Holloway and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4558
•13 November 2020
Holloway and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4558 (13 November 2020)
Division:GENERAL DIVISION
File Number: 2020/5203
Re:Jesse William James Holloway
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:13 November 2020
Place:Hobart
The Tribunal affirms the decision under review.
...............................[sgd]......................................
A G Melick AO SC, Deputy PresidentMIGRATION – refusal to revoke cancellation of Child (Subclass 802) visa – whether the Applicant passes the character test - whether there is another reason why the original decision should be revoked – protection of Australian community – nature and seriousness of conduct – risk to Australian community – risk of re-offending – best interests of minor children – expectations of Australian community – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Viane v Minister for Immigration and Border Protection [2018] FCAFC116
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
A G Melick AO SC, Deputy President
13 November 2020
The Applicant seeks review of a decision of a delegate of the Respondent dated 20 August 2020 that refused to revoke the cancellation of his Child (Subclass 802) visa.
The Tribunal must determine whether the original decision to cancel the Applicant’s Child (Subclass 802) visa should be revoked under s 501CA(4) of the Migration Act 1958 (the “Act”).
The following legislation provides circumstances pursuant to which revocation could occur:
(a)section 501CA(3) of the Act:
As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision
(b)section 501CA(4)(a) if the Applicant applies to have the decision revoked:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation
(c)The Tribunal standing in the shoes of the delegate is satisfied:
(i)that the Applicant passes the character test (as defined by s 501):
s 501CA(4)(b)(i); or(ii)that there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii)
(d)Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the “Direction”), the relevant parts of which are set out below:
6.1 Objectives
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
2Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
3Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non- citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
4The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
1The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
2In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
3The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA.The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
6.3 Principles
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The Australian community expects that the Australian Government can and should refuse entry to non- citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non- citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
FACTS
The following facts were included in the Respondent’s Statement of Facts issues and Contentions as well as the exhibit evidence and the affirmed evidence of the Applicant. They were not disputed and I find them to be correct:
[4] The applicant is a male citizen of Canada who was born on 28 September 1982 and arrived in Australia on 2 August 1997 as the holder of an Electronic Travel Authority (Visitor) (Subclass 976) visa (G2, 65).
[5] On 9 February 1998, the applicant was granted a Child (Subclass 802) visa (G2, 68).
[6] The applicant has an extensive criminal history. In the period between March 2002 and July 2019, he has been convicted of 75 offences (G2, 38). Many of the convictions are relatively minor but they include stealing, assaulting public officers, burglary, destroying/damaging property, common assault, possessing prohibited drug, contravention of apprehended violence order, break and entering house, assault occasioning actual bodily harm and reckless wounding (G2, 34-38).
[7] On 16 June 2006, the applicant was convicted in the Perth Magistrates Court of several offences that included assaulting public officer, stealing, burglary and breach of bail undertaking (the June 2006 offences) (G2, 37).
[8] On 27 February 2007, the (then) Department of Immigration and Multicultural Affairs (the Department) wrote to the applicant and informed him that as a result of the June 2006 offences, he was liable for cancellation of his Child visa. The Department decided not to order the cancellation of his visa on that occasion but warned the applicant that any further criminal convictions would lead to reconsideration of the cancellation of his visa (G2, 64).[1]
[1] Respondent’s Statement of Facts, Issues and Contentions, 14 October 2020, pp 1-2.
On 27 May 2019, the Applicant was convicted of Break & Enter house etc steal value <= $60,000 – T1 and was sentenced to nine months’ imprisonment (G2, 35). The property was one where the Applicant had occasionally resided and he entered to leave his personal possessions with the intention of staying there again despite the owner refusing permission. The Applicant also ‘borrowed’ some tools of modest value.
[10] On 3 July 2019, the applicant was convicted of the following three offences: Assault occasioning actual bodily harm (DV) – T2; Reckless wounding (DV) – T1; and Fail to appear in accordance with bail acknowledgement (G2, 34-35) (the July 2019 convictions). The applicant was sentenced to terms of imprisonment of 18 months and 21 months respectively for the first two offences, commencing 17 May 2019 and concluding on 16 February 2021, both to be served cumulatively. He received a section 10A (conviction with no further penalty) for the third conviction.
[11] On 18 November 2019, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the basis that he did not pass the character test because he had a “substantial record”: s 501(6)(a) (G2, 68-73).[2]
[2] Ibid, p 2.
Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant was invited to make representations about revoking the decision to cancel his visa and on 26 November 2019 he made representations requesting revocation of the mandatory visa cancellation decision under s 501(3A) of the Act.
The Applicant provided evidence of completing or attending the following courses in November 2019 whilst in jail:
·EQUIPS Foundation Program;
·High Intensity Program Unit;
·EQUIPS Addiction Program;
·EQUIPS Aghrssion Program; and
·EQUIPS Domestic Abuse Program
The Applicant also provided letters of support from his father and stepmother, Steve and Angela Holloway, and stepbrother Marcus Oliver.
On 15 May 2020, the Department wrote to the Applicant inviting him to comment on further information that had been obtained which may be taken into account within 28 days. The Applicant was granted an extension to respond to that request and he provided a response on 28 July 2020. His response comprised the following statement dated 24 July 2020:
I have two little girls here in Australia plus my dad, my mum, my brothers and my sisters.
My intention when I'm released and get out is to go to work in Perth where I will live and reside there.
I am not very good at writing letters, but I can say I am a humble nice person who has some trouble in his life and me being sent back to Canada is going to bring up old problems; old problems that took along time to get over.
I know myself if given the chance to stay in Australia that this is the last straw I am going to have to live a normal trouble free life.
These are my goals that I have long reflected upon and set for myself.
I love Australia and I need Australia as this is my home.
I have had the last two years in prison constantly thinking about if I am prepared and ready to leave some of my old habits out of my life. In my thoughts I started to feel thankful for my time in prison it has given me the chance that it would not have had in normal society to think about what my aim in life is.
I would like the chance to be given the opportunity to be a contributor to Australia in a positive way like my father and mother who reside in Perth Australia.
