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

[2022] AATA 4572

Henry and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4572 (20 December 2022)

Division:GENERAL DIVISION

File Number:          2022/8033

Re:Jason Robert Henry  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member G Lazanas

Date:20 December 2022

Place:Sydney

The reviewable decision is set aside and substituted with a decision to revoke the decision to cancel the Applicant's visa under subsection 501CA(4) of the Migration Act 1958 (Cth).

.............................[SGD]................................
Senior Member G Lazanas

Catchwords

MIGRATION – mandatory visa cancellation – Applicant does not pass the character test – whether there is another reason why the visa cancellation should be revoked –  consideration of Ministerial Direction No. 90 – nature and serious of offending conduct – resist or hinder police officer – assault police officer – intimidate police officer – family violence – risk of re-offending – protection of the Australian community – expectations of the Australian community – the best interests of minor children – strength, nature and duration of ties to Australia – impediments to removal – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth) ss 501, 501CA

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member G Lazanas

20 December 2022

INTRODUCTION AND BACKGROUND

1. The Applicant was born in New Zealand and is a citizen of that country. He is 52 years old and first arrived in Australia in 1998 aged 28.  He has lived in Australia for the last 24 years having been granted a Special Category (Class TY) (Subclass 444) Temporary visa (visa).

2. On 24 March 2021, the Applicant was convicted in the Local Court of New South Wales of Resist or hinder police officer in the execution of duty (two counts), Assault police officer in execution of duty w/o abh (six counts) and Intimidate police officer in execution of duty w/o abh (two counts) and sentenced to a term of imprisonment. He lodged an appeal against the sentence and on 24 May 2021 the Downing Centre District Court of NSW re-sentenced him to an aggregate term of 16 months imprisonment.

3. As set out further below, the Applicant has a history of numerous other offences involving violence or threats of violence, mainly against police officers but also including his former wife. All these offences are linked to heavy abuse of alcohol. The Applicant admits to having been an alcoholic, although he now claims to be a reformed alcoholic.

4. On 29 April 2021, the Applicant was notified that his visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) (cancellation decision).[1] The Applicant’s visa was cancelled on the basis that the Applicant had a substantial criminal record, as defined in s 501(7) of the Act, and by reason of his sentence being for 12 months or more.

   [1] G35, 154-160.

5. On 30 April 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa.[2] The request was made within the statutory timeframe.

   [2] G12, 64-65.

6. On 27 September 2021, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision (reviewable decision).

7. The Applicant subsequently lodged an application for review in this Tribunal on 3 October 2022.[3] The Tribunal has jurisdiction to review the reviewable decision pursuant to

   
   

   s 500(1)(ba) of the Act.

   [3] G2, 3.

8. The matter was heard by the Tribunal on 8 and 9 December 2022. The Applicant attended in person and was legally represented. The documents before the Tribunal included the G-Documents (and Supplementary G-Documents) filed on behalf of the Minister and several witness statements filed on behalf of the Applicant. The Applicant also relied on a personal witness statement and gave oral evidence and was cross-examined. All the witnesses, besides the Applicant, gave evidence by telephone and were also cross-examined.

9. For the reasons which follow, the reviewable decision will be set aside and, in substitution, the cancellation decision will be revoked.

   THE ISSUE

10. It is not in dispute that the Applicant has a “substantial criminal record” and, therefore, does not pass the character test set out in the Act. Consequently, the sole issue to be determined is whether there is another reason why the cancellation decision should be revoked.

    THE EVIDENCE

11. The evidence set out below is based on information contained in the G-Documents and written and oral evidence given by the Applicant and the other witnesses.

    The Applicant’s personal and family history

12. The Applicant grew up in New Zealand and arrived in Australia when he was 28 years of age. His mother and two older brothers live in New Zealand. His father recently passed away from COVID-19 in a nursing home in New Zealand. The Applicant has no family in Australia other than his ex-wife and two minor children.

13. When the Applicant was about 14 years of age, one of his older brothers, (M), was involved in a car accident, in which he suffered a serious brain injury after a prolonged coma. The family relocated to be closer to the hospital and more regularly visit M, who is now a paraplegic. This event disrupted the Applicant’s schooling but also caused the family considerable trauma especially as, when M regained consciousness and was released from hospital, M began to behave violently towards his family. M engaged in regular beatings and bullying of the Applicant who is the youngest of the three siblings. On one such occasion M used a hunting knife and the Applicant’s mother and oldest brother, Mr Peter Henry (Peter), were both seriously injured in the process of intervening to stop M. The Applicant stated that he felt guilty about that particularly violent incident and suffered psychological problems from that time onwards. The Applicant moved out of home and became estranged from his family with no support. The Applicant began drinking at about the age of 15.

