Heihei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 1473
•5 May 2023
Heihei and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 1473 (5 May 2023)
Division: GENERAL DIVISION
File Number(s): 2023/0836
Re:Wiremu Heihei
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: The Hon. Dennis Cowdroy AO KC, Deputy President
Date: 5 May 2023
Place:Sydney
The Reviewable Decision of the delegate of the Respondent dated 26 May 2020 to refuse the Applicant a Class TY (Subclass 444) Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) is affirmed.
...................................[SGD].....................................
The Hon. Dennis Cowdroy AO KC, Deputy President
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 No. 99 – nature and seriousness of offending conduct – protection of the Australian community – family violence committed by the non-citizen – best interests of minor child – expectations of the Australian community– impediments to removal – high risk of re-offending – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Bartlett and Minister of Immigration and Border Protection [2017] AATA
BHYK and Minister of Immigration and Citizenship [2010] AATA 662
Cotterill v Minister for Immigration and Border Protection [2016) FCAFC 61
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
FYBR v Minister for Home Affairs [2019] FCAFC 185
Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316
MJNN and Minister for Home Affairs [2019] AATA 3205
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
5 May 2023BACKGROUND
The Applicant is a 33-year-old citizen of New Zealand, who first arrived in Australia on 26 April 2007.
The Applicant seeks review of a decision of a delegate of the Minister (‘the Respondent’) made on 9 February 2023 (‘the decision under review’) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’) pursuant to section 501CA(4) of the Migration Act 1958 (Cth).
A delegate of the Respondent was satisfied that the Applicant did not pass the character test on the basis that he had a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act. On 26 May 2020, a decision was made under section 501CA(4) not to revoke the mandatory visa decision (‘the original decision’).
On 28 May 2020, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act.
On 9 February 2023, a delegate of the Respondent decided not to revoke the original decision. On 13 February 2023, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 13 April 2023.
RELEVANT LAW AND POLICY: DIRECTION NO. 99
Section 501CA of the Act applies if the Respondent decides under section 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Respondent must cancel a visa that has been granted to a person if the Respondent is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Tribunal may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
Identifying whether there was ‘another reason’ was considered by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:
‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation’.[1]
[1] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64].
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Respondent under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Respondent has made a written Direction pursuant to section 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant Direction is Direction no. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’ or ‘Direction 99’).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2(2) of the Direction states that:
‘Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[2]
‘Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’
[2] [2018] FCA 594, [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[3] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’.[4] His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in paragraph 7(2) of Direction 99) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[5] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somehow unusual or out of the ordinary’.[6]
[3] [2021] FCA 775, [22].
[4] Ibid.
[5] Ibid, [23].
[6] Ibid.
EVIDENCE
The Tribunal has had regard to the Personal Circumstances Form signed by the Applicant on 15 June 2020, as well as the following statements:
·RS statement dated 1 June 2020;
·CW and TW statement dated 12 June 2020;
·RW statement dated 2 June 2020;
·DK statement dated 30 June 2021;
·LH statement dated 20 March 2023;
·TO statement (undated); and
·AJ statement (undated).
The Tribunal heard oral evidence from the Applicant on 13 April 2023.
The Applicant received fines, good behaviour bonds, suspended sentences of imprisonment and in respect of the last offences for which he was convicted on 3 September 2019, sentences of imprisonment, including imprisonment for four years and six months commencing on 29 May 2020 and concluding 28 November 2022.
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
‘When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
The nature and seriousness of the conduct
The Applicant was convicted of the offences listed hereunder:
Criminal Convictions
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted were violent and were sexual crimes committed against a woman in a domestic violence context. In April 2009 and May 2015, the Applicant was convicted of common assault and assault occasioning actually bodily harm. He was released on a bond on each occasion. The information suggests that the offences resulted from an altercation between his extant partner and his partner’s brother, and that alcohol was a contributing cause.
On 31 March 2017 in the Local Court at Queanbeyan, the Applicant was convicted of common assault, sentenced to 10 months imprisonment for one offence and suspended on a good behaviour bond and 11 months’ probation for the other offence. The incident arose during a bar fight. The sentencing remarks of Magistrate Antrum when imposing a gaol sentence include the following:
‘There is no place for violence in our community, none. There are no excuses for it. There is no excuse that you could make based on some Voo-hoo upbringing or some fact that you did things differently somewhere else.’
