Henry and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 975
•11 March 2024
Henry and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 975 (11 March 2024)
Division:GENERAL DIVISION
File Number:2023/9763
Re:Shaye Mitchell Henry
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member A. Julian-Armitage
Date of decision: 11 March 2024
Date of written reasons: 3 May 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 15 December 2023 to not revoke the mandatory cancellation of the Applicant’s visa.
................................[SGD]........................................
Member A. Julian-Armitage
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where the Applicant does not pass the character test – where the applicant has a substantial criminal record – whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 99 – where Applicant’s offending included violent offences and family violence – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Migration Act 1958 (Cth)Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton
[2023] HCA 17
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CAREASONS FOR DECISION
Member A. Julian-Armitage
3 May 2024
INTRODUCTION
Mr Shaye Mitchell Henry (‘the Applicant’) is a 26-year-old man,[1] born in New Zealand. He arrived in Australia on 9 July 1999 and has never left,[2] with his Class TY Subclass 444 Special Category (Temporary) visa (‘visa’) last being issued on that date.[3]
[1] R1, p 2, para 3.
[2] R1, p 2, para 3.
[3] R1, p 2, para 3.
On 14 November 2022, the Department of Home Affairs notified the Applicant of the mandatory cancellation of the visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), because he did not pass the character test and he was serving a full-time custodial sentence, which gave rise to the cancellation.[4] On 8 December 2022, the Applicant made written representations to the Respondent requesting the revocation of the cancellation of the visa.[5]
[4] Tr1, G9, p 87-93.
[5] Tr1, G12, p 99-103.
On 15 December 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) made the decision to not revoke the earlier mandatory cancellation,[6] which was delivered, by hand, to the Applicant on 18 December 2023.[7] On 24 December 2023, the Applicant lodged the instant application before this Tribunal seeking review of the non-revocation decision.[8] I am satisfied that this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
[6] Tr1, G3, p 48.
[7] Tr1, G3, p 45.
[8] Tr1, G2, p 4-13.
The application was heard in Brisbane on 29 February 2024. The Tribunal heard oral evidence from the Applicant.
The Tribunal also received written evidence with the totality of that material being consolidated into an agreed Exhibit Register,[9] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
[9] The parties confirmed the contents of the Exhibit Register at the commencement of the hearing on 29 February 2024.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. It stipulates that a person will not pass the character test if they have a ‘substantial criminal record’. In turn, a ‘substantial criminal record’ is where a person has been sentenced to a term of imprisonment of 12 months or more.[10]
[10] See ss 501(6)(a) and 501(7)(c) of the Act.
The Tribunal finds that the Applicant fails the character test,[11] due to him being sentenced to a term of imprisonment of two years and three months in 2022.[12] Accordingly, I find that he cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[11] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
[12] Tr1, G9, p 88.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the s 501CA(4) discretion, this Tribunal is bound by s 499(2A) of the Act and must comply with any directions contained therein. In the present case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[13]
[13] Direction No. 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that inform a decision maker’s application of the considerations relevant to the decision. These principles are found in paragraph 5.2 of the Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
The Applicant’s adult offending in this case commenced in 2016, when the Applicant was convicted of assault or obstruct police officer and being intoxicated in a public place.[14] In the six year period between 2016 and 2022, the Applicant has accumulated some 48 criminal convictions, including assaults occasioning bodily harm – domestic violence offence, common assault – domestic violence offence, serious animal cruelty and breach of suspended sentence.[15]
[14] Tr1, G5, pp 69-73.
[15] Ibid.
