Herewini and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2838
•4 September 2023
Herewini and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2838 (4 September 2023)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2023/4256 GENERAL DIVISION ) Re: James Erueti Herewini
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
RespondentDIRECTION
TRIBUNAL: Senior Member George
DATE OF CORRIGENDUM: 4 September 2023
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the Decision in this application dated 4 September 2023 as follows:
- In the first page, the sentence “Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 13 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth)” is replaced with “Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 13 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.”
- At paragraph 128, the sentence “Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 13 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth)” is replaced with “Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 13 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.”
...........................[Sgnd]............................
A GEORGE
(Senior Member)
Division:GENERAL DIVISION
File Number(s): 2023/4256
Re:James Erueti Herewini
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member George
Date of Decision: 4 September 2023
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 13 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth).
....................................[Sgnd]........................................
Senior Member George
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No.99 – offending serious – decision under review set-aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Domestic and Family Violence Act 2007 (NT)
Domestic and Family Violence Protection Act 2012 (QLD)
Family Violence Protection Act 2008 (VIC)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471
FYBR v Minister for Home Affairs [2019] FCA 500
LEAU and Minister of Immigration, Citizenship, Migrant Services & Multicultural Affairs (Migration) [2021] AATA 3090
Pavey and Minister for Home Affairs [2019] AATA 4198
Reid v Victims of Crim Tribunal [2002] VCAT 373
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
ZXXZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2910
SECONDARY MATERIALS
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
4 September 2023
Mr James Erueti Herewini (“the Applicant”) is a citizen of New Zealand and is aged 40 years. The Applicant first arrived in Australia in January 2011 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa.[1]
[1] Exhibit R2, G-Documents, G13, page 64.
Following criminal offending and a resultant term of imprisonment, the Applicant’s visa was mandatorily cancelled on 7 February 2022 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[2]
[2] Exhibit R2, G-Documents, G3, page 10.
On 6 March 2022, the Applicant made representations through his representative seeking revocation of the cancellation decision.[3] On 13 June 2023, a delegate was not satisfied that the Applicant passed the “character test” and that there was not another reason why the cancellation decision should not be revoked.[4] This is the reviewable decision.
[3] Exhibit R2, G-Documents, G13, pages 61-75.
[4] Exhibit R2, G-Documents, G5, pages 10-32.
The Applicant lodged an application for review of the reviewable decision before the Tribunal on 16 June 2023.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit R2, G-Documents, G2, Application for Review of Decision, pages 4-9.
On 16 August 2023, the hearing proceeded by audio-visual means. The Applicant gave evidence. The Applicant’s de-facto partner, Ms Caroline Marin, and his previous manager, Ms Tania Wright, also gave evidence.
The Applicant was self-represented. Ms Marin acted as his support person. The Respondent was represented by Ms Gabrielle Gutmann of Minter Ellison.
LEGISLATIVE FRAMEWORK
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to make the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction), to revoke the cancellation.[6] Furthermore, claims of hardship that do not fall squarely within the structure of the Direction cannot be overlooked.[7]
[6] On 23 January 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
[7] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471, [46].
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if they have a “substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 13 December 2021, the Applicant was convicted in the Local Court of New South Wales at Bankstown of Assault occasioning actual bodily harm.[8] He was sentenced to a period of imprisonment of 15 months, with a non-parole period of nine months. The sentence was confirmed on appeal. This is the index offending.
[8] Exhibit R2, G-Documents, G6, Criminal History Check Results Report, page 34.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the refusal of the Applicant’s visa application should be revoked?
In making its decision, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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 measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
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 considered. 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.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND AND OFFENDING
The Applicant was born in Whakatane, New Zealand in July 1983.[9] He first arrived in Australia in 2011 at the age of 28 years. The Applicant’s mother, father, brother, sister, nieces, and nephews all reside in New Zealand.[10] Under cross-examination, the Applicant gave evidence that he has minimal contact with his family members in New Zealand in part because some of them are now gang members.
[9] Exhibit R2, G-Documents, G13, page 62.
[10] Exhibit R2, G-Documents, G13, page 70.
The Applicant submitted that while in New Zealand his parents’ relationship was “volatile and physically violent at times.”[11] His father was regularly violent when he drank alcohol, and the Applicant witnessed several episodes of domestic violence towards his mother. When the Applicant was 14 years of age, his mother left to commence a new life “some distance away from me.”[12]
[11] Exhibit R2, G-Documents, G15, page 82.
[12] Exhibit R2, G-Documents, G15, page 83.
