Hill and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 2537
•14 July 2022
Hill and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2537 (14 July 2022)
Division:GENERAL DIVISION
File Number 2022/3577
Re:Steven Hill
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member George
Date of Decision: 14 July 2022
Date of Written Reasons: 4 August 2022
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 21 April 2022 that the mandatory cancellation of the Applicant’s Class BC Subclass 100 Spouse (Permanent) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
[sgnd]
Senior Member George
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BC Subclass 100 Spouse (Permanent) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Home Affairs v Buadromo [2018] FCAFC 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
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 George
4 August 2022
INTRODUCTION AND BACKGROUND
Mr Steven Hill (“the Applicant”) is a citizen of the United Kingdom of Great Britain and Northern Ireland (“the UK”).[1] He arrived in Australia in 1993, aged 18 years, where he has substantially lived since.[2]
[1] Exhibit R2, s 501 G-Documents, page 46.
[2] Exhibit R2, s 501 G-Documents, page 121.
The Applicant was granted a Class BC Subclass 100 Spouse (Permanent) visa on 14 October 2003 until it was mandatorily cancelled on 21 September 2021 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[3]
[3] Exhibit R2, s 501 G-Documents, page 122.
In a declaration dated 11 October 2021, the Applicant made written submissions to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 21 April 2022, the Respondent decided not to revoke the cancellation of the Applicant’s visa.[5]
[4] Exhibit R2, s 501 G-Documents, pages 40-44.
[5] Exhibit R2, s 501 G-Documents, pages 152-162.
On 26 April 2022, the Applicant lodged an application for review of the 21 April 2022 decision before the Tribunal.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit R2, s 501 G-Documents, pages 1-6.
The hearing was initially listed for 6 and 7 July 2022. Due to the late provision of a portion of the Applicant’s material to the Respondent, a directions hearing was held prior to the commencement of the hearing on 6 July 2022. The hearing of 6 and 7 July was vacated and relisted for 11 and 12 July 2022. On 11 and 12 July, the hearing proceeded by audio-visual means. The Applicant was self-represented and the Respondent was represented by Mr Ellison of the Australian Government Solicitor.
The Applicant gave evidence at the hearing, as did his son Mr “BH”, his former partner Ms “HH”, and colleague Mr “LT”. Another colleague, Mr “SL”, was unavailable.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that the Minister may revoke the original decision under s 501(3A) if:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, the issue in this matter is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised if either of s 501CA(4)(b)(i) or s 501CA(4)(b)(ii) of the Act are met.[7]
[7] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), 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), 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 20 September 2005, the Applicant was convicted of several offences in the Magistrates Court of South Australia at Berri. Materially, this included a conviction for the offence of “Drive under disqualification or suspension” for which the Applicant was sentenced to 15 months imprisonment. A non-parole period of 12 months was imposed. The sentence was suspended upon the Applicant entering into a bond in his own recognizance in the sum of $300 to be of good behaviour for a period of two years.[8] The sentence was upheld by in Police v Hill [2005] SASC 458.[9]
[8] Exhibit R2, s 501 G-Documents, page 23.
[9] Exhibit R4.
The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[10]
[10] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens 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 is 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 measurable 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)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 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 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 four 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 best interests of minor children in Australia; and
(4) expectations of the Australian community.
Paragraph 9 of the Direction sets out the Other Considerations which must be taken into account. These considerations are:
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims; and
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia; and
ii) 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 Wales in the UK in August 1975 and, as at the date of this decision, he is aged 46 years and 11 months. He arrived in Australia aged 18 years.[11]
[11] Exhibit R2, s 501 G-Documents, page 121.
The Applicant has a long work history in the building industry as a plasterer and concreter and aspires to return to those roles.[12] The Applicant’s evidence is that “I took a bit of time off when I was building my house to start with, when I broke my neck too I had a bit of time off”.[13] The Applicant’s eldest son, Mr BH, regards the house as a “beautiful home”.[14]
[12] Transcript, page 49, lines 23-37.
[13] Transcript, page 49, lines 40-43.
[14] Exhibit A3, page 14.