The Applicant’s adult offending history may be summarised as follows:
Court Date of conviction Offence Sentence Gladstone Magistrates Court
4 March 2016
Assault or Obstruct Police Officer Conviction recorded, not further punished Being Intoxicated in a Public Place Assault or Obstruct Police Officer while Adversely Affected by Intoxicated Substance Community Service: 100 hours 2 x Commit Public Nuisance Suspended Sentence Extended – re Breach of Order Suspended sentence extended: 12 months Unlawful Use of Motor Vehicles Aircraft or Vessels Imprisonment: 2 months Breach of Probation Order No Action Taken Gladstone Magistrates Court 6 June 2016 Contravene Direction or Requirement Fine: $300.00 21 October 2016 2 x Breach of Order Suspended Sentence Fully Invoked Burglary and Commit Indictable Offence Imprisonment: 9 months, concurrent Breach of Community Service Order Conviction Recorded
Imprisonment: 2 months, concurrent
7 November 2016 Breach of Bail Condition No Conviction Recorded
Not Further Punished
Hervey Bay Magistrates Court 24 August 2017 Commit Public Nuisance Licensed Premises Imprisonment: 1 month, suspended for 6 months, concurrent
Community service: 40 hrs
Assault or Obstruct Police Officer in Public Place while Adversely Affected by Intoxicating Substance Gladstone Magistrates Court 19 October 2018 Assaults Occasioning Bodily Harm Conviction Recorded
Imprisonment: 6 months
Enter Premises And
Commit Indictable Offence
Restitution: $5945.50 Enter Premises And
Commit Indictable Offence by Break
Suspended Sentence Fully Invoked – re Breach of Order Conviction Recorded
Not Further Punished
Suspended Sentence for Breach of Order fully invoked, concurrent
Contravention of Domestic Violence Order 13 x Breach of Bail Condition Contravene Direction or Requirement Possessing Dangerous Drugs Gladstone Magistrates Court 22 October 2019 Breach Of Community Service Order Order Revoked
Resentenced for Original Offence
Conviction Recorded
Probation Period: 9 months
16 October 2020 Breach of Probation Order Order Revoked
Resentenced for Original Offence
Imprisonment: 3 months, suspended for 12 months
Restitution: $855.00
Commit Public Nuisance
Wilful Damage
Trespass – Entering or Remaining in Dwelling or Yard Wilful damage Failure to appear in accordance with undertaking Rockhampton District Court
3 June 2022
Breach suspended sentence Suspended sentence fully invoked
Imprisonment: 3 months, cumulative
Assaults
Occasioning Bodily Harm -
Domestic Violence Offence
Imprisonment: 2 years, 3 months Imprisonment, suspended for 3 years after serving 482 days. 2 x Common Assault
- Domestic Violence Offence
Imprisonment: 12 months, concurrent for each offence Serious Animal
Cruelty
Imprisonment: 6 months Imprisonment Rockhampton Magistrates Court 21 September 2022 Riot or Mutiny Unlawfully Destroyed Property Result noted as ‘next appearance committal mention Rockhampton Magistrates Court’ on 2 November 2022 in the G-documents.
The Respondent confirms that the Applicant was convicted in the Brisbane District Court on 20 December 2023, with a sentence of three months’ imprisonment imposed to be suspended for six months.
Further, the Applicant has accumulated a traffic history, as an adult, in this country that is not insignificant, and is particularised in the table below:[16]
[16] See also Tr2, TB6, p 340-341.
Court (if applicable) Offence date
*Court result date entered instead where provided
Offence/Description Penalty Gladstone Magistrates Court 4 March 2016* Driver not have proper control of vehicle “CNF” Learner drive vehicle under direction Learner fail to display legible L plate -
21 March 2016 Accumulation of demerit points – learner -
18 October 2017 Suspended
2 February 2018 14 March 2018 Accumulation of demerit points – leaner - 15 April 2018 Suspended (details show SPER being “applied” and “lifted” at various times during these dates. See Tr2, TB6, p 340). 3 months 8 March 2019 - 9 September 2019 23 February 2020 23 May 2020 14 August 2021 6 October 2023
Separately, as a matter of fact, the Applicant has convictions in his criminal history for when he was under the age of 18 years.[17] I note the decision of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton,[18] and have not taken into consideration any of the offences committed by the Applicant as a minor. I have excluded such non-adult offending from the above criminal and traffic offences tables and place no weight whatsoever on the same for the purposes of this decision and the reasons herein.
[17] Exhibit Tr1, G5, p 73.
[18] [2023] HCA 17.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will deal with each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraph 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a): the essence of this area of the Direction provides for the types of offences committed within the genre of sub-paragraph (i), (ii) or (iii) to be viewed very seriously by the Australian Government and the Australian community. The Applicant’s offending in this country includes offences that engage this subparagraph. Specifically, the convictions for assaults occasioning bodily harm – domestic violence offence, common assault – domestic violence offence and contravention of domestic violence protection order are instances of offending that fall squarely within sub-paragraphs (i) and (ii), and therefore favours a finding that the offending has been very serious.
Sub-paragraph 8.1.1(1)(b): this area of the Direction refers to the types of crimes that may be considered serious by the Australian Government and the Australian community. Relevantly, the two convictions for assault or obstruct police officer in public place while adversely affected by intoxicating substance is the type of offence that can comfortably be considered to engage the provisions of subparagraph (ii), as an offence committed against government officials (namely, the Police), whilst in the performance of their duties. Therefore, this offending favours a finding that the Applicant’s offending has been serious.
Sub-paragraph 8.1.1(1)(c): in the application of this sub-paragraph, I am precluded from taking into consideration sentences imposed for:
(a)Any violent offending the Applicant may have committed against women or children[19];
(b)Acts of family violence;[20] and
(c)Any sentence received relating to conduct whereby the Applicant caused a person to enter into or become a party to a forced marriage.[21]
[19] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[20] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[21] Paragraph 8.1.1(1)(b)(i) of the Direction.
There is nothing in the material to indicate that the Applicant’s offending involves conduct causing a person to become a party to a forced marriage.
Whilst the Applicant’s offending encompasses acts of family violence and violence against women, I am precluded from considering this offending in relation to this subparagraph of the consideration and will deal with it where appropriate.
