Jameson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2111
•6 July 2021
Jameson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2111 (6 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2401
Re:Jason Jameson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:6 July 2021
Place:Sydney
The decision under review is set aside and as a result the Applicant’s visa is not cancelled.
..................................[sgd]......................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) - Direction No. 90 – primary considerations – serious traffic offences – protection of the Australian community – expectations of the Australian community – other considerations – links to the Australian community – child migrant – aboriginal wife and children – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 753
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Kaye v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 604Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
6 July 2021INTRODUCTION
The applicant is a 40 year old New Zealand citizen. He has a lengthy criminal record associated mostly with the improper use of motor vehicles, including driving while disqualified and high range PCA.[1] He also has a solitary conviction for common assault (DV) and two illegal weapons charges. The most recent offending occurred in 2020, when he was sentenced to an aggregate term of 16 months imprisonment with a non-parole period of 8 months for various offences, as outlined below.[2]
[1] See Appendix A. PCA stands for ‘Prescribed concentration of alcohol’.
[2] Special Category (Temporary) (Class TY) (Subclass 444); G49/124.
At the conclusion of the non-parole period, his visa was cancelled and he was transferred to immigration detention for the purpose of removal to New Zealand.[3] The applicant responded to a departmental invitation to make representations regarding the revocation of the mandatory cancellation,[4] and a delegate decided not to revoke the mandatory cancellation.[5] The applicant has therefore applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.[6]
[3] His visa was cancelled on 6 October 2020 under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’): G58/180.
[4] His request for revocation of the cancellation decision is dated 16 October 2020: G6/31-32.
[5] On 14 April 2021: see G4/17; G5/18.
[6] His application is dated 20 April 2021, G1/1-2.
The applicant has lived in Australia for nearly all of his life and considers Australia to be his home.[7] In 2007 he met his present de facto wife (Ms AW) and they have two children, born in 2016 and 2009. He is the step-father of her two older children, born in 2005 and 2002.[8] Ms AW and her children are indigenous Australians. This is an important consideration.
[7] He appears to have first arrived in Australia in around 1982 (G7/38; G19/68) and has resided in Australia since then (G57/179). He was granted the visa on 6 April 2000 (G58/180): RSFIC.
[8] G7/40.
The removal of the applicant to New Zealand would have grave consequences for his immediate and extended family. There is no certainty that Ms AW would be permitted to enter New Zealand given her criminal record, and it is unlikely that she would consent to them relocating to New Zealand without her. If he is removed, there is no realistic prospect of his children joining him in New Zealand. Separation from their indigenous mother is neither desirable nor in the public interest; nor is their individual separation and dislocation from country. Given Ms AW’s poor health, the likely consequence of his removal is that the family would suffer complete disintegration. Despite the imperfections of the applicant’s character, the shame of his past behaviour and the risk of future wrongdoing, I have decided, for the detailed reasons that follow, to restore his visa and set aside the mandatory cancellation decision.
LEGISLATION
Under the Act, the Minister must cancel a visa that has been granted to a person if satisfied that the person is (a) 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, and (b) does not pass the character test.[9]
[9] Subsection 501(3A).
The character test is defined in the Act. Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’: paragraph 501(6)(a). The phrase ‘substantial criminal record’ is defined to include circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c).
The Act provides that 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 or
(ii) that there is another reason why the original decision should be revoked.[10]
[10] Subsection 501CA(4).
THE DISCRETION UNDER SUBSECTION 501CA(4)
Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers.
In exercising the discretion under subsection 501CA(4), the Tribunal is bound by subsection 499(2A) to comply with any such written directions. The current direction prescribed under subsection 499(1) is as follows: ‘Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).
Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task.
Part 2 of the Direction provides guidance in relation to exercising the discretion. Under paragraph 6, four primary considerations (para 8) and four ‘other’ considerations (para 9), must be taken into account ‘where relevant to the decision’.
Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, ‘other considerations’ include (but are not limited to) the extent of impediments if removed, links to the Australian community, and the strength, nature and duration of ties.
The Direction contains principles and rules relating to the weighting of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances one of the ‘other’ considerations may be the dominant consideration in the case.[11]
[11] FYBR v Minister for Home Affairs [2019] FCAFC 185.
PC1: The Protection of the Australian Community
Paragraph 8.1 of the Direction requires the Tribunal to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The Tribunal 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 the Australian community.