Also for my two children whom deserve the opportunity to have a successful father, same as my father is to me. Please consider giving me my last opportunity to be what I am capable of being. I apologise by actions in the past, I have no time to mess around with my life anymore.[3]
[3] G 2, G documents, p 113.
On 20 August 2020, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act.
On 27 August 2020, the Applicant applied to the Tribunal to review the delegate’s decisions providing the following additional material to the Tribunal in support of his application:
(a)a joint statement of Steve and Angela Holloway, Applicant’s father and stepmother, dated 23 September 2020;
(b)a statement of Angela Holloway, Applicant’s stepmother, dated 23 September 2020;
(c)a letter from Habitat Landscape Construction dated 18 September 2020;
(d)a statement of Marcus Oliver, Applicant’s stepbrother, dated 20 September 2020; and
(e)a statement of Steve Holloway, Applicant’s father, dated 23 September 2020.
LEGISLATIVE AND POLICY FRAMEWORK
The relevant legislation and policy are set out in:
(a)the Act; and
(b)Direction No. 79 – Migration Act 1958 – Direction under section 499: refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA commenced on 28 February 2019 (the “Direction”).
I note that Tribunal has jurisdiction under s 500(1)(ba) of the Act to review the decision of the delegate dated 20 August 2020.
Section 501(3A) of the Act, read in conjunction with s 501(6) and s 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied that the person does not pass the character test by virtue of having a substantial criminal record, and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth or a State or Territory.
The Respondent correctly submitted (and the Applicant did not dispute) that the following was the applicable law and principles in its Statement of Facts, Issues and Contentions:
[19] The “character test” is defined in s 501(6) of the Act. Section 501(6)(a) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
[20] Section 501(7)(c) relevantly provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
[21] Pursuant to s 501CA(3) of the Act, the Minister is obliged to invite a person to make representations about revoking the original cancellation decision.
[22] Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
[23] Section 499(1) of the Act provides that the Minister can give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.
[24] On 28 February 2019, Direction 65 was replaced with Direction No. 79 – Migration Act 1958 – Direction under section 499: is a refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction). The Tribunal is required to comply with the Direction (BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104).
[25] When considering whether or not to revoke a mandatory cancellation decision under s 501CA(4) of the Act, paragraph 7(1) of the Direction sets out how the discretion is to be exercised. It states:
1Informed by the principles in paragraph 6.3..., a decision-maker:
(a)...
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[26] Part C of the Direction sets out the primary and other considerations that must, where relevant, be taken into account when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. The primary considerations as set out in paragraph 13(2) of the Direction are as follows:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
[27] The other considerations which must be taken into account, where relevant, are outlined at paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.[4]
[4] Respondent’s Statement of Facts, Issues and Contentions, 14 October 2020, p 4-5.
In accordance with the Department’s invitation, the Applicant made representations satisfying s 501CA(4)(a).
Character Test – section 501CA(4)(b)(i)
As set out at [10] of the Respondent’s Statement of Facts, Issues and Contentions above, on 3 July 2019 the Applicant was convicted of three offences and was sentenced to terms of imprisonment of 18 months and 21 months respectively, with a conviction recorded for the third offence. The sentences were commenced on the same day.
Accordingly, the Applicant did not dispute that he does not pass the character test as he was sentenced to a term of imprisonment of 12 months or more causing him to have a “substantial criminal record” for the purposes of s 501(7)(c). He therefore does not pass the character test in s 501(6)(a).
Another Reason – section 501CA(4)(b)(ii)
As the Applicant does not pass the character test there must be another reason why the original decision should be revoked.
In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, Colvin J held:
[64] There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
Accordingly, I will now consider whether there is another reason of sufficient weight and/or significance to satisfy me that the original decision should be revoked.
Primary consideration A: Protection of the Australian community Direction Paragraph 13.1(1) and (2)
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens and the community expects that noncitizens who wish to remain in Australia should be law-abiding. Ensuring that, by mandatory cancellation of visas without notice, serious offenders remain in either criminal or immigration detention while the immigration status is resolved is consistent with the above principles.
Nature and seriousness of the conduct
The Applicant's most serious offending was for the offending that resulted in the conviction set out at in at [10] of the Respondent’s Statement of Facts, Issues and Contentions above for reckless wounding and assault occasioning bodily harm.
The Magistrate's comments on passing sentence of 3 July 2019 included the following:
You were an intimate relationship for a period with [female victim] and you were living together at Bexley. On the afternoon of 6 July you got home from work and you and [female victim] consumed rum and both to entered into an argument, and during the argument you picked up a cat and some kittens that belonged to [female victim] and threw them across the room, and she said to you, “you've got about two seconds to get the fuck out of here before I stick a knife in you, straight to your jugular”, and she did not have a knife. What then happened is you picked up a broken rum bottle and struck [female victim] in the head. The broken end of the bottle has gone into her left eyelid and forehead causing lacerations and immediate pain. She fell to the ground and a large amount of blood came from the cuts.
…
This was a very serious matter and it involved the use of a weapon following stomping on the face, and in my view the DPP is quite correct when it describes it as cowardly and involving a high degree of violence so I need to make that finding.[5]
[5] G2, G documents, p 39.
The Applicant gave evidence before the Tribunal disputing the above version of facts, stating that he only admitted to them as part of a plea bargain. However, the Applicant has conceded that he has significant memory problems because of his extensive abuse of drugs and excessive inhalation of volatile substances such as paint thinners. I consider it inappropriate to make any finding inconsistent with that found by the magistrate and confirmed by the Applicant's plea at the time.
I consider it appropriate this stage to summarise some aspects of the evidence given by the Applicant who I found to be a disarmingly frank and honest witness although I note that, at times, I considered his honestly held beliefs to be inconsistent with the facts because of issues flowing from his substance abuse. The passages below give a better insight into his offending and surrounding circumstances than a mere recital of the facts.