Notwithstanding, the balance of the Applicant’s criminal history contains a considerable number of convictions that fall within the ambit of this sub-paragraph. Of note are the sentences imposed between March and November 2016 in the Gladstone Magistrates Court. These convictions include assault or obstruct police officer in public place while adversely affected by intoxicating substance, burglary and commit indictable offence, unlawful use of motor vehicle, breach of bail, breach of community service order, two counts of commit public nuisance, and the convictions for contravene direction or requirement, breach of probation order.
These convictions caused the Court to invoke a suspended sentence and impose a head custodial sentence of nine months imprisonment. The Applicant’s convictions have a range of sentences which include community-based orders, probation, suspended sentences and actual terms of imprisonment.
Upon reading the various Court sentencing remarks, it is obvious to this Tribunal that judicial officers have applied the tenant that a custodial sentence is the last resort within the sentencing hierarchy.[22] Despite these considerations by the Courts, the Applicant has continued to offend to the point where actual custodial sentences have been imposed.
[22] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Sub-paragraph 8.1.1(1)(d): two questions arise for consideration within this sub-paragraph. The first requires an assessment of the frequency of the Applicant’s offending. Within a six-year period, as an adult, the Applicant has committed some 48 offences. These numerous offences were the subject of comment by His Honour Clarke DCJ in the Rockhampton District Court, who made the following remarks:
‘you have a considerable criminal history for your age, persistently offending over the whole of your adult life. There are a range of offences: offences of public disorder, assaulting/obstructing police and a number of violence offences, including contravening a domestic violence order that was designed to provide for your own mother’s safety and protection and an offence of assault occasioning bodily harm, which I was told was perpetrated on a housemate. So your clear disposition to violent outbursts is evident in your past and proved to be an accurate predictor of your continued criminal offending here. There are also convictions for property dishonesty offending, drug offending. You have disregarded bail orders. You have been given the benefit of many supervision orders, community service and probations orders, and you have simply failed to comply with those.[23]
[23] Exhibit Tr1, G6, p 75.
In the circumstances, it is difficult to see the Applicant’s offending in a different light. As an adult, the Applicant has engaged in an ever-increasing pattern of offending. Therefore, I am satisfied with the finding that the Applicant’s offending can safely be classified as frequent.
The second question is whether the offending demonstrates a trend of increasing seriousness. The Applicant’s criminal history may not indicate a trend of increasing seriousness, however the level of offending has been consistently serious, whilst also interposed with less serious offences, such as the breach of bail and breach of community service order convictions. Therefore, it is clear that the offending has been both frequent and serious since commencement.
Sub-paragraph 8.1.1(1)(e): the Applicant’s offending has given rise to terms of incarceration. As mentioned earlier, judicial officers have resisted the imposition of actual custodial sentences, so as to provide the Applicant the opportunity to remain in the community, to no avail. The Applicant has consistently continued to offend, and in the most heinous ways, within the realms of domestic violence, namely for assaults occasioning bodily harm (domestic violence offence), common assault (domestic violence offence) and serious animal cruelty in 2022. This offending, in particular, was targeted towards the Applicant’s former partner, following which she suffered ‘multiple bruises, abrasions, scratches to various parts of her body.’[24] Furthermore, and as the Respondent contends, the Applicant’s repeated offending and its cumulative effect has exposed the community to violence, theft and consumed a considerable amount of community resources through the Applicant’s repeated appearances before the judicial system, probations, community orders and terms of imprisonment.[25] Therefore, I am of the view that the cumulative effects discernible from the Applicant’s offending, on a cumulative basis, favours a finding that his unlawful conduct in Australia has been serious in the extreme.
[24] Exhibit Tr1, G6, p 77.
[25] Exhibit R2, p 5, para 14.
Sub-paragraph 8.1.1(1)(f), (g) and (h): for the sake of completion, the considerations in these sub-paragraphs are not relevant to the conduct of this Applicant.
Conclusion about the nature and seriousness of the Applicant’s conduct
Upon applying each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction, I am satisfied that the evidence before me leads me to the conclusion that the totality of the Applicant’s unlawful conduct in this country has been very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
It is clear from the nature of the Applicant’s offending that were he to engage in further criminal offending in the nature of his past criminal history, or any other serious conduct, particularly in the realms of domestic violence, violent and property-based offences, there is little doubt that such conduct could cause financial, physical and psychological harm to individuals. Furthermore, were he to re-offend within the realms of his traffic contraventions, other users of Australian carriageways could suffer, with potentially devastating consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
This Tribunal is concerned with the paucity of clinical reporting in relation to the Applicant’s recidivism. I note and applaud that the Applicant has engaged in rehabilitation attempts,[26] which have been summarised in the table below. I also note that I have considered the Applicant’s own submissions in this respect, however, it is of concern that the Applicant’s rehabilitation has not been tested in the community, nor do I have the comfort of a psychologist’s or psychiatrist’s view in respect of the likelihood of this Applicant offending within the types of offences for which he was previously convicted.
