wrote that “Our relationship ended when I was 22 years of age and I travelled to South America”.[61] This gives the impression that the relationship came to some sort of an end in or around the year 2010.
[61] Ibid at [17].
·Travel records show that the Applicant left Australia on 5 November 2009 and returned on 3 February 2010.[62]
[62] G-documents at 213-214.
·The Applicant’s mother, in her written submission of 19 August 2021 states that, “Beau reconnected with his ex-partner when she met up with him in Brazil and they returned to Sydney after five months”.[63]
[63] Ibid at 138.
·The Applicant in his oral evidence agreed that the parties had met up in Brazil and that they had then travelled back to Australia approximately one month apart.
·The Applicant’s mother goes on to state, “[s]oon after they fell pregnant with their only son [HH], by the time [HH] was three months old they had separated leaving Beau with so much guilt…”[64]
[64] Idem.
·However, this event did not take place “soon after” their return from Brazil as HH was born in January 2012 – some two years later.
·The Applicant’s version of events in the period 2010 to 2012 is that, at some (unspecified) stage, “[o]ur relationship began again for a brief amount of time when I discovered that Cherelle was pregnant but it ended shortly after our son’s birth. I use the term ‘relationship’ loosely in describing this period of time, because we did not live together and it was not a proper relationship. I would say it was more of a fling.”[65]
[65] Applicant’s Statement dated 24 August 2022 at [17].
·A different timing sequence appears only a few paragraphs on from this in the same Statement by the Applicant where he writes:
“After I returned from South America I found out that Cherelle was pregnant and we attempted to resume our relationship for a short period of time. It wasn’t long before our relationship issue resurfaced. However I chose to stay with Cherelle because I did not want my child to have an absent father like I had growing up.”[66]
·In his oral evidence the Applicant confirmed as he had previously written that:
othe couple did not ever physically live together;
oneither contributed finances to the support of the other;
ohe regarded the relationship as non-exclusive and believed that Cherelle slept with other men; and
ohe and Cherelle “slept together” (that is, had sexual intercourse) on only one occasion.
[66] Ibid at [33].
A number of these statements cannot be reconciled. It is clear that the Applicant was in some sort of relationship with Ms Menniti for between six and seven years. The relationship was not continuous throughout this period, although they spent some four months together in Brazil from about November 2009 to February 2010. It was not at this time that the Applicant found out that Ms Menniti was pregnant (at least not with HH) as she did not give birth the HH until January 2012. This in turn requires the existence of some sort of contact between the parties in or around May 2011.
This relationship, however it may be characterised, was simply a “fling”.
The importance of this relates to the question of whether the Applicant’s confrontation (at whatever level of perceived violence) in June 2013 involved violence against a “family member” and thus constitutes an act of “family violence” as set out in the Ministerial Direction. Put another way, was Ms Menniti a member of the Applicant’s “family” for the purposes of this application?
The Applicant denies that this is the case and in its SFIC (at [43]) submits that the offences committed against Ms Menniti:
“do not constitute family violence as defined in Direction No. 90 because the Applicant was not in a relationship with the victim (Ms Cherelle Menniti) at that time, and therefore she was not a member of his family.”
The submission goes on to argue that this act of violence should be considered under a different criterion of the Direction.
The Respondent takes a contrary view in its SFIC (at [50]) namely:
The Respondent does not agree with the Applicant's submission that this conduct does not constitute family violence because the Applicant and Ms Menniti were not in a relationship at the time of the offending. In the Respondent's submission, Ms Menniti remained a member of the Applicant's family, for the purposes of Direction 90, in circumstances where:
(a) the Applicant had been in a long term relationship with Ms Menniti (on and off again since 2003);
(b) Ms Menniti and the Applicant had a child together; and
(c) Ms Menniti and the Applicant shared custody of the child.
This matter needs to be resolved by reference to the definition of family violence set out in the Direction itself and in the cases which have given this matter direct consideration.