The Applicant left his father’s home when he was aged 16 years. The Applicant committed numerous offences between the ages of 16 and 23 years while in New Zealand.[13] These included assault, drug, property, and alcohol-related traffic offences.
[13] Exhibit R2, G-Documents, G7, pages 37-38.
At the age of 19 years, the Applicant moved in with his brother in a “housing home where we abused drugs often.”[14] He found that “without direction or purpose, life was a daily struggle and making a legitimate wage was difficult.”
[14] Exhibit R2, G-Documents, G15, page 83.
The Applicant secured employment in the manufacturing industry in New Zealand. It was at this workplace where he met his ex-partner, Ms Kostka, the mother to his children. Over the following 6 years, he “was ambitious” and was “promoted and in my highest position as 2IC Production Line Machine Operator.”[15]
[15] Exhibit R2, G-Documents, G15, page 84.
Ms Tania Wright, a former employer of the Applicant, gave evidence about the Applicant’s work ethic. In her undated letter, upon which she was cross-examined, Ms Wright stated:
I have known James now for approximately 11 years. I first came to meet him when he joined my maintenance team back in 2012 at Yarwun refinery where he worked with [me] in my team for a period of 4 years before I left to take up another position interstate. James has always been polite and well mannered and his work ethic is outstanding and I would have no hesitations in recommending him to any future employer.[16]
[16] Exhibit R2, G-Documents, G18, page 123.
The Applicant’s children were born in 2007 and 2009 respectively. In 2011, the Applicant and Ms Kostka were successful in securing visas and migrated to Australia. The Applicant was employed as a “Labourer, Advanced Scaffolder, and Supervisory Roles.”
The Applicant submitted that his relationship with Ms Koskta broke down in 2014 due to “my fly in and fly out employment that distances me from home as well as not fulfilling my obligations as a father and partner.” During this period, he was consuming alcohol and “ice” daily and “was coming off the rails.”
In 2016, the Applicant’s father was involved in a car crash that seriously injured him. The Applicant travelled back to New Zealand and found his father’s condition to be very confronting. He stated his father was not afforded justice for the drunk driver that severed his mobility and quality of life.
The Applicant’s children and their mother, Ms Kostka, migrated permanently to Germany in 2017. The Applicant stated that losing physical proximity to his family was painful and challenging to reconcile. He subsequently “leaned further into drug/ substance abuse” and suffered “spates of homeless over the next four years.”[17]
[17] Exhibit R2, G-Documents, G15, page 84.
Under cross-examination, the Applicant’s evidence was that he had a sexual relationship and took drugs with his landlady, Ms F, for a period of three months in 2017 or 2018. The Applicant and Ms F initially met on Tinder, and he subsequently would exchange drugs for rent.
Prior to the index offending, the Applicant had developed an extensive criminal history in Australia. This may be summarised as follows:
(a)On 5 August 2014, the Applicant was convicted of Attempted fraud – dishonestly gain benefit/advantage in the Magistrates’ Court of Queensland at Gladstone. The facts were that the Applicant made a false report to his insurance company that his vehicle was stolen and crashed. A private investigator subsequently found the Applicant had created a fictious story and that the Applicant got into his vehicle immediately before the crash. The Applicant made full admissions.[18]
[18] Exhibit R3, S-Documents, S124, pages 347-350
(b)On 8 November 2018, the Applicant was convicted of Drive motor vehicle while licence suspended – 1st off in the Local Court of New South Wales at Penrith.
(c)On 12 November 2019, the Applicant was convicted of Use unregistered registerable Class A motor vehicle on road and Possess prohibited drug in the Local Court of New South Wales at Penrith.
(d)On 26 November 2019, the Applicant was convicted of Use vehicle on road or road related area m/v tax not paid, Class A m/v exceed speed > 10 km/h – Estimated, Use uninsured motor vehicle, Licence expired less than 2 years before – first offence, Use unregistrable registerable Class A motor vehicle on road and Use Class A vehicle displaying misleading etc number-plate in the Local Court of New South Wales at Forster.