The most significant offence relates to the Applicant’s conviction in the District Court of New South Wales at Orange 3 September 2019 when he was convicted of sexual intercourse without consent and also convicted of assault with an act of indecency. In respect of the first conviction, a sentence of four years and six months was imposed; and in respect of the second offence, a sentence of nine months imprisonment was imposed. As an aggravating feature, the sentencing judge observed that the applicant was, at the time of these offences, on conditional liberty and that such conduct breached the conditions of such conditional liberty.
The sentencing remarks of Acting Judge Graham record that the offence took place at a house following a party with some friends, and that the Applicant had consumed approximately 18 beers and was heavily intoxicated. The sentencing remarks include the following:
‘The Crown concedes that, although the offender state of knowledge regarding the victim’s lack of consent may be considered less serious than circumstances in which he actually realised that she was not consenting, nonetheless the circumstances in which the offence took place in the form of sexual intercourse places the offences within the mid-range of objective seriousness.
His Honour also observed the effect of the conduct on the victim and referred to the victim Impact statement. His Honour stated:
The complainant is 22 years old and is still discovering all the ways that the abuse and exploitation she suffered has hurt her and destroyed her sense of the world and damaged her mental health. One thing please you’d in the statement is that the offences stolen her sense of safety in the world. Given the circumstances in which offence took place, as she was in bed asleep, in what should have been a safe place, it is easy to accept the feeling that she has expressed in those terms.
She said she lives in constant fear that someone will hurt her every day. Also that people in the town will recognise her from the media and gossip about her. She says the offence against her is known within her social circle and within her geographical region. As a result, she feels like a prisoner in her own world has had to move to Sydney in order to cope.
She has been admitted for treatment in mental health facilities with a range of symptoms associated with the impact of trauma on her. She has also required therapy with mental health and sexual assault counsellors. She also describes the impact of the legal system and the media on her physical and mental health.
She has had to endure what she describes as hours medical intervention, legal intervention and the humiliation of counselling and speaking about the impact of being anally raped.’
His Honour continued:
‘However the offender’s position is a difficult one. What it means is that the Court is unable to act only positive finding of remorse or contrition. Having Regard to the Sentencing Assessment Report and, to a limited extent, to the Psychological Pre-Consultation Report, it is appropriate to accept the Crown’s submission that the offender has limited insight into the conduct of which he has been found guilty and has very limited empathy for the victim.’
On 19 August 2010, police were called to a home in Canberra at 5:10AM where the Applicant was found to be highly agitated, intoxicated and visually aggressive. He was handcuffed. The facts indicate that the Applicant had a knife and his partner had suffered several small cuts to her fingers and to her hands.
On 8 March 2015 at 2:40AM, a fight occurred between the Applicant and his partner’s brother. The Applicant said he pushed his partner to the ground. The Applicant’s daughter is recorded as having found to have a graze on her right shoulder running down her upper arm.
The Applicant completed incoming passenger cars upon arrival in Australia. In each card a question stated:
‘Do you have any criminal conviction/s:’
The Applicant provided the following response to the cards completed on the following dates:
27 July 2017: no answer
2 February 2016: no
22 July 2015: no
10 January 2012: no
3 August 2010: noAs that the date of completing each incoming passenger card, the Applicant had been convicted of offences in Australia. The Applicant gave evidence that he believed that the form only sought information on any convictions in the country he had, namely New Zealand. He did not seek any advice and his reasoning does not explain why he left unanswered the first incoming passenger card.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the crimes for which the Applicant has been convicted are serious and involve violence, including violence towards women;
(b)The most recent offences took place whilst the Applicant was on conditional liberty; and
(c)The Applicant has provided false information to the Commonwealth on his arrival cards.
The risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. The Tribunal finds that the criminal convictions extending over several years shows the Applicant’s propensity for violent conduct, especially when he is affected by alcohol.
