James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] ARTA 414
•11 November 2024
James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 414 (11 November 2024)
Applicant/s: Terrance James
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/6255
Tribunal:Senior Member K Raif
Place:Sydney
Date:11 November 2024
Decision:The Tribunal affirms the decision under review.
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Senior Member K Raif
Catchwords
Section 501CA Visa cancellation not revoked - cancellation of Class TY Special Category visa under s 501(3A) of the Migration Act – Ministerial Direction 110 - decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Freedom of Information Act 1982 (Cth)Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 500
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Statement of Reasons
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class TY Special Category visa previously held by the Applicant.
The Applicant is a national of New Zealand, born in April 1966. He first entered Australia around 1974. The Applicant most recently travelled to Australia in November 2020 and was granted the Special Category visa upon that entry. In August 2020 the Applicant was convicted of an offence and was sentenced to a term of imprisonment of 3 years. On 27 November 2020 the Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). The Applicant made a request to revoke the cancellation in December 2020, and on 20 August 2024 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
The Applicant appeared before the Tribunal on 4 and 5 November 2024. For the following reasons, the Tribunal has concluded that the decision dated 20 August 2024 not to revoke the cancellation of the Applicant’s Special Category visa should be affirmed.
PROCEDURAL ISSUES
The Applicant informed the Tribunal, prior to the hearing, that he has been unable to obtain, under the Freedom of Information Act 1982 (Cth), certain documents that he wished to rely on. He provided to the Tribunal evidence of having made the FOI request and advice concerning delays associated with the release of documents. During a Directions hearing on 29 October 2024, the Applicant informed the Tribunal that he sought records relating to his psychological treatment, but he has not been provided with these. The Respondent submits that summons had been issued, which included a request to produce the evidence which the Applicant is seeking, but these particular documents have not been provided and there is no evidence to suggest that such records exist, are available, and that they could be provided to the Applicant.
The Tribunal has considered whether the hearing should be postponed to await the outcome of the FOI application. The Tribunal has decided not to postpone the hearing. This is primarily because the Tribunal cannot be satisfied that further evidence which the Applicant is seeking is in fact available and would be provided to the Applicant, particularly as such evidence was sought, but not been produced in response to summons. That is, there is a likelihood that the postponement of the hearing may not serve any purpose. Secondly, the 84th day in this matter falls on 13 November, a short time after the hearing was due to take place, and there was no guarantee that the documents to which the Applicant referred (if they exist) could be made available in time to enable the Tribunal to meet that deadline. Having regard to these matters, the Tribunal has decided to proceed with the hearing as initially scheduled.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(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.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(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))…
Paragraph 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.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s.501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 state that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that
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.’
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
Colvin J stated in Suleiman v Minister for Immigration and Border Protection:[1]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[2]
[1] [2018] FCA 594.
[2] Ibid, [23].
While these comments were made in relation to an earlier Direction, they apply equally in the present case, subject to the express direction as to the weight to be given to different considerations, offered in Direction 110.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) 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.
The Tribunal has been provided with the Criminal Intelligence Commission Check Results Report. Information before the Tribunal indicates that the Applicant had been convicted of the following offences:
10/08/20
· Unlawfully assault and thereby did bodily harm in circumstances of aggravation
· Sexual penetration without consent with a circumstance of aggravation
· Criminal damage or destruction
Imprisonment 12 months and 3 months (concurrent)
Imprisonment 3 years
Imprisonment 3 months (concurrent)
03/11/16
Breach of violence restraining order
Fine $400
25/08/16
· Obstruction public officers
· Breach of violence restraining order
· Disorderly behaviour in public
Fine $400
Fine $200
Fine $200
04/11/15
· Breach of police order
Fine $400
27/03/15
· Breach of police order
Fine $200
19/03/15
Exceed 0.05g alcohol
Fine $500 and disqualified 8 months
13/01/11
Drive contrary to conditions of extraordinary licence
Fine $200
26/08/10
No authority to drive – suspended
Fine $1000 and disqualified 9 months
15/07/10
No authority to drive – suspended
Fine $400, disqualified
05/11/09
Exceeded 0.08g alcohol
Fine $1200
09/07/08
Fail to obey order given by an officer
Fine $300
26/06/08
Fail to obey order given by an officer
Fine $250
15/04/99
Excess 0.08%
Fine $500, disqualified 3 months
22/09/88
Speeding >20km/h < 30 km/h
Fine $60
06/02/85
Speeding >20km/h < 30 km/h
Fine $90
The Tribunal has not had regard to the Applicant’s offending as a minor.