The Applicant was cross examined in relation to a Parole assessment prepared by the Department of Corrective Services in Western Australia dated 8 November 2006, which noted:
Of concern is the incidence of violent behaviour which appears to be escalating. Mr Holloway attributes his offending behaviour to illicit substance usage, peer associations, and lack of consistent family support. Mr Holloway’s most recent conviction was in Fremantle Magistrates' Court on 20th October 2006, where he was found guilty of Aggravated Assault against his de facto and fined $300.00. This incident involved Mr Holloway attacking his de facto [female victim] who had previously suffered leg injuries and was on crutches. Mr Holloway threw her to the ground and then began to strike her violently about the back with one of her crutches until people in the near vicinity managed to subdue him and he was arrested by police shortly after.[6]
[6] Respondent’s Tender Bundle, pp 1-2.
The following exchange took place between Ms Zinn and the Applicant during cross examination:
MS ZINN: Do you recall that incident? Something, yeah, I - at that stage you was sniffing paint, I - yeah, unfortunately I do, so yeah.
MS ZINN: That’s a very serious incident, you’d have to agree with that? Of course, that’s why I left Perth is to leave the whole situation of being with someone and sniffing paint, and arguing and stuff like that. …
MS ZINN: And there was an AVO protecting [Ms K] from you, Yes.[7]
[7] AAT Transcript, 27 October 2020, p 34 [22]-[29].
…
MS ZINN: On 6 March 2017 you were convicted of two counts of common assault, domestic violence, do you recall that? Yes.
MS ZINN: And those convictions related to [Ms N]? Yep.
MS ZINN:What was your relationship with [Ms N]? Well, she was basically someone who used drugs with me. She was - considered herself my girlfriend but she was just - like, I was into drugs, I was hanging around - all the things that I did and all the people I hung around in all those previous cases there, they’re all involved with drugs, they all use ice, use heroin, use stuff like that, and I have no time in my life for that. I didn’t have my kids in my life at that stage, that’s all I have to say about that. But yes I agree with it all.[8]
[8] Ibid, pp 34-35 [40]-[47]; [1]-[4].
…
MS ZINN:The common assault convictions that related to an incident with [Ms N]? Yeah, but I think in actual fact I was found guilty of some of them, but I can’t really remember the whole situation, but basically she - yeah, I - I actually - she was yelling out [sic] ice dealer about some guy that lived in our place, I ran outside, I grabbed her, you would probably - I don’t know if you’ve got the statement from what I made but it will be exactly this because that’s what happened, but I ran outside and I said, what are you doing and I was laughing. And I got her in - like, a headlock, that wasn’t harming her, but I gave her a noogie, a noogie is when you (indistinct) your knuckles and rub it on the top of someone’s head, and the next door neighbours, if you look at that from behind it looks like I’m punching her in the head. And she drank a full bottle of Smirnoff Vodka and when the police came to - she went to - she said she wanted to get away or something and anyway, I’ve actually got a message on my phone that she keeps writing me saying - I haven’t spoke to her in a number of years since that incident, but she keeps writing me on my Facebook, I love you, come find me, I’m in (indistinct).
MS ZINN: The incident that you’ve just described is just one of three that’s referred to in the fact sheets. The first one is said to have happened on 31 December 2015, it states that, an argument ensued and you struck the victim in the nose causing excessive bleeding, the victim bleed [sic] for multiple hours after this incident and she was forced by you not to tell anyone else at the share house. Why did you react so violently towards your partner? I don’t - I don’t actually recall that, I’m sorry, there’s a lot of stuff there - like, I said because I was under the influence of ice, I used ice everyday, that was my whole life. I was a very angry young man, there was a lot of incidents, and every single girl that I went out with was a junkie, and same with me at that time. And they were all - all over the place, cheating on me, stealing stuff off me, my anger was not - I wasn’t making - what do you call it, responsible choices in my life.
MS ZINN: Mr Holloway, you’re not suggesting that there can be any excuse for violence to such a severe degree are you? No, I’m not making any suggestions at all, Miss, I’m getting - in other words saying that the things that I did back then is not my mindset now.[9]
[9] Ibid, p 35, [10]-[44].
…
APPLICANT: I’m not - I’m not - I’m not in any position to make any excuses. So, if you would like to just leave it at I agree with the whole lot and you could make your decision, that would probably be better because I’m not - I don’t want to really relive these incidents in my life that [sic] I know what they are, but it’s - it’s a piece of my life that I’m not proud of, I mean I lived under a bloody bridge. I didn’t even have a - I didn’t even have a shower to go to, I lived under a bridge just near the airport in Sydney, and I had a lot of stuff that was going on in my life. So, throughout my whole life I’ve been in this country, in the first I would say first nearly close to 2000 - when I first had my daughters in 2005 from thereon I didn’t even want to be in this country. I couldn’t stand it. I had to go to a school with a uniform on. All I did was - people used to tell me if I get in trouble they’ll send me back to Canada. I said, yeah, well, I don’t give a stuff anyway. So, that’s what I wanted to do because my dad wouldn’t pay for a flight back to Canada. Said that my mum didn’t want me and then - so, I was - I did a lot of stuff, I had a lot of hatred in my life. But I’ve got a very new outlook on life.[10]
[10] Ibid, 36-37 [43]-[47]; [1]-[11].
…
MS ZINN: Mr Holloway, the sentencing remarks state that at the time of the events you were in a relationship with [Ms H] and got into an argument, you through [sic] a cat and kittens across the room, and struck [M H] in the head with a broken rum bottle. The broken end of the bottle went into [Ms H’s] left eyelid and forehead causing lacerations and a large [sic] of blood. You stomped on her head until she lost consciousness. You accept that these events occurred? No, I do accept that some of that, like I said in the beginning of this, when put to me in court I had to plead guilty to - I had to actually lie to - my first statement to the police is the truth about the matter. I - we - I was walking - we got in an argument, she - we got in an argument because I was actually walking out of the place and a cat bit me on the hand. When the cat bit me on the hand it was pitch black, I swung my hand, it was my cat as well, all right, I don’t know why it bit me on the hand but it bit me on the hand, probably because she had kittens there, what I did then I natural reaction in the pitch black something just bit me on the hand, I swung my hand. She - I turned on the light, she said, she was - like, she said yes there was an empty bottle of bourbon there because she drank the whole lot, we both did, she said to me you just hit my cat, what’s to say you’re not hitting my cat when I’m not around. I said, you’re going to accuse me of that. We had an argument, something like that, I pushed her off the bed. She hit her head and exactly what I said before, I called her friend - I called her friend which was in the next room, and I know very well the statements that she’s made because I’ve read it quite a number of times. She tried to contact me quite frequently, I tell you, she’s constantly ringing my phone trying to talk to me.