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
a)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
b)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
c)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
The sentencing remarks of Acting Judge Graham and Magistrate Antrum in the Local Court of New South Wales on 31 March 2017 refer to an occurrence being an assault of a domestic violence nature committed by the Applicant against his partner in 2015. There is little evidence surrounding the assault other than that the Applicant “shoved” his partner during a dispute whilst under the influence of alcohol. The Applicant was convicted of common assault on 26 May 2015 in relation to that offence and was released upon him entering an 18-month good behaviour bond. The relationship constitutes a relationship of a domestic nature and the Applicant’s conduct constitutes family violence within the definition contained in Direction 99.
Whilst the Direction states that the problem of family violence is regarded very seriously by the Australian government community, it must be balanced by the further comment that ‘the Australian government’s concerns regarding this consideration are proportionate to the seriousness of the family violence engaged in by the non-citizen’. Since there has been no suggestion of any prior or subsequent incident of family violence, this incident carries only minor weight.
For the reasons set out above, the Tribunal finds that this consideration weighs neutrally.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3 of Direction 99 requires the Tribunal to consider the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely: paragraph 8.3 (1). Further, paragraph 8.3 (2) requires that, in considering the non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his/her child and/or children who are Australian citizens, Australian permanent residents and/or people who have right to remain in Australia indefinitely.
Paragraph 8.3 (3) requires the Tribunal to consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3 (4) requires decision-makers to consider the strength, nature and duration of any other ties the non-citizen has a right to Australia. This includes the length of time the non-citizen has resided in the Australian community, noting that considerable weight should be given to the fact that a non-citizen has been ordinary resident in Australia during and since their formative years, regardless of when their offending commenced on the level of the offending; and that more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during a time. Less weight should be given to the length of time spent in the Australian community with a non-citizen was not ordinarily resident in Australia during their formative years in the non-citizen began offending soon after arrival in Australia.
The Applicant first arrived in Australia in 2007. He was born on 22 of July 1989 and has resided in Australia since approximately 17 years of age. The mother, three sisters and brother of the Applicant reside in New Zealand. The sentencing remarks of Acting Judge Graham establish that the Applicant has had a partner in Australia and that two children have been born of this relationship. Such remarks indicate that the relationship is sporadic, but that the Applicant’s partner maintains contact with him for the benefit of their children.
The Applicant’s Personal Circumstances form discloses that the relationship between the Applicant and his partner has continued for 11 years, and the Applicant states that he would like to marry the partner. Such form also records that the Applicant has worked since his arrival in Australia. The records show that the Applicant has completed a NSW Government TAFE course in November 2020 in relation to applying chemicals under supervision; operating basic machinery and equipment; prune shrubs and small trees; treat weeds; and participating in work health and safety processes. The Applicant has also received a statement of attainment in relation to operating a personal computer, word-processing applications, operating spreadsheet applications and operating presentation packages. The Applicant also has attained statements of attainment for first aid, providing basic emergency life support; and providing Cardiopulmonary Resuscitation. The Applicant has also undertaken an Onfit Training College course relating to instruction of fitness programs and conducting fitness programs, attaining Certificate 3 in Fitness.
The Applicant has departed Australia on six occasions since his arrival and the arrival cards indicate that the country he visited was New Zealand.
The Tribunal makes the following observations in relation to the statements received in support of the Applicant:
Statement of CW and TW:
CW and TW became the foster parents of their foster daughter, A. She became the partner of the Applicant and the mother of the Applicant’s three indigenous children. CW and TW have provided an impressive reference. Each has served in the Australian Defence Forces and are aware of the standards required of those who seek to live in Australia. Whilst the Applicant made poor decisions in the past, they speak highly of his work ethic and that he has always worked hard to provide for his family; of his love for his children; and the adverse impact that would result from a separation of him from his children.
Statement of TO:
TO is a leading hand and supervisor of the Applicant. He has known the Applicant since he was engaged at a mining construction project at Orange. TO states that he came to know the Applicant and his family very well. TO’s statement reads: ‘[the Applicant] is one-of-a-kind. He was someone that you always wanted to be around. A fun, happy, down-to-earth, genuine, honest, trustworthy, hard-working bloke. He was easy to teach, always followed instructions and would pay closer attention to detail in all practices that We do.’ TO states that he gives his full support and love to the Applicant’s family to stay united in Australia.