Nature and seriousness of the applicant’s conduct
Paragraph 8.1.1 of Direction 90 prescribes factors to which decision-makers must have regard to in considering the nature and seriousness of a non-citizen’s criminal offending or other conduct.
A summary of the applicant’s offending as set out in his National Police Certificate dated 28 September 2020 has been provided by the respondent.[12] The Respondent’s Statement of Facts Issues and Contentions (RSFIC) sets out the chronology of his offending in some detail and contends that his offending should be regarded as very serious, reinforced by the imposition of sentences of imprisonment in relation to his most recent offending.
[12] See Annexure A. G49/124-128.
A significant feature of the applicant’s criminal record is that there is a significant hiatus of about six years between the first period of criminal offending which occurred between 1999 and 2012 when he was 18 to 31 years of age, and a subsequent relapse into criminal behaviour between 2017 and 2020, when he was 37 and 39 years of age.
The first period (1999-2012)
Offending in the first period includes:
(a)Six alcohol related offences: five driving with a prescribed concentration of alcohol (PCA), and one offence of driving under the influence. For the most recent alcohol related offence he was sentenced to 12 months’ home detention and disqualified from driving for 5 years.
(b)Three offences relating to the manner of his driving (one minor speeding; two counts of negligent driving) for which he received fines totalling $1,000;
(c)Three offences relating to driving whilst disqualified;[13]
(d)Several offences relating to unlicensed driving or driving an unregistered vehicle;
(e)Three offences committed in December 2011 (DUI, disqualified driving);
(f)An offence of failing to appear in accordance with bail undertakings going back to March 2012.
The second period (2017-2020)
[13] Offence numbers: 530, 796, 818.
Offending in the second period includes two further serious driving offences and an offence of common assault (DV):
(g)In March 2019, the applicant was driving an unregistered car during a period of disqualification.[14] On 10 July 2019, he was convicted of 14 offences arising from that conduct, including drive motor vehicle during disqualification period 2nd+off, goods in personal custody suspected being stolen (not m/v) and possess or use a prohibited weapon without permit T2.[15]
(h)In February 2020, the applicant failed to stop for a random breath test and was pursued by the police. He absconded on foot and was subsequently arrested. On 14 September 2020, he was sentenced to an aggregate term of imprisonment of 16 months with an eight-month non-parole period for the following offences.
(a) Police pursuit – not stop – drive reckless – 2nd off-T2;
(b) Possess unregistered firearm-pistol-T2; and
(c) Drive motor vehicle during disqualification period – 2nd+off.
[14] TB4/146-147.
[15] G49/125-126.
I note that his visa was mandatorily cancelled as a result of this offending.
There is also a conviction for common assault (DV) in 2018. Given the findings I have made below regarding family violence, it is not necessary to consider this matter here.
The applicant’s criminal record also includes two relatively recent convictions relating to the possession of prohibited weapons.[16] The first weapons offence in 2019 related to a Taser, which he said was in the paraphernalia of the car that was recently acquired and did not belong to him. He said that he mistook the Taser for a torch. He was sentenced to 3 months imprisonment.
[16] TB4/93; TB4/147.
The more recent weapons offence related to a replica pistol, a BB pellet gun, which he said was for shooting birds. I find it more likely that he had it for personal protection. He was sentenced to an indicative sentence of four months which formed part of the aggregate sentence of 16 months imposed in 2020.[17]
[17] G50/134.
The record also includes some offences from his youth. There is a 2001 conviction for stealing[18] and a 2006 offence of offensive behaviour.[19] The respondent also refers to the applicant’s failure to appear before the court in relation to his 2011 offending.
[18] On 29 January 2001: see G49/128; TB5/209.
[19] On 13 February 2006: TB1/28. Behave in offensive manner in/near public place/school after using aggressive and offensive language directed towards police in public.
I find that his criminal record, taken in its entirety, is extensive and very serious.
In assessing the risk posed by the non-citizen to the Australian community, decision-makers must consider, cumulatively:
·the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·the likelihood of the non-citizen engaging in further criminal or other serious conduct.
With regard to the first element, it is safe to say that the community has little tolerance for alcohol related driving offences. Such offences constitute a very significant danger to the community’s safety. Flagrant disregard of licensing requirements for drivers and motor vehicles is also a serious matter. The sentencing magistrate found that the applicant’s manner of driving ‘posed a significant risk of danger to other road users and the general public’.[20]
[20] G50/133.
