JCNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 5092

JCNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5092 (20 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/7092

Re:JCNZ  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:20 December 2021  

Date of written reasons:        19 January 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

.................[Sgnd].......................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of applicant’s visa – substantial criminal record – primary considerations including interests of minor children – family violence – on balance revocation of cancellation decision preferable decision on evidence adduced before Tribunal – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050;

XLJR v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619

Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

SECONDARY MATERIALS

Direction No 90 – Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 8 March 2021

REASONS FOR DECISION

Senior Member Dr N A Manetta

19 January 2022

1. Following delivery of my oral reasons, I received a request for written reasons, which I now publish.  I note that this matter was heard on Thursday, 16 December and Friday, 17 December 2021 with a decision required on Monday 20 December 2021.  The reasons I gave orally on 20 December 2021 now follow, with some minor editing only.

2. This is an application by JCNZ (the “applicant”) seeking a review of a decision of the respondent’s delegate dated 23 September 2021. By that decision the delegate affirmed an earlier decision taken in the respondent’s Department mandatorily to cancel the applicant’s Partner visa under section 501 of the Migration Act, 1958 (“the Act”). The earlier decision was taken as the applicant had been convicted of a number of offences and sentenced to an aggregate term of 12 months, part of which he was required to serve on a full-time basis in a correctional centre.  The earlier decision was clearly correct when it was taken on 21 January 2021.

3. The applicant lodged an appeal against the severity of the sentence, which was in the event successful. For present purposes it is sufficient to note that in March 2021 the aggregate sentence of 12 months was reduced to an aggregate sentence of nine months.

4. The applicant was invited to provide submissions, if he wished, in respect of the mandatory cancellation and was specifically invited to address the criteria in Direction 79, issued under section 499 of the Act, which was then in force.  He availed himself of this opportunity through his representatives at the time.  Before the delegate made his or her decision on 23 September 2021, Direction 79 was repealed and Direction 90 took effect in its place.[1]

   [1] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

5. The delegate correctly identified that he or she had jurisdiction to revoke the cancellation decision under section 501CA(4)(b) if the applicant passed the character test as defined by section 501; or, if he did not pass the character test, that there was “another reason” why the cancellation decision should be revoked. In respect of this latter issue, the delegate was obliged to apply the appropriate direction issued under section 499 of the Act. Both Direction 79 and Direction 90 clearly envisage the weighing up of considerations to arrive at a discretionary decision on balance as to whether there is “another reason” for the cancellation decision to be revoked. I, too, am bound to apply the appropriate direction as part of my review.

   TRIBUNAL’S TASK

6. Hearing the matter afresh on the evidence before me, I must determine the same two questions. In determining these issues, I proceed de novo on the merits. That is, I reach the correct or preferable decision based on the evidence adduced before me and I do not review the delegate’s decision for error as such. This means that I may affirm the decision under review notwithstanding the presence of a discernible error in the delegate’s decision if that is the correct or preferable decision on the evidence before me; equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me. At the hearing before me, Mr Poynder appeared for the applicant; Ms Hargrave, for the respondent.

   STATEMENT OF CONCLUSION

7. I have decided to set aside the decision under review and to substitute a decision that the visa cancellation be revoked. I now turn to set out the facts, including my critical findings of fact, together with my reasons for the conclusion I have just stated.

   PRELIMINARY MATTERS

8. Before doing so, I raise two preliminary matters. First, the application was argued on the basis that the relevant direction I should apply in my consideration of the second of the two issues I have identified is the more recent Direction 90 rather than the earlier Direction 79.  

9. I have proceeded on the assumption that Direction 90 is the direction which I am legally required to apply in my review. Direction 90 is not more favourable to the applicant than its predecessor, Direction 79, and in some respects is less favourable to him: I refer here to the new emphasis on family violence. In other matters, I have drawn attention to the fact that it may be the case – I put it no higher than “may be” – that the applicant might have an accrued right to have his review conducted in this Tribunal by reference to Direction 79, the direction that was in force when the delegate invited submissions from the applicant and which remained in force at the time the applicant made his submissions. But I am not required to resolve this issue to reach a decision in this case, and I note that I received no submissions in relation to it.