The Tribunal finds that in August 2020 the Applicant has been sentenced to a term of imprisonment exceeding 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
The Applicant concedes that his offending was serious but states that the risk of reoffending is low. The Applicant submits that he has lived in Australia his whole life, and this is the first time he has been in prison. He believes the cancellation of his visa should be revoked.
The Respondent submits that the Applicant does not pass the character test by reference to the 2020 conviction. The Respondent submits that the offending was very serious, that there remains a risk of reoffending due to the fact that the Applicant had not engaged in rehabilitation, and that he had committed family violence offences. The Respondent submits that while some considerations weigh in favour of the revocation, others, most notably the protection of the Australian community, family violence and the expectations of the Australian community, weigh against the revocation and should be given greater weight.
The Tribunal’s considerations are set out below with regard to Direction 110.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also 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
The Direction provides that violent and/or sexual crimes, crimes of a violent and / or sexual 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.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequently of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
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.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets and the sentencing remarks.
The Tribunal has considered the sentencing remarks of Staude DCJ made in August 2020 in relation to the most recent offending of aggravated assault occasioning bodily harm, criminal damage and aggravated sexual penetration without consent to which the Applicant had entered the plea of guilty. It is stated that the offences were committed in the house of Ms M, the Applicant’s partner. It is stated that the Applicant and Ms M had a disagreement, Ms M returned to the house through a glass door which cracked. The Applicant then punched the door causing further cracking. Inside the house there was a physical altercation during which the Applicant put his arms around the victim’s neck and restricted her breathing. She dropped to the floor. The Applicant dug his fingers into her throat causing her to cough and struggle to breathe. After the Applicant released his grip, he dragged the victim by the hair into the main bedroom. While the victim was lying on the floor, the Applicant forced his finger into her anus and abused her, he then removed the finger and put it into her mouth. The Applicant then left the premises. It is stated that when interviewed, the Applicant made admissions but did not accept full responsibility for his wrong-doing. His Honour states that on the facts, these are serious offences of domestic violence and are so serious that only an immediate term of imprisonment is appropriate. His Honour states that the sexual offence was committed in circumstances that degraded the victim. His Honour notes that the offences were not isolated as a week earlier the Applicant had committed another unlawful assault occasioning bodily harm against the victim by striking her on the upper arm with a heated metal spoon, causing a burn. It is noted that the Applicant has a record of serious traffic offences, public order offences, obstructing police, disorderly conduct and breaches of violence restraining orders.
His Honour referred to the pre-sentence report which identified poor aggression control and emotional management, substance use, poor coping during heightened emotional stress, lack of consequential thinking and lack of victim insight and empathy.
In his revocation request, the Applicant states that he did not premeditate or plan the sexual act and was in a highly intoxicated state and acted in an incomprehensible manner towards a loved one. He believes the offence was a singular event and a ‘terrible mistake’. The Applicant refers to his goal of abstaining from alcohol when he is in the community. The Applicant refers to the love and support from his fiancé, stating that all these factors, as well as the term of imprisonment, will serve as an effective deterrent for further offending, so that the risk of reoffending is remote and not an unacceptable risk. The Applicant’s partner, Ms M, in her written statement to the delegate, also claims that the assault was out of character, this had never happened before, and she does not hold any fear of the Applicant reoffending or being a threat to others and she refers to the stressors that occurred prior to the incident. Ms M also provided a statement and a number of other documents to the Tribunal.
The Applicant told the Tribunal that he was drunk at the time and could not recall what had taken place on the days when the offending conduct took place. He referred to the stressful factors prior to the incident and relationship issues and lack of trust in his relationship with Ms M. The Applicant stated that there is ‘no excuse’ for that behaviour and that he is ‘horrified’ about what he had done to his partner.