The Applicant describes himself as a “very skilled tradesman”,[15] which was corroborated by a colleague Mr LT who gave evidence of the Applicant’s work:
He’s done brickwork like even bricklayers can’t do and carpentry like I’ve never seen. He was doing everything: tiling; concreting; plastering; laying bricks; roofing; guttering - you name it. He’s really talented and it would be a real loss if we lose him.[16]
[15] Transcript, page 89, line 21.
[16] Transcript, page 65, lines 5-9.
Colleague Mr SL regards the Applicant as “a very honest hardworking bloke”,[17] which is a sentiment echoed by a former employer, Mr BH. Mr BH would employ the Applicant again as a concreter and as a plasterer “should he be released back into the community as he is an expert in his field”.[18]
[17] Exhibit A3, page 14.
[18] Exhibit A3, page 13.
When the Applicant moved to Australia, he left behind him an unhappy childhood in the UK. The Applicant has “trouble reading”,[19] or literacy challenges, but to use his words:
When I was very young I lost my mother, my farther used to drink a lot, at the age of 14 I was beaten and kicked out from home. I was put in to boy’s home and I got sexually abused by bullies. Since I never been closed my father since then.
When I was 18 I left UK to ger away from my past and start a new life, I never had a chance to address what I was going through. I was struggling with these tauma. But in the past few weeks I was able to talk to the phycologist after all these years. I find peaceful.[20]
[19] Transcript, page 48, line 2.
[20] Exhibit A1, page 1.
The Applicant has not spoken with his father for years and he is not close to his two surviving brothers.[21] The Applicant’s “favourite” brother passed away from emphysema following a difficult period where he suffered schizophrenia.[22]
[21] Transcript, page 48, lines 1-6.
[22] Exhibit A1, page 1.
An effect of the Applicant’s mother passing away is that he “can’t handle stress”.[23] Attempts to cope with stress have caused the Applicant to use alcohol and drugs. The Applicant has been using marijuana since his mother passed away in 1987.[24] The Applicant started drinking heavily in 2005, after his favourite brother became sick.[25] The Applicant was using ‘ice’, being methamphetamine, from October 2020.[26] He was doing so “Every couple of days, every day, sometimes every day”.[27] Under cross-examination, the Applicant said:
I mess up now and again and I can’t help that. Pretty much it’s all to do with my past and if any stress in my life, I can’t handle it and I go and have a drink. Like I never had any coping mechanisms to cope with stress, all that, in my life.[28]
[23] Transcript, page 15, lines 13-14.
[24] Transcript, page 21, lines 13-15.
[25] Transcript, page 21, lines 7-11.
[26] Transcript, page 34, line 18.
[27] Transcript, page 34, lines 31-32.
[28] Transcript, page 40, lines 19-22.
The Applicant married Ms HH after arriving in Australia and had four children. Three of those children, including Mr BH, are adults and one, Master JH, is a minor. Ms HH and Master JH are currently protected by a full non-contact Domestic Violence Order (“DVO”).[29] The Applicant and Ms HH were married for 23 years and have been separated for two years.[30]
[29] Exhibit R3, pages 64-65; Transcript, page 54, lines 16-17; page 74, line 38.
[30] Exhibit A2.
The Applicant’s evidence is that “I am a really good father when I’m not taking drugs or under the influence of alcohol”.[31] Ms HH’s evidence concurred with this, saying:
I would just like to add that having been married for so many years I was aware that Steven had mental health issues I’d say relating to his childhood. His way of dealing with those was to use drugs and alcohol to an extent where it would change his personality completely. However, when he refrained from taking alcohol and drugs he was a very good husband and a very good father.[32]
[31] Transcript, page 40, lines 16-17.
[32] Transcript, page 76, lines 19-24.
In her statement, Ms HH gave her opinion that, “If Steven continues with his rehabilitation & mental health counselling he poses no threat to the community” and that the “decision to deport Steven is too harsh and unfair”.[33] The opinions of the Applicant’s three estranged children are unknown to the Tribunal, but the Tribunal has the benefit of Mr BH’s evidence that is to the effect that the Applicant is a hardworking and loving father. Indeed, Mr BH would like the Applicant to reside with him, drug and alcohol free,[34] and shortly become a grandfather.[35]
[33] Exhibit A2.
[34] Transcript, page 62, lines 1-2.
[35] Exhibit A3, page 14; Transcript, page 60, lines 1-6.