With regard to the second element, it appears that his susceptibility to alcohol has faded with time, but I note that he has very significant practical problems associated with his status as a disqualified driver, a fact recognised by the magistrate in dealing with him.[21] The temptation to drive will arise, and I am not confident that the applicant will be able to resist the temptation to do so. It may be that the risk is mitigated somewhat by his recent exposure to immigration detention. In any event, there is a palpable risk that the applicant will engage in further criminal conduct involving motor vehicles.
[21] G52/145.
The respondent has referred to the applicant’s history of substance abuse, in particular alcohol and the drug ‘ice’. The material before the Tribunal does not support a finding that the applicant is a hardened drug user, or that he is likely to engage in drug related offences. I note that he has no convictions relating to the use of drugs.
With regard to the propensity to engage in offences relating to prohibited weapons, I note that there are two such offences on his record. I assess the risk of him possessing such goods in the future as relatively low.
I assess the risk of him engaging in acts of family violence as very low, despite the recent conviction for assault.
Conclusion
His offending history reveals a wilful disregard for his responsibilities as a road user and the safety of other members of the community. I agree with the respondent that the cumulative effect of his offending has involved a significant allocation of public resources to deal with his conduct. I accept the respondent’s submission that the applicant’s conduct should be regarded as very serious.
I find that the protection of the Australian community weighs heavily against revocation.
PC2: Family violence committed by the non-citizen
‘Family violence’ is defined in paragraph 4(1) to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.
In May 2018, the applicant and Ms AW had a row in front of the children which resulted in the applicant’s arrest and subsequent conviction for assault following a plea of guilty.
Both parties told the Tribunal that the incident did not occur in the way it was reported to the police. They admitted to having a heated argument, but each denied in evidence that there was any physical violence. The applicant’s step-daughter, who made the original complaint after she went to her grandmother’s house, stated that the applicant did not slap or strike Ms AW and that she made the story up.[22]
[22] Annexure 3.
The respondent contends that the Tribunal should accept the facts relied upon by the magistrate, including a statement that he slapped and pushed her, and that the applicant’s plea of guilty implied acceptance of the facts as tendered by the prosecutor.[23]
[23] G52/146.
I note that according to the Police Facts, Ms AW did not call the police and denied that the applicant had slapped her when she was first interviewed. The police notes record “The victim denied the incident stating that her kids disliked the accused”.[24] This exchange took place at the house a few hours after the incident. When the police asked about a red blush on her cheek, she said that she suffered from rosacea, and eczema, and that this condition explained the redness of her cheek. She also said she had been sleeping. Despite her denials, the applicant was arrested and taken to the police station where he was charged with assault.
[24] G53/151.
Ms AW was questioned by the applicant’s representative about this interaction. She stated as follows:
Respondent: Did [the Applicant] slap you in the face?
AW: No, he didn’t. No.
Respondent: So this red swelling that the police were saying, what was it?
AW: That night they came to the door, I was laying down with the baby, putting her to sleep. I do suffer from eczema actually all over my body and on my face. I’ve got photos or proof of that but I think that’s what the police officer saw but it just seemed to me that he had something in for [the Applicant] anyway that night. I don’t know why he would have thought that was a red mark from that since it was hours after anyway.[25]
[25] Transcript, 23 June 2021, 58.
Under cross-examination she was asked about some photographs that were tendered:
Respondent: This incident happened in sort of 2018, it’s about three years later than the incident in question?
AW: The photos were taken to prove that that is - that roseate (sic) I get on my face is - comes and goes frequently throughout - I’ve had it since I was - I can remember, early as I can remember. It covers most of - my whole body psoriasis also, the patchy - red patches on me is everywhere.
Respondent: Did you explain that to the police when they came to see you on the night of the event?
AW: Yes, and I said that I was also laying down try to put the baby asleep, so I had been asleep.
Respondent: The police fact sheet for the incident says your two elder children left the house in fear, is that true?
AW: I wasn’t there, I had left to stop the argument, I had gone for a drive. I wasn’t there when they left, I wasn’t there - and when I got back, they weren’t there. They had walked to my mothers and step-father’s house.