(e)On 5 May 2020, the Applicant was convicted of Goods in personal custody suspected being stolen (not m/v), Stalk/intimidate intend fear physical etc harm (domestic)-T2, Fail to appear in accordance with bail acknowledgment, Rider not war approved bicycle helmet/fitted/fastened, Possess prohibited drug, Contravene prohibition/restriction in AVO (Domestic), Licence expired less than 2 years before – prior offence, Assault occasioning actual bodily harm (DV)-T2 and Common assault-T2 in the Local Court of New South Wales at Penrith. Some of the more relevant facts were:
(i)The Applicant breached the Apprehended Violence Order (‘AVO’) by being within 500 meters away from Ms F and her property. Ms F saw the Applicant at a laundromat which was approximately 140 meters away from the protected address. The Applicant further breached the AVO that same week when he was seen in the driver’s seat of a vehicle parked approximately two meters away from the protected address. The Applicant admitted to the breaches.[19]
(ii)Police approached the Applicant for not wearing a helmet while riding a bicycle. Upon asking for identification, he provided police a false name which returned nil results on the police database. The police informed the Applicant that they would be conducting a search of his person and belongings. He became agitated and ran away. Once apprehended, the police found methylamphetamine and a glass pipe in his bag.[20]
(f)On 1 September 2020, the Applicant was convicted of Special category driver drive with special range PCA-1st off and Drive etc when visiting privileges withdrawn – first offence in the Local Court of New South Wales at Campbelltown.
(g)On 30 September 2021, the Applicant was convicted of Fail or refuse to comply with prohibition or requirement, Drive vehicle, illicit drug present in blood etc – 1st off and Special category driver drive with special range PCA – 1st off in the Local Court of New South Wales at Sutherland.
(h)On 13 December 2021, the Applicant was convicted of Assault occasioning actual bodily harm-T2 in the in the Local Court of New South Wales at Bankstown.
(i)On 18 March 2022, the Applicant was convicted of Destroy or damage property <=$2000-T2 in the in the Local Court of New South Wales at Burwood. The Applicant had displayed aggressive behaviour towards a vending machine at a train station. He hit the vending machine seven to eight times with a hammer. A security guard asked him to stop, and the Applicant shouted slurs at the guard in response. The Applicant made full admissions to police that he damaged property and was taken to the police station. He swore and urinated on the floor.[21]
(j)On 23 September 2022, the Applicant was convicted of Destroy or damage property in the Local Court of New South Wales at Sutherland
[19] Exhibit R2, G-Documents, G12, pages 54-59.
[20] Exhibit R3, S-Documents, S78, pages 247-249.
[21] Exhibit R3, S-Documents, S6, Facts Sheets, pages 7-9.
On 13 December 2021, the Applicant was convicted in the Local Court of New South Wales at Bankstown of Assault occasioning actual bodily harm for which he was sentenced to a period of imprisonment of 15 months, with a non-parole period of nine months. This is the index offending. In the transcript of that sentencing, His Honour Magistrate Walsh described the offending as follows:
The objective seriousness can be easily obtained from the agreed facts. On 6 December both the victim and the offender were working at a job site at Carlton. It seems at about 1pm on that day that the victim had noticed the offender and another man drinking on the job. I note that the offender says he has an alcohol problem. I am willing to accept that. The victim called the side safety advisor and reported the fact of the breach of the standard operating procedure on the employer.
The victim was on the phone when the offender approached the victim and punched him several times, causing the victim to fall to the ground. Whilst on the ground the offender has then kicked the victim at least five times. Other workers pulled the offender off the victim. I would assess the objective seriousness of the assault occasioning as significant. The person who was on the ground was offering no resistance it would seem and was in a position of vulnerability when kicked at least five times. As a result the victim sustained a small cut to his hand, a bruise to the upper left of his skull, a larger bruise behind the left ear, a headache and sore neck. He did not seek treatment is seems.
[Emphasis added]
The Applicant accepted his offending during the current proceedings.
The Applicant’s former employer between 2018 and 2022, Mr Tiaki Gray of Competent Scaffolding Pty Ltd, wrote a letter of support dated 8 February 2022. He was also made available to give oral evidence, and be subject to cross-examination, however he was not required. In his letter, Mr Gray expressed disappointment at Applicant’s offending on-site. He wrote:
We were both surprised and disappointed to learn about the physical altercation that occurred on site as we have never had a previous incident with his behaviour at work, we quickly went into damage control with the client to continue the contract. James came to see us personally that same afternoon to explain what had happened. Most companies would have perhaps terminated his employment contract but due to it being an isolated incident and his value to the business at the time, we decided to warn him against any further poor behaviour and to send him home to rest. He continued to apologise via text that evening and visibly looked ashamed the following days. Whilst we understand that he will now carry a criminal conviction, we would be willing to rehire James as a scaffolder and look forward to his release from his incarceration.[22]
[Emphasis added]
[22] Exhibit R2, G-Documents, G18, page 121.
In a letter to the Tribunal, the Applicant explained what he has learnt and what his goals are with respect to his reform and recovery. He concedes that methamphetamine has been a drug he has found difficult to leave behind.[23] However, he understands why drugs and alcohol were a huge part of his and “For too long have I let it control my actions and today I continue to strive for a better life one that’s drug-free.”