The Applicant has a criminal history dating back to 2001, most of which was dealt with by the Magistrates Court of South Australia at Berri as follows below.
On 5 January 2004, aged 28 years, the Applicant was convicted and fined for several driving offences including “Drive with excess blood alcohol”. The Applicant’s driver’s license was disqualified for nine months.[36]
[36] Exhibit R2, s 501 G-Documents, page 23.
On 17 February 2005, aged 29 years, the Applicant was again convicted and fined for the offence of “Drive with excess blood alcohol”. The Applicant’s driver’s license was disqualified for 12 months. The Applicant was also convicted and sentenced to one month imprisonment for “Drive under disqualification or suspension”. This sentence was suspended for a period of 18 months. The Applicant breached this bond on 20 August 2005 and it was extended for six months.[37]
[37] Ibid.
On 20 September 2005, aged 30 years, the Applicant was convicted of several further driving offences. This included “Drive under disqualification or suspension” where the Applicant received a sentence of 15 months imprisonment with a non-parole period of 12 months. He entered into a suspended sentence bond for two years.[38] In sentencing the Applicant, Her Honour Magistrate Hayes, stated clearly:
With some hesitation I am not going to order an immediate custodial sentence upon you, but you had better understand right now that if you so much as look at driving disqualified again you will go straight to gaol and each of the files is going to be endorsed with the fact that you have been given that warning.[39]
[Emphasis added]
[38] Ibid.
[39] Exhibit R2, s 501 G-Documents, page 25.
These facts of the case were:
[3] On 17 September first, you had an argument with your wife and decided to remove yourself from the premises and were driving to stay at your boss’ house. You were speeding, failed to stop when the police officer indicated you should stop and it was subsequently ascertained that you were disqualified.
[4] That having happened you then drove again; this time you drove from your home in Thiele Road to the police station to report your wife’s purse had been stolen. You were spoken to by a police officer who saw you driving when you were in the vehicle at the Woolworth’s car park. You failed to truthfully answer his questions. You were then arrested, bailed and I am told, you were warned not to drive. Then, probably to the astonishment of the watching police officer, you walked across the road, got into your car and drove along Vaughn Terrace. Again you were arrested and refused bail, which gave you some time in the cells.[40]
[Emphasis added]
[40] Exhibit R2, s 501 G-Documents, page 25.
The police appealed Her Honour’s sentence and the appeal was heard by The Honourable Justice Debelle in Police v Hill [2005] SASC 458. While dismissing the appeal, His Honour provided greater clarity as to the circumstances of the offending:
I turn to the circumstances of the offending. As is apparent, the respondent had committed the offence of driving whilst disqualified on three separate occasions on 17 September. At about 12.46 am on 17 September police attempted to stop a station wagon travelling on the Sturt Highway for the purposes of conducting a random breath test. The police vehicle approached the station wagon from behind. The driver of the station wagon accelerated to a speed of approximately 150 km/h in what was a 110 km/h zone. The police activated emergency lights and sirens to stop the vehicle. The driver continued driving for about 1.4 kilometres. The station wagon was eventually stopped. The driver got out from the vehicle and walked towards the police vehicle but then turned and ran into a paddock jumping fences to avoid police. After a search of the area police were unable to locate the driver. However, inquiries established that the respondent was, in fact, the driver on this occasion.
Later, at about 7.50 am the respondent went to the Berri Police Station to report that his wife’s purse had been stolen. The police officers on duty were aware of the incident earlier that morning and that the respondent was the person alleged to have been involved. The police asked the respondent how it was that he had got to the police station. The respondent replied that his mother-in-law had driven him and had dropped him at the police station. The respondent’s mother-in-law denied that assertion. When further questioned, the respondent said that his wife had planted the vehicle there to set him up. Police later established that the respondent had driven the vehicle to the police station himself. These dishonest answers constitute the offence of failing to truly answer questions.
The respondent was then arrested for a second offence of driving whilst disqualified and was bailed with a warning by police not to drive again. After he had been released on bail and after he had been warned of the consequences of driving whilst disqualified, the respondent left the police station, crossed to the Woolworths car park, got into the station wagon and drove it away. He was seen by police to do so. Police were not able to stop the vehicle. This was the third offence of driving whilst disqualified. He was later arrested and, as I have mentioned earlier, was refused police bail. [41]
[Emphasis added]
[41] Exhibit R4, paragraph [16]-[18].