MS ZINN: So, Mr Holloway, do you deny that you struck [Ms H] in the head with a broken rum bottle? Yes, I do.
MS ZINN: And you were - - -? Actually - if you struck someone with a bottle - like, a laceration to the head, I remember in the facts, it was - it says there was a cut piece - the bottle was smashed and that I cut her head with a smashed bottle. And if you do that with a cut bottle there’s going to be a lot more than a tiny little line where she bumped her head when she fell off the bed.
MS ZINN: Well, the magistrate in her sentencing remarks indicates that she saw a photograph of [Ms H] approximately two weeks after the incident and it still showed her some two weeks later with her eyes very swollen, bruising and cuts. How do you explain that if you say the incident didn’t occur? Exactly because I - I can tell you right now, she stole an ounce of ice off [name redacted], okay, and [name redacted] broke her ribs, blackened both of her eyes, fractured her jaw, and I was not even with her at that time. The incident that was related to the laceration on her head is a completely different incident. Now, I have no evidence of all this and I really couldn’t frankly couldn’t have any troubles with arguing with it. I pleaded guilty to what I pleaded guilty to and that’s what I pleaded guilty to, so I would serve a less amount of time because it was going to a District Court. I made a plea bargain to plead guilty to what I pleaded guilty to, to get the charges dropped to the Local Court, so I would serve a less amount of time and that's’ what I did because I wasn’t going - I wasn’t prepared to plead guilty to all of the charges there because it’s in fact not even what happened.[11]
…
APPLICANT: Okay? I'm in fact just going along and agreeing with exactly what you're saying. I agreed to what I was charged with, and I did it and I'm asking – yes, I'm asking the court to, I don't know, take into court that yes, that's what I did, but it's – it is what it is, I can't say much more. I've got – I'm not a lawyer and I'm not going to stand here and say something that's not true, so.[12]
…
MS ZINN: I'll repeat the question. Mr Holloway, I asked you that given your very serious past offending and the extent of your criminal record, would you accept that there remains some risk that you will commit further offences if you were released back into the community? I accept that there could be – that it's a good – it's a good reason to address the situation, that there would be a number of – what do you call it? There would be a number of incidents to suggest that yes, in fact if I was in your position, I would be saying yes, there is some – not risk, but probable cause to assume that there might be reoffending. But in my past, I've never given so much effort to making, in my (indistinct) to my arrival back in the community. I've never participated in courses. I've never – I went to gaol and I used drugs in gaol. I didn't – I had no ambition to stop drugs. I had no contact with my kids. I had no – I had no contact with the mum. I didn't have any contact with anyone. I didn't call anyone a mum, I didn't have any – like I didn't hardly talk to my dad. I didn't have anything to really – I didn't really care what I got out on the outside. That's what I did. But yes, I would say that in this instance, I've made quite an effort before I even knew that I was coming to immigration detention to make my entrance back into the community a totally different take on things. Because like I said, I'm 38 years old and that's getting to an age where if I pursue a life that I was living before, it's just going to end up back in the prison, and or – or I'm just going to end up hanging around the same sort of people, and having the same – it's an ongoing thing with people like that, that are living in that circle of life, and that's the circle that I was in and I've withdrawn myself from that circle. But I could see the – I could see the – if you call it the interest or the – I could see why people – like why you would have the suggestion that I would do that, but I ask that you do look at the things that I've mentioned, the things I have in front of me that I haven't really done in my life before. In the past, like I probably wouldn't even be sitting here today. I probably just would have said, yes, put me on a plane back to Canada and continue using drugs in Canada. Left my kids over here. I had – I was completely lost in my own mind.[13]
…
DEPUTY PRESIDENT: …. You said you've used drugs in gaols before. Were drugs available when you were in gaol the last time, and did you use any? No, I didn't – I didn't use any drugs. When I first got to gaol, yes, I started to do some drugs, and then as I started, they asked me if I wanted to do some courses. I made a choice to do the courses, and I actually made my stepmum talk to me, and my mum, she said to me, "Do you want to keep doing this stuff?" She said she'll work with me, do this counselling. That's when I decided to actually start doing that. Because before I even knew I was coming to immigration, I didn't even know I was going to get deported. Because every other time that I've been to gaol in Sydney, they never – never brought me here. So I didn't even think that, but my intentions were to go back to Perth anyway to pursue my rehabilitation and start living a normal life.”[14]
[11] Ibid, pp 40-41 [35]-[47]; [1]-[38].
[12] Ibid, p 43, [40].
[13] Ibid, p 44, [16]-[47].
[14] Ibid, pp 45 [16]-[28].
As can be seen from the facts above, the Applicant has been convicted for offences of violence commited in a domestic context on three occasions:
(a)20 October 2006 - aggravated assault upon his then de facto partner;
(b)6 March 2017 - two counts of common assault involving domestic violence;
(c)3 July 2019 - assault occasioning actual bodily harm (DV) – T2; Reckless wounding (DV) – T1;
in addition to a fail to appear in accordance with bail acknowledgement in July 2019.
There also appears to be another incident involving domestic violence, not leading to a conviction, which occurred on 31 December 2015.
In the 23 years that the Applicant has been in Australia, he has received sixteen sentences of imprisonment involving the imposition of almost seven and a half years or 89 months.
The Direction specifies the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.[15]
[15] See paragraph 13.1.1(1)(b) of the Direction.