If there is one thing which has developed and evolved over the course of the last half century it is our understanding and the legal definition of what constitutes a “family”. The Family Law Act 1975 (Cth) provided a statutory definition of “member of a family” and a statutory definition of what may constitute “family violence” (s 4AB).
Finkelstein and Hamer in their text Concise Australian Legal Dictionary define “family” as encompassing:
“Parents and children, and others related by blood or marriage; often including people linked through cohabitation and mutual support.”[67]
[67] Concise Australian Legal Dictionary (6 ed, 2020) 'family'.
Subsection 5G(2) of the Migration Act 1958 (Cth) contains an expanded definition of who might constitute a “family member” especially where that relationship is established though the existence of a child. Section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) goes further in defining the term “domestic relationship” to include a person who
has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature (s. 5(1)(c)).
The term “intimate personal relationship” is not further defined and thus invites a variety of narrow or expansive interpretations.
The question of whether or not a person who has been involved in an “intimate family relationship” may thus be taken to be a member of the “family” of the principal party involved has been considered in a number of cases before this Tribunal.
In Leau Senior Member Fairall declined to find that a “family” relationship was established where the Tribunal itself had characterised the relationship as a romantic relationship” and that “the evidence of the depth and intimacy of the relationship is unclear.”[68]
[68] Leau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3090 at [70].
By contrast, Senior Member Nikolic in Healey usefully set out an approach open to the Tribunal to determine such matters, saying:
The facts of each case require careful consideration, but the sort of indicia that may individually or collectively inform assessments of whether violence constitutes ‘family violence’, could include whether the perpetrator and victim:
(a) are current or former intimate partners;
(b) have a child/children together and/or care together for the child/children;
(c) reside together in the same domestic setting or the perpetrator has agreed access to the victim’s home;
(d) have a continuing connection founded on support or reliance; or
(e) have a relationship reflecting a power imbalance based on factors like age, mental capacity, or financial circumstances.[69]
[69] Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309 at [120].
Equally, the fact that a relationship is no longer on foot does not mean that it cannot be considered by the Tribunal in its assessment of the overall merits of any case before it.
In the recently decided matter of Deng,[70] the Full Federal Court has addressed this matter and set out clearly the responsibilities of the Tribunal in determining whether or not a person is to be included as a member of the family for the purposes of Ministerial Direction 90. It is necessary to set out their Honours’ remarks at length:
Paragraph 4(1) of Direction 90 contains a definition of “family violence” that refers to a “member of the person’s family”. But the Direction does not contain any definition of this expression or of the word “family”. Some assistance is provided by ss 5CB and 5G of the Migration Act, but these sections do not contain an exhaustive definition of a member of a person’s family. The expression “member of the person’s family”, as used in the definition of “family violence” in paragraph 4(1) of Direction 90, is to be construed having regard to its text, context and purpose. The context includes paragraph 8.2 of the Direction and ss 5CB and 5G of the Migration Act.
It may be noted some statutory schemes define “family violence” in a way that includes violence against a person who is, or has been, an intimate partner: see, eg, the Family Violence Protection Act 2008 (Vic), s 8(1), which defines a “family member” in relation to a relevant person as meaning (among other things) “a person who has, or has had, an intimate personal relationship with the relevant person”. However, Direction 90 does not contain any equivalent or similar definition. The question is therefore left to be determined on the basis indicated above, namely by reference to the text, context and purpose of the expression “member of a person’s family”. We agree with the primary judge (at [156]-[157]) that the expression should not be narrowly construed and that it could extend (depending on the circumstances) to a person who is in an intimate relationship with the person.
Insofar as the Tribunal referred to the violence committed by the appellant against his sister and considered this to be “family violence”, no issue arises. Plainly, the appellant’s sister was a member of his family and it was open to the Tribunal to treat the violence against her as family violence. The appellant does not contend otherwise.