[26] See Exhibit A1 and A2.
I note the comments made by Mr Greg Hutcheon, Psychologist, in his ‘Brief Psychological Report’ dated 25 January 2024.[27] This report provides a diagnosis of the Applicant suffering from “Bipolar Affective Disorder, substance use disorder, and childhood trauma and sexual abuse”.[28] Whilst this report outlined the Applicant’s treatment path for those conditions, it is silent with respect to the Applicant’s recidivism and provides no assistance to my decision in respect to this sub-paragraph.
Information and evidence on the risk of the non-citizen re-offending including evidence of rehabilitation
[27] Exhibit A1, p 13-17.
[28] Exhibit A1, p 15.
Based on the materials before the Tribunal, the Applicant appears to have sought out, and completed, two courses aimed at addressing anger management and domestic violence.[29] He has also sought out the help of psychologists and has submitted before the Tribunal a relapse prevention plan and the abovementioned report by Mr Hutcheon.[30] These efforts have been summarised in the table below. Where relevant, I will consider these more fulsomely in the reasons that follow.
[29] Exhibit A1, pp 1-2.
[30] Exhibit A1, pp 13-17.
Date(s) Organisation/Program Engagement Type Activity Details Outcome/Result 22 January 2022 Drug ARM Substance intervention program - Certificate of completion awarded 22 January 2022 23 December 2021-21 April 2022 Blue Knot Foundation, National Counselling and Referral Service Telephone counselling sessions on “trauma informed counselling for people living with disabilities who have experienced violence, neglect, or exploitation” (see G15, p 120) Completion of 7 sessions as at 26 April 2022 (see G15, p 120) Confirmation letter of 26 April 2022 31 December 2023 (Alison online) Anger Management and Conflict Resolution Online anger management rehabilitative course program Course completed 31 December 2023 31 December 2023 (Alison online) Fundamentals of Domestic Violence and Abuse Online domestic violence rehabilitative course program Course completed 31 December 2023 25 January 2024 Greg Hutcheon (Educational & Developmental Psychologist) Psychologist (Psychological report) In-person sessions (6 completed out of 12 sessions) Assessment of recidivist risk
As mentioned above, this Tribunal has not been furnished with any cogent material that indicates the level of risk the community would be exposed to, regardless of the attempts the Applicant has made, as summarised above. The Applicant’s rehabilitation attempts have not been tested in the community at a level that could provide any comfort in a finding of a lowering of risk to the community. In circumstances where this Applicant has a pattern of reoffending regardless of numerous opportunities that the Courts have proffered him, I can only be led to the conclusion that there could be a real risk of the Applicant reoffending.
Conclusion: Primary Consideration 1
With respect to the weight attributable to this Primary Consideration 1, I find:
(1)The nature and seriousness of the totality of the Applicant’s conduct to date to have been very serious;
(2)That were the Applicant to re-offend in any aspect of his history, it could give rise to physical, psychological and potentially financial harm with the real possibility of devastating results; and
(3)That in respect of recidivist risk, the Applicant represents a real recidivistic risk.
On my consideration and analysis of all the material, I am led to the finding that this Primary Consideration 1 confers a heavy weight against the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1) 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 in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(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.
Paragraph 4(1) of Direction 99 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. Paragraph 4(1)(b) of Direction 99 provides examples of family violence relevantly including sexual assault or other sexually abusive behaviour.
The victims in relation to family violence were the Applicant’s mother and former partner (who is also the mother of his child).
I will address each of the factors in the relevant sub-paragraphs in paragraph 8.2(3) in turn.
Paragraph 8.2(3)(a) requires me to consider the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness to it. It is uncontested that sometime in 2017, a temporary domestic violence protection order, naming the Applicant as the respondent, was issued.[31] The materials before the Tribunal do not name the aggrieved, although it is likely that that order was issued to protect the Applicant’s mother, given that she was the victim with respect to the 2018 contravention of domestic violence order offence. In addition, the Applicant’s history of domestic violence includes conduct in relation to the Applicant’s then-partner, and mother of his only child. Relevantly, in 2022, he was convicted for the assault-based domestic violence offences.
[31] Exhibit Tr2, TB4, 32-33.
The Respondent has argued that the Applicant’s history of domestic violence can be seen as frequent and escalating in seriousness.[32]
[32] Exhibit R1, p 13, para 48,
In relation to this first domestic violence offence, with the victim being his mother, the Applicant breached the protection order, by becoming aggressive and violent, shouting at her and destroying various items in her home.
As stated, the Applicant has been convicted of domestic violence offences against his then-partner, which relate to the convictions for assaults occasioning bodily harm (domestic violence offence) and common assault (domestic violence offence). Related to the commission of these offences, he was also charged with serious animal cruelty, perpetrated against his then-partner’s dog, as mentioned in the sentencing proceedings.[33]
[33] Exhibit Tr1, G6, p 75-76.