The Tribunal has also been provided with police facts sheets in relation to the earlier breaches of the Violence Restraining orders. In oral evidence the Applicant suggested that some of the information in these reports is incomplete or inaccurate, but he generally agreed that he did on multiple occasions breach the violence restraining orders.
In his revocation request, the Applicant provided a detailed statement about his upbringing and relationships, and he also provided a statement to the Tribunal referring to his background and family circumstances and the abuse he claims to have experienced in the past. The Applicant states in his submission to the delegate that his overall offending history does not show a pattern of escalating violence and does not reveal any tendencies in committing further offences, especially of a violent or sexual nature. The Applicant submits that the most recent offending was his first and only sexual offence and there was a four-year gap from his previous offending. The Tribunal does not consider this to be a completely accurate statement, noting that the Applicant has two previous convictions for breaches of Violence Restraining orders and in the sentencing remarks the Judge referred to another, recent, incident when the Applicant hit his partner with a heated object. It is also without doubt that the 2020 offending was the most serious, resulting in a custodial sentence, so that it may be said, contrary to the Applicant’s claims, that the offending was of escalating violence.
The Tribunal finds that the Applicant had engaged in multiple offending. His offending includes multiple breaches of violence restraining orders, assault and sexual penetration, as well as multiple driving offences which had the potential of causing serious harm to others. The Tribunal considers that any offending involving family violence, or violence towards women, is serious and the Applicant concedes in his revocation request that the offending was of a serious nature. The Tribunal has formed the view that the offending was serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. 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 of the 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;
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; and
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.
In his revocation request the Applicant claims that the risk of reoffending is low, as his difficult upbringing can explain and give context to past offending. The Applicant states that he now has insight as to the destructiveness of his past actions. The Applicant submits that the most recent offending and the only offending involving violence, occurred at a period of time when he was dealing with difficult personal circumstances, including a recent assault he had suffered. He submits that he does not have a history of explicit violent behaviour and the recent offending was out of character and an aberration that will not occur again. The Applicant submits that there is no risk of reoffending if he is released into the community. The Applicant states that he has struggled with alcohol abuse due to the difficult circumstances in his life and was drinking heavily at the time of offending, but he wants to address the issue of alcohol abuse and is committed to try everything in his power to deal with the problem. The Applicant submits that he had experienced sexual abuse as a teenager which resulted in him self-medicating with alcohol to cope with the trauma, which has manifested itself with complex PTSD and anxiety for which he is medicated.
The Applicant states in his revocation request that he tried to be a ‘model prisoner’, had engaged in various jobs but had not yet been able to participate in rehabilitation programs while in prison. He provided evidence of his past study and qualifications. In oral evidence, the Applicant referred to having a mentor to assist him to support his first partner and having undertaken counselling during past relationships. The Applicant’s evidence indicates that such counselling appears to relate to relationship issues, rather than substance dependence. The Tribunal also notes that the Applicant continued to engage in criminal or anti-social conduct despite past counselling.
The Applicant told the Tribunal that he first tried alcohol at the age of 21 and has been binge-drinking since that time. He stated, in relation to the most recent offending, that he drank a full carton of beer before the incident and had little recollection of the event. The Applicant also stated, when describing earlier offending, that he was drunk. He referred to other incidents when he was binge-drinking and sated that his drinking increased significantly while in a relationship with Ms M.
The Tribunal finds the Applicant’s claims unpersuasive. The Tribunal is mindful that the protective factors to which the Applicant refers – such as his relationship, religion, employment and community support – have all been present in the past when the Applicant repeatedly breached the law. The Applicant refers to childhood trauma and complex PTSD and alcohol abuse, but there is little evidence to suggest that he has received appropriate and adequate treatment that has enabled him to effectively address these issues and while the Tribunal accepts that the Applicant may have a genuine desire to be able to address these issues, the Tribunal is not satisfied that, at present, he has the capacity and the skills to do so. The Tribunal is also mindful that the Applicant has not been able to complete any specific counselling or rehabilitation programs to address his drinking addiction or in relation to sexual offending. The Tribunal notes the Applicant’s evidence that much of his past offending was attributable to alcohol. In the Tribunal’s view, the presented evidence is not sufficient to establish that the Applicant is now able to effectively manage his alcohol addiction or that it no longer exists.