[23] Exhibit A2, Letter of James E Herewini, Reform and Recovery, page 5.
The Applicant submits that he achieves being drug-free through tools such as the Smart Recovery program. He also communicates with his partner, his family, and his children who “keep me accountable.”[24] He aims to stay drug-free to be a role model towards his other brother and his younger sister and eventually he would like to be a role model to troubled youth.
[24] Exhibit A2, Letter of James E Herewini, Reform and Recovery, page 6.
The Applicant submitted various documents before the Tribunal as evidence of his rehabilitation. These documents include the following:
(a)A ‘Setbacks Timeline” which outlines the factors that contributed to his assault charge in 2018, his driving charges, his contravention of charges in 2019 and his assault charge in 2020.
(b)A “5-year plan” that includes the Applicant’s milestones such as securing full-time employment, commencing university studies, and “continuing wholistic health focus – mind, body, and spirit”.[25]
(c)A “Weekly Schedule” which includes his daily schedule from Monday through to Saturday. In the Weekly Schedule it says the following:
Creating a schedule and committing to the routine is a critical task I’ve adopted. It provides me structure and helps maintain daily focus. Sundays are schedule free and focused on time outside and connecting with friends and family.[26]
(d)A “My Mental Healthcare plan” which includes his goals, his treatment, his success indicators, and updates on how is managing those goals.[27] The plan also includes the Applicant’s areas of concerns that impact his mental health and wellbeing.
(e)A “Risk Management Plan” which outlines hazards, a risk assessment of those hazards and how he controls the risks associated with those hazards.[28]
(f)A “Rehabilitation Plan” which includes his mental health awareness and treatment, new learning and new skills, training, and development.[29]
[25] Exhibit A2, 5 Year Plan 2023-2027.
[26] Exhibit A2, Weekly Schedule 2023.
[27] Exhibit A2, My Mental Healthcare Plan, page 1.
[28] Exhibit A2, Risk Management Plan.
[29] Exhibit A2, Rehabilitation Plan.
The Applicant has attended five psychological counselling sessions for anger management since 25 May 2023, and has further appointments scheduled.[30]
[30] Exhibit A2, Confirmation of Psychology Appointments.
A letter of the Applicant’s de-facto partner, Ms Marin, with whom the Applicant has been in a relationship with since 2018, was submitted as evidence before the Tribunal. She said the following:
One of the most fulfilling changes I’ve witnessed is his desire to plan. Whether it be, to discuss his Daily Schedule and plan it out or what he needs to do next week, I see a reformed man who sees the future. He has experienced the benefits of his plans to attend therapy, stay dedicated to his fitness plans, to complete formal education and to best prepare for the appeals. He secures self-satisfaction when he plans to do something, and he gets it done.
The letter goes on to say:
He wasn’t aware that his emotions and internal pain were in control and that he needed support. He also didn’t know he was traumatised and how that plays out in our lives when left untreated. I find it upsetting to read through all the interactions James has had with the law, the courts, police officers and so many in authority positions that never took him aside to explain the basis of law, of legal justice and the importance of representing. That he was not psychological assessed with a therapy plan attached to commence the work that would correct the adverse actions and behaviours.[31]
[31] Exhibit A2, Letter of Caroline Marin, page 2.
Ms Marin’s evidence is that she is deeply invested in the rehabilitation of the Applicant and in assisting him. Under cross-examination, Ms Marin also stated that she would reluctantly be unable to join the Applicant if he were returned to New Zealand as her parents and career are in Australia.
The Applicant was candid in evidence that he had issues with drug and alcohol abuse and previously untreated mental conditions. This is consistent with a report of his General Practitioner, Dr Mariana Spandini dos Santos, dated 10 February 2022, which identifies “a history of anxiety, depression and substance abuse, for which he has not been receiving any treatment”.[32]
[32] Exhibit R2, G-Documents, G19, page 124.
The Applicant’s evidence is also consistent with the report of the Applicant’s Psychologist, Dr Jacqui Yoxall, dated 13 August 2023. In section 8.4 of that unpaginated report, Dr Yoxall provided the following clinical formulation:
… it is my opinion that Mr Herewini has complex Posttraumatic Stress Disorder (cPTSD) as a consequence of the extreme and sustained abuse, neglect and trauma he experienced across his developmental years. He also has Substance Use Disorder (methamphetamine dependence – now in remission in remission in a controlled environment) and previously had Substance Use Disorder (cannabis dependence – which is now in remission), both of which commenced as a form of self-medication against the cPTSD.[33]
[33] Exhibit A3.