It is difficult to categorise the Applicant’s domestic violence offending as frequent, by the same token, one cannot dispel the fact that he has breached a domestic violence order and has re-offended. On the face of it, the fact that the latter domestic violence offending resulted in a custodial sentence being imposed on the Applicant, and that a domestic violence order remains in place until sometime in 2026, leads me to the finding that while this nature of offending may not be easily categorised as frequent, it most certainly demonstrates a trend of increasing seriousness.
Paragraph 8.2(3)(b) requires me to address the cumulative effect of repeated acts of family violence. The Applicant has been the subject of numerous domestic violence orders since 2017, and presently is the subject of two domestic violence orders until 2026.[34]
[34] Exhibit R1, p 13, para 47; Exhibit Tr2, TB4, p 32-34.
The cumulative effect of domestic and family violence was articulated by Kendall DP (as his Honour then was) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]:[35]
…violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) … normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
[35] Exhibit R1, p 14, para 52.
The impact of the Applicant’s conduct on his former partner was particularised in her victim impact statement, in which she describes herself being left “very emotionally traumatised” and that she feared for her life.[36] Relevantly, in sentencing the Applicant, his Honour Clarke DCJ, referring to the same, stated:[37]
‘…She says that she was emotionally broken. She distanced herself from her family. She was made to change to wear baggier clothing. She lost her independence. She lost her self-confidence, her self-esteem. She lost her sole access to her bank account… she preferred to stay in hospital… because she felt safer there, because you could not get her there. Although you were sending her messages there… A woman who had become deprived of the strength of character to stick up for herself. She says you had taken that away. I am prepared to accept that.’
[36] Exhibit Tr2, TB3, p 29.
[37] Exhibit Tr1, G6, p 76.
The victims of the Applicant’s domestic violence conduct have suffered physically and psychologically from the harm the Applicant has inflicted upon them. The Respondent has, correctly in my view, referred to this harm as “deep and pronounced”.[38] The Applicant has demonstrated behaviour that has been aggressive, uncontrolled and which has resulted in substantial impacts upon his victims. Therefore, it can comfortably be said that the Applicant’s conduct relevant to this sub-paragraph has had a very harmful and at times devastating cumulative effect, and I so find.
[38] Exhibit R1, p 14, para 53.
Paragraph 8.2(3)(c) requires me to consider the nature and extent of rehabilitation achieved by the time of my decision since the Applicant’s last known act of family violence. As detailed above, the Applicant has engaged in some rehabilitation, including in domestic violence and anger management. However, I harbour concerns and tend to agree with the Respondent that these efforts, given the seriousness of the offending and related conduct, have been limited in nature and scope.[39] It has consisted mainly of limited coursework,[40] and may require continued engagement with psychological assistance, as recommended by Mr Hutcheon.
[39] Exhibit R1, p 15, para 55.
[40] Exhibit R2, p 9, para 29.
Conclusion: Primary Consideration 2
I find that this Primary Consideration 2 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.
On the evidence before me, it appears that the Applicant’s immediate family for the purposes of Primary Consideration 3, as well as minor children to be considered for the purposes of Primary Consideration 4, are as follows:
Immediate family members:[41]
·the Applicant’s mother;
·the Applicant’s father;
·the Applicant’s step-mother;
·the Applicant’s brother;
·the Applicant’s adult sister Monique;
·the Applicant’s two minor sisters; and
·the Applicant’s minor child.
[41] Exhibit Tr1, G13, p 113, G17, 124.
With respect to other family members, the Applicant has also claimed a minor niece and minor nephew. The Applicant’s sister Monique has also recently had another baby, although the Applicant has not met that child.[42]
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[42] Exhibit R2, p 11, para 38.
The first requirement here is to identify the Applicant’s immediate family in Australia who are citizens, permanent residents or persons who have the right to remain indefinitely in Australia. These people appear to be the Applicant’s father and mother (both of whom are New Zealand citizens and presumably on a Class TY Subclass 444 Special Category (Temporary) visa with the right to remain permanently in Australia[43]), his daughter, step-mother, four siblings (including two minor sisters, who are about 11 and 12 years of age and have been declared to be Australian), his nieces (who is about 10 years of age and declared to be Australian, as well as Monique’s newborn child) and a nephew (about 5 or 6 years of age, declared to be Australian).
[43] Exhibit Tr1, G13, p 105-106.
The Applicant’s mother did not appear at the hearing to give evidence, nor did she provide a statement in relation to her son, and the effect the Applicant’s departure from Australia would have on her. During the hearing, the Applicant stated that his relationship with his mother has improved but gave little to no more detail on the frequency with which he sees her, or the nature of that relationship. He also stated that she had re-partnered.