Respondent: Do you know why [the Applicant] pled guilty when he wasn’t guilty?
AW: Yes, to save the kids anxiety and them being scared of getting up on stand in front of the courts, they were nervous wrecks in the court room and he didn’t want them to have to do that.
Respondent: Why did they go to the court building if they didn’t want to be there?
AW: I think because they knew that they’d made a mistake by saying what they said.
Respondent: So KK and GLK’s admission to you, or to [the Applicant], that they were telling a lie, happened after the criminal conviction did it?
AW:No, it wasn’t. It was - I knew, I knew what was happening at that time and I knew what they thought had happened also. So I just - yes, I – GLK was more or less fearful of the police more than anything, that she’d get in trouble from them, not us, for saying what she did.
Respondent: So she thought she’d get in trouble if she told the police that she was lying?
AW:Yes, about saying that [the Applicant] had done that.
Respondent: Was that a conversation that you had with her before or after the conviction?
AW:Before and after.
Respondent: So who took your children to court that day?
AW:My sister and my step-father.
Respondent: Are you still - you’re not close with those two people or?---No, no I’m not. [26]
[26] Transcript, 23 June 2021, 63-64.
The step-children have provided statements for the purpose of these proceedings. The step-son stated that the applicant never touched his mother and that he did not see anything physical, only yelling. He said that no punches, slaps or hits were thrown.[27] The step-daughter stated that:
I do not know to this day why we said that [the applicant] slapped my mum[.] In fact KK wasn’t even in the room when any of the argument was going on[.] He just seen mum upset so [he] took her side. Mum left in her car and the argument finished….I was 11 years old, in year 7 going through puberty and I hated my parents for saying no to anything. I wanted to get back at them both for every time they had, so yes I did exaggerate what I said. If there was a way to take back everything I lied about, I would.[28]
[27] Annexure R1.
[28] ASFIC - Annexure 3.
The children did not give oral evidence in these proceedings or before the magistrate and were therefore not exposed to cross-examination.
The evidence before the Tribunal from the children and the parents is that there was a row and that it was sufficiently turbulent to cause the older children and Ms AW to leave the premises, but there was no physical violence.
The respondent’s representative noted that the applicant pleaded guilty to the offence with full knowledge of the amended statement of facts.[29] The applicant provided a coherent explanation as to why he pleaded guilty to the charge. He was unrepresented, and was concerned about the impact of legal proceedings upon his step-children, who had been brought to court by family relatives and were available to give evidence.
[29] TB/200; G52/142-143.
The respondent’s representative notes that courts have regularly expressed that caution should be exercised when considering evidence given from victims of domestic violence that is in support of the offender; and that the police observed Ms AW to have a “visible injury to the left cheek…consisting of redness and swelling”. That description indicates that the police observed an injury that would not plausibly be explained as being ‘pigmentation/rosasia and psioriasis’.[30]
[30] Annexure 1 to ASFIC.
The respondent’s representative recognised that the conviction and sentence that resulted from the Common assault (DV)-T2 offence was not the basis for the exercise of power to mandatorily cancel the visa, and that the applicant was not prohibited from challenging the underlying facts upon which that conviction was based: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, at [23].
There is no evidence in the applicant’s criminal record that the applicant has engaged in other acts of domestic abuse. This is a solitary example. I note that the bench sheet produced by the Wyong Local Court indicates that the Stalk/intimidate intend fear physical etc harm (dv) charge was withdrawn on 30 July 2018.[31]
[31] TB4/163.
The alleged victim neither called the police nor reported any violence, indeed, she specifically denied to the police that any such violence had taken place. The police acted quite properly on a complaint made by the applicant’s step-children, who appear to have left the home at the height of the row. Under the circumstances outlined above, I am not able to find that the applicant slapped his partner.
I am satisfied that on the occasion in question there was a row between the applicant and Ms AW, such that the children present and Ms AW had cause to fear the possibility of harm. I am satisfied that the applicant did not strike Ms AW. I accept her evidence on this point.
In expressing this conclusion, the Tribunal is not impugning the conviction or the sentence imposed, or expressing a view that he ought not to have been convicted. A finding that the applicant did not slap or strike Ms AW is not inconsistent with the actual conviction for common assault. Physical contact is not an essential element of the offence of assault, to which he pleaded guilty.