The Respondent correctly summarised the applicant’s history of offending in its Statement of Facts, Issues and Contentions as follows:
[38] The sentencing remarks of the Local Court of Western Australia dated 6 June 2006 indicate that the applicant spat at police officers and spat blood at them (G2, 57). The Magistrate found the Court viewed the matter seriously and observed that there was “no room without our community for people like you to behave in that way to people such as police officers who are simply doing their job to keep our society safe”. The Magistrate found that notwithstanding the applicant had already been placed on community orders, which he had breached, he had continued to commit offences. The Magistrate found that the applicant “had his chances” but “enough was enough” (G2, 57).
[39] On 13 November 2013, the applicant was convicted of common assault and fined $800. The NSW Police Fact Sheet describes this event (R1, p 24-27). On 27 September 2013, after an unknown person refused to give the applicant a cigarette, the applicant engaged in an argument and threw “Glue Rid Contact Adhesive Remover” on the victim. The applicant told the police that he used the bottle to sniff the fumes of the glue to relieve the pain of a toothache. After observing the applicant, the police believed that he had a substance addiction.
[40] In relation to the 6 March 2017 conviction of common assault, the relevant NSW Police Facts Sheet records events between the applicant and an unnamed female victim (R1, p 33-37). The Facts Sheet records that the applicant started an intimate relationship with the victim in October 2015. On 31 December 2015, the applicant struck the victim in the nose causing excessive bleeding. It states that the applicant “often” caused injuries to the victim and forced her to keep quiet by threatening more violence towards her if she reached out for help. On 6 January 2016, the applicant bit the victim’s right triceps area causing “significant injury” to the victim. He also kicked the victim out a vehicle and grabbed her in a “choke hold position and dragged her back into the car”. In a separate incident, the applicant was again violent towards the victim. The victim was recorded as having significant fears for her safety.
[41] In the sentencing remarks of 16 August 2018, the Magistrate noted that in the past, numerous bonds ordering the applicant to do drug rehabilitation had been imposed but, despite these opportunities, he had continued to offend and that a sentence of imprisonment was necessary. The Magistrate commented that “the track records of sentencing is that if a man is still offending when he’s 40 the Courts tend to give up and leave him in gaol” (G2, 53). The Magistrate found that the applicant was “not far off the Court just giving up on him, throwing away the key and leaving him in gaol for life” (G2, 54). Despite these dire warnings, the applicant nonetheless continued to offend in a serious manner and was convicted of further offences.
[42] The applicant’s July 2019 convictions led to the mandatorily cancellation of his visa and reveal yet another instance of him demonstrating serious and unacceptable violence towards women. The facts of the applicant’s offending for the July 2019 convictions are recorded in the sentencing remarks of Magistrate Atkinson dated 3 July 2019 (G2, 39-42).[16]
…
Despite having a laceration to the middle of her forehead and left eyelid, two black eyes and swelling to her forehead, [female victim] initially did not seek medical attention because she feared further violence by the applicant and that her life would be in danger (G2, 39-40).
[43] [Female victim] moved several times, but the applicant eventually located her on 5 May 2018.The police were called and the victim declined to tell the police the details of the assault because she feared the applicant would find and kill her (G2, 40). A final AVO was eventually taken out against the applicant.
[44] Although the applicant initially denied striking the applicant in the head and stomping on her head, he eventually accepted that the event occurred (G2, 40). Magistrate Atkinson observed that this was a “very, very serious matter” and the injuries were “significant”. Magistrate Atkinson found the DPP were quite correct to describe the event as “cowardly and involving a high degree of violence” (G2, 41). The Magistrate correctly observed that the community takes domestic violence offences very seriously (G2, 41).[17]
[16] Respondent’s Statement of Facts, Issues and Contentions, 14 October 2020, p 8.
[17] Respondent’s Statement of Facts, Issues and Contentions, 14 October 2020, p 9.
I note that the Applicant was warned on 27 February 2007, in writing, that any further criminal conviction would lead to reconsideration of the cancellation of his visa.
Although the Direction requires consideration of whether the non-citizen has re-offended since being formally warned in writing about the consequences of further offending, I do not place too much weight upon the requirement bearing in mind the warning occurred 12 years before his last conviction.
In view of the matters set out above I find that the Applicant has repeatedly and persistently committed offences in Australia from 14 March 2002 until 3 July 2019. His offending has escalated, many offences occurred whilst on conditional liberty and several involved assaults against women in situations of domestic violence. The Applicant frankly admitted he chose to completely disregard Australian law because he did not want to be here and wanted to be returned to Canada, his attitude only changing during the last period of imprisonment when he maintains that he realised he had to put his past behind him. I find his offending to be very serious.
Risk to the Australian Community
When considering whether the Applicant represents an unacceptable risk of harm, the Tribunal should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Conduct such as violence against women, especially in domestic situations, if it were be to repeated, is so serious that any risk of such further conduct may be unacceptable.
Accordingly, in making my assessment as to the risk to the Australian community I have had cumulative regard to:
(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and;
(b)the likelihood of further criminal or other serious conduct taking into account all the matters set out above including the circumstances that have contributed to his offending and any mitigating factors, his remorse and the prospect of his rehabilitation.
Contributing factors in offending
Psychological assessment reports[18] and evidence from the Applicant and his father indicated the following:
·The Applicant had a traumatic childhood, spending the first five years of his life in hospital and when his parents broke up his father moved to Australia. He had a “bad relationship” with his mother and stepfather.[19]
·The Applicant was emotionally abused by his mother and stepfather.
·When the Applicant came to live with his father he ‘hated every minute of it’ including suffering from being ridiculed by other children for school because of his accent.[20]
·When he was 14 or 15 years old he ran away from home, spent periods of time being homeless, living under bridges and generally keeping inappropriate company.
·The Applicant has an extensive history substance abuse including ice and paint thinners.
·Some of his violent offences arose out of what he perceived to provocative action on those assaulted.
[18] See Magistrate remarks at G2, G documents, p 41.
[19] G2, G documents, p 81.
[20] Ibid, p 93.