The difficulty arises because of the way the Tribunal dealt with the violence committed by the appellant against Ms S. At [104], the Tribunal stated that Ms S “was the [appellant’s] intimate partner, meaning his violence against her was an act of family violence”. As has been observed, the Tribunal appears to have proceeded on the basis that, because Ms S was the appellant’s intimate partner, she was therefore a member of his family for the purposes of the definition of “family violence” in paragraph 4(1) of Direction 90, with the consequence that the appellant’s violence against her was “family violence” for the purposes of the Direction. The difficulty is that the Tribunal did not expressly refer to the definition of “family violence” in paragraph 4(1) of the Direction and did not expressly consider whether or not Ms S was a “member of [the appellant’s] family” for the purposes of that definition. While Ms S may have been a member of the appellant’s family for the purposes of the definition of “family violence”, this was a contestable issue that needed to be considered. In the absence of any express consideration of this question in the Tribunal’s reasons, we are not satisfied that the Tribunal considered this question. In the circumstances, this constituted a failure to carry out the statutory task (noting that this is not precisely the way ground 2 is put). Further, the statement in [104] suggests that the Tribunal erroneously proceeded on the basis that, because Ms S was the appellant’s intimate partner, it followed that she was a member of his family for the purposes of the definition. This was an error of law. As the primary judge correctly held (at [157]), while the existence of an intimate relationship is relevant, it is not determinative of whether a person is a member of the person’s family for the purposes of the definition of “family violence”.
It is true that, at [151], the Tribunal appears to have delineated between the violence committed by the appellant against his sister (which the Tribunal described as family violence) and the violence he committed against Ms S (which the Tribunal did not describe as family violence). If taken in isolation, this tends to suggest that the Tribunal was not treating the violence against Ms S as necessarily constituting “family violence” as defined. However, the Tribunal’s reasons need to be read as a whole, and [104] contains a clear statement that the Tribunal regarded the violence against Ms S as family violence. Further, in the last sentence of [151], the Tribunal stated that it applied its earlier analysis, which may pick up the statement in [104].
The primary judge reasoned, in essence, that it was open to the Tribunal to find that Ms S was a member of the appellant’s family for the purposes of the definition of “family violence” and that, in these circumstances, he was not satisfied that the Tribunal had misunderstood the applicable law. With respect to the primary judge, we consider that it was necessary for the Tribunal to consider whether or not Ms S was a member of the appellant’s family for the purposes of the definition, and the failure to do so constituted a failure to carry out its statutory task. Further, the Tribunal’s statement at [104] bespeaks error, for the reasons given above.
Insofar as the primary judge considered that the Tribunal used the expression “intimate partner” as a shorthand expression for a person who fell within the concept of a “member of the person’s family”, we respectfully consider that this is not clear from the Tribunal’s reasons. In circumstances where the Tribunal did not refer to the definition of “family violence” or address whether or not Ms S was a member of the appellant’s family for the purposes of the definition, it is not possible to know whether the Tribunal used the expression “intimate partner” in that way.[71]
[70] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115.
[71] Ibid at [123]-[129]
Given the nature and extent of the relationship between Ms Menniti and the Applicant and bearing in mind that the relationship reflects the majority of the indicia set out in Healy, the Tribunal concludes that, for the purposes of Ministerial Direction 90 and this application, Ms Menniti was a “family member” in terms of her relationship with the Applicant.
As already noted, the Tribunal cannot go behind the findings of the Court, namely that an offence of family violence (grievous bodily harm) occurred and it cannot have reference to the sentence imposed. What the Tribunal has done is expressed its concern about the details of the Police Fact Statement given that the Applicant contests significant parts of it and that there are no sentencing remarks which might indicate the extent to which the Court took them at face value.
The Tribunal has also discussed its concerns about the details of the AVO/AVOs which have featured significantly in these proceedings. The remarks made by Ms Egan about her relationship with the Applicant and her lack of fear of him in any future arrangements carries some weight with the Tribunal.
As with the first primary criterion, this criterion must, ipso facto count against the Applicant, but again, the Tribunal assigns it only limited weight.