I find that the evidence before the Tribunal, including the children’s letters and Ms AW’s sworn evidence, does not support a finding that the applicant engaged in family violence. The evidence before the Tribunal does not support a finding of threatening, coercive or controlling behaviour by the applicant on this or on any other occasion.
The respondent asked the Tribunal to infer from the applicant’s denials that he hit his partner, that he lacks remorse and has engaged in a ‘cover up’. I find that the applicant and his wife did not engage in a cover up.
I find that this consideration should be accorded little weight and I consider that it is neutral.
PC3: Best interests of minor children in Australia
The applicant has three minor children:
(a) GLK (16 years old) – step-daughter
(b) SRJ (11 years old) – son
(c) EKCJ (4 years old) – daughter
The applicant’s eldest step-child, KK is now 18 years of age and therefore is not a minor child relevant to this consideration.
I note that the applicant’s sister has two children:
(d) BC (10 years old) – nephew
(e) CC (7 years old) – niece
The respondent’s representative accepts that the best interests of the applicant’s children and step-daughter favour revocation, but only lightly. He pointed to the conviction for domestic violence, and the possibility that the applicant may relapse into drug use.
For reasons given above, I consider that the risk of family violence by the applicant is low to very low. The respondent concedes that the episode that gave rise to the conviction for assault was the only relevant incident, and I am satisfied that he did not strike the applicant on that occasion.
I accept that there is some risk that the applicant will use recreational drugs or alcohol in the future, occasionally to excess. Protective factors include his recent exposure to immigration detention and the serious possibility of deportation should he reoffend in the future.
Overarching these considerations is the indigenous status of Ms AW and her children. The importance of an indigenous person’s connection to country has been recognised by the High Court of Australia in the perhaps aptly named case of Love v Commonwealth of Australia [2020] HCA 3 (‘Love’). The connection is sufficiently powerful that according to the High Court, alienage is not a status that attaches to indigenous persons, irrespective of citizenship, who are thus beyond the removal power in section 198 of the Migration Act 1958 (Cth) (the Act).
If the applicant is removed to New Zealand, it is impossible to determine whether the children will accompany him or remain in Australia. The oldest children are teenagers and may effectively choose for themselves. The oldest boy is now 18 years old. Ms AW has serious health issues and a drug conviction. There is a question as to whether she is eligible to relocate to New Zealand to be with her husband.
I note the two youngest children presently live with their aunt, the applicant’s sister. The applicant’s mother said that that situation could not continue for much longer. The applicant’s sister had her own health problems and one of her children was a special needs child.
The applicant’s mother had also extended herself to support the children as best she could, but her resources are finite. It is not unlikely that if the applicant is removed to New Zealand, the younger children will be taken into care. The applicant’s mother was horrified by that prospect or the prospect of the children going to New Zealand and said that they simply had to stay in Australia, and that her son had to be allowed to provide for them.
Ms AW told the Tribunal that she did not want to leave her country and go to a foreign place. She would go if she had to but she did not want to. There is also, as noted above, the matter of her drug conviction, which may disqualify her from entry to New Zealand. Even if she and the children were able to relocate, doing so would be an abandonment of their connection to country, and detract from their ability to experience or express their aboriginal heritage.
I note that in Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 753, Member Burford said, in respect of indigenous children who were nieces and nephews of the non-indigenous applicant in that case:
In any event, the Tribunal does not accept in the Applicant’s circumstances that the children’s best interests are differently impacted by non-revocation of the Cancellation Decision because they are Indigenous Australians. In this regard, the Tribunal considers their circumstances can be distinguished from those of Indigenous children who face the prospect of one parent being removed from Australia, as in such cases the capacity of those children to enjoy the care and protection of their non-citizen parent may be constrained by their need to remain living in Australia in order to maintain a connection to country and culture.[162] That is not the situation of the Applicant’s nieces and nephews, whose connection to country and culture is not impacted by their non-Indigenous uncle’s removal and who would not be constrained, at least on a cultural basis, from visiting him outside Australia if their financial circumstances allowed. The circumstances and considerations which apply are also quite different from those where the Applicant is themselves an Indigenous Australian.[163]
The present case involves the type of situation anticipated by Member Burford, cases where indigenous children remaining in Australia will be denied the protection of their non-indigenous non-citizen parent by his or her removal. The extent to which the removal to New Zealand of their non-indigenous father may interfere with the enjoyment of their aboriginal heritage or culture is difficult to predict.