14. The Applicant stated that those events and the consequential falling apart of the family’s relationships were the main reasons he left New Zealand for Australia. The Applicant attributed his mental health issues and alcohol abuse to those events, as well as his personal experiences with an earthquake in New Zealand which had caused him to have post-traumatic stress disorder (PTSD). The Applicant stated in his witness statement that he was a victim of violent events and he turned to drinking alcohol to “eliminate” his problems. He stated the PTSD – which he had been medically diagnosed as suffering together with anxiety[4] – played a role in his depression, alcoholism, marital issues, police encounters and guilty pleas in court proceedings. He also had financial stresses later in life, having filed for bankruptcy after he had ceased working because of a work injury of carpal tunnel syndrome. He stated that the PTSD left him emotionally volatile resulting in feelings of guilt, sadness and worthlessness and that he had attempted suicide several times.[5]

    [4] G27, 114-115.

    The Applicant’s ex-wife and children

15. In 2003, the Applicant met Ms Henry, who was born in South Africa, in New Zealand. They married soon afterwards in 2004, and subsequently migrated to Australia. The Applicant supported Ms Henry while she was studying nursing. Ms Henry has been working as a nurse in the emergency department of a public hospital.

16. The Applicant and his ex-wife had tried for many years to have children and they had spent considerable money on IVF treatments which also contributed to their financial stress. The Applicant’s former wife found out she was pregnant when the Applicant was in New Zealand in or about 2017. The Applicant had gone there to take a break from his marriage which was deteriorating, mostly due to his excessive alcohol consumption. The Applicant then decided to return to Australia to be with his former wife and to help her with the pregnancy and the upbringing of their first child. The Applicant’s decision to return demonstrates his responsible attitude and commitment to his newborn child.

17. The first child, his son, was born in 2018 and is now 4 years old. The second child, his daughter, was born in 2019 and is now 3 years old.[6] In 2019, the Applicant and Ms Henry divorced, however, they remained close and were cohabiting to co-parent their children until the Applicant was incarcerated.[7]

    [6] G20, 101.

    [7] G20, 101.

18. The Applicant has had a loving and healthy relationship with both of his children. He was their stay-at-home, full-time carer before his incarceration, as he was unemployed at that time (in part due to COVID-19 lockdowns) and the Applicant’s wife was working at a hospital.[8] While in gaol and in the Villawood Detention Centre, the Applicant regularly telephoned his children and ex-wife and often “facetimed” them twice a day. According to Ms Henry, the children love and miss their father.

    [8] G20, 101.

19. Ms Henry provided a written statement as well as oral evidence in support of the Applicant. She was an honest and impressive witness and especially forthright in her views that she cared most about her children and wants them to have a stable upbringing. She stated that “despite [the Applicant’s’ struggles with alcohol, he has always been an excellent father to our children. He is caring and nurturing in his nature and seeks to be a strong role model for them both.”[9] Ms Henry further stated in her witness statement, that the combination of home and work without the Applicant’s help was overwhelming for her and, in 2021, her mother relocated from South Africa to support her with the children for six months. Ms Henry stated that she has since had to hire baby-sitters to assist while the Applicant has been in gaol and in detention and that she is becoming further financially indebted.

    [9] Witness statement of Ms Henry dated on or about 29 November 2022.

20. Ms Henry stated that as the mother of two children she is concerned that their father, the Applicant, remain in their lives and that he continues to assist her in bringing them up and, if possible, contribute financially. She said she would be encouraging the Applicant to stay at her home to look after the children especially when she must work night shifts and on weekends. If the Applicant is not allowed to stay in Australia, Ms Henry stated that she may be forced to consider going to South Africa to live with her children as she will have family support there.

21. Ms Henry also provided evidence about the Applicant’s criminal offences and alcoholism. She recalled that there were many Apprehended Violence Orders (AVOs) taken out against the Applicant, some of them before the children were born. The terms of those AVOs were, broadly, that the Applicant was not allowed to drink alcohol near the home. She said it felt like she had been living with two different people for 15 years, one drunk and one sober, and that she would have zero tolerance for the Applicant drinking alcohol again. She was decisive about giving the Applicant “one absolute last chance” to be involved in the lives of their children; if he started drinking again, she would not allow him to ever be with their children. She was firmly of the view that alcohol abuse was the immediate cause of the Applicant’s offending and, if he remains sober, he will not re-offend.

22. Ms Henry also recalled the family violence incidents, including the one in 2015 at the Lakemba unit when the Applicant damaged property including stabbing a door and smashing a tequila bottle. She also recalled the 2018 incident where they had a verbal argument, the Applicant threatened her, and she called the police. While she was not specific about the details, and how the Applicant ‘handled’ her, she recalled feeling worried and nervous when he was drunk as he became very angry, impulsive, and lashed out.

23. Ms Henry noted the Applicant’s past attempts at rehabilitation were like a revolving door as he would consistently relapse and start drinking again. Ms Henry stated it was entirely up to the Applicant to decide to stop drinking if he wanted to have a relationship with his children.