Applying the actuarial measure of the Violence Risk Appraisal Guide (VRAG), Dr Yoxall went on to find that find that approximately 55 per cent of offenders in the Applicant’s Risk Category went on to violently reoffend within an average of seven years after release. Dr Yoxall noted that “The key factors that elevate his risk of violence are relapse to substance misuse, and management of mental illness”.
Dr Yoxall also applied the Structured Clinical Judgment Measure (HCR-20) to the Applicant and his circumstances. His score of 16/40 “is generally considered to accord with moderate risk of violence”.
Of particular interest, Dr Yoxall administered the widely accepted Level of Service Inventory – Revised (LSI-R) to the Applicant. The Applicant’s score of 23 “indicates low to moderate risk of reoffending and a low to moderate level of rehabilitation needs”. The Tribunal notes that on 30 April 2020, Corrective Services NSW reported that the Applicant “has been assessed at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”.[34] Noting the Applicant’s “positive, cooperative and compliant behaviour” in detention, the Tribunal is satisfied that the Applicant’s risk of reoffending has receded between the two LSI-R results.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
[34] Exhibit R3, S-Documents, S91, page 274.
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 a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
In 2021, the Applicant was convicted of Assault occasioning actual bodily harm for a violent attack against the Victim. The Tribunal views this conduct as very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
There is no evidence before the Tribunal that the Applicant has committed offences of this nature. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[35]
[35] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
For the offence of Assault occasioning actual bodily harm, the Applicant was sentenced to a period of imprisonment of 15 months, with a non-parole period of nine months. The term of actual imprisonment reflects the objective seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s criminal history in Australia began in 2014 and has already been outlined. He incurred 10 driving charges within a two-day period during the COVID-19 pandemic lockdowns and restrictions. He submits that he incurred these charges through police stops when trying to get to Queensland to secure work and housing.
In 2020, the Applicant was convicted of various charges including Assault occasioning actual bodily harm (DV) and Common assault. In 2021, the Applicant was convicted of Assault occasioning actual bodily harm and imprisoned.
There is a trend of increasing seriousness with the Applicant’s offending.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s repeated offending is difficult to ascertain in an objective sense. Clearly, his repeated offending has been a burden on the community and on the limited financial resources of the Commonwealth and the States of New South Wales and Queensland. Beyond this observation, however, the cumulative effect of the Applicant’s repeated offending cannot be quantified on the evidence before the Tribunal.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
On a passenger card dated 17 June 2013, the Applicant failed to disclose his criminal history. He explained that Ms Kostka completed the form on his behalf as he was asleep on the flight. The Respondent submits,[36] and the Tribunal accepts, that the Applicant has not misled the Department. Accordingly, the Tribunal does not regard this consideration to be relevant.
[36] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 5 [24].
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Prior to his arrival in Australia, the Applicant had accumulated numerous criminal convictions in New Zealand of the type that are classified as offences in Australia.
The Tribunal does not consider that factors (b), (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) 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:
oinformation and evidence on the risk of the non-citizen re-offending; and
oevidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The Applicant concedes that his criminal history is related to his drug and alcohol addiction. This concession is clearly borne out in the various facts of his offending and the report of Dr Yoxall.
The Respondent has submitted that there remains a real likelihood that the Applicant will reoffend and that the risk of reoffending in a similar manner to his antecedents poses an unacceptable risk to the Australian community.[37]
[37] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 6 [34].
Based principally on the psychological evidence of Dr Yoxall, the Tribunal regards the Applicant as a having a moderate risk of reoffending. The evidence before the Tribunal suggests that the Applicant will reoffend if he resorts to drugs and alcohol to self-medicate his mental health conditions. Conversely, the evidence before the Tribunal also indicates that the Applicant now has insight into the causes of his offending and has been substantially aided in his rehabilitation by his pro-social relationship with Ms Marin.
In assessing whether the Applicant poses an unacceptable risk to the Australian community, if he is released back into it, the Tribunal places weight on the very serious nature of the index offending. The Tribunal also places weight on the upwards trending of the Applicant’s offending. However, the Tribunal balances this with the comparatively lengthy parole period that the Applicant received for the index offending.
Considering all the above holistically, the Tribunal is satisfied that there remains a real likelihood that the Applicant will reoffend but that the risk of reoffending in a similar manner to his antecedents does not pose an unacceptable risk to the Australian community. Placing weight on this, Primary Consideration 1 in its entirety weighs moderately against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Paragraph 4(1) of the Direction states that:
Member of the person’s family, for the purposes of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
This is not a complete definition and unfortunately the Act does not define ‘family’ in a convenient manner. The definition of ‘family’ contained in reg.5.43 of the Migration Regulations 1994 (Cth) (‘the Regulations’) only applies for the purposes of s.486B(7)(a) of the Act. Other terms such as ‘member of the family unit’ and ‘member of the immediate family’ defined in reg.1.03 and elsewhere are not instructive. The relevance of any jurisprudence from the fields of succession law and family law to define the term ‘family’ is not immediately clear.