Remorse
The Applicant’s evidence and that of his father and stepmother satisfy me that he is now genuinely remorseful for his behaviour. He has admitted the seriousness of his offences and apologised for them.
When being interviewed for a psychological report in relation to the offence for which he was convicted in July 2019, the Applicant expressed regret.[21]
[21] G2, G documents, p 23.
However, a Magistrate in August 2018 found that the Applicant showed “no contrition or remorse and no insight with nothing extenuating by way of leniency”.[22]
[22] G2, G documents, p 27.
Even against the background of his expressed desire to return to Canada, and hence his continued offending, I can find no evidence of remorse prior to being dealt with through the offences of which he was convicted in July 2019.
Rehabilitation
Because of some of the matters set out below, there are prospects of rehabilitation but unfortunately because the Applicant has not been at liberty since deciding to turn around his life, those prospects have not been tested in the broader Australian community.
His father and stepmother gave evidence supporting the Applicant and indicating:
(a)that he would be living with them, in their care, upon his release; and
(b)that he'd been offered a job with his step brother employing his skills such as operating excavators.
His stepmother, who studied transformational therapy and hypnotherapy, says she is prepared to work with him on his rehabilitation.
Although offered the opportunity to take drugs in prison, he declined after the first two months and participated in the courses set out at paragraph [7] above.
The Applicant maintained that, and I assume he meant when not affected by drugs or paint thinners, he is a “goodhearted young man” and “a humble nice person who has made some trouble in his life.”[23]
[23] G2, G documents, p 82.
The Applicant has recognised that his offending was often as a result of his substance abuse and that he was thankful for time in prison because it had given him the chance to think about his aim in life.
The Applicant also maintained that he realised this was his last chance and that he did not want to be separated from his children.
The matters set out above must be counterbalanced against his history of repeat offending, including a history of reoffending after sentences of imprisonment or sentences of conditional liberty were given the opportunity to reform.
Other
The Applicant has shown the continued disregard for Australian laws including numerous breaches of judicial orders such as:
·breaches of bail in 2003, 2006, 2008 and 2009;
·breach of violence restraining order in 2003;
·breach of a community-based order in 2004;
·breach of suspended sentence in 2009;
·failing to appear in accordance with bail acknowledgements in 2012, 2017 and 2019; and
·contravening a restriction in an AVO in 2018.
As previously noted, the Applicant disregarded a warning from the Department in 2007 about the possible revocation of his visa should continue to offend.
Risk of Reoffending
When considering the risk of reoffending, I've taken into account all the matters outlined above and particularly the following matters which I consider to be indicative of lowering the risk of the Applicant reoffending:
·the Applicant’s now earnest desire to remain in Australia, reconnect with his children and his undertakings to abide by the law;
·the Applicant has the support of his parents and stepbrother and confirmed employment;
·the Applicant’s recognition that he had been associating with the wrong type of people and his attempts to manage his problems with substance abuse;
·the fact that despite having access to drugs whilst in prison, the Applicant declined to so do after the first two months and completed a series of courses addressing domestic violence and drug abuse;
·the Applicant’s statement that:
In my thoughts I started to feel thankful for more time in prison it is give me the chance that I would not have had in normal society to think about what my aim in life is.[24]
·the Applicant’s intention, if allowed to remain in Australia, to live in Perth with his supportive parents are no longer associate with people “who want to take drugs and then fight all day”;[25]
·the Applicant’s apologies and remorse for his past actions and statement that “I have no time to mess around with my life anymore”;[26] and
·the assistance of his stepmother who deals with people with emotional problems and wishes to assist the Applicant.
[24] G2, G documents, p 113.
[25] G2, G documents, p 93.
[26] G2, G documents, p113.
However, I consider the following matters relevant to an ongoing risk of the Applicant reoffending:
·the Applicant’s extensive history of reoffending including when on conditional release is noted at paragraph [36] above;
·the Applicant’s continued failures to take the opportunity to reform when given the chance;
·the Applicant’s violent reactions when provoked;
·the failure of sentencing judicial officers to note remorse on the part of the Applicant, as noted at paragraph [42] above;
·although the Applicant’s evidence as to his intentions is credible, it has not been tested as he was placed in immigration detention immediately upon his release from prison; and
·the lack of any evidence or opinions from mental health professionals or rehabilitation providers indicating a low risk of reoffending.
Balancing the above factors I consider that there remains an ongoing risk that the Applicant will reoffend, including offences of violence and domestic violence, which could result in psychological and physical harm to members of the Australian community
Best interests of minor children
I have considered the best interests of the Applicant's children, who are both under 18 years of age, as a primary consideration as required pursuant to paragraph 13.2 of the Direction.
Furthermore, paragraph 13.2 (4) provides:
In considering the best interests of the child, the following factors must be considered where relevant:
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);
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,..;
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;
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;
Whether there are other persons who already fulfil a parental role in relation to the child;
Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
The Applicant has two children born on 5 May 2005 and 26 September 2008 respectively.
The Applicant’s evidence in relation to the above matters was as follows:
MS ZINN: Who are they living with at the moment?‑‑‑My daughter lives with her – my oldest daughter lives with her boyfriend, and my youngest daughter, she lives with her mum. With her auntie and her mum. She goes to school. She visits her mum as far as – yes, so and she goes to – she goes – like she lives with her mum and her auntie, but they're both in Perth, so – I mean her nan, sorry. Sorry about that. Her mum and her nan.
APPLICANT: Okay?‑‑‑And Aboriginal family, so my kids are Aboriginal, they've got a lot of family, but my oldest daughter lives with her boyfriend, and my youngest daughter lives with her mum and her nan. So she goes to school.[27]
[27] AAT Transcript, 27 October 2020, p 50, [31-40].
…..
APPLICANT:… And I had them, and we lived on and off together. And then I went to gaol, and then I got out, and I got (indistinct) health, and I lived with them again. Yes, there's a constant problems there as well, but that's part of the reason I left, yes. But I lived with my – I looked after my daughters a lot. They were in my care. Like I mean they were – their mum would get paid for them, and come and give me money for them, and they would stay with me and their nan.