    The Applicant’s work history

24. The Applicant has been employed as a rigger and had several high-risk occupations operating various equipment such as cranes on large construction and infrastructure projects in Australia and in Papua New Guinea. The Applicant considers he will be able to secure work easily in the mining industry based on his experience. However, he indicated in his oral evidence that he would only work when his AA mentor allowed him as he was conscious that the drinking culture of that industry may jeopardise his rehabilitation.

25. One of the Applicant’s work friends, Mr Muddle, vouched for his strong work ethic. Mr Muddle stated that they had worked and spent time together on various projects in 2010 and in 2017. Mr Muddle said that he had never seen the Applicant display any violent behaviour although the Applicant did become argumentative and was not fit for work when he had been heavily drinking or abusing over the counter cough syrups. While Mr Muddle stated that he remained in contact with the Applicant over the years, mostly by telephone, Mr Muddle conceded under cross-examination that he was not aware of the Applicant’s criminal record. The fact that Mr Muddle did not know about the Applicant’s offences does not detract from the veracity of Mr Muddle’s evidence on what he observed working with the Applicant, which I found to be reliable.

    The Applicant’s offending and criminal history

26. The Applicant has a criminal history in Australia which is notable for the number of offences involving violence or threats of violence against police officers and his ex-wife. His offending is closely linked to heavy abuse of alcohol, and he admitted to having been an alcoholic. All but two of his Australian convictions have occurred since 2015 with the most serious offences taking place in July 2018, March 2020, and January 2021.

27. In 2007 the Applicant was fined for a drink driving offence, and in 2012 an offence of Destroy or damage property <=$2000 (DV) was dismissed with a bond. In 2015 he was placed on a 12-month bond for Contravene prohibition/restriction in AVO (Domestic). The Applicant contravened the AVO because he breached the condition of not approaching the victim within 12 hours of consuming alcohol. In 2017 he was placed on a six-month bond for Shoplifting (cough medicine to which he had become addicted) and fined for Negligent driving and another driving offence.[10]

    [10] G6, 39.

28. The Applicant's family violence offending escalated from July 2018 onwards. On 9 August 2018, he was convicted of Common assault (DV) and Stalk/intimidate intend fear physical etc harm (domestic) for which he was placed on a bond for two years and required to attend drug and alcohol rehabilitation.[11] The NSW Police facts sheet states that on 29 July 2018 the Applicant consumed 700ml of vodka and a number of beers and became involved in a verbal argument with his partner (being his ex-wife) which woke his baby. The Applicant's partner went into the bedroom and picked up their baby. The Applicant then grabbed the arm of his partner that was not holding the baby and forced it behind her back, dragging her off balance. The Applicant took the baby and placed him back in his bed and said to his partner "if you take your son away from me, I'm gonna break your neck".[12] The Applicant's partner was fearful and phoned the Domestic Violence hotline as well as police and an urgent AVO was obtained by police.[13] I accept the Applicant’s explanation at the hearing that he did not mean what he said to his ex-wife and that he was affected by alcohol especially as Ms Henry acknowledged he was an entirely different person when drunk.  

    [11] G6, 39.

    [12] G10, 58.

    [13] G10, 59.

29. On 30 June 2020, despite being subject to the bond, the Applicant committed further violent offences and was convicted of four counts of Assault officer in execution of duty, two counts of Destroy or damage property and one count of Resist or hinder police officer in the execution of duty. He received sentences of 12 months imprisonment for the four Assault police officer offences, to be served by way of an Intensive Correction Order, a Community Correction Order of 12 months in place of his previous bond; and 18 months of a Community Correction Order and a fine for the other convictions.[14]

    [14] G6, 37-38.

30. In relation to the offences of assaulting police officers in the execution of duty and intimidate police officers in execution of duty which occurred on 16 March 2020, the police facts sheet states that the Applicant was intoxicated and that police were called because of a reported incident in which the Applicant racially abused two men and caused damage to their scooters.[15] When arrested by police, the Applicant said words to the effect of "I will kill you" to a police constable, causing him to fear for his safety. The Applicant also approached police with his fists clenched, kicked a chair and when handcuffed, and later on the ground repeatedly screamed and said words to the effect of "I'm going to kill you, I'll kill you, you're dead, when this is all over I'll get you, you're a bunch or arse-holes!"[16] He also spat at two officers and kicked another two officers. The sentencing judge referred in his summary to the “ugly incident where [the Applicant] was full of alcohol, full of bad manners, and full of aggression, decided to take on a number of police who were executing their duty lawfully”.[17] Further, the Applicant was on conditional liberty which was an aggravating factor.[18] The Applicant stated at the Tribunal hearing that while he could not recall the precise events and the “verbal garbage” that he would have said, he ended up in hospital with significant cuts and bruising including black eyes. The Applicant asserted he was taken by ambulance to the emergency department of a hospital for MRI scans on his head to rule out bleeding on the brain and later admitted to hospital for recovery where he stayed for a week, whereas the police officers did not have a scratch.