The Respondent has relied upon ZXXZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2910, at [110]. In that matter, the Tribunal formed the view that ‘family’ was not confined to full-time co-habitants for the purposes of Direction 90 and that the definition of family violence should be cast broadly. This approach must be balanced with that taken in LEAU and Minister of Immigration, Citizenship, Migrant Services & Multicultural Affairs (Migration) [2021] AATA 3090. Nevertheless, both matters applied Direction 90 which did not include the wording of paragraph 4(1) of Direction 99. The precedent must therefore be treated cautiously.
Paragraph 4(1) and the issue of having, or having had, an ‘intimate personal relationship’ is the central test to whether Ms F is a member of the Applicant’s family for the purposes of these proceedings. Again, however, ‘intimate personal relationship’ is not defined within the Act. Consistent with the reasoning in LEAU and Minister of Immigration, Citizenship, Migrant Services & Multicultural Affairs (Migration) [2021] AATA 3090, at [66] the Tribunal is reluctant to take the step of uplifting definitions from other legislation into the Direction. However, the Tribunal may be guided by such definitions.
Under s 14 of the Domestic and Family Violence Protection Act 2012 (QLD), an ‘intimate personal relationship’ is:
(a)a spousal relationship; or
(b) an engagement relationship; or
(c) a couple relationship.
Section 11 of the Domestic and Family Violence Act 2007 (NT) is instructive. Under that Act:
(1)An intimate personal relationship exists between 2 persons if the persons are engaged to be married to each other, including a betrothal under cultural or religious tradition.
(2)In addition, an intimate personal relationship exists between 2 persons, whether or not the relationship involves a sexual relationship, if the persons date each other.
(3)In deciding whether an intimate personal relationship exists under subsection (2), the following may be taken into account:
(a) the circumstances of the relationship, including, for example, the level of trust and commitment;
(b) the length of time the relationship has existed;
(c) the frequency of contact between the persons;
(d) the level of intimacy between the persons.
(4)An intimate personal relationship may exist whether the 2 persons are the same or the opposite sex.
Section 11(1)(c) of the Family Violence Protection Act 2008 (VIC) does not define the term ‘intimate personal relationship’ but it has been interpreted at length in Reid v Victims of Crim Tribunal [2002] VCAT 373, at [7]-[17]. In that matter, Deputy President Levine made the following observations:
15. In my view the following matters (in most circumstances when two or more are combined) may lead to the view that there exists an intimate personal relationship:-
* ongoing sexual relationship
* ongoing emotional commitment and comfort and support of a personal nature
* ongoing sharing of confidences, intimacies and personal information
* ongoing advice of a personal nature
* ongoing sharing of financial information and plans
* ongoing sharing of social contacts and attendances at social functions
I am also of the view that here must be a mutuality in any of the above mentioned exchanges - not merely a one way flow.
16. Further, in my view the following may not (in the absence of other indicia) constitute an intimate personal relationship:-
* financial or other material support (although that may help qualify an applicant under section 11(1)(b) as a dependant as defined in section 3 VOCA Act)
* a sharing of residential property
* occasional contact personally or by correspondence or telephone for a period surrounding and at the relevant time (even if interspersed with bursts of frequent contact).
* meeting or sharing at times of family events including religious, ethnic or other holiday periods surrounding and at the relevant time.
17. Neither of the above lists are conclusive and merely point to matters that might be considered in any application. In the final analysis the question of what constitutes an intimate personal relationship will turn on the facts of each case.
[Emphasis added]
Considering these various definitions and indicia of an ‘intimate personal relationship’, the Tribunal is of the view that the final analysis of the question of what constitutes an intimate personal relationship will ultimately turn on the facts of each case.
In this matter, the delegate found that there was insufficient evidence to conclude that the Applicant had engaged in family violence. The delegate did not expressly consider the issue of whether the Applicant and Ms F had been in an intimate personal relationship,[38] presumably because the evidence of a sexual relationship given by the Applicant under cross-examination was previously unavailable.
[38] Exhibit R2, G-Documents, G5, Statement of Reasons for Decision under s501CA of the Migration Act 1958, page 27.