With respect to the Applicant’s father, step-mother and half-siblings, it was the Applicant’s evidence that he has not seen them for a considerable period of time, and maintains contact with them, mainly by phone, and on noted occasions such as Christmas, birthdays and New Years. The Respondent argues that there is no reason why such contact could not continue if the Applicant is in New Zealand.
The Tribunal acknowledges that some of these difficulties in relation to the Applicant’s ties with his family stem from his poor upbringing and the appalling treatment he appears to have sustained during the same, including the challenges that he and his brother suffered whilst growing up.[44]
[44] See Exhibit A1, p 4-5.
Turning to the Applicant’s adult sister and brother, the Applicant’s sister Monique provided a statement in support of the Applicant. In her statement, she has attested to the fact that the Applicant is an important part of her family and has a close relationship with her daughter.[45] However, on the Applicant’s own evidence during the hearing, he stated that he maintains contact with both his niece and nephew by way of video-calls. There is no reason why this could not continue from New Zealand. The same applies with respect to the Applicant’s brother, who is the father of the Applicant’s nephew, and who has not provided a statement or any assistance to this Tribunal. There is nothing from either the Applicant’s brother or sister to indicate that the Applicant plays a parental role in the lives of his niece and nephew. As mentioned above, the Applicant has not met Monique’s newest child, and therefore does not appear to have any kind of relationship with them, let alone a parenting one.
[45] Exhibit A1, p 12.
In relation to the Applicant’s 2-year-old daughter, the evidence is that she resides in Gladstone with her mother and also that the Applicant has not, in fact, met her. Furthermore, this child is also the subject of the live domestic violence order. The Applicant has told this Tribunal that he would not be in a position to be able to connect to this child, but there is nothing before me to indicate that that contact or time with this child is something that he will be able to achieve with the present order in place. I will deal with this issue in more depth when I consider the best interests of the child in Primary Consideration 4.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
This element in Primary Consideration 3 requires a determination of whether more weight should be given to the Applicant’s ties to Australia where he has Australian citizen biological children.
As mentioned above, the Applicant has identified one two-year old daughter in Australia. There is also the minor nieces and nephew. The Tribunal has fulsomely considered the impact the Applicant’s departure could have on these children, and there is no need to recite this here. As stated, I will consider issues relating to these children in Primary Consideration 4.
Paragraph 8.3(3): Strength, nature, and duration of ties with any family or social links generally
This paragraph deals with the strength, nature and duration of the ties the Applicant may have with other family members not elsewise dealt with, and the social links the Applicant may have in Australia. These ties must be to persons who are Australian citizens, permanent residents or persons who have the right to remain in Australia indefinitely. Whilst the Direction is silent as to how weight is to be allocated to these ties, I will deal with the Applicant’s ties and allocate weight in his favour in accordance with the strength, nature and duration of those ties.
Based on the fact that the Applicant has resided in Australia since he was approximately two years old, any ties with family and social links would have to be with persons here in Australia. Unfortunately, the material provided by the Applicant has failed to show the strength, nature and duration of these ties, apart from the oral evidence of the Applicant that he is working on his relationship with his mother. He also stated that he has strong ties to his brother and sisters. In terms of social links, once again, there is a paucity of evidence that confirm the extent of the social links that the Applicant may have, such that I am unable to assess the nature of these ties. The Applicant has provided statements of attainment in relation to a Certificate 1 in Construction, Certificate 2 in Work Place Skills and a first-aid course.[46] Furthermore, in his Personal Circumstances Form (PCF), the Applicant has declared an employment history from 2014 to 2021, which includes work as a boiler maker, ceiling insulator and farm hand.[47] The Tribunal acknowledges the attainment statements and work history, however, it is difficult to ascribe great weight to the Applicant’s social links based only on this evidence, in the context of an extensive offending career and violent conduct.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
[46] Exhibit Tr1, G16, p 121-123.
[47] Exhibit Tr1, G13, p 115.
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years.
(i)It is without question that the Applicant has been ordinarily resident in Australia during his formative years, having arrived when he was only two years old, and has not left since. The Applicant has stated that he considers Australia his home, that living in Australia has shaped his identity and that his significant life events have occurred here, notably that of him becoming a parent.[48] Having accepted that the Applicant has spent his formative years here, I acknowledge that some weight should be ascribed to the fact that he has grown up here.
(b)whether the Applicant has positively contributed to the Australian community during his time here.
(ii)It is evident from the material before the Tribunal, which includes the Applicant’s criminal history, that following completion of part of his schooling and reaching adulthood, the Applicant had shortly thereafter embarked on a course of offending, right up until the time that he was incarcerated, leaving little time for any substantial contributions to the Australian community. Furthermore, it is obvious that on his own evidence, most of that post-schooling time he has suffered from substance abuse, making it difficult to establish any meaningful ties throughout that post-schooling period.
(c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?
(iii)I have mentioned that the Applicant has spent his formative years in Australia.