    [15] S13, 72-77.

    [16] S13, 76-77.

    [17] G9, 52.

    [18] G9, 53.

31. The Applicant assaulted police officers on a second occasion in January 2021, for which the Applicant was convicted on 24 March 2021 of six counts of Assault police officer in execution of duty w/o tbh, two counts of Intimidate police officer in execution of duty w/o abh, and two counts of Resist or hinder police officer in the execution of duty offences. Significantly, the Applicant’s violent offending continued again while he was on conditional liberty. On this occasion, a neighbour called police as the Applicant was highly intoxicated and they had concerns for his welfare.[19] While police were speaking to the Applicant, he picked up a toy bike and raised it up to his chest level as if he was going to throw it at police. The police told him to put it down, which he did, and he said it was his children's toy bike. The Applicant then picked up a broom and raised it up. When police told him to put it down, he said he was going to clean rubbish. The Applicant then said to one of the police officers “I'm going to get a weapon and I'm gonna get you”.[20] He then picked up a plank of wood and was told repeatedly to put it down. He complied but smashed the plank to the ground. He then picked up a relatively longer plank, which he was told to put down, and raised it in his hand and walked fast towards two police officers. The police tasered the Applicant and discharged capsicum spay. The Applicant then used offensive language and was abusive towards police and paramedics. He attempted to pull off an officer's face mask and kicked two constables causing red marks and bruises. At the hearing, the Applicant explained that he remembered panicking as there were a large number of police attending but that the precise events were blurry, and his perception of the police was altered from his prior experience where he had been injured in altercations with police. The Applicant accepted that he was heavily medicated on anti-depressants and drunk and would have behaved recklessly, which he said was “out of character” for him. However, the reality is that when the Applicant had consumed excessive alcohol, he did become aggressive, reckless and irresponsible.

    [19] S19, 95-99.

    [20] S19, 98.

1. The Applicant received an aggregate of 19 months imprisonment, with a non-parole period of 10 months as well as a conviction with no other penalty for Use offensive language in/near public place/school. The Applicant lodged an appeal against the sentence and, on 24 May 2021, it was reduced to an aggregate term of 16 months imprisonment with a non-parole period of eight months.[21]

   [21] G6, 28-36.

2. The Applicant also had a record of offending in New Zealand from 1987 to 1993, including some similar offences against police officers, with convictions including Obstructing A Traffic Officer, Obstruct/Hinder Police, Resisting Traffic Officer In the Execution Of His Duty, and Common Assault (Manually). This offending resulted in fines.[22] The Applicant claimed to not have disclosed these overseas offences in his immigration arrival forms because of honest mistakes and, notably had subsequently disclosed these offences after having been cautioned.

   [22] G7, 40-42.

   The Applicant’s transformation and remorse

3. The Applicant claims to be a ‘reformed alcoholic’ since his time in gaol and detention. While he acknowledged having been an alcoholic for at least ten years, he said he has given up drinking alcohol altogether after following the 12 steps Alcoholics Anonymous (AA) program. He stated he started attending AA online meetings about a year ago. More recently, about three months ago, he had enlisted the help of Mr Trevor Field – who gave evidence in support of the Applicant – to act as his AA sponsor.

4. The Applicant spoke openly and candidly about his problems with alcohol. The Applicant acknowledged that once he starts to drink, he loses control over the amount he drinks and, therefore, has realised his problem is that he cannot control his drinking and must abstain entirely. The Applicant has previously undertaken seven detoxes and been to a rehabilitation facility for alcohol abuse but repeatedly relapsed. He also previously tried AA but he explained that he mistakenly believed he was cured after attending 15 weeks of AA meetings. The Applicant had also been admitted to a mental facility in 2018 after fearing he would self-harm.

5. The Applicant stated there is “zero risk” that he will re-offend and he utterly regrets his offending behaviour. He stated he was doing his best to change and take responsibility for his past actions and become the best father he can be. His latest attempt to rehabilitate was different from previously as he now had an AA sponsor and the motivation of fighting to keep his relationship with his children. Since being in gaol, he has not been drinking and his medications for depression have been adjusted. The Applicant has also completed several online courses such as Drug and Alcohol Abuse 101, Anger Management 101, and Single Parenting 101. A psychologist’s report letter dated 12 May 2020 confirmed the Applicant had undertaken ongoing counselling for his PTSD and the report expressed the view that the Applicant’s long-term prognosis is good provided he maintains counselling and medication.