MS ZINN: I'm just trying to work out the timing, because you said that you were 25 years old when you moved to Sydney, so that would have been in 2007?‑‑‑Yes, so maybe a bit – maybe – don't quote me on those times and stuff, because like I said, roughly, maybe it was 2008, 09, 10, it's somewhere around there. I don't – I don't know, because like I wasn't – I'm not an – I wasn't an organised person, taking notes and documenting my times when I was going places and doing things. I was doing everything spur of the moment. I have no record of anything I was doing.[28]
[28] Ibid, p 51, [1-16].
…….
MS ZINN: So when you left Perth, the youngest daughter would have been about three years old?‑‑‑Three years old, yes.
MS ZINN: And the oldest daughter would have been six?‑‑‑Yes.
MS ZINN: And the last time you saw them was when you left Perth, let's say 2010?‑‑‑Yes. Well the last time I saw them was when I let them go to live up in with their auntie, auntie [name redacted].
DEPUTY PRESIDENT: So where does she live?‑‑‑She lives in Carnarvon.
Carnarvon, okay. A long way from Perth?‑‑‑Yes.
So where do you expect them to be living? If you remain in Australia, you'll be living in Perth with your parents?‑‑‑Yes.
Where will your daughters be living?‑‑‑Exactly where they are now.[29]
[29] Ibid, [25-41].
…
MS ZINN: In your personal circumstances form that you gave as part of your revocation request, you said that you had contact with them sometimes because of availability of internet. How did you communicate with them?‑‑‑How would I communicate with them?[30]
[30] Ibid, p 52, [6].
…
MS ZINN: That's all right. I was asking you about how you were communicating with your daughters while you were in prison?‑‑‑No, I wasn't – I wasn't – I hadn't made contact with my daughters. That's what my first goal was, to – that was my ambition, to stop using drugs, was to get out and forget about the stuff that I was doing in the past, and I called my dad and asked him if I could live with him, and he offered that I could (indistinct) wanted me to, and then my goal was to make contact with my kids, and they ended up contacting me on Facebook when I got out.
MS ZINN: You say when you got out, are you talking about when you were put into immigration detention?‑‑‑Yes.
MS ZINN: So your first contact with them would have been in July this year?‑‑‑Yes.
MS ZINN: And how often have you been speaking to them since then?‑‑‑Every day. Mostly the oldest one, because the youngest one's at school, and yes. But I talked to the oldest one, [name redacted], every day.
MS ZINN: Do you speak on the phone, or how do you communicate with them?‑‑‑Both. I – we speak on the phone but it's she - like we just write over Messenger most of the time. If I want to call her, we call each other, but it's more – we either call each other over Messenger or just write, because it's a lot quicker just writing on the Messenger, yes.
MS ZINN: Just touching on a question that the Deputy President had just put to you, where do you intend for your children to live if you were released into the community and you were living in Perth?‑‑‑I answered that. I said exactly where they are now. Like I don't want to move them. One lives with her boyfriend. The other one lives with their mum and their nan.
Okay? (Indistinct.)
MS ZINN: So your intention isn't for them to live with you, they would stay where they are?‑‑‑I – well yes, I don't – yes, if they wanted to they could, but I'm not in the situation to do that at the moment. I mean my dad is their grandfather, so he would let them live with him, but I've got a lot to work out myself still when I get out, if I do, so yes. Thinking responsibly, there's no way in the world that I would want them to come live with me at this stage, but if they had to they could.
MS ZINN: And how do you intend to play a positive father role in the future for your daughters?‑-‑How ‑ ‑ ‑
MS ZINN: How do you intend to play a positive father role?‑‑‑Well by coming back into their lives. Coming back into their lives and not playing any other part except for doing what I'm putting to the tribunal today, is that I'm going to live with my dad, I'm going to – I'm starting a job with my stepbrother. I'm not on drugs anymore, and being a father, as far as that is a positive role in their lives, because the reason that I didn't have a role in their lives is because I didn't have a positive influence on their lives, and no one made that decision except for me.
MS ZINN: Given the limited contact that you've had with your children, essentially since you left Perth in 2010, is there any reason why you couldn't maintain the same level of contact that you have with them now from Canada?‑‑‑Well make contact, like yes, right now, as over the phone, do you know how much it hurts just to call my kids over a phone? You know, I've always thought about when I get my act together, getting my kids back in my life, and me sitting back in Canada would just be exactly the same as me when I got taken away from my dad and got taken away from my mum. So it doesn't feel very good, so having someone in your life personally is a lot different to having someone electronically talking to you over a phone.[31]
[31] Ibid, p 51-52, [21-47]; [1-35].
As can be seen from the evidence set out above, the Applicant has had very little to do with his children until July of this year and that contact has been by remote means and could continue on the same basis from Canada.
The eldest child lives in Perth with her boyfriend and the yougest lives in Perth with her mother and aunt. The Applicant stated would leave the living arrangements as they are, at least in the short term, although he notes that they could live with his father.
However, to date the relationship has been fragmented and of limited duration.
Bearing in mind that it is only three and six years before the children turn 18 and neither would be living with the Applicant, at least in the short term, I find that the Applicant would play a limited parental role which although potentially positive could degenerate should he recommence his substance abuse.
It is difficult to gauge the effect upon the children of any separation, especially as no evidence was provided by the children or their mother. However, contact could be maintained in the same manner as it has been since he regained contact with his children.
As has been the case for many years, care is provided for the children by other members of a large and extended family.
Despite the fact that the Applicant had very little to do with his children for many years, there now appears to be a strong bond between them and also with the Applicant's parents.
In the Applicant's submission to the delegate, he indicated that he intended on residing with his children but this appears to be impractical at least in relation to the eldest child.
However, considering all the matters set out above, on balance I find it is in the best interests of the Applicant’s two minor children for the decision to be revoked.