[48] Exhibit Tr1, G17, p 124.
Conclusion: Primary Consideration 3
In applying the relevant components of Primary Consideration 3 to the evidence and facts before me, I find that the evidence in its totality points to a finding that this Primary Consideration 3 is of moderate, but not determinative weight, in favour of exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
I must determine whether the non-revocation of the Applicant’s visa would be in the best interests of minor children in Australia that would be affected by the decision (per paragraph 8.4(1) of Direction 99). This primary consideration only applies with respect to children under the age of 18 years at the time of the decision (paragraph 8.4(2) of Direction 99).
Findings on biological child
As mentioned above, the Applicant is the father of one biological child, who is now almost three years old. On his own evidence, he has never met this child, who lives with her mother in Gladstone, who is also the subject of a domestic violence order, which is live until 2026. It is obvious from this that the Applicant has not played any parental role in this child’s life, despite his desire to one day be part of her life.
Whilst it is predominately in the best interests of minor children to have both parents in their lives, and to enjoy a meaningful relationship with both parents, in the case of this child’s situation, with the backdrop of the Applicant’s mental health issues, struggles with substance abuse and violent offending, at this particular time it is not in this child’s best interests for her father to be in her life, noting again that she is a named person on a domestic violence protection order.[49]
[49] Exhibit Tr2, TB4, p 32-34.
Findings on other relevant minor children
As to the other mentioned niece, nephew and minor sisters who the Applicant claims to have a relationship with, there is no evidence that his relationship with them could not continue with the same frequency and mode of contact as is now the case. There is no indication that the Applicant plays a parental role with either his niece or nephew, who are being cared for by their parents. Regarding the Applicant’s minor sisters, they live with their parents in Western Australia and the Applicant’s own evidence is that he has not seen them since he was about 15 years old.[50] With respect to Monique’s newborn child (who the Applicant has not met), there is no indication that he could not establish contact with the child in the same mode as with that child’s sibling.
[50] Exhibit R2, p 11, para 37.
Conclusion: Primary Consideration 4
The cumulative best interests of the minor children which include the Applicant’s daughter, niece, nephew and minor siblings viewed in light of the provisions in sub-paragraph 8.4(4) of the Direction, have led me to the finding that this Primary Consideration 4 is of moderate, but not determinative, weight in favour of the revocation of the mandatory cancellation of the Applicant’s visa. This is based primarily on the paramount position of a child having a right to a meaningful relationship with both parents, but weighed against the fact that the Applicant’s child is the subject of a domestic violence protection order, and in light of the unresolved issues pertaining to the Applicant.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[51] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[52]
[51] Paragraph 8.5(3) of the Direction.
[52] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
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 to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to
non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[53]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[53] Paragraph 8.5(2) of the Direction.
I have previously found that the Applicant has committed offences the nature of which enliven the operative effect of sub-paragraph (a), having been convicted for acts of family violence (namely, assaults occasioning bodily harm (domestic violence offence) and common assault (domestic violence offence)), (c) commission of serious crimes against women and (d) commission of offences against government representatives, namely police in the performance of their lawful duties (namely, assault or obstruct police officer). The commission of these offences clearly mean that the Australian community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[54]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[55]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[56] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[54] Paragraph 5.2(4) of the Direction.
[55] Ibid.
[56] Paragraph 5.2(5) of the Direction.
In relation to sub-paragraph (a) above, the term “limited stay” is not defined in the Act. In the present case, the Applicant held Class TY Subclass 444 Special Category (Temporary) visa since his first arrival when he was about two years old with the most recent one issued on 9 July 1999. This type of visa permits New Zealand citizens to remain in Australia without any limitation on their duration of stay. Therefore, the Applicant did not hold a visa that can be classified as a limited stay visa. Hence, this sub-paragraph does not apply.
In relation to sub-paragraph (b) above, despite the Applicant having been in Australia for a lengthy period of time, there is little evidence to indicate that the Applicant has participated in or contributed to the Australian community for anything other than, at best, limited periods. Hence, this sub-paragraph does not operate in his favour.
With respect to sub-paragraph (c) above, it is without question that the Applicant has spent his formative years in Australia, arriving at a very young age. However, whilst this fact may well afford a higher level of tolerance with respect to the community’s expectations, it is not sufficiently countervailing given the frequency and nature of his offending.
With respect to sub-paragraph (d) above, as mentioned above, the Applicant has been here the majority of his life, which therefore gives rise to a higher level of tolerance. Again, this level of tolerance in light of his offending, and the nature of such offending, cannot assist the Applicant given his unlawful conduct and its inherent type.