6. Mr Trevor Field provided a written statement and gave oral evidence at the hearing in support of the Applicant.[23] He impressed me as earnest and spoke with conviction. Mr Field is the Applicant’s AA sponsor and is himself a reformed alcoholic who had a difficult upbringing without his father.  Mr Field has known the Applicant for approximately three months, by way of telephone and online meetings, usually at least daily in relation to the AA program. It was clear from his oral evidence that Mr Field was aware of the details of the Applicant’s situation including his visa cancellation, criminal offences, and more generally his family and mental health problems. This indicated to the Tribunal that he and the Applicant have had intensive and meaningful discussions directed at the Applicant’s recovery.

   [23] Witness statement of Trevor Field undated, filed with Tribunal on 2 December 2022.

7. Mr Field stated that he had sponsored men through the 12 steps of the AA program for 17 years and witnessed many spiritual transformations. Mr Field was presently working with a cohort of five people and said that the Applicant impressed him as one of the most willing to make himself a better human and citizen. He considers that the Applicant has genuinely changed. Mr Field explained that if someone was willing to do what it takes and is prepared to follow the strict 12 steps AA program, they can be guaranteed permanent recovery. He referred to studies which showed the success rate was as high as 93%.

8. Under cross-examination, Mr Field expressed the view that although the Applicant is up to step 10 or 11, he is already rehabilitated but must still continuously practice prayer, meditation and now help others. Mr Field stated that a recovery does not have to take a long period. Mr Field’s assessment of the Applicant was that he does not believe he will relapse as his recovery is “strong enough”. He based this on reflecting on his own recovery and stated, “I believe he will have permanent behaviours like me”. Mr Field also acknowledged that “life throws curve balls”’ such as when his dog died, but he did not relapse. Mr Field considered that the Applicant’s fear of losing his children was the motivation for him to change but that until he came across AA in its strict form with an AA sponsor the Applicant had not been provided with a specific way out of his alcoholism.

9. The Applicant’s eldest brother, Peter, who lives in New Zealand with his family gave evidence to the effect that he would not be able to provide the Applicant with “any support” if the Applicant was deported to New Zealand.[24] Peter was cross-examined about this and explained that he and his wife had previously supported and rallied behind the Applicant when he came to New Zealand about 5 years ago in late 2017, but they had been exposed to his alcoholism and suffered detrimentally. Peter said he did not want to accommodate the Applicant in his home again and did not want to take any risks. Peter recounted that the Applicant had tried to rehabilitate when he stayed with them by attending AA meetings, but he kept abusing alcohol, ended up in hospital and then gave up AA when he decided to return to Australia to support his then pregnant wife. Another reason that Peter gave for refusing to support the Applicant was that he did not want to be an “enabler”; the Applicant had to independently earn his recovery. Peter viewed himself as providing “tough love” to his youngest brother. Peter expressed the view that the Applicant’s recovery is most likely to succeed if he is close to his ex-wife and children as they are his only family supports and an important motivating influence. Peter’s view was that if separated from them the Applicant’s mental health will suffer and likely cause a relapse of his addiction.[25]

   LEGISLATIVE FRAMEWORK AND PRINCIPLES

   [24] Witness statement of Peter Henry dated 17 November 2022.

   [25] Witness statement of Peter Henry dated 17 November 2022.

   The character test

10. Pursuant to ss 501(3A)(a)(i) and (b) of the Act, the Minister must cancel a visa that has been granted to a person if, relevantly, the Minister is satisfied that the person does not pass the character test because they have a “substantial criminal record”, as defined under s 501(7)(c), and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

    Power to revoke visa cancellation decision

11. When a visa is mandatorily cancelled pursuant to s 501(3A), the Minister must give the person concerned a written notice which sets out the original decision (that is, the mandatory cancellation) and particulars of the relevant information and must invite the person to make representations to the Minister about revocation of the original decision: s 501CA(3)(a) and (b).

12. Pursuant to s 501CA(4), the Minister may revoke the original decision if:

    (a)the person has made representations in accordance with the invitation:

    s 501CA(4)(a); and

    (b)the Minister is satisfied that:

    (i)the person passes the character test: s 501CA(4)(b)(i); or

    (ii)there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii).

13. The Tribunal has jurisdiction to review the decision to refuse to revoke the cancellation of the Applicant’s visa pursuant to s 500(1)(ba) of the Act.

    Direction No. 90

14. A determination under s 501CA(4) must be carried out in accordance with any written directions given under s 499(1) of the Act: s 499(2A). The Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation decision. The relevant direction is ‘Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 90), which commenced on 15 April 2021.

15. Paragraph 5.2 of Direction 90 provides that the principles set out therein (Principles) provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act.

16. Informed by the Principles, the decision-maker must take into account the primary considerations in Part 2 of Direction 90 in deciding whether to revoke a mandatory cancellation of a non-citizen’s visa. The primary considerations are:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the best interests of minor children in Australia; and

    (d)expectations of the Australian community.