Ms AW can preserve her family’s connection to country by remaining in Australia, even if the applicant is removed. She would lose his immediate financial and emotional support, and the children would lose daily contact with a father. Without a functioning family their lives will be hard. They would become a divided family, separated by the Tasman, and the younger children might be in care.
I find that the best interests of the applicant’s children including his older step-child weigh very strongly in favour of revocation of the mandatory cancellation.
PC4: Expectations of the Australian community
I note that the revised Direction provides, in paragraph 8.4(1) that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.
This consideration weighs inevitably against the applicant, but the weight to be attached is a matter for the judgment of the Tribunal in the circumstances of the particular case: FYBR v Minister for Home Affairs [2019] FCAFC 185, (2019) 272 FCR 454.
There is an important principle outlined in Paragraph 5.2, which provides:
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
The applicant has lived in this country all his life and the ‘higher tolerance’ principle is applicable.
There is some evidence that the applicant has received a warning letter, which might be thought to dilute somewhat the applicability of this principle in the present case. However, as noted by the respondent, the applicant claims that he did not receive the Department’s warning letter.[32]
[32] G7/41.
The evidence suggests that the letter was successfully delivered to the applicant’s home on 22 June 2009.[33]
[33] G56/178, TB2/67.
I am satisfied that the applicant was on notice as to the possible implications of his offending to his visa status.
I find that the expectations of the Australian community weigh against revocation of the mandatory cancellation, and due to the extended nature of his offending this consideration should be accorded considerable weight.
Other considerations
OC1: International non-refoulement obligations
This consideration is not relevant to the review.
OC2: Extent of impediments if removed
Paragraph 9.2 requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: the applicant’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
The respondent acknowledges that the applicant may face some difficulty in re-establishing himself in New Zealand.
As to whether there is a significant cultural difference between Australia and New Zealand, to a lesser or greater extent each has moved to accommodate ‘First Nations’ perspectives as an essential fabric of the nation. Decisions of the High Court including most recently in Love have emphasised the importance of connection with country for indigenous people. In the present context, that may be considered to include the non-indigenous parents of indigenous children.
The applicant has a trade as a painter and a solid employment record. There is no evidence to suggest that he suffers from any physical ailments that would prevent him undertaking such work in the future.
There is some evidence that the applicant suffers from depression, and is being treated with antidepressants.[34] However, his removal to New Zealand is likely to impact very negatively on his mental health. New Zealand has excellent health services, and the applicant will be able to access such services. In the past he was assessed as at low risk of self-harm. But the psychological impact will be extremely severe if he is unable to be with his family. Taking account of the fact that the applicant has lived in Australia since he was an infant and knows no other country, the mental shock is likely to be profound.
[34] TB8/310; 312.
I find that he is likely to encounter significant impediments if removed from Australia to New Zealand, and that this consideration weighs heavily in favour of revocation of the mandatory cancellation.
OC3: Impact on victims
There is no evidence before the Tribunal relating to the impact of a decision not to remove the applicant from Australia. I find that this consideration is neutral.
I note that Ms AW expressed a strong desire for the applicant to remain in Australia and claims that his release would be of benefit to their children and family. I do not think that this consideration is enlivened by such sentiments. This consideration focuses upon the negative impact upon a victim of a decision to allow the non-citizen to stay; not the positive impact upon a victim of a decision not to remove. Even if this is too narrow a view, so that the negative or positive impact upon victims should be assessed in relation to each of the possibilities (to affirm or set aside), I consider that this consideration is sufficiently covered by the next consideration.
OC4: Links to the Australian community
Paragraph 9.4.1 requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia.
The applicant has resided in Australia since he was approximately two years of age.
He has a solid employment record and good prospects of being able to resume employment in Australia.
He has long-standing family and social ties to Australian citizens, particularly to his mother[35] and sister[36] and they would be negatively affected by the applicant’s removal from Australia.
[35] Annexure 4 to ASFIC, G20/70-71.
[36] Annexure 5 to ASFIC, G25/79-80.
I do not accept the respondent’s contention that the applicant is unlikely to have a positive effect on his family if he is allowed back into the community. An enforced separation from his family is likely to be devastating. I think this is a kind of case to which Allsop CJ referred in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at [44]:
All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people...