The evidence before the Tribunal indicates that the Applicant had enrolled in some programs during his imprisonment, but the Applicant’s own evidence is that he has not been able to complete these programs. The Applicant also told the Tribunal that he saw a counsellor while in prison, fortnightly, and found it helpful. The Tribunal accepts that the Applicant has been receiving counselling but, as noted above, there is little evidence to indicate that the program has been effective in enabling him to deal with the issues that led to the earlier offending.
The Respondent submits that the Applicant has failed to show remorse and has consistently apportioned blamed on others for his behaviour. In the Tribunal’s view, that is not completely accurate, as the Applicant did repeatedly tell the Tribunal that his behaviour was unacceptable, and he acknowledged that he needed help. While the Applicant did blame others for some of his conduct, the Applicant appears to have some insight that his own behaviour was problematic. However, the Tribunal does not consider that such insight – without persuasive evidence of the Applicant being able to employ effective coping mechanisms – would be sufficient to prevent future offending.
The Tribunal has been provided with a copy of a determination by a Deputy Chairperson of the Prisoners Review Board dated 17 November 2023, which indicates that the Board did not consider the Post Sentence Supervision Order was required. The Applicant submits that this indicates that he was assessed as not being a risk to the community. The Tribunal is mindful that, whatever consideration were relevant to the assessment by the Board, these are unlikely to be the same consideration as are relevant, and prescribed, for this Tribunal.
The Tribunal has formed the view that there remains a real risk of the Applicant resuming the use of alcohol once he is in the community, particularly when faced with stressors in life. If that was to occur, the Tribunal finds that there remains a real risk of the Applicant engaging in further criminal conduct. The Tribunal has formed the view that there remains a moderate risk of reoffending.
Having regard to the nature of the Applicant’s past convictions involving family violence, multiple breaches of violence restraining orders and driving offences, the fact that the Applicant had engaged in offending that posed, or had the potential of causing, significant harm to others, and the Tribunal’s view that there remains a real and moderate risk of reoffending, the Tribunal has formed the view that the protection of the Australian community weighs very heavily against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2(1) of the Direction provides:
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
At Paragraph 5.2(8) the Direction states that:
The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 the High Court stated at [42]:
The same facts may be relevant to multiple different considerations. In the case of a matter made a mandatory consideration by a direction under s 499(1) of the Act, the matter to be considered may be described in a multiplicity of ways, such as by reference to a particular context, a particular purpose, or a particular assessment. Weighing the relevance or significance of the same facts by reference to those different considerations does not involve “repetitious weighing” or “double counting” in any illegitimate sense. It is doing no more than the direction, in terms, requires, and the direction is not inconsistent with the Act.
The 2020 offending involved family violence as the evidence before the Tribunal indicates that the Applicant and Ms M had been in a relationship for several months at the time of offending, had been living in the same household for about three months according to the Applicant’s oral evidence, and the Applicant identified Ms M as his fiancé.
There are also earlier convictions for breaches of violence restraining orders. These relate to the Applicant’s conduct in relation to a different partner. The Respondent refers to incident reports in which the Applicant’s former partner, Ms R, referred to sustained sexual abuse while residing with the Applicant, including sexual penetration without consent and assaults, and Ms R claimed that she had separated from the Applicant due to his violent and controlling behaviour. There is also an incident report relating to another person in relation to whom a protection order was issued in 2013. In oral evidence the Applicant concedes that there was family violence in his earlier relationship, although he also blamed his former partner for using the violence restraining orders as a means of controlling his contact with his child and states that he also took the VROs against his former partner and her mother. The Applicant denied many of the allegations made by Ms R in her statement and claims there was mutual violence in their relationship, much of it instigated by Ms R, but he states he was never believed. The Applicant questioned the accuracy of many of the police reports stating that the information in these was untrue.
Whatever the Applicant’s perceptions are of his interactions with Ms R, it is not in dispute that the Applicant had been issued with the violence restraining orders and had breached these on more than one occasion. The Applicant concedes that there was family violence in his past relationships. The Applicant had an earlier relationship with Ms BC, with a Police Protection Order issued in 2013.