Statement of RS:
RS has been a close friend of the Applicant for five years and notes him to be a respectful member of the community, a caring father to his three children and a loyal friend. Her statement records that the Applicant is a very kind person who has assisted her in her developing graphic design business by offering suggestions and recommendations based on experiences he has had during his working career.
RS states that the Applicant has always remain employed, has always provided for his family and has worked interstate to obtain work to support his family. She further states that the Applicant is very devoted to his children, wants to raise them in Australia and learn the indigenous way of life.
Statement of AJ:
AJ partner to the Applicant and mother of his three children, states that she is an indigenous person who was removed from her birth parents at eight years of age. She has suffered for many years from post-traumatic stress having experienced disruption in her childhood. She states that she met the Applicant in 2008 at the age of 18 years when she moved into shared accommodation. At that time the Applicant was training for the under 20s football team known as the Raiders, and AJ worked for a museum. In April 2019, their relationship developed and they were together for 2 ½ years before their first child, LH, was born. She states that they moved to Orange and gave birth to their younger child, K, who is now three years of age. When the Applicant was incarcerated, AJ states that her family was ‘destroyed’ the children became upset and were suspended from school. At the time, she was living in Nowra but decided to return to Canberra where she obtained accommodation through the Salvation Army. AJ states that the Applicant always provided for the family and ‘constantly worked on developing himself’ they were about to be married when he was sentenced to imprisonment, which came as a total shock to her. AJ states that although she has not been residing with the Applicant, she has decided to forgive him and to try to restore the family. AJ states that she hopes to marry the Applicant.
AJ also states that the Applicant had an unhappy childhood, with an abusive father and alcoholic mother. His father died when the Applicant was 11 years of age.
AJ states:
‘I know he isn’t perfect in any way and over the years made many mistakes, as we all do, but I truly believe his changed [sic) and will do his absolute best to continue working on himself. I feel safe with [the applicant] and he has always been the rock in our family.…I don’t want my children to lose their father and I don’t want to lose [the applicant] either. He has made a lot of progress since being in jail and I truly believe he has changed in soo (sic) many ways. He has found his faith again and has undergone many courses whilst inside as well.’
Statement of RW:
RW has known the Applicant for approximately two years whilst he resided in Canberra. She states she always found him friendly, polite and respectful and a loving father to his children. She states that the Applicant often discussed his family and his career at length with her and was anxious to improve himself. RW says she assisted him in trying to find employment and improving his career. She states that she can believe the Applicant is remorseful for his actions and she is satisfied that he will do whatever is necessary to support his family in the future. She states that she believes his conduct has deeply affected his family and personal life. She considers that he would be a better member of the community following his release [from gaol].
Statement of DK:
DK states she first met the Applicant in 2008 when she was 18 years old through her close friend, AJ. She states that she was always comfortable in his presence and found him a very ‘happy-go-lucky, loving guy’. She shared a rental property with AJ and the Applicant and saw how loving and caring the Applicant was to his partner. She stated she has seen him being a ‘loving, nurturing, attentive father to his three beautiful children’. She also states that she has seen him work long, hard hours to provide for his family.
Letter from LH:
LH will be 12 years of age this year. She states that she has been grieving since her father went away and has been a very sad. She states that she does not want her father to be sent to New Zealand because she would not be able to see him and he will not be able to take her and her brothers to the shops.
The Tribunal finds that this consideration weighs in favour of revocation of the decision.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4 (1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.4(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has three infant children who are described as having aboriginal/Maori nationality. The children include a daughter, LH born in 2011; and two sons, M born in 2013 and K born in 2017. The children’s mother is of aboriginal descent. Since the Applicant was detained, the oldest son has become angry and aggressive. It is stated that the Applicant had a strong relationship with his children, especially the eldest son who he coached in football. AJ states that if the Applicant were removed from Australia, it would be to the children’s detriment as she wishes for them to be brought up in the indigenous aboriginal heritage. AJ has also said that she needs the Applicant’s support in the upbringing of the children. Her statement provides significant detail of her background and of the aboriginal heritage which is important to her and to her children. The Tribunal is mindful of the positive statements and the references of the children and the Applicant’s partner.