The best interests of minor children
MD90 (at 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.[72]
[72] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
HH is the Applicant’s biological son and child of his former partner Cherelle Menniti. HH was born in January 2012. The Applicant and Ms Menniti have never cohabited and so the child HH has been, at all material times, in the primary care of his mother. It was the Applicant’s evidence that his relationship with Ms Menniti (which he describes as “a fling”) was never an exclusive relationship and never a stable one. The Applicant said that it became particularly “toxic” after the birth of the child and that it was at this time that the relationship itself came to an end because the Applicant “made the decision to leave”.[73] The Applicant stated that “[i]n making that decision I felt extremely guilty for leaving my son”.[74] It appears that, notwithstanding these conditions, the Applicant had access to his son in the child’s early years and that he played a parental role in terms of feeding and changing nappies for the baby. It was his evidence that he would have care of HH on weekends on a regular basis and indeed it was as a result of disagreement about the management of such arrangements that the incident took place on 2 June 2013 which has been outlined above and where conflicting claims are made about the physical care of and impact upon the child of the parental disagreement.
[73] Applicant’s Statement dated 24 August 2022 at [38].
[74] Ibid at [39].
At this stage, the Applicant then describes the child’s mother as becoming “uncooperative” and starting to restrict his access to the child. The couple apparently participated in some counselling sessions with Relationships Australia in 2018/2019 but to no avail. Ms Menniti continued to be “uncooperative”, and the Applicant was prevented from accessing his son “for months at a time” leading him to become depressed and to start “self-medicating with marijuana”.[75]
[75] Ibid at [4]-[43].
Despite all this, it appears that the Applicant had regular contact with his son up until the time of his incarceration. It was also the evidence of the Applicant’s stepfather than HH spent time at Christmas with the Applicant and his parents at the family home in Tweed Heads and that the last occasion on which this occurred was Christmas 2021.
HH has supplied a letter to the Tribunal describing the Applicant as “the best Dad in the world” and expressing his sadness at their separation.[76] The Tribunal acknowledges this letter and its sentiments and gives it weight in accordance with age and maturity of the child as prescribed in the Ministerial Direction (at 8.3(4)(f)).
[76] G-documents at 129.
The Applicant told the Tribunal that, if allowed to remain in Australia he would approach the Family Court to seek the making of formal Orders for him to have regular access to his son and thus avoid any attempts by Ms Menniti to withhold or limit his access in the future.
The evidence of all of the members of the family, together with that of Mr Bluett was to the effect that the Applicant and his son have a close and loving relationship, that the child misses his father and that they all believe in the Applicant’s absolute commitment to his son.
The Tribunal sees no reason to discount this evidence and finds that it is significantly in the best interests of HH to have his father play an ongoing and significant parental role in his life.
Turing next to the children of Ms Egan, RH (aged 15 years) and AH (aged 11 years), all of the evidence given tended to treat their interests as equal and coincident. Their mother provided a written statement in which she said that both children had taken the news of the Applicant’s continued detention (after his release from prison) very badly and that her son (RH) had become severely depressed. Ms Egan wrote that as a result of continued separation from the Applicant who was, “the only father figure they have had” she had become concerned for their mental health and had taken them to see a Doctor who had referred them to Headspace for assessment though they are currently still awaiting assignment to the care of a child psychologist. In relation to RH, his mother writes: “My son has talked to me about feeling numb and depressed. He told me that he feels lost in life and basically might as well not be here any more.” [77]
[77] Applicant’s Tender Bundle at 71.
Both children provided letters to the Tribunal. The son writes quite cogently about the Applicant “do[ing] all the things a dad is supposed to do that I’ve never had before I met him”; of the absence of his own biological father and of his admiration for the Applicant as “the person who I talk to about stuff”. He concludes by saying that the initial decision not to revoke the Applicant’s visa has “already affected us all and a decision hasn’t even been made yet.”[78]
[78] G-documents at 130.