It is clear from the circumstances of offending as outlined in the Magistrates Court in first instance, and in the Supreme Court upon appeal, that the Applicant was suffering the effects of alcohol abuse by 2005 and that his relationship with Ms HH was strained. Indeed, the allegation to police that Ms HH had “planted the vehicle” to “set up”[42] the Applicant may seem fanciful but is also concerning considering subsequent domestic violence perpetrated against Ms HH.
[42] ibid.
On 16 January 2007, aged 31 years, the Applicant was convicted of the offence of “Aggravated assault with weapon against own child or spouse”.[43] He was sentenced to a period of two months imprisonment, suspended for 18 months.[44] Ms HH was the victim. Although the sentencing remarks are not available to the Tribunal, the facts may be summarised that the Applicant had been drinking alcohol and taking Valium. After arguing all day, Ms HH grabbed the Applicant around the neck and pushed him. The Applicant then burnt Ms HH with a cigarette, pushed her to the ground, and banged her head on the ground.[45] The Applicant’s recollection of that night is “pretty much a blank to me except little bits”.[46]
[43] Exhibit R2, s 501 G-Documents, page 23.
[44] Ibid.
[45] Exhibit R3, page 36.
[46] Transcript, page 26, lines 26-27.
Afterwards, Ms HH moved interstate for “roughly a year” before moving home “To give him another chance”.[47] In June 2008, the Applicant reported that he was abstaining from alcohol and drugs.[48]
[47] Transcript, page 81, lines 29-35.
[48] Exhibit R3, page 234.
On 18 July 2018, aged 42 years, the Applicant was again convicted and fined for the offence of “Drive with excess blood alcohol”. His license was disqualified for four months and six days.[49] Although the Tribunal does not have the sentencing remarks before it, the Applicant had driven his vehicle into a tree whilst intoxicated and it caught alight. Ms HH also applied for, and received, a DVO. Relating to the Applicant’s conduct, the Police Apprehension Report states that:
[Ms HH] cannot put up with his drinking and drug use anymore as he is becoming too unpredictable and erratic. [Ms HH] states he is always verbally abusing her and he is very unstable. She states that in the past month he has been very moody and will snap and become very angry and paranoid over nothing.
[Ms HH] fears for her safety and that of the children however she is aware that they would still like to see their father.[50]
[Emphasis added]
[49] Exhibit R2, s 501 G-Documents, page 23.
[50] Exhibit R3, page 47.
The Applicant breached the DVO on 8 October 2020 by assaulting Ms HH.[51] In between that event and his sentencing, on 18 May 2021, aged 45 years, the Applicant was again convicted of the offence of “Drive under disqualification or suspension” and sentenced to a term of 13 days imprisonment. He was also convicted and discharged with penalty for “Possess prescription drug (not being drug of dependence)”, contravening the DVO, and failure to comply with a bail agreement.[52]
[51] Exhibit R2, s 501 G-Documents, page 29.
[52] Exhibit R2, s 501 G-Documents, page 23.
On 15 July 2021, aged 45 years, the Applicant was convicted and sentenced to a period of four months imprisonment for the 8 October 2020 offences. These included two counts of “Agg-commit assault-against own child/spouse-no weapon”, again contravening the DVO, and failure to comply with a bail agreement. In sentencing, Her Honour Magistrate Deland remarked:
You have now heard what your wife has had to say in the victim impact statement. No matter what view you may hold it is quite plain she at this stage feels very traumatised by what has happened. I note this has been a long-term relationship and it would appear the more recent issues have been because of your drug and alcohol abuse. I note you have four children. It is particularly concerning to me that the assaults to which you have pleaded guilty occurred whilst two of your children were present and one of them tried to intervene, so this would have been extremely distressing not only to your wife but also to those children who were present.
I note as far as the assaults are concerned you have pleaded guilty to those charges. The first involved striking her with a handbag and the second with a shoe. It is not clear to me exactly how long the incidents took but it would appear to have gone on for quite some period of time. After that you have sent text messages her and you have breached your bail. I note the messages themselves are not threatening but again she went to the police, she was obviously upset by what was going on.[53]
[Emphasis added]
[53] Exhibit R2, s 501 G-Documents, page 27.