The Applicant concedes that he had committed family violence. The Tribunal finds that some of the conduct engaged in constitutes family violence. This factor also weighs heavily against the revocation.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to
a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.
The Applicant stated when making the revocation request that he has been living in Australia for over 47 years, since the age of 6. The Tribunal accepts that the Applicant has been living in Australia for a very lengthy period and that he had arrived in Australia as a young child. There is no evidence to indicate that the Applicant began offending soon after arriving in Australia.
The Applicant states in his submission to the delegate that he has extended family ties, including persons who are Australian citizens or permanent residents. In his various statements to the delegate and the Tribunal, the Applicant referred to his family and other links in Australia. The Tribunal accepts that the Applicant’s immediate family reside in Australia. It includes his mother, siblings, children and Ms M who was identified as the Applicant’s fiancé.
The Tribunal has not been provided with statements from the Applicant’s siblings. The Applicant told the Tribunal that he last spoke to his brothers about 2-3 years ago (although there is some other electronic contact) and in the Tribunals view, that does not suggest a close relationship between the Applicant and his siblings. The Tribunal is also of the view that a relationship of such a nature can be maintained even if the Applicant does not reside in Australia. The Tribunal does not consider that the Applicant’s siblings would be adversely impacted by the decision not to revoke the cancellation.
The Applicant also has three adult children in Australia. He told the Tribunal that he has had limited contact with them and has not spoken to his children for some years. Again, the Tribunal does not accept that the Applicant has a close relationship with his adult children. The Tribunal is of the view that the same kind of relationship can be maintained even if the Applicant does not reside in Australia. The Tribunal does not consider that the Applicant’s adult children would be adversely impacted by the decision not to revoke the cancellation.
The applicant’s relationship with his youngest child is discussed in more detail below. The applicant’s evidence to the Tribunal is that he has not had any contact with that child since 2019 and that the child’s mother does not support such contact. The Tribunal has formed the view that in such circumstances, the child will not be adversely impacted by the cancellation of the visa.
The Applicant also presented some supporting statements and character references from friends and the Tribunal has had regard to these statements and accepts that those who provided statements support the revocation of the cancellation. There is nothing to suggest that those who provided statements would be adversely impacted if the cancellation is not revoked.
There is before the Tribunal a statement from the Applicant’s partner Ms M. She refers to their relationship, engagement and intention to marry in Australia where their families are. Ms M refers to the relationship with the Applicant’s youngest child and their regular visits and church activities, stating that the Applicant wants to be a part of his son’s life and is a good father. Ms M states that the Applicant has spent most of his life in Australia, has been an asset, given his career as a chef and successful business. Ms M states that the Applicant’s entire family are in Australia, including his children, siblings, mother and stepfather, noting that their health is not the best and they will need his emotional, physical and financial help in the future.
The Applicant’s evidence to the Tribunal was somewhat different. Notably, the Applicant told the Tribunal that his relationship with Ms M was abusive and an unhappy one. The Applicant told the Tribunal that if he is released from detention, he intends to live in Perth while Ms M lives in Geraldton. When asked if they intend to live together or commute, the Applicant suggested it is something they are yet to discuss and work out, as his main concern is to care for his mother. The Applicant’s evidence does not support the claim that the Applicant and Ms M maintain a close relationship at present or that they intend to maintain such a relationship in the future. Significantly, the Applicant told the Tribunal that he did not see how he and Ms M could be together or how their relationship could work. He told the Tribunal that in the future, they will still be friends, but he did not believe they are compatible and that their relationship would continue. In such circumstances, the Tribunal does not consider that there will be significantly adverse impact on Ms M if the cancellation applicant’s visa is not revoked.
Ms M in her statement refers to the Applicant’s parents and family relying on him for physical, emotional and financial support. These claims have been addressed above. Essentially, the Applicant’s evidence to the Tribunal is that he has had no contact with his siblings and children for several years and the Tribunal does not accept there is any reliance by them on the Applicant, including emotional, physical or financial.