The 11 years old daughter (AH) writes that her father’s (referring to the Applicant) cooking “is better than mums”; that he “is creative and sits with me for ages to draw and colour and do craft” and that “[i]m scared and worried that Beau will be sent to New Zealand because then I will have to leave my family and all my friends. Im in year 6 this year and I, worried to start high school in another country with no friends”.[79]
[79] Ibid at 131.
There is no doubt that it is in the best interests of the Applicant’s two stepchildren that he be allowed to remain in Australia as an effective father in their lives.
Consideration must then be given to the Applicant’s 17-year-old younger stepbrother CFP. CFP is the son of Dinnese Payne (the Applicant’s mother) and Richie Payne. He lives with his parents and clearly has stable parental figures in his life. He has written in support of his stepbrother to the effect that the Applicant is a good friend and that he is integral part of the family.[80] His mother wrote and gave evidence to the effect that if she were forced to return to New Zealand to support her son Beau, for economic reasons this would mean leaving CFP in Australia with his father and this would have a devastating effect on him.[81]
[80] Ibid at 135.
[81] Applicant’s Tender Bundle at 45, Richie Payne’s Statement at [47]-[49].
The Tribunal accepts that the return of the Applicant to New Zealand would impact adversely on CFP but also notes that he will attain adult status in April next year. However, at the time of decision-making it should be noted that it would be in his best interests if the Applicant were allowed to remain.
The position of the Applicant’s numerous nephews and nieces is far more tenuous:[82]
·CRP (son of the Applicant’s sister) resides with both of his parents in Gladstone (Qld) and the Applicant keeps in touch with him by telephone.
·BST (daughter of another of the Applicant’s sisters) lives with her mother and her mother’s partner in Tungun (Qld) where she keeps in touch with the Applicant by telephone and on social media via SnapChat.
·TRD (the son of the Applicant’s third sister) lives with his mother and has recently moved from Queensland to Sydney. The Applicant keeps in some sort of touch with him and they share an interest in football. The Applicant describes him as being “more independent” than many of the other nephews.
·JTD (the brother of TRD) is in much the same position vis-à-vis the Applicant and like him has a parent with whom he lives.
·KK (the daughter of the Applicant’s half-sister Chelsea Koroi) lives with both of her parents in NSW. She was born in November 2019 and the Applicant has never met her.
·LCG (the daughter of the Applicant’s partner’s sister, Dani-Maree Giles)) lives in Casula (NSW) and there was no specific evidence about the extent to which the Applicant played any part in her life.
·HVD (the half-sister of Latoya, sharing the same mother) lives with her mother and sister and similarly there is no evidence of any significant relationship with the Applicant.
·HDH is the child of the Applicant’ sister Chani and, as the Tribunal understands, is only a few months old so the Applicant has never met him.
[82] G-documents at 101.
Overall, in the relation to the eight nephews/nieces the best that can be said is that the Applicant has maintained some sort of contact with them on a sporadic basis or by meeting at family gatherings. He plays no significant parental or role-model in any of their lives, and it is hard to determine that any of them would be significantly impacted by his removal from Australia. Therefore the Tribunal is inclined to give their individual or collective interests little weight.
That finding does not however detract from the finding that CFP’s interests would best be served by the Applicant remaining in Australia and the Tribunal assigns this some moderate weight.
By contrast, the interests of each of HH, RH and AH would be significantly prejudiced by the Applicant’s removal. In relation to each of them he plays an important parental and financially supportive role. Each would benefit from his continued presence and each has sought to make representations to the Tribunal in his support.
These considerations weigh significantly with the Tribunal in favour of the Applicant and the revocation of his visa cancellation.
The expectations of the Australian community
Subparagraph 8.4(1) of the Direction provides 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 they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Subparagraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing 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 they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
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 (at 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (at 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[83] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[83] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[84]
[84] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
The consideration of the nature of the Applicant’s offences, the circumstances of his offending and the assessment of his risk of reoffending lead the Tribunal to assign this criterion a limited weight against the Applicant.