10. The second preliminary issue to which I would make reference involves the legal basis for the mandatory cancellation of the applicant’s visa. Under section 501, relevantly, the applicant’s visa was liable to mandatory cancellation because he had committed an offence which was punished by a sentence of at least 12 months’ imprisonment which he was required to serve, at least in part, on a full-time basis in a custodial institution: see subsection (3A). As I have earlier noted, the applicant’s sentence was reduced on appeal, and so the statutory basis for the mandatory cancellation of the applicant’ visa no longer existed at that point. It was the case, however, that the delegate who exercised the power to cancel the applicant’ visa mandatorily was required so to act at the time his or her decision was taken.

11.  When the delegate came to consider exercising the statutory power to revoke the visa cancellation decision, the sentence had been reduced to nine months. One question which arises is whether the power to revoke the visa cancellation was immediately enlivened because the basis for a mandatory cancellation no longer existed.

12. The answer that has been given by the Federal Court to this question is that the supervening absence of a basis for a mandatory cancellation does not afford of itself a reason for the visa cancellation to be revoked. Rather, the decision-maker must be satisfied that the visa holder passes “the character test” as defined by section 501.[2] This invites a consideration of all of paragraphs (a) to (h) of section 501(6). I shall not set out relevant extracts from these decisions, but I follow them.

[2] See PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050; XLJR v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619.

13. In this case, the delegate found that the applicant did not pass the character test because there was a risk that he would engage in criminal conduct in Australia if allowed to remain. For my own part, I think it is clearly the case that the applicant is not presently a person of good character having regard to his past criminal and general conduct: see section 501(6)(c). I think it is also the case that there is a risk that the applicant would either engage in criminal conduct in Australia or harass, molest, or intimidate another person in Australia (namely, his wife): see section 501(6)(d)(i) and (ii).

14. Accordingly, I conclude that I am not satisfied that the applicant passes the character test as defined by section 501.

15.  It follows that the applicant’s visa cancellation may only be revoked, if I am satisfied that there is “another reason” for its revocation. This question involves the application and weighing of the various considerations mentioned in Direction 90 (which I have assumed is the correct Direction to apply).

FACTS

16.  I now turn to set out the background facts. The applicant was born in the Philippines in 1991. He lived there with his parents and siblings until he was aged 22. He had first met his future wife (“KR”) in high school but she subsequently left for Australia. In 2009 or 2010, she came back to the Philippines and attended a school reunion with him. At this point they commenced a long-distance relationship for some two years. As I understand matters, KR fell pregnant to the applicant in the Philippines; but he was only able to join his family in 2013, after the baby’s birth. The couple married in 2013. The applicant looked after the baby for some months after his arrival and then commenced employment as a factory worker for some four months. He was then off work for two months, but then worked three months as a removalist, and after that as a security guard on weekends. Eventually, he secured a permanent job for some four years with an air-conditioning company called Aktron Air. The applicant said this job ended before he was sent to prison because of the time he took off for court attendances, but the evidence suggests a more general problem with absenteeism. I note that at page 136 of Exhibit R1, a letter is provided by Mr Brotherton. He was the afternoon shift production manager, although not the applicant’s direct line manager. He says the applicant is hard-working but he also refers to absenteeism. He would not re-employ the applicant at Aktron Air.

17.  The applicant lost his mother prematurely, in 2019: she was only 48 years of age. She was living in the Philippines at the time of her death. It would appear that her condition was misdiagnosed. At around this time as well, the applicant and KR were both working long shifts. At this point in their marriage, they had two young children. They were living in a granny flat located on premises occupied by the applicant’s mother-in-law.

18.  At about this time, the applicant began to take regularly, and in increasingly larger amounts, methamphetamine, or “ice”, which he used, he said, to cope with the stresses of his life. It would also appear that KR was occasionally taking cocaine during the same period. The applicant apparently first began taking ice in 2018, but it would appear he began to use the drug more severely in 2019.

19.  A number of incidents occurred during this time that finally led to the applicant being jailed and the consequential cancellation of his visa. 