On the Applicant’s evidence, Ms HH “was like punching me in my private parts, punching me in my neck, and that’s when it happened”.[54] The Applicant did not believe that the incident would have been extremely distressing for the children.[55] The Applicant said that one of his children tried intervened on Ms HH behalf:
There was nothing violent, I was trying to apologise at that time, and he’s like basically telling me to get away from mum.[56]
[54] Transcript, page 37, lines 7-8.
[55] Transcript, page 36, line 44.
[56] Transcript, page 36, lines 37-39.
The Applicant’s account is not supported by the sentencing remarks. It is also contrary to Ms HH’s evidence given whilst under cross-examination.
After giving evidence that the Applicant “became ridiculously violent” and telling the children “to go up to the shed” where they called the police,[57] Ms HH said that the Applicant attacked her. Her account of this attack is broadly consistent with Her Honour’s sentencing remarks. Ms HH was then cross-examined as follows:
[57] Transcript, page 83, lines 6-11.
Mr Ellison: Did you at any time throw the shoe at Mr Hill?
Ms HH: No, I did not.
Mr Ellison: Did you attack him in the private parts?
Ms HH: No, I did not.
Mr Ellison: Did you attack his neck?
Ms HH: No.
Mr Ellison: Did you spit on him?
Ms HH:No, I didn’t do anything because I was actually petrified of him because he - as I said to you before, his - with ice he was a complete stranger. There was no part of Steven there at all.
Mr Ellison: And just - - -?
Ms HH:Whether that be through the drug itself or the fact that he hadn’t slept properly for who knows how many days, I don’t know, but I’d had enough. I was also at the time looking after my mother who was dying of a brain tumour, and working, and dealing with, you know, his irrational behaviour, and I just had enough and got the boys to call the police.
Mr Ellison:Now, the records we have say that two children were present during this incident?
Ms HH: They were.
Mr Ellison: Yes. And who - - -?
Ms HH: Pardon?
Mr Ellison: Who were the two children who were present?
Ms HH: [Names of two children redacted].
Mr Ellison:And did they observe Mr Hill striking you with a shoe and a handbag?
Ms HH:Yes. They - I’m not sure about the handbag because I was in bedroom, but the shoe, yes, and when it escalated to that point, that’s when I told them to go up the shed and to call the police.[58]
[58] Transcript, page 83.
The Tribunal notes that the two children present were minors at the time.
Finally, on 30 August 2021, aged 46 years, at the Magistrates Court sitting in Port Adelaide, the Applicant was again convicted and fined for the offence of “Drive with excess blood alcohol”. He received a further driver’s licence disqualification of six months.[59]
[59] Exhibit R2, s 501 G-Documents, page 22.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, 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.
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.
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. The Tribunal will now turn to addressing these considerations.
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 2007 and again in 2021, the Applicant was convicted for violent offences against Ms HH. The 2021 conviction is especially concerning as it occurred in the presence of two children, one of whom remains a minor as at the date of this decision. The Applicant has also breached his DVOs on several occasions.
The Applicant’s offending is viewed very seriously by the Tribunal.
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;
(i) 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));
(ii) 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 any acts that are contemplated above. Therefore, the Tribunal does not regard this factor 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 reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[60]
[60] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant was sentenced to two separate terms of imprisonment in 2005, both of which were suspended. He was sentenced to a term of imprisonment in 2007, which was also suspended. The Applicant was sentenced to two terms of actual imprisonment in 2021, which indicates the objective seriousness of his 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 conviction for aggravated assault against Ms HH in 2021, for which he was sentenced to four months imprisonment, was objectively more serious than his conviction for his assault against Ms HH in 2007, for which he received a suspended sentence of 18 months imprisonment. This is so despite the 2007 offending involving a weapon. The Tribunal notes that the 2021 convictions also included breaches of a DVO and bail. Indeed, the Tribunal accepts Ms HH’s evidence that she thought that the Applicant was “ridiculously violent” on this later occasion,[61] probably due to his methamphetamine use.
[61] Transcript, page 83, lines 6-11.