17. The decision-maker must also take into account other considerations insofar as they are relevant. The considerations that are relevant to this matter are as follows:

    (a)extent of impediments if removed; and

    (b)links to the Australian community, including strength, nature and duration of ties to Australia.

18. Section 7 states that primary considerations should generally be given greater weight than other considerations.

    is there another reason why the cancellation decision should be revoked?

19. I turn now to a consideration of the primary considerations followed by the other considerations relevant to the Applicant’s circumstances.

    Primary Consideration 1: Protection of the Australian community

20. Paragraph 8.1 of the Direction requires decision-makers to keep in mind 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 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.

21. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    PC1.1 Nature and Seriousness of the Applicant’s Conduct

22. Paragraph 8.1.1 of Direction 90 prescribes factors to which decision-makers must have regard in considering the nature and seriousness of a non-citizen’s criminal offending or other conduct. This includes a range of conduct that is viewed very seriously by the Australian Government and, relevantly, the frequency of the non-citizen’s offending and cumulative effect of repeated offending. I have set out above at [26]-[33] the Applicant’s criminal record, extracts from the sentencing remarks and the NSW Police facts sheets.

23. Having regard to the relevant factors in paragraph 8.1.1, I make the following findings about the nature and seriousness of the Applicant’s conduct:

    ·The Applicant has committed multiple offences against police officers including assaulting and intimidating them in the performance of their duties.

    ·The Applicant has been sentenced to a term of imprisonment of 16 months for his offences against police officers which of itself demonstrates the objective seriousness of the offences involved.

    ·The Applicant has committed multiple family violence offences which are also viewed very seriously in respect of which bonds and correction orders were made and numerous AVOs were issued, even though I accept the Applicant's conduct was minor.

    ·The Applicant's criminal history is very serious and has potential to cause physical and/or psychological harm to members of the Australian community.

    ·Although it is accepted that alcohol contributed to his offending behaviour and that he is not currently using alcohol, the Applicant’s addiction to alcohol in the past is not a mitigating factor as he chose to drink knowing he could not limit his drinking.

24. The Applicant is guilty of offences which are regarded as very serious and to which I afford significant weight. This is so even where the evidence discloses that the physical assaults were relatively minor, namely, spitting at and kicking police officers and pushing his ex-wife. While these incidents were unacceptable, they involved the Applicant being affected by excessive alcohol consumption and threatening people, mostly in verbal abuse, of potentially much greater aggressive harm. For example, he threatened to kill the police officers. The practical reality is he behaved in a recklessly indifferent manner when he was drunk as evident from his alcohol fuelled senseless threats. 

    PC 1.2 Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

25. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community from harm, decision-makers 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 that it may be repeated may be unacceptable. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    (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 information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, with weight to be given to time spent in the community since their most recent offending.

    The nature of the harm to individuals of the Australian community should the Applicant engage in further criminal or other serious conduct

26. The nature of the potential harm that may be caused if the Applicant were to re-offend by committing offences of assaulting or intimidating police officers or committing family violence is very serious and is likely to involve significant physical, psychological harm to members of the Australian community, such that the Australian community would have little tolerance for any likelihood of re-offending and future harm. As the sentencing judge observed, in relation to his 2020 offences, it is unacceptable for police officers in the execution of their duties to be abused as the police officers are protecting members of the Australian community.

    The likelihood of the Applicant engaging in further criminal or other serious conduct

27. Turning to the likelihood of the Applicant engaging in further criminal or other serious conduct, there remains an ongoing and unacceptable risk of the Applicant re-offending if he were to relapse, as he has repeatedly done in the past.

28. The Applicant’s risk of re-offending was considered by the sentencing judge to be medium to high because of the Applicant’s alcoholism even though the Applicant had previously promised the sentencing judge in relation to his 2020 offences that he would not drink again.[26] The sentencing assessment report states that the Applicant has “a pattern of offending behaviour that is associated with excess alcohol consumption.”[27] The Applicant was assessed by Corrective Services NSW as a 'Medium-High' risk of reoffending.[28]

    [26] G9, 52.

    [27] S21, 112.

    [28] S21, 113.

29. I remain concerned at the Applicant’s numerous failed attempts to rehabilitate and have reservations as to whether the Applicant will make a permanent recovery even though the Applicant says he has the knowledge this time to transform himself and to not drink together with the strong support of his AA sponsor. On his own admission, the Applicant cannot control his alcoholic consumption and his offending is closely tied to his alcohol abuse. Therefore, if he were to drink again, there is a likelihood he may engage in further criminal or other serious conduct potentially causing significant harm. The nature of the harm is so serious that any risk of re-offending in the future is unacceptable. I agree that any reoffending would expose the Australian community to physical and psychological harm.

30. The Applicant has undertaken some online courses for his alcohol dependency and anger management, as well as undertaking the AA program, and he claims not to have consumed alcohol for over a year. However, the reality is that his rehabilitation remains untested in the community.