In her statement, Ms M refers to her own health, stating that she will need treatment in the future and would rely on the Applicant in her cleaning business. There is little evidence before the Tribunal as to what arrangements had been made in relation to Ms M’s business while the Applicant has not been able to work since his incarceration. Significantly, the Applicant told the Tribunal that he told Ms M that he would live in Perth (not where Ms M lives), that he has no intention to care for Ms M in the future and he told the Tribunal that her claim is ‘not true’. In these circumstances, the Tribunal does not accept that the Applicant will act as a carer for Ms M in the future and the Tribunal does not accept that Ms M will rely on the Applicant for support.
Ms M states in her statement that she and the applicant intend to marry in the future. The Applicant could not recall when the engagement took place and told the Tribunal that he did not believe his relationship with Ms M will continue. In light of the Applicant’s evidence, the Tribunal does not consider that the Applicant’s relationship with Ms M supports the revocation of the cancellation. The Tribunal does not consider that Ms M would be adversely impacted by the cancellation.
The Applicant’s mother Ms VJ lives in Australia. She has provided a statement outlining her reliance on the Applicant. Ms VJ states in her most recent statement that her health has deteriorated while the Applicant has been in jail. She refers to the death of her partner, which was a traumatic experience for her. Ms VJ refers to her ongoing health issues and treatment. (She provided to the Tribunal a number of medical reports, including reports by Dr Elissa Campbell, Dr Fiona Lake.) Ms VJ states that the Applicant has had a traumatic childhood and was bullied and subjected to physical and other abuse. Ms VJ states that the Applicant has no connection to New Zealand and states that he is not a danger to anyone. In a further statement Ms VJ refers to the Applicant’s experiences when growing up. Ms VJ states that she is in financial hardship and relies on ‘handouts’ from family and the community food banks. She needs help with activities of daily living. Ms VJ states that it would ‘destroy’ her if the Applicant was deported as she would not be able to fly to New Zealand due to health issues. She states that she needs the Applicant to support her in the future as she cannot cope on her own.
The Applicant told the Tribunal that his stepfather had recently passed away and he needs to remain in Australia to care for his mother. The Respondent submits that the Applicant’s mother has other support available, including support from government services and friends. The mother’s statement suggests that she is able to access some forms of support and there is no evidence before the Tribunal concerning the availability of personal care from other persons such as, for example, the Applicant’s siblings. Nevertheless, the Tribunal accepts that the Applicant wishes to perform the role of a carer for his mother and accepts the medical and other evidence concerning the mother’s present circumstances and the need for ongoing care. The Tribunal is prepared to accept that there may be an adverse impact on the Applicant’s mother if the Applicant is required to leave Australia as a result of the cancellation of his visa. These particular circumstances weigh in favour of the revocation.
The Applicant refers to his involvement in the local church and also church activities during his incarceration. He provided to the delegate evidence of having completed a number of faith-based courses. He refers to his past employment in Australia, volunteering and community activities. He refers to having strong and longstanding ties to Australia, the presence of his family and claims that family members would experience emotional and practical hardship if he were to be deported. The Tribunal accepts that the Applicant has been residing in Australia since being a young child. The Tribunal accepts that the Applicant has family connections in Australia and that his immediate family resides in Australia. The Tribunal also accepts that the applicant has formed other ties to Australia through his employment, social and religious connections.
In circumstances where the Applicant’s contact with siblings and children is very limited or non-existent, and when the Applicant’s relationship with Ms M might not be ongoing on his own evidence, the Tribunal has decided that the Applicant’s family ties to Australia are to be given limited weight in favour of the revocation. However, the Tribunal also accepts that the Applicant has been living in Australia for approximately 50 years, has formed substantial social and other ties and these weigh strongly in favour of the revocation, as does the Applicant’s relationship with his mother and her need for care.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires 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 8.4(2) and 8.4(3) respectively contain further considerations. 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 is 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 Applicant’s three elder children are adults, but he also has a minor child, L, aged 8. In his written submission to the delegate the Applicant stated that he wants to play a positive parental role in the child’s life. The Applicant states that if he is to live in New Zealand, it is unlikely that he would be able to see his son any time soon. The Applicant presented court documents relating to the divorce proceedings. Ms M in her statement claimed that the Applicant has been a good father for L and has always been a part of L’s life. The Applicant submits that if he was to be deported to New Zealand, this would ‘extinguish’ his relationship with L.