The Applicant’s driving offences peaked in seriousness when he was sentenced to a suspended period of 15 months imprisonment in 2005. From September 2005 to July 2018, the Applicant was not convicted of any driving offences. However, from then he has again driven whilst disqualified and with excess blood alcohol.
Considering the material before it, the Tribunal is satisfied that the Applicant’s violent offending has escalated in seriousness. However, the Tribunal notes that Applicant’s driving offences overall trended down in seriousness since his conviction in 2005.
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 Applicant’s offending against his family, and Ms HH in particular, has been violent. it has been drug and alcohol fuelled. The Tribunal infers that the reason the Applicant is estranged from three of his four children is because they fear him when he is in an intoxicated state. The basis for this inference is the actions of the Applicant’s children in calling the police, and intervening, when the Applicant most recently offended against Ms HH.
Her Honour Magistrate Deland remarked of Ms HH that, “it is quite plain she at this stage feels very traumatised by what has happened”.[62] The Tribunal infers that the cumulative effect of the Applicant’s repeated offending has had a similar effect on his three estranged children.
[62] Exhibit R2, s 501 G-Documents, page 27.
Regarding the Applicant’s driving offences, these represent an accumulation of danger to other road users and bystanders over the course of many years.
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.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not regard this factor to be relevant.
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. On the contrary, the Applicant’s submission is that:
I have never in my wildest dreams thought I would lose my visa and be sent home because I have a partner visa, got married and have four kids. In my wildest dreams, I never thought I would be sent home.[63]
[63] Transcript, page 90, lines 31-34.
Therefore, the Tribunal does not regard this factor to be relevant.
The Tribunal does not consider factors (b), (f) or (g) of paragraph 8.1.1(1) of the Direction applies 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:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since 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 stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Respondent has submitted that the Applicant’s offending has occurred in two significant periods, being 2004 to 2006 and 2018 to 2021.[64] Indeed after 2006:
The Tribunal has seen the evidence that then there was a significant period where the applicant was able to lead a law abiding life, and then then the second period where everything unravelled was from the middle of 2018 onwards.[65]
[64] Exhibit R1, page 6, paragraph [28].
[65] Transcript, page 95, lines 1-4.
This Applicant’s closing submissions do not contradict the Respondent’s in this regard, whilst the Applicant is candid that he has “made lots of mistakes with drinking and alcohol”.[66] Noting these submissions, and placing weight on the Applicant’s violence against Ms HH, the Tribunal is satisfied that the nature of the Applicant’s offending to date is very serious.
[66] Transcript, page 88, lines 42-43.
Likelihood of engaging in further criminal or other serious conduct
The Respondent has submitted that “The applicant’s prospects of re-offending must be in the moderate to high range”.[67] The is no objective or clinical evidence underpinning this assessment, but there is weight to the Respondent’s submission that:
The evidence really establishes that when he is not abusing alcohol and drugs, whether they be prescription or illicit drugs, he has been able to lead a law abiding life. When he’s abused those substances he hasn’t been able to.[68]
[67] Exhibit R1, page 6, paragraph [32].
[68] Transcript, page 96, lines 8-11.
This is submission is consistent with the statement of Ms HH.[69] It may also be inferred from the evidence of Mr BH and his reluctance to allow his father access to alcohol or drugs.[70] It is also consistent with the Applicant’s evidence that “I am never going to do drugs ever in the future because it has ruined my life”.[71]
[69] Exhibit A2.
[70] Transcript, page 61, lines 45-46.
[71] Exhibit A1, page 2.
The evidence establishes that the Applicant is remorseful.[72] He has completed courses in anger management and drug and alcohol abuse.[73] The Applicant has undertaken limited counselling,[74] but is motivated to break the cycle of drug and alcohol abuse through further treatment.[75] He seeks to live with Mr BH and his family in a pro-social and drug and alcohol-free household. He is assured of employment.
[72] Transcript, page 97, line 12.
[73] Exhibit A3, pages 18-19.
[74] Exhibit A3, pages 16-17.
[75] Exhibit A3, page 120.