With respect to (e) above, the nature of the Applicant’s conduct, if repeated, could well inflict serious and/or devastating harm on members of the Australian community, such that other aspects of his time in Australia which would increase the Australian community’s tolerance of his offending may well be insufficient to assist in his quest for revocation of the mandatory cancellation of his visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
Per paragraph 9.1(1) of the Direction, decision-makers must be mindful that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention. I acknowledge that in the event of a non-revocation decision, the Applicant will be liable to removal from Australia as soon as reasonably practicable and will not be able to apply for another visa while in Australia (with the exception of a protection visa).[57]
[57] Ss 189, 198 and 501E of the Act; Exhibit R2, p 13, para 47-49.
As far as I understand the evidence before me, there is no claim and otherwise nothing on the material to suggest, that Australia’s non-refoulment obligations are enlivened in respect of the Applicant.
The Respondent submits that this legal consequence weighs neither for nor against revocation,[58] and the Applicant does not appear to have raised anything of note with respect to the same. Accordingly, I allocate neutral weight to it.
[58] Exhibit R2, p 13, para 49.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): The Applicant is 26 years old and has declared medical conditions in his PCF, including “Gilberts syndrome” and “bipolar schizophrenia”.[59] I note that the Applicant has been prescribed Quetiapine-XR with respect to his bipolar symptoms.[60] Based on the Applicant’s evidence before this Tribunal, it is clear that (a) he suffers from mental health issues, largely stemming from the difficulties he endured whilst growing up, and (b) he has sought out professional support with respect to the same. I have already summarised the Applicant’s efforts in this respect, and do not propose to recite them here.
[59] Exhibit Tr1, G13, p 116.
[60] Exhibit Tr1, G13, p 116; Exhibit R2, p 14, para 51.
Whilst the Applicant should be commended in his seeking of assistance, there is nothing to suggest that the Applicant would not be able to continue with these efforts, including sourcing medication and treatment for the abovenamed conditions, in his native New Zealand, should the need arise. New Zealand enjoys a similar standard of services to those in Australia and there appears to be no reason as to why the Applicant would be unable to access the same.
Paragraph 9.2(1)(b): I accept that the Applicant will face some difficulty in re-establishing himself in New Zealand due to the length of his residence in Australia. He has never visited New Zealand and appears to have no familial or social ties in that country. Notwithstanding this, he is a citizen of New Zealand and would not need to overcome any substantial language and cultural barriers in re-establishing himself there. This Tribunal has previously found that “New Zealand is culturally and linguistically similar to Australia”.[61]
[61] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301, at [101].
Paragraph 9.2(1)(c): this component deals with any social, medical and/or economic support available to the Applicant in New Zealand. To the extent he may require medical support, he will be able to access such support which will be available to him publicly just like it is available to other New Zealand citizens and residents. In addition, he has completed post-schooling qualifications and has some work history, and is still a young man of 26 years. As such, it is safe to assume that he will be able to access social support and work in the future.
Findings on impediments
I am of the view that Other Consideration (b) confers minimal weight in the Applicant’s favour with respect to the revocation of the mandatory cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Neither party has agitated the relevance of this Other Consideration (c). I do not view it as relevant and treat it neutrally.
Other Consideration (d): Impact on Australian business interests
As best as I understand the parties’ position, neither has raised any issues that may be applicable to this Other Consideration (d). Therefore, I allocate neutral weight to it.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of minimal weight in favour of revocation of the mandatory cancellation;
(c)impact on victims: is of neutral weight; and
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether I am satisfied if there is another reason to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: weighs heavily against revocation of the mandatory cancellation.
·Primary Consideration 2: weighs heavily against revocation of the mandatory cancellation.
·Primary Consideration 3: weighs moderately, but not determinatively, in favour of revocation of the mandatory cancellation.
·Primary Consideration 4: weighs moderately, but not determinatively, in favour of revocation of the mandatory cancellation.
·Primary Consideration 5: weighs heavily against revocation of the mandatory cancellation.
I have found that the combined weights I have allocated to Primary Considerations 1, 2 and 5 respectively, are sufficient to outweigh the combined weights I have allocated to Primary Consideration 3 and 4, and Other Consideration (b).
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirming the Respondent’s decision under review made on 15 December 2023.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 15 December 2023 to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member A. Julian-Armitage.
................[SGD].......................
Associate
Dated: 3 May 2024
Date of Decision: 11 March 2024
Date of Hearing: 29 February 2024
Representative for the Applicant: Self-represented
Solicitor for the Respondent: Mia Donald, Sparke Helmore
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
A1.
Collated Applicant Bundle (17 pages)
A
-
-
A2.
Closing Submission
A
29/02/2024
29/02/2024
R1.
Respondent’s Statement of Facts, Issues and Contentions (20 pages)
R
13/02/2024
13/02/2024
R2.
Closing Submissions
R
05/03/2024
05/03/2024
Tr1.
Section 501 G-Documents (G1-G20; 155 pages)
-
-
10/01/2024
Tr2.
Tender Bundle (TB1-TB7; 380 pages)
-
-
13/02/2024
Tr3
Further Tender Bundle (11 pages)
-
-
26/02/2024
0
6
0