During the evidence, however, it became apparent that it is not certain that the relationship between the Applicant and his partner will resume. Further, no doubt in part due to the Applicant’s incarceration and detention, physical meetings with his children over the last 4 ½ years have been negligible. The Applicant last saw his children approximately one year before the hearing. The Tribunal is satisfied from the evidence that the Applicant gave that the relationship between him, his partner and his children is not as close as may appear from the statements. The relationship between the Applicant and his partner has been sporadic over recent years and has not resumed since he belatedly disclosed to his wife the fact that he had been involved in the sexual assault at Orange in 2019.
If the Applicant is removed from Australia, and in the event that his partner and children do not follow him to New Zealand, he will be able to maintain contact with them via audio-visual means.
The Tribunal considers that the best interests of the child weighs in favour of the revocation of the original decision.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(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.’
Paragraph 8.4(2) 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; or
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect; or
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.5(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). 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 Direction 99 at paragraph 8.5. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 99.
It has further been held that the consideration is ‘in substance … adverse to any applicant’: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Alcohol use
The most serious offence took place when the Applicant was highly intoxicated, and all other offending has occurred when the Applicant has been under the influence of alcohol. This is a factor which the Tribunal takes into consideration with regard to the risk of future offending. The Tribunal also takes into consideration the fact that the Applicant has served his sentence and that during the period of imprisonment, there is no evidence to suggest that he was otherwise than a compliant prisoner. The fact remains that the Applicant has had no treatment nor rehabilitation for his excessive consumption of alcohol even though his offending, extending as far back as 2010, has involved the use of alcohol. Magistrate Antrum specifically directed the Applicant’s attention to the need for treatment. Further, as early as 2009, the Applicant was placed on bail in the Australian Capital Territory conditional upon not being intoxicated at a public place and submitting to a screen test at the direction of police. Such bail arose out of the fact that the Applicant, whilst intoxicated at 3:30AM on 21 of February 2009 attacked a stranger in a violent manner by punching him to the jaw and both cheeks, leaving the victim with his tongue and lower lip bleeding and pain in his jaw and his teeth. The assault was unprovoked.
The ACT policing records outline other antisocial complaints requiring police attention, including:
·On 9 May 2009, an incident at a Coles Supermarket;
·On 13 December 2009, a disturbance;
·On 20 April 2010 at 4:45AM, an incident involving the Applicant locking himself in his bedroom with his daughter, and the daughter was found with blood on her. The Applicant had alleged he would injure himself;
·On 21 April 2011, the Applicant was reported to be harassing a female. The Applicant is recorded as having grabbed a female and tried to kiss her;
·On 20 July 2013, police attended a house which was believed to be getting robbed;
·On 3 August 2013, the Applicant returned home intoxicated;
·On 5 June 2014 at 4:05 PM, the Applicant was found to be driving on a suspended license; and
·On 20 January 2015 at 9:37AM, the Applicant’s children then aged two and four years were found wandering along a road. No action was taken against the Applicant who attended the police station to collect the children.
Whilst in prison, the Applicant has participated in an EQUIPS Foundation Course and a CONNECT course which he states gave him awareness about his actions and how to deal with them. However, he has never sought nor received individual treatment.
Disregard for Australian Law
The Applicant has numerous driving offences recorded against him in New South Wales and in the Australian Capital Territory. The Applicant’s driving license was suspended in 2011, 2012, 2013, 2014 (three notifications), 2015, 2016 (two notifications) and 2017 (two notifications). The suspensions resulted from the failure to pay traffic infringement notices. Such offences, whilst not appearing to be serious, demonstrate a disregard for Australian law, and is evidence of future risk to the community: see MJNN and Minister for Home Affairs [2019] AATA 3205 at [54] – [55]. See also Bartlett and Minister of Immigration and Border Protection [2017] AATA 1561 [43] – [45]. The Tribunal observed:
‘But, his failure to understand right from wrong when operating a motor vehicle – beer drinking and driving, driving without a license or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.’