The Tribunal places weight on the evidence of Ms HH, where she wrote that “If Steven continues with his rehabilitation & mental health counselling he poses no threat to the community”.[76] The operative word is “if”. Under cross-examination, Ms HH also said “He didn’t drink for quite a long time, but then it slowly started again, which is a pattern”.[77] The Applicant is particularly vulnerable to recidivism during periods of stress and, to use his words, “I mess up now and again and I can’t help that”.[78] The Tribunal accepts the Respondent’s submission that it should be guarded about the Applicant’s prospects of rehabilitation.[79]
[76] Exhibit A2.
[77] Transcript, page 81, lines 40-41.
[78] Transcript, page 40, line 19.
[79] Exhibit R1, page 6, paragraph [33].
Considering all the material before it, the Tribunal regards the Applicant as possessing a likelihood of engaging in further criminal or other serious conduct if released into the Australian community. Given the very serious nature of the Applicant’s antecedents, the Tribunal regards this likelihood as unacceptable
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant’s family violence offending has been considered in Primary Consideration 1, which it is unnecessary to repeat in full. This includes the Tribunal’s view that there has been a trend of increasing seriousness of family violence, particularly when the breaches of DVOs and bail undertaking are considered. Her Honour Magistrate Deland remarked that Ms HH has been traumatised by the Applicant and the Tribunal has inferred that the cumulative effect of the Applicant’s repeated offending has had a similar effect on his three estranged children.
The Tribunal has noted the Applicant’s remorse but expresses concern about his evidence that Ms HH attacked him during the incident that led to his 2021 conviction. Similarly, the Tribunal is concerned that the Applicant would not have thought that the incident would have been extremely distressing for the children. This indicates that the Applicant does not fully understand the impact of his methamphetamine fuelled violent abuse on Ms HH, or on the children who have witnessed the abuse.
The Tribunal notes that, since his incarceration following his 2021 conviction, the Applicant has tried to formally address his drug and alcohol abuse that have heavily contributed to his criminal conduct. Nevertheless, this only occurred after numerous warnings by Courts regarding his offending. Indeed, Her Honour Magistrate Hayes could not have been clearer when she remarked that “you had better understand right now that if you so much as look at driving disqualified again you will go straight to gaol”.[80] Yet, the Applicant was convicted for doing so again in 2021 whilst also breaching a DVO and his bail agreement.
[80] Exhibit R2, s 501 G-Documents, page 25.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision being made. The latter provides that 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.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has one minor child, Master JH, aged 15 years. The Applicant is estranged with Master JH, who is protected by a full non-contact DVO “as he is scared of his father”.[81] The evidence before the Tribunal is that Master JH has been exposed to family violence perpetrated by the Applicant, which would have caused him distress and trauma.
[81] Exhibit R3, page 178.
Master JH resides with Ms HH and the Applicant does not currently play a parental role, although he has previously been a positive influence on Master JH.[82] The Applicant has written:
I’m currently working with my family lawyer to ensure my relationship with [Master JH] can get on track after the difficulties I have had with his mother. I will be there for him whenever he needs me. He is my son, and he needs father in his life. Without me, he doesn’t have a father figure. There is no one who will be able to provide for him financially, like I want to.[83]
[82] Exhibit R2, s 501 G-Documents, pages 106-109.
[83] Exhibit R3, page 104, paragraph [47].
The Tribunal did not hear from Master JH, but Ms HH says that he does not wish to have a relationship with the Applicant “at the moment” due to the Applicant’s alcohol and drug use.[84]
Conclusion: Primary Consideration 3
[84] Transcript, page 85, lines 11-21.
Primary Consideration 3 has limited weight in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I 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 8.4(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 8.4(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 8.4(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 8.4(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.[85]
[85] 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 8.4 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 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant moved Australia when he was 18 years old and is now aged 46 years.
(b)The Applicant remains close with his son, Mr BH, and intends to live with him in a loving family environment.
(c)The Applicant has maintained employment whilst not imprisoned or detained.
(d)The Applicant has committed violent offences against a woman in an act of family violence, doing so one the most recent occasion whilst minor children were present.
(e)The Applicant’s family violence offences have escalated in seriousness and are very serious.
(f)The Applicant’s preparedness to commit crimes, including repeated driving offences, raises serious concerns about his character.
The Applicant has engaged in serious criminal conduct. The Applicant’s conduct raises serious character concerns.
Conclusion: Primary Consideration 4
Primary Consideration 4 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 of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations.