Again, the Applicant’s oral evidence to the Tribunal concerning his relationship with L was somewhat different. The Applicant told the Tribunal that he last had any contact with L about five years ago and he has not had any contact with L while in prison or in immigration detention. The Applicant told the Tribunal that he separated from L’s mother when L was about 6 months old. The Applicant refers to limited contact with the child after birth, regular contact with L at a later period and the Applicant stated that he never knew if he would be able to see his child. The Applicant stated that prior to incarceration, he would see L once a week ‘if he was lucky’ and that the child’s mother did everything possible to prevent access. The Applicant confirmed in oral evidence to the Tribunal that in 2020 the Family Court gave the child’s custody to the mother, and he said there was another court proceeding in 2024 but the child’s mother does not comply with court orders.
The Tribunal accepts that the Applicant wants to maintain a relationship with this child. However, the Applicant’s own evidence is that he has not been able to maintain any relationship with his child since around 2019 and has not had any contact with L since his imprisonment. The Applicant’s evidence is that the child’s mother has not enabled such contact and is not supportive of it. The Tribunal finds that in the past five years, the Applicant has not provided any practical, physical, financial or emotional support to the child.
In the Tribunal’s view, if the Applicant is able to re-establish his relationship with L, it would be possible to maintain a meaningful relationship with the child whether the Applicant resides in Australia or elsewhere. The Applicant will be able to maintain phone or electronic contact with the child. While there may not the same level of physical or practical support if the Applicant resides overseas, the Tribunal is mindful that there was no such support in recent years and, importantly, the Applicant has not presented evidence to the Tribunal to indicate that the child has been adversely affected by the absence of such support. Nor has the applicant satisfied the Tribunal that he would be able to re-establish a meaningful relationship with the child, as the applicant’s evidence is that the child’s mother has done everything possible to prevent their contact.
In the circumstances, the Tribunal is not satisfied that the best interests of the child would be adversely affected by the decision not to revoke the cancellation of the Applicant’s visa. That is, the Tribunal does not consider that the best interest of the minor child in Australia requires the revocation of the cancellation. This consideration is neutral.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[3] 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. Instead, 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.[4]
[3] [2019] FCAFC 185 (‘FYBR’)
[4] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) 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.
In his submission to the delegate, the Applicant submits that all the circumstances of his life in Australia are such that deportation would not be considered by the Australian community as an appropriate response. However, the Tribunal has had regard to the following comments made in In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52], the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community.The Direction provides that the community expects visa holders to abide by the law. The Tribunal finds the community expectations would weigh very heavily against the revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding. The Applicant has not made any claims that could indicate that non-refoulement obligations arise in this case.
There is nothing to indicate that there may be practical impediments to the Applicant’s removal from Australia and that non-refoulement obligations arise, which may give rise to lengthy detention. The Tribunal is satisfied these considerations do not arise in this case.
The cancellation of the visa under s. 501 means that the Applicant will not be entitled to be granted another visa and will not be able to return to Australia to be with his family or for any other reason.
The Tribunal is of the view that consideration weighs somewhat in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 58 years of age. He had lived in New Zealand until the age of 8. He refers to the diagnoses of complex PTSD, anxiety, dyslexia and alcohol dependence. He also referred to a shoulder injury. There is little evidence before the Tribunal to indicate that the Applicant will not be able to receive adequate and appropriate medical treatment in New Zealand or that his access to treatment will be denied or withheld for any reason.
There are no language or cultural barriers that the Applicant would face if returned to New Zealand.
The Applicant claims that he has no family, friends and no support network in New Zealand. Given the length of his absence from that country, the Tribunal is prepared to accept that the Applicant may not have extensive (or, indeed, any) ties in that country and that he would have limited support, if any.