“Other” considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[85]
[85] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[86]
[86] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[87] and more clearly supported by Wigney J in FHHM. [88]
[87] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[88] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[89] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[90]
[89] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[90] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[91]
[91] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[92]
[92] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[93]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[93] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
Both parties in their SFICs agreed that this was not a relevant consideration for the Tribunal, and there is nothing in the material before the Tribunal to suggest that any non-refoulment matters have been identified or raised. It therefore counts neutrally, neither for nor against the Applicant.
Extent of impediments if removed
Subparagraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen's age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The comparator here is not the difference between services or supports available tin Australia as compared with those in New Zealand but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
As I explained in the analogous matter of Dunasemant:[94]
Two points arise. In the first instance there is nothing put forward by the Applicant to assert that he would be disadvantaged vis-à-vis other New Zealanders in relation to (mental) health care services in New Zealand.[95] Indeed, as a citizen it may well be that he has more rights of access than he does as a non-citizen in Australia, although the Tribunal makes no findings in that regard. Secondly, the Applicant has put nothing to the Tribunal to impugn the health system of New Zealand. In Muzika the Full federal Court considered similar issues in relation to the health system in Canada in exactly this light while upholding the Minister’s decision on a visa cancellation.[96]
[94] Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1967 at [258].
[95] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [50].
[96] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89 at [37] and [45].
In terms of the factors mentioned in MD90 it is clear that while the Applicant has mental health issues, he is otherwise physically fit; he grew up and attended school in New Zealand; and is familiar with the language and mores of New Zealand.
Against this must be set against the fact that the Applicant has no real family support in that country although his (estranged) father, grandfather and at least one brother reside there (according to Ms Mohi’s testimony). By contrast the impact of wrenching the Applicant from his family and support network in Australia would be severe to say the very least.
The Respondent makes some limited concession on this point (SFIC at [72]) but the Tribunal accords it far greater weight and finds that this criterion counts significantly in favour of the Applicant.
Impact on victims
Subparagraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
Clearly, in terms of actual offences both Ms Menniti and Ms Egan are to be regarded as victims.
There is no evidence before the Tribunal which would allow it to make any findings as to the impact upon Ms Minniti were the Applicant to be either removed or allowed to stay in Australia. Her interests may be impacted in that the Applicant has indicated that, if allowed to remain in Australia he would seek some sort of Court Order to regularise his access to his biological son. The Tribunal has conflicting evidence before it in relation to one aspect of this matter in that the Applicant has claimed that Ms Menniti has been uncooperative and has withheld access to his son on occasions while the evidence from Mr and Mrs Payne was that the son made visits to them in Queensland and as late as 2020 even spent Christmas with them. The Tribunal has no idea if Ms Menniti would welcome or resist any formal orders for access which might be more easily made if the Applicant were in Australia. Similarly, if the Applicant were in Australia, especially if gainfully employed, then it would be easier for child support payments to be determined and enforced. The Tribunal must leave this speculation unresolved.
The question then becomes, at which point should the Tribunal consider the representations of Ms Egan that the Applicant be allowed to remain in Australia. An analogous matter arose in the case of PGDX where the Tribunal had before it evidence of an applicant who had committed a serious sexual assault against his wife who then came forward to the Tribunal to advocate against his removal from Australia and told the Tribunal of her need for the applicant to remain to provide financial support for herself and her child. The Federal Court held that the Tribunal was “wholly correct” in identifying the applicant’s then partner as a “victim” for the purposes of the Ministerial Direction in the circumstances as presented.[97] The Court in that matter made it clear that the representations made by the offender’s wife were to be given were careful consideration by the Tribunal in considering potential revocation.
[97] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [74].
In Dunasemant the Tribunal considered the wife’s (partner’s) submission in favour of the Applicant under this criterion but in his submission the Respondent’s representative urged that it be considered under the criterion of links to the Australian community. Exactly the opposite position (SFIC at [89]-[92]) was taken by the Applicant in characterising Ms Egan as a “victim” in preference to a “link” to the community.