31. Considering both the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs significantly against revocation of the cancellation decision.

    Primary Consideration 2: Family Violence engaged in by the Applicant

32. Paragraph 8.2(2) of Direction 90 states that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.

33. Family violence is defined in paragraph 4(1) of Direction 90 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The definition does not provide an exhaustive list of the conduct that constitutes family violence and there is no definition of “a member of the person’s family” or “family” in Direction 90. Furthermore, Direction 90 provides that acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed are viewed 'very seriously'.

34. The Applicant was convicted of a number of family violence related events in June 2015 and in August 2018 (see [27]-[28] above). The police facts disclose that his ex-wife referred to a number of physically violent domestic incidents over the course of her relationship with the Applicant which was not disputed by the Applicant.[29]  Further, Family and Community Services identified domestic violence and intervened, including visiting the Applicant's home on a weekly basis to check the Applicant's stability.[30]

    [29] G11, 61.

    [30] S32, 168.

35. I am satisfied that the Applicant has been involved in family violence frequently with varying degrees of seriousness, the cumulative effect of which is unacceptable. It follows that the primary consideration of family violence committed by the Applicant weighs against revocation of the cancellation decision.

    Primary Consideration 3: Best interests of minor children in Australia

1. Paragraph 8.3(1) of Direction 90 provides that a decision-maker must make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision (who is, or would be, under 18 years old at the time when the decision is expected to be made). If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

2. The Applicant has identified his two minor children that would be affected by this decision being his son aged 4 and his daughter aged 3. Their interests are relevantly the same in view of their ages. As stated above, the Applicant had lived, prior to incarceration, with his ex-wife and his two minor children since their births. He was "a full-time stay at home father" and, therefore, the primary carer.

3. I am satisfied that it would be in the best interests of the children for the cancellation of the Applicant's visa to be revoked. The Minister submitted that the Applicant's son was exposed to family violence committed by the Applicant and any further family violence may have a negative impact on the children, especially as they grow up. I accept the submission that the children’s exposure to family violence would have a detrimental impact noting, however, that the son was a baby at the time of the family violence events referred to above. I consider that any further family violence is unacceptable. The Applicant was adamant in his evidence to the Tribunal that he wants to be a better father for his children. In this regard, I note the ex-wife’s evidence that she has zero tolerance of the Applicant’s alcohol abuse, at least insofar as allowing the Applicant to continue to be involved in the lives of their children. The Applicant has said he will never drink again. He has expressed his strong motivation to reconnect with his children. While I have expressed some reservations about whether the Applicant will be true to his word, he does acknowledge his ex-wife’s ultimatum which I consider should act as a protective factor against his drinking.

4. I find that it would be in the best interests of the children for the cancellation decision to be revoked. I give significant weight to this factor which weighs in favour of revocation of the cancellation decision.

   Primary Consideration 4: Expectations of the Australian community

5. Paragraph 8.4(1) of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.

6. Paragraph 8.4(2) further provides that it may be appropriate not to revoke the mandatory visa cancellation of such a person simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they raise serious character concerns through their conduct of the kind that includes acts of family violence or serious crimes committed against children and women, as is the case here.

7. In having regard to this consideration, paragraph 8.4(4) provides that the decision-maker should proceed on the basis of the Government’s views about the community’s expectations articulated above and must not independently assess the community’s expectations as they may pertain in a particular case: see FYBR v Minister for Home Affairs [2019] FCAFC 185. Therefore, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.

8. The Minister’s legal representative argued that observing the norm stipulated in paragraph 8.4(1), and in accordance with the guidance provided by Principles 5.2(2)-(5) of Direction 90, the Australian community would expect that the Applicant should not continue to hold a visa. This is especially so because this case specifically engages paragraph 8.4(2)(a) and (d) in that the Applicant has engaged in serious crime, namely, family violence and assault and intimidate police officers in the performance of their duties.

9. I am satisfied that the Australian community would have a very low tolerance of the Applicant’s offending and would expect that the Applicant should not be allowed to remain in Australia. Accordingly, I find this consideration weighs heavily against revocation.

   OTHER CONSIDERATIONS

10. I turn now to the other relevant considerations that I must also take into account in deciding whether to revoke the mandatory cancellation of the Applicant’s visa listed at paragraph 9 of the Direction.

11. For completeness, I note there is no evidence before the Tribunal that the following other considerations are relevant:

    (a)international non-refoulement obligations;

    (b)the impact on victims; and

    (c)the impact on Australian business interests.

    Other Consideration 1: Extent of impediments if Applicant is removed from Australia

12. Paragraph 9.2 of Direction 90 requires consideration of 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: the person’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.