In its Statement of Facts, Issues and Contentions,[39] and in its closing address, the Respondent has submitted that the Applicant has committed family violence against Ms F within the meaning of Direction 99. The Tribunal is guarded with this submission.
[39] Exhibit R1, Statement of Facts, Issues and Contentions, page 7, paragraphs [36]-[41].
The evidence before the Tribunal is that Ms F was the sometime landlady of the Applicant, that they took drugs together, and that they had sexual relations over a limited period. They were obviously not married, or de-facto partners, or engaged, or family members in any cultural or religious sense.
The evidence does not support a finding that the Applicant and Ms F provided each other with emotional commitment or support, that they shared confidences or advice, that they shared financial plans, or attended social events together. Although they shared a residential property, this was transactional. Accordingly, there is insufficient evidence before the Tribunal to find that they were a couple in any mutual and ongoing sense.
In the final analysis, the facts before the Tribunal are insufficient to make a finding that the Applicant and Ms F were in an intimate personal relationship. Furthermore, the facts before the Tribunal also do not support a finding that the Applicant engaged in family violence within the meaning of Direction 99 for a breach of an AVO protecting Ms F as submitted by the Respondent.[40] Accordingly, this consideration is not enlivened and is not relevant.
[40] Exhibit R1, Statement of Facts, Issues and Contentions, page 7, paragraph [17]
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
It is incumbent on the Tribunal to consider any impact of its decision on the non-citizen’s immediate family members in Australia who are either:
(a)Australian citizens,
(b)Australian permanent residents; or
(c)people who have a right to remain in Australia indefinitely.[41]
[41] Direction 99, paragraph 8.3(1).
The Direction requires that more weight be given to the non-citizen’s ties to his or her child and/or children who meet the same qualifiers.[42]
[42] Direction 99, paragraph 8.3(2).
Paragraph 8.3(3) lacks clarity and seems to be a statement without any direction to the decision-maker:
8.3(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Although not expressly stated, the logical inference is that these factors must be considered.
Paragraph 8.3(4) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. When considering any other ties, the Tribunal must have regard to the length of time the non-citizen has resided in the Australian Community in accordance with the following weightings:
i. Considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. More weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. Less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Analysis – Allocation of Weight to this Primary Consideration 3
The evidence before the Tribunal is clear that the Applicant’s de-facto partner, Ms Marin, would be significantly impacted if the Applicant were returned to New Zealand. It would end their relationship,[43] and she would be heart broken.[44] It is not in dispute that Ms Marin is of a class of person contemplated by paragraph 8.3(1) of the Direction, and she may also be considered for the purposes of paragraph 8.3(3). Accordingly, the Tribunal places heavy weight on the potential impact on her if the Applicant is removed from Australia.
[43] Exhibit R2, G-Documents, G13, page 65; G15, pages 90-91.
[44] Exhibit A2, Letter of Caroline Marin dated 17 July 2023.
For completeness, the Applicant has named other family and friends that he says would be affected were he removed from Australia.[45] However, the evidence at the hearing was to the effect that the Applicant would seek to remove himself from his previous vocational (and therefore social) circles. Furthermore, the Applicant’s oral evidence was clear that he has minimal contact with his family and that Ms Marin was, in practice, his primary family. Therefore, the Tribunal places minimal weight on the impact on these family and friends if the Applicant is removed from Australia
[45] Exhibit R2, G-Documents, G15, page 90.
The Applicant did not spend his formative years in Australia, and he began offending soon after arriving in Australia. Nevertheless, the Applicant has an extensive and well-reported work history. His vocational contributions and his offending balance out each other for the purposes of paragraph 8.3(4) and this consideration weighs neutrally.
The balance of the evidence in considering Primary Consideration 3, particularly considering the evidence of Ms Marin, weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
In his written evidence to the Tribunal, the Applicant states he has two minor children for the purpose of this consideration. The Applicant’s two minor children reside permanently in Germany and therefore, are not relevant to this consideration. The Applicant listed various nieces and nephews as minor children for consideration. They all reside in New Zealand permanently and are also not relevant to this consideration. This consideration is therefore not relevant.
Conclusion: Primary Consideration 4
Primary Consideration 4 is not relevant.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. 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.[46]
[46] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
(a)The Applicant moved to Australia in 2011 and is now aged 40 years.
(b)The Applicant has minimal contact with his family in New Zealand.
(c)The Applicant has been with his de-facto partner since 2018, she resides in Australia and their relationship will end if he is removed to New Zealand.
(d)The Applicant has persistently engaged in criminal and other serious conduct both in New Zealand and Australia.
(e)The Applicant has been imprisoned for his offending.