Risk Assessment
The Tribunal must decide whether there is a ‘real or significant risk of or possibility of harm to members of the Australian community’: see BHYK and Minister of Immigration and Citizenship [2010] AATA 662 at (53]. In making this assessment, the Tribunal is required to weigh up all relevant factors for and against revoking the cancellation. Further, the Tribunal must weigh up the seriousness of the offending, but the seriousness cannot be determined without informative details of the actual circumstances involved: see Cotterill v Minister for Immigration and Border Protection [2016) FCAFC 61; (2016) 240 FCR 29 at [91]. In this instance, the Tribunal has been provided with the facts surrounding each offence.
2019 and 2022 Assessments: high risk of committing further offences
A Sentencing Assessment Report dated on 14 August 2019 recorded that the Applicant had been assessed at medium risk of reoffending according to the Level of Service Inventory – Revised (LSI – R). A psychologist of the CS NSW assessed the Applicant as being in the well above average (high) range of committing a further sex offence.
The Tribunal considers that based upon the Pre-Release Report dated 6 September 2022 (‘the report’), the Applicant may well offend in the future. The report records that the Applicant declined a referral to High Intensity Sex Offender Program and Real Understanding. The Applicant said that had he undertaken the courses he would have had to have been placed in a protected area of the prison. However, the report states that the Applicant declined because he preferred to remain at Junee Correctional Centre in order to maintain visits with his family, continue his employment and complete alternative programs. The Tribunal further notes the concern expressed in the report, that because the Applicant declined to undertake the courses addressed towards sexual offending, he was at risk. The report states:
‘[The Applicant] has failed to engage in specific programs to address his identified sexual offending behaviour. If released from custody [the applicant] will enter the community as an untreated sex offender.’
The Applicant asserts that the support of his family and his love for his family will be powerful motivators in his future conduct. Whilst the risk of future adverse conduct cannot be eliminated, the Tribunal notes the observations in Labi and Minister for Immigration and Border Protection (Migration) [2016] AATA 316 at [60] where McCabe DP found:
‘The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgement. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.’
However, the Tribunal observes that the Applicant received love and support of his family at the time of his criminal offending. In fact, his partner was expecting her third child when the most serious incident occurred.
The report states that whilst the Applicant participated in the CONNECT program and successfully completed that program, he was not eligible for the EQUIPS Aggression Program due to conviction of sexual offending. Significantly, the report concludes:
‘However, of significant concern is [the applicants] refusal to participate in sex offender programs and therefore he is yet to engage in any treatment targeting his sex offending. Released to parole is not recommended to allow for completion of program pathway.
Whilst [the applicant] has completed EQUIPS Foundation and Addiction programs, he is yet to complete a specific sex offender program in an attempt to address his criminal issues due to his refusal to participate in HISOP whilst in a custodial setting. Community Corrections considers this is an integral component of his program pathway prior to his release to conditional liberty given hisT3?/High risk of reoffending’ .
The report speaks of the fact that the Applicant has limited insight into his offending. The Applicant pleaded not guilty to sex offending and until he acknowledged his offending at the Tribunal, it appears that he had not accepted blame for the serious offending. The report states:
‘[The Applicant] initially presented as a denier of his offences, he admitted that he had contact with the victim and categorically denied that his sexual activities were not consensual.
During subsequent interviews, [the applicant) stated that he takes responsibility for his offending behaviour. He advised since having time to think and reflect on the offences, he takes responsibility for his conduct. He stated that he made a “dumb mistake”, claiming although intoxicated he had control over his inappropriate behaviour. He advised that his offending has had a huge impact on his family and disclose that it is going to take a long time to repair the trust in his relationship with his partner and children. [The applicant) advised that he has missed many opportunities by being in jail and has continually let down his family causing them distress and embarrassment.’
Such attitude is reflected in the Applicant’s partner’s statement, which suggests that he was innocent of any sexual offence.
The Tribunal considers that the Australian community’s expectations would be against revocation of the original decision.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
Legal consequences of the decision
The evidence before the Tribunal does not suggest any claim or finding that Australia’s international non-refoulement obligations are enlivened in respect of this Applicant were the decision not to set aside. The Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen's age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant is in good health as is no medical evidence to suggest any health impediment. Further, there will be no cultural or language barriers if the Applicant returned to New Zealand. The Applicant has achieved certain industrial skills which could be put to use in New Zealand. Further, the Applicant has numerous members of his family residing in New Zealand. The arrival cards record that the Applicant has visited New Zealand on approximately six occasions since first arriving in Australia, and these visits have been with his partner. The Applicant has maintained close relationships with his family in New Zealand. The Applicant informed the Tribunal that he had spoken to his mother on the night before the hearing of the Tribunal. According to the report, the Applicant stated that his mother was willing to provide him with accommodation if he were returned to New Zealand. The Applicant also spoke of his wish to make a fresh start in that country.