13. The Applicant is in his early 50s and suffers from PTSD, anxiety, and depression. However, there is no evidence that the Applicant would not be able to access the same or similar treatments for his conditions in New Zealand. That is, the Applicant would have access to health services of a comparable standard. He would also likely have good employment prospects in New Zealand based on his skills and experience.

14. On the other hand, the Applicant would likely find it difficult to re-adjust if he were removed to New Zealand because he would not be able to be with his children and this could materially impact on his health, well-being, and ability to rehabilitate. Importantly, the Applicant's ex-wife would likely suffer some emotional, practical and financial hardship as she needs his assistance to look after and nurture their children. I have also considered that the Applicant has a limited connection with his family in New Zealand, and that he would have less motivation to rehabilitate if he were removed to New Zealand. The evidence of the Applicant’s oldest brother (see [40] above) was unequivocal. He was not willing to “risk it” and the Applicant was not welcome to stay with him and his family in New Zealand primarily because of the psychological damage the Applicant caused the family in the past, regardless of whether he was a reformed alcoholic.

15. I also consider that that the Applicant’s rehabilitation is not principally about the availability of AA courses or physical proximity to his AA sponsor in New Zealand but about his physical proximity to his children and to the environment with which he is more secure. In my view, the Applicant’s separation from his children would likely have a damaging impact on him especially if his ex-wife were to subsequently relocate to South Africa to seek family support with the upbringing of their children. The Applicant stated in his oral evidence about the prospect of returning to New Zealand that “there is nothing but reminders there for me about the reasons I began to drink in the first place.”

16. On balance, I am satisfied that the extent of impediments if the Applicant is removed from Australia weighs in favour of revocation of the cancellation decision.

    Other Consideration 2: The strength, nature, and duration of ties to Australia

17. Paragraph 9.4.1 of Direction 90 requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia.

18. As stated above, the Applicant has resided in Australia for the past approximately 25 years. He has mostly been working and contributing to the Australian community throughout his adult life and has a network of friends in Australia. Most importantly, his minor children and his ex-wife live in Australia.

19. The Applicant’s mother and his two siblings live in New Zealand, however, as previously described, he is not close to them due to past traumatic events. He also has numerous friends in New Zealand. The Applicant’s AA sponsor is also based in New Zealand, although the Applicant has never met him in person and has only interacted with the Applicant for the past three months.

20. On balance, I am satisfied that the strength, nature and duration of ties of the Applicant’s ties with Australia weigh in favour of revocation of the visa cancellation decision.

    CONCLUSION

21. The Applicant claims to be a reformed alcoholic. He credits his spiritual transformation to his strict adherence to the twelve steps of the AA course, something which he has never done before. He says his transformation has occurred while he has been in gaol and in detention at the Villawood Detention Centre. The Applicant’s AA sponsor who has recently spent considerable time with the Applicant vouches for his rehabilitation and, significantly, believes he will not relapse. He is persuaded that the Applicant is willing to do what it takes to be a good father and citizen which requires giving up alcohol. The Applicant also has the strong support of his ex-wife who is prepared to give him one last chance as she needs the Applicant to help her raise their children and provide financial support.

22. I am persuaded that the Applicant wants to be a better father, but I am somewhat sceptical about the Applicant’s prospects of rehabilitation because his abstention from alcohol has not been properly tested in the community where alcohol is readily available and where the Applicant will have to contend with life’s issues. As Her Honour stated when sentencing the Applicant on 24 March 2021, the Applicant’s expressed determination to change “will only be seen once [the Applicant] exit[s] the custodial environment”.[31] However, as stated above, the sole issue for determination by the Tribunal is whether there is ‘another reason’ why the visa cancellation decision should be revoked. The evidentiary test is to be established on the balance of probabilities: see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 per Colvin J at [64].

    [31] G8, 45.

23. I am satisfied that there is ‘another reason’ to revoke the cancellation decision. The primary consideration of the best interests of the Applicant’s minor children aged 4 and 3 years old outweighs, on balance, the competing considerations. The undisputed evidence is that the Applicant is a loving and caring father and was the primary carer, who is committed to nurturing his children as well as supporting their mother in their development. As stated at [16] above, he has previously demonstrated his responsibility and commitment to his children by returning to Australia when his ex-wife was pregnant with their first child. In all the circumstances, this primary consideration, coupled with the other consideration of the Applicant’s strength, nature and duration of his ties to Australia, outweighs the primary and other considerations against revocation of the cancellation decision because the children need their father, with whom they have had a healthy and loving relationship, to be physically present for their stable upbringing.

24. Accordingly, I decide to set aside the decision under review and substitute it with a decision to revoke the decision to cancel the Applicant’s Special Category (Class TY) (Subclass 444) Temporary Visa.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas

..............................[SGD]...................................

Associate

Dated:   20 December 2022

Date of hearing:	8 and 9 December 2022
Solicitor for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitor for the Respondent	Mr L Dennis, Minter Ellison