Expectations of the Australian community
Paragraph 6.3(3) of the Principles within the Direction states:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The Australian community expects non-citizens to obey Australian laws whilst in Australia and, where there have been breaches of those laws or the resort risk of further breaches, it may not be appropriate to revoke the mandatory visa cancellation of a person responsible for those breaches or to whom such a risk attaches.
Despite the Applicant’s apparently genuine remorse and good intentions I find that the Australian community would expect that, in view of the matters set out at paragraph 6.3(3) of the Direction and the number of offences committed by the Applicant over a considerable period of time, including at least three involving domestic violence, that he should not be allowed to remain in Australia.
Other considerations
The Direction identifies five other considerations which, when relevant, must be taken into account when deciding whether there is another reason why the original mandatory cancellation decision should be revoked. The relevant “other” considerations in this case are:
·the strength and duration of the Applicant’s ties to Australia; and,
·the extent of impediments if the Applicant is removed to his home country.
Strength, nature and duration of ties
The Applicant arrived in Australia on 2 August 1997 as a 14 year old child and has resided in Australia for over 23 years. The Australian community will usually afford a somewhat higher tolerance of criminal conduct for somebody in the Applicant's position having grown up in this country.
The delegate noted that the Applicant submitted that he came to Australia as a child, had studied and grew up in Australia, loves Australia and considers Australia his home, but those comments must be considered along with the following:
·The Applicant hated his time in Australia, especially being subject to ridicule at school;
·The Applicant maintained that he continued offending in the hope that would be forced to leave Australia because he hated being here;
·The Applicant left school at 14 and ran away from home; and
·Until being jailed and then placed in immigration detention, the Applicant had limited contact with his parents, stepbrother and children.
The Applicant also submitted to the delegate that he was in a defecto relationship with the mother of his two children but when cross-examined indicated that they were not in fact still in such a relationship. He stated that the reason he described her as his defacto was because he understood that was the correct title as she was the mother of his two children.
The Applicants father and stepmother, Steve and Angela Holloway provided letters and gave persuasive evidence that they loved the Applicant, wanted him to come and live with them and were prepared to formally take him into their care. I have no doubt that their affection and intentions are genuine and the Applicant has a good relationship with his stepbrothers and sisters (two of each) one of whom, Marcus Oliver, has offered him employment.
The Applicant also submitted that he is a qualified excavator and Bobcat operator and had worked in such capacities on several occasions. He also submitted that he had contributed to the Australian community but I find the periods of such contributions were limited because of his criminal activity and time spent in custody.
Considering all of the above, I do accept that the Applicant and his family would experience emotional hardship should he not be allowed to remain in the country.
Extent of impediments if removed to home country
I have considered the impediments that the Applicant will face if removed from Australia and returned to Canada, including the difficulties he will face in re-establishing himself and being able to establish a basic standard of living in the context of what is generally available to other Canadian citizens.
I have also considered the following submissions from the Applicant to the effect that:
·He is now 38 years of age and has qualifications to operate forklifts and bobcats.
·He does not suffer many diagnosed medical or psychological conditions.
·Although he committed offences because he wanted to be sent home to Canada, that position has now changed and he wishes to remain in Australia where he has a supportive family.
·There is evidence to suggest that he has no relationship with his mother in Canada and in any event she was and presumably would be, a bad influence upon him.
·Sending him back to Canada is “going to bring up old problems; old problems it took a long time to get over”.[32]
[32] G2, G documents, p113.
Furthermore I have considered the following:
·The Applicant will face no language or cultural barriers if returned to Canada.
·He will have access to health and welfare services that are available to all citizens of Canada.
·Although he will miss the emotional support of his family in Australia, he is not without family in Canada whatever their alleged deficiencies.
·He may find difficulty in obtaining employment, especially if he has to disclose his criminal record, but his evidence was to the effect that he was a good worker when not abusing substances.
I find that although this consideration weighs in favour of revocation, it does not outweigh the considerations weighing against revocation.
CONCLUSION
I have considered all relevant matters including:
·Ministerial Direction number 79 under section 499 of the Act;
·The representations received in relation to the invitation for the purposes of s501CA(4)(a) of the Act;
·The evidence given, and exhibits tended, upon the hearing including the evidence of the Applicant, his father and stepmother;
·An assessment against the character test as defined by s501(6) of the act for the purposes of s 501CA(4)(b)(ii) of the Act; and
·An assessment as to whether there is another reason why the mandatory Visa cancellation decision should be revoked for the purposes of s501CA(4)(b)(ii) and (5) of the Act.
As previously indicated, I am not satisfied that the Applicant passes the character test as defined in s501 of the Act.
In considering whether I am satisfied as to another reason for revoking the decision in relation to the Applicant's visa, I give significant weight to the serious nature of many of the crimes committed by the Applicant and in particular the three matters involving direct domestic violence spanning a period of some 11 years.
I am unable to negate the possibility of further offending by the Applicant and the Australian community should not have to accept the risk of further harm.
Although I have considered, as a primary consideration, that it would be in the best interests of the Applicant's children to revoke the mandatory visa cancellation decision, I am of the view that the Australian community would expect the visa to remain cancelled in view of the significant number of offences committed by the Applicant, especially bearing in mind community attitudes to domestic violence.
I have considered the ties the Applicant has formed by being a resident in Australia for over 23 years although, apart from his family, those ties appear to be transient. I have also considered the consequences to his immediate family if there was a decision not to allow the Applicant to remain in Australia, especially noting the strong representations made on his behalf by his father and stepmother.
I have also considered the fact that the Applicant has made some contributions to the Australian community and wishes to make further substantial contributions.
However, I have concluded that the Applicant presents an unacceptable risk of harm to the Australian community and that the protection of the Australian community together with the expectations of that community outweigh the countervailing considerations noted above, including the primary consideration as to the best interests of his children and the difficulties he may face upon his return to Canada.
DECISION
The decision under review is affirmed.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
...........................[sgd].............................................
Associate
Dated: 13 November 2020
Date of hearing: 26 and 27 October 2020 Representative for the Applicant: Self-represented Solicitor for the Respondent: Ms Arielle Zinn
Mills Oakley Lawyers
1
2
0