I find that the applicant has a strong desire to support his children and a broad support system in his family. His sister and his mother have shown a willingness to assist with the children.
I therefore find that this consideration weighs heavily in favour of revocation of the mandatory cancellation.
There is no evidence to suggest that non-revocation of the applicant’s visa would have any impact on Australian business interests (paragraph 9.4.2).
CONCLUSION
I find that the applicant fails the character test. Is there ‘another reason’ why the cancellation should be revoked?
I make the following findings:
Considerations that weigh against revocation of the mandatory cancellation
· (PC1) protection of the Australian community from criminal or other serious conduct.
· (PC4) expectations of the Australian community.
Considerations that weigh in favour of revocation of the mandatory cancellation
· (PC3) the best interests of minor children in Australia;
· (OC2) extent of impediments if removed;
· (OC4.1) strength, nature and duration of ties to Australia;
Considerations that are neutral
· (PC2) family violence;
· (OC3) impact on victims; and
Considerations that are not relevant
· (OC1) international non-refoulement obligations;
· (OC4.2) impact on Australian business interests.
The decision comes down to balancing PC1 (the protection of the Australian community from criminal or other serious conduct), and PC4 (the expectations of the Australian community against) against PC3 (the best interest of minor children in Australia); OC2 (the extent of impediments if removed); and OC4.1 (the strength, nature and duration of ties to Australia).
I find that PC1 and PC4 weigh heavily against revocation; and PC3, OC2 and OC4.1 weigh heavily in favour of revocation.
There is no mathematical formula for weighing the various considerations against each other. They must all be taken into account in a process of synthesis. The end point of the structured analysis required by the Direction is a synthetic judgment, which is neither mathematical nor deductive.
The stand-out features of this case are: the length of time that the applicant has lived in Australia as his home country (39 out of 40 years); the complexity of his immediate family’s needs, including his wife’s pressing health needs; and the indigenous status of his wife and children.
I am satisfied that the removal of the applicant to New Zealand would have grave consequences for his immediate and extended family. There is no certainty that Ms AW would be permitted to enter New Zealand given her criminal record, and it is unlikely that she would consent to her children going without her. Given their indigenous status, separation from her is neither desirable nor in the public interest; nor is their separation and dislocation from country.
If the applicant is removed to New Zealand, there is no realistic prospect that his children will join him in the near or foreseeable future. Given the mother’s frailties laid bare in these proceedings, the likely consequence of his removal is the disintegration of the family. The younger children’s family caregivers are stretched to the limit and there is every possibility of the children being taken into care. Despite the imperfections of the applicant’s character, the shame of his past behaviour and the risk of future wrongdoing, I am persuaded that he is committed to providing for his family.
As against these stand out factors, a prime objective for the Australian Government in ramping up the regime for the removal of criminal offenders is to protect citizens from harmful or criminal conduct. Non-citizens do not have an absolute right to live indefinitely in Australia. This may come as a shock to the many New Zealanders who live in Australia, many of whom have lived in Australia for many years, some perhaps in the belief that they have a protected status because of the closeness of ties between the two countries, and the ease of contact and communication between them. The applicant appears to have believed that he was a permanent resident and was not liable to deportation.
At the present time, the risks associated with the applicant’s continued presence are outweighed by the potential damage to his family if he is removed. The long term risk to the community as a whole as a result of the breakdown of his family should not be lightly dismissed. He can best pay his debt to the Australian community and limit any further fall-out from his past offending by providing a secure and safe family for his children and step-children.
I am firmly of the view that in the event of further serious or criminal conduct, the applicant can have no expectation of further indulgence from the criminal justice system or the Minister. His path to ensuring that his family is not subject to further hardship is to stick to the straight and narrow of the law. Importantly, this will include at some point in the future taking responsible steps to seek the restoration of his driver’s licence.
I find that he fails the character test in subsection 501(6) of the Act. Nevertheless, there is ‘another reason’ why the decision should be revoked.
DECISION
The reviewable decision is set aside and as a result the applicant’s visa is not cancelled.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
......................................[sgd]..................................
Associate
Dated: 6 July 2021
Date(s) of hearing: 23-24 June 2021 Advocate for the Applicant: Mukesh Chand, Shiva's Migration Services Solicitors for the Respondent: Samuel Cummings, Sparke Helmore Lawyers
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