The Applicant submits that, given his health issues and other issues, he may find it difficult to find employment and fund his medical treatment. The Tribunal finds that submission unpersuasive as there is no evidence before the Tribunal to indicate that the Applicant had taken any steps to find employment and was unable to find such. That is, there appears to be no basis for the Applicant’s speculation that he would be unable to find employment. There is little evidence before the Tribunal to indicate what, if any, social support (equivalent to Australian Centrelink and Medicare benefits) may be available to the Applicant. The Applicant’s evidence is that he held a number of jobs in Australia, and he has not presented evidence to indicate how his circumstances in New Zealand, in terms of finding employment, paying for healthcare and other expenses, would be substantially different, or worse, than his circumstances in Australia.
The Tribunal finds that this consideration weighs, only to a limited extent, in favour of the revocation.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
In his revocation request the Applicant states that he was employed in Ms M’s cleaning business and if his visa is not revoked, the business will be negatively impacted. There is no evidence to support that claim, noting in particular that the Applicant has been in detention for approximately five years, has not been able to contribute to Ms M’s business and there is no evidence of any adverse impact. There is no evidence that if the Applicant cannot remain in Australia, this would significantly compromise the delivery of a major project or important service in Australia.
This consideration is neutral.
Other matters
The Applicant referred to his involvement in the local church, stating that he has volunteered time and expertise to help the community and provide aid to others. He claims to have made a positive contribution to the Australian community. The Tribunal accepts that the Applicant may have made a contribution to the community through his past employment and community engagement.
The Applicant stated in his submission to the delegate that the offending was in relation to his fiancé who forgave him and continues to envisage a future with him. The Applicant’s evidence to the Tribunal is that this is no longer the case as the Applicant claims he does not envisage an ongoing relationship with Ms M. The Tribunal also notes that offending was not limited to the Applicant’s interactions with Ms M but also involved others. The Tribunal is unable to ascertain, on the evidence before it, the impact of the Applicant’s offending on others. The Applicant also states that his fiancé will have no option but to sell her business and move to New Zealand. As noted above, the Tribunal does not accept that the Applicant’s departure from Australia would impact Ms M’s business and rejects the claim that Ms M would have to sell her business noting the applicant’s present evidence that their relationship is unlikely to continue.
The Applicant claims that he had experienced sexual abuse as a child and has sought redress through am official program and has filed a complaint. The Applicant has not presented evidence to indicate that he could not pursue the process even if he does not remain in Australia.
The Applicant provided a number of statements to the Tribunal and the Tribunal has had regard to that material.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant has committed serious offences, including family violence offending in relation to his partner that resulted in a substantial custodial sentence, as well as other offending in relation to past partners. He has committed multiple offences of increasing seriousness, resulting most recently in a substantial custodial sentence. The Tribunal has determined that the offending was serious and, importantly, that there remains a real risk of the Applicant reoffending.
The Tribunal has formed the view that the protection of the Australian community, and the expectations of the Australian community weigh heavily against the revocation. The fact that the Applicant has engaged in family violence also weighs strongly against revocation. The Tribunal is mindful that Paragraph 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.
The Tribunal has formed the view that the best interests of the Applicant’s child will not be adversely affected by the decision concerning the Applicant’s visa. The Tribunal finds that the consideration of the best interests of the child is neutral.
A significant factor that weighs in favour of the revocation is the extent of the Applicant’s ties to Australia, particularly given his very lengthy residence in Australia since he arrived as a young child. The Applicant’s immediate family, including mother, siblings and children, live in Australia. The Applicant has been living in Australia for about 50 years and has spent his formative years in this country. The Applicant has formed social, family and employment ties in Australia. He intends to care for his mother, who has poor health. The Tribunal has formed the view that the extent and duration of the Applicant’s ties to Australia, and his relationship with, and desire to care for, his mother, weigh strongly in favour of the revocation.
The Tribunal accepts that the Applicant may not have meaningful links with New Zealand where he has not lived since he was a young child. The Tribunal accepts that if he is removed, the Applicant would need to resettle in a country where he has not lived for many years and form new ties and seek support and treatment. These factors weigh in favour of the revocation.
Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. In the particular circumstances of this case, the Tribunal has decided that these considerations outweigh other considerations.
The Tribunal has decided that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Special Category Class TY visa.
Date(s) of hearing: 4 and 5 November 2024 Applicant: By video Solicitors for the Respondent: D Jones-Bolla, Sparke Helmore Lawyers
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