The Tribunal is not satisfied that a claim with respect to Australia’s non-refoulement obligations arises on the evidence. This Other Consideration is therefore not relevant to the determination of this application.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, 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.
Having regard to the abovementioned matters, the Applicant is aged 46 years and the evidence before the Tribunal does not support the making of strong findings regarding:
(a)physical ill health, beyond that the Applicant has previously broken his neck but is not receiving ongoing treatment and is able to work;
(b)substantial language or cultural barriers if removed to the UK; or
(c)any lesser social, medical and/or economic support available to the Applicant in the UK that he would otherwise be able to access in Australia. In making this finding, the Tribunal accepts that the Applicant’s employment prospects are better in Australia than they are in the UK.[86]
[86] Transcript, page 90, lines 34-36.
Considering the evidence before the Tribunal, the extent of impediments if removed carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The evidence establishes that Ms HH and the Applicant’s estranged children have been distressed and traumatised by the Applicant’s violent offending against his family.
The Tribunal does not know the views of the Applicant’s estranged children regarding their father’s future; however, Ms HH believes that “the decision to deport Steven is too harsh and unfair”. Mr BH also does not want to see the Applicant deported.[87] Given these sentiments by Ms HH and Mr BH go to the strength nature and duration of the Applicant’s ties to Australia, rather than the impact on victims, this Other Consideration (c) is neutral.
[87] Exhibit A3, page 114.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family member in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In so doing, the Tribunal has noted the Applicant’s extensive family ties to Australia.
The Tribunal has considered that the Applicant has lived continuously in Australia since 1993. The Applicant has four children in Australia, albeit he is estranged from three of them. He is soon to become a grandfather.
The Applicant has made valuable vocational contributions during that time and is well-liked by his colleagues. Although he has been a productive and helpful member of the community,[88] the Tribunal balances these contributions against his repeated criminal offending.
[88] Exhibit R2, s 501 G-Documents, page 63.
Given the Applicant’s strength, nature and duration of his ties to Australia the Tribunal places some weight in favour of revoking the Applicant’s mandatory visa cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;
(c)impact on victims: neutral; and
(d)links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
CONCLUSION
Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion 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 found above, the Applicant does not pass the character test.
Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision.
In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds follows:
(a)Primary Consideration 1 weighs heavily against revocation;
(b)Primary Consideration 2 weighs heavily against revocation;
(c)Primary Consideration 3 has limited weight in favour of revocation;
(d)Primary Consideration 4 weighs heavily against revocation; and
(e)The weight attributable to the four-listed Other Considerations as found above.
The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1, 2 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations;
A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 21 April 2022 that the mandatory cancellation of the Applicant’s Class BC Subclass 100 Spouse (Permanent) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958(Cth) is affirmed.
I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
............................[sgnd].......................................
Associate
Date of Decision:
Date of Reasons:
14 July 2022
4 August 2022
Date of Hearing:
11 & 12 July 2022
Representation for the Applicant:
Self-represented
Solicitor for the Respondent:
Mr T Ellison
Australian Government SolicitorAnnexure A –Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
A1
Applicant’s Statement
A
Undated
7 June 2022
A2
Statement of Ms HH
A
13 June 2022
13 June 2022
A3
Applicant’s Bundle of Documents
1. Application for Review (04.06.2022)
2. Statement - Applicant
3. Statement – BH (21.01.2022)
4. Statement – LT (1.03.2022)
5. Statement – SL (21.01.2022)
6. Statement – BH (04.03.2022)
7. Statement – BH (03.06.2022)
8. IHMS Medication Chart
9. IHMS Clinical Records (29.11.2021)
10. Certificate – Anger Management (24.02.2022)
11. Certificate – Drug and Alcohol Abuse (27.02.2022)
12. Letter – Palmerston Clinical Team (31.05.2022)
13. Assortment of Photos
14. Email – BH (8.10.2021)
15. Notification of Decision (21.04.2022)
A
Various
7 June 2022
R1
Respondent’s Statement of Facts, Issues and Contentions
R
24 June 2022
16 May 2022
R2
Section 501 G-Documents
Various
16 May 2022
R3
Respondent’s Bundle of Documents
R
Various
16 May 2022
R4
Police v Hill [2005] SASC 458
R
25 November 2005
7 July 2022
0
8
0