The Applicant’s criminal offending shows his preparedness to commit crime and engage in serious conduct and is a reflection of his character. On balance, this consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) Legal consequences of the decision
The Direction divides the considerations to be applied into two sections: (1) ‘Non-citizens covered by a protection finding’, and (2) ‘Non-citizens not covered by a protection finding’.
The Applicant has not raised any claims based on non-refoulment obligations and no such claim arises on the evidence before the Tribunal. Accordingly, this Other Consideration is not relevant.
(b) Extent of impediments if removed
As a guide for making the decision, 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.
The Applicant is aged 40 years, turning 41 in July 2024. He is in relatively good physical health notwithstanding that he suffers from mental health conditions.
There is no evidence to suggest that the Applicant would suffer any language or cultural barriers if he were returned to New Zealand. Similarly, the evidence suggests that the Applicant is widely employable and that he would be able to economically sustain himself in New Zealand.
The Applicant is in a pro-social de-facto relationship and has minimal connection with his remaining family in New Zealand, some of whom are gang members. He is undergoing rehabilitation in Australia and, although similar rehabilitation may be available in New Zealand, the Applicant would lack the crucial support of Ms Marin were he returned there. As Dr Yoxall’s evidence reveals, there is a real risk that if the Applicant fails with his rehabilitation that he will reoffend, and the Tribunal is satisfied that the Applicant will more likely than not fail with his rehabilitation if he is not supported by Ms Marin.
Accordingly, this Other Consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration 9.3(1) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims. Accordingly, the Tribunal does not regard this consideration to be relevant.
(d) Impact on Australian business interests
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 or s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on the impact of Australian business interests. Accordingly, the Tribunal does not regard this consideration to be relevant.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision are not relevant.
(b)extent of impediments if removed weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
(c)impact on victims is not relevant.
(d)impact on Australian business interests is not relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant’s visa.
(b)Primary Consideration 2 is not relevant.
(c)Primary Consideration 3 weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
(d)Primary Consideration 4 is not relevant.
(e)Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
(f)The weight attributable to the four-listed Other Considerations as summarised above.
Weighing each of the individual Primary Considerations and Other Considerations against each other is not a rigid task where those considerations are evaluated in isolation of each other to give a quantitative result. On the contrary, it is the duty of the Tribunal to undertake a proper evaluation of whether there is indeed “another reason” why the Applicant’s visa cancellation should not be revoked.[47] To that end, the Applicant places weight on the Applicant’s strength, nature and duration of ties to Australia and also the extent of impediments if he is removed. These considerations outweigh all other considerations.
[47] CRNL v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 138, at [44].
Consequently, the Tribunal is satisfied that the evidence before it weighs in favour of revocation of the cancellation of the Applicant’s visa. Accordingly, the correct and preferable decision is to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets-aside the reviewable decision made by the delegate of the Respondent dated 13 June 2023 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth).
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Associate
Date of Decision: 4 September 2023 Date of Hearing: 16 August 2023 Representation for the Applicant: Self-represented
Solicitor for the Respondent: Ms G Gutmann
Minter EllisonANNEXURE A
129. EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions.
R
31/7/2023
31/7/2023
16/8/2023
A1
Applicant’s Updated Issues and Contentions
A
Undated
13/8/2023
R2
Section 501 G-Documents
R
Various
26/6/2023
R3
Respondent’s Supplementary Documents
R
Various
31/7/2023
A2
Bundle of Documents
· Letter of James E Herewini (17/7/2023)
· Letter of Caroline Marin (17/7/2023)
· Risk Management Plan (2023)
· My Mental Healthcare (2023-2027)
· Mental Healthcare Plan Summary
· Rehabilitation Program (2023)
· Risk Management Plan (2023)
· Current Daily/Weekly Schedule (2023)
· 5 Year Plan (2023-2027)
· Setbacks Timeline
· Invoice for Online Psychologist (9/6/2023)
· Invoice for Online Psychologist (23/6/2023)
· Tax Invoice AAT (16/6/2023)
· Invoice of Yoxall Pty Ltd (15/5/2023)
· Letter of Dr Yoxall (18/7/2023)
· Confirmation of Psychologist Appointments (10/7/2023)
A
Various
21/7/2023
A3
Bundle of Documents
· Letter to the AAT of James E Herewini (13/8/2023)
· Anger Management Letter (11/8/2023)
· Group Therapy Attendance Sheets
· Report of Dr Yoxall (13/8/2023)
· Completion of Certificate of Domestic Violence
· Certificate of Community Development (2/8/2023)
A
Various
13/8/2023
0
10
0