The Tribunal considers that there may be a detriment to the Applicant’s Australian children if he were removed, and if the partner of the Applicant and his children did not follow him to New Zealand. The effect would be to deprive the children of the upbringing of a parent who has shown to be a responsible father to his children. The Tribunal considers that this consideration constitutes a significant factor under primary consideration (3). The Tribunal also has taken into consideration the opinions of the referees and especially takes note of the fact that the Applicant has been hard-working and a devoted parent, as especially referred to by CW and TW. However, the Tribunal takes into consideration the evidence provided by the Applicant that he and his partner had discussed the prospect of relocating themselves to New Zealand, where he has his mother and family residing. These considerations do not outweigh the fact that the evidence overwhelmingly establishes that the Applicant is a risk to the community because he is likely to reoffend.
The Tribunal finds that this consideration weighs against the revocation of the original decision.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The impact on the victim of the serious offending was provided in her victim impact statement to the Orange District Court, Criminal Jurisdiction. There is no evidence that the decision would impact further upon the victim.
Impact on Australian business interests
This consideration is not relevant in this matter.
The Tribunal has given consideration to clause 8.3 of Direction 99. The Tribunal notes that the Applicant first arrived in Australia as a young adult. His formative years were spent in New Zealand where he completed his schooling. There is no evidence that the Applicant has contributed positively to the Australian community, other than through his employment in the construction industry, principally as a scaffolder. The Applicant commenced his offending in 2009 being an assault occasioning actual bodily harm and the following year he was convicted of offensive behaviour in a public place and whilst there was a gap between 2010 and 2015, he again has been found guilty of assaults, breaching bonds, further assaults and sexual intercourse without consent. Virtually the whole of the period of his life with the exception of the first two years following arrival and the period between 2010 and 2015 has involved court appearances resulting from criminal behaviour. The Applicant has been in Australia for 16 years but as the record shows, the level of offending is showing an increasing trend. The Applicant has shown little regard for Australian law and in accordance with clause 5.2 (2) of the Principles, the privilege of staying in Australia can be forfeited. The Applicant, by his conduct, has forfeited that privilege. Section 501(3A) requires cancellation of a visa in certain circumstances. As was stated in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [88]; 351 ALR 61, at [88], Nettle J said of the statutory power:
‘it confers a power, which the Minister has a duty to exercise, to determine whether a non-citizen can enter, or remain in, Australia. That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.’
His Honour further explained at [94]:
‘Punishment in the relevant sense consist of the measures taken in the name of society to exact just retribution on those who have offended against the law of society and thus, it is hoped, to facilitate their rehabilitation. By contrast, powers of the kind conferred on the Minister by s 501 (3A) give effect to Parliament’s right to rid the nation of persons who, in the judgement of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation.…’
The Tribunal is required to consider whether there is another reason why the cancellation of the applicant’s visa should be set aside. The Tribunal finds that there is no other reason to exercise the discretion in favour of the Applicant.
Conclusion
In weighing the competing considerations, primary consideration (1) weighs against revocation; primary consideration (2) is neutral; primary consideration (3) is in favour of revocation; primary consideration (4) weighs in favour of revocation; and primary consideration (5) weighs against revocation of the decision. None of the secondary considerations weigh in the Applicant's favour.
For these reasons, the Tribunal is satisfied that there is no other reason (see section 501CA (4) (b) (ii) of the Act) why the original decision to cancel the Applicant’s visa should be revoked.
DECISION
The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO KC, Deputy President
.................................[SGD].......................................
Associate
Dated: 5 May 2023
Date(s) of hearing:
13 April 2023
Applicant:
Self-represented
Solicitors for the Respondent:
C. Campbell, HWL Ebsworth Lawyers
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