In some respects, it does not matter where the issue is considered as long as: (a) it is considered;[98] and (b) it is considered only under one and not more criterion.[99]
[98] Ibid.
[99] JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183 at [223]; Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [21].
In that Ms Egan’s position as a “victim” was central to the Respondent’s submissions to find against the Applicant in relation to Primary Considerations 1, 3 and 4, for the sake of consistency the Tribunal will consider her interests under this criterion. They have been well enough set out to need little further exposition. In short, Ms Egan is desperate for the Applicant to remain in Australia and asserts that not only her best interests, but those of her children and her brother, would be severely compromised by the Applicant’s removal and best secured by allowing him to remain in Australia.
Consideration of this criterion leads the Tribunal to conclude that it weighs significantly in favour of the Applicant.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
The family members whose interests should be considered are the Applicant’s mother, his stepfather and his siblings. The interests of his children and other minors have been considered already and must not be re-considered here. To a lesser extent the Tribunal also takes into account the interests of his brother-in-law (Mitchell Egan).
As has been set out in the Tribunal’s account of the testimony presented by family members, each of them has made a compelling case that the Applicant’s removal would have severe consequences for and impacts upon them and that their united view was that the Applicant should be allowed to remain in Australia. Importantly, each of them made offers of (continuing) support which the Tribunal accepted were genuine and practical.
Apart from his role within the family the Applicant has a solid history of gainful employment in Australia, and this counts very much in his favour. He has taken steps to acquire good trade qualifications and has excellent prospects of future employment.
His offences started to occur some 12 or 13 years after his arrival in Australia and were committed over a relatively short period of time.
Section 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests. In this instance the evidence of Mr Bluett should be considered, and it should be agreed that there would be some significant impact on his business and future plans were the Applicant not able to join him in his business ventures. However, section 9.4.2 contains a qualification that weight is to be accorded to this criterion only where the future of a “major project” or “important service” is likely to be impacted. With the greatest of respect to Mr Bluett, his business ventures are yet to attain these lofty heights and the Applicant cannot be given credit in this regard.
All elements taken together lead to an evaluation that this criterion counts significantly in the Applicant’s favour.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[100]
[100] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[101]
[101] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
The decision-maker must proceed from the starting point of the representations (however made) of the applicant and must consider those but equally, “[i]t is, however, improbable that Parliament intended for that broad discretionary power to be confined”[102] to only those representations.
[102] Ibid at [23]
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[103]
[103] Ibid at [70].
Not unsurprisingly perhaps the Tribunal takes into account the exhortation by Chief Justice Allsop in Hands:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[104]
[104] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] Markovic and Steward JJ agreeing.
Conclusion
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria:
·protection of the Australian community weighs against the Applicant to a limited extent;
·family violence factors weigh against the Applicant to a limited extent;
·best interests of minor children weigh in favour of the Applicant to a significant extent;
·expectations of the Australian community weigh against the Applicant to a limited extent;
·non-refoulement obligations carry neutral weight in relation to the Applicant;
·the extent of impediments if removed weighs in favour of the Applicant to a significant extent;
·the impact on victims weighs in favour of the Applicant to a significant extent; and
·links to Australia weigh in favour of the Applicant to a significant extent.
The Tribunal also finds that consideration of non-specific reasons, as outlined above, reinforce the decision based on MD90 criteria that the cancellation of the Applicant’s visa should be revoked.
The Tribunal notes and endorses the further comment made by Senior Member Evans-Bonner in PVFV to the effect that:
It is my view that 501F(3) of the Migration Act does not apply. Consequently, the Applicant should be released from immigration detention as soon as possible so and not to be unlawfully detained.[105]
[105] PVFV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2651 at [242].
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...................................[sgd].....................................
Associate
Dated: 6 September 2022
Date(s) of hearing: 29 and 30 August 2022 Solicitors for the Applicant: Ms M Larsen, Samuta McComber Lawyers Solicitors for the Respondent: Mr R Donaldson, Clayton Utz
0
44
0