20.  Before considering these incidents, I would expressly note a serious event involving the applicant dating from 2016. This incident was the subject of differing versions at the hearing.  I have decided to proceed on the basis that the version given in the police report is correct. This version of events was denied by the victim, KR, who gave evidence on behalf of her husband at the hearing before me. It was also the case that it was not put to her directly in cross-examination that she was deliberately underestimating the event to assist her husband’s case before the Tribunal. Nevertheless, I believe that that is what she was doing. I refer in this regard to Mr Borenstein’s report which notes KR’s anxiety over the fate of her husband.

21.  On the day in question, the applicant and his wife were both at home in the early hours after a long shift. They had their second child, an 11-month old baby, with them.  An argument took place. 

22.  I am prepared to assume that the argument was begun by KR, who complained that the applicant was not contributing his fair share to the care of the baby. Whether that is true or not is largely irrelevant, however, because I certainly do not accept that anything KR said or did on that occasion provoked the applicant’s reaction. The incident is fully described at Exhibit R2, pages 22-23. I shall not set out the report, but I have paid close attention to it. 

23.  Of particular concern to me is the fact that the incident records the applicant approaching his wife and picking up a glass vase and holding the vase up to her throat under her chin. He made accusations about her and verbally abused her repeatedly. The applicant then walked away but returned and repeated the action some five times as KR was holding the baby in her arms. KR left the flat and asked her mother to call the police who attended the scene some hours later. The police report records that there had been no previous incidents involving the couple reported to police, but KR is recorded as having stated that there had been a number of previous arguments and that they appeared to be escalating “in nature”.  KR stated on this occasion that she wanted an apprehended violence order (or “AVO”) taken out to serve as a warning of the possible future consequences if the applicant’s behaviour continued. KR did not, however, wish for the applicant to be charged. It would appear that at least some part of this incident occurred in front of the older child, who ran out of the granny flat and into the main house to warn the mother-in-law. I assume the 11-month-old baby has no memory of the event.

24.  As I have said, this event occurred in 2016. On 7 and 8 December 2019, certain other serious events transpired. An argument between the couple had taken place and KR packed up the applicant’s things in order to indicate to him plainly that he should leave. The applicant had a further argument with KR at this point where he verbally abused her. He threw a chair against a shoe-cabinet which was partly constructed of glass. I do not accept KR’s evidence that the chair merely caused a dent in the wooden frame and no other damage; but if I am wrong in that conclusion it could only have been a fluke that the cabinet was not more seriously damaged. 

25.  The next day the applicant attended the premises to take his belongings. The applicant yelled at his wife and then used a large so-called “butterfly” knife that he had in his possession unlawfully to slash all four tyres of KR’s car. They deflated.

26.  When KR heard the noise made by the escaping air, she called the police. The events on these consecutive days led to charges of malicious damage (in respect of the cabinet) and intimidation and malicious damage (with respect to the tyres) as well as the possession of a prohibited weapon.

27.  An AVO was also taken out in January 2020 by the police against the applicant.  On 4 February 2020, the applicant breached the AVO by attending KR’s workplace where he became abusive and caused a significant disturbance.

28.  On 25 June 2020, the applicant was found in the granny flat in breach of the AVO.

29.  On 3 July 2020, the police attended the granny flat and, not finding the applicant there, they charged him with breach of his bail agreement for leaving these premises and not providing a new address.

30.  On 4 August 2020, KR and the applicant both attended the granny flat in one another’s presence. The applicant’s mother-in-law, finding him in the granny flat, demanded that he leave and threatened to call the police. KR’s brother walked out of the main house armed with a metal pole. A physical altercation between them ensued in which the applicant inflicted a severe bite wound upon his brother-in-law and sought to wrestle his mother-in-law’s phone from her hand as she attempted to contact the police.

31.  The event on 4 August 2020 was preceded by an unauthorised attendance at the mother-in-law’s premises on 1 August where there was another heated argument between the applicant and his brother-in-law.

32.  On 18 January 2021, the applicant was convicted in the Penrith Local Court of a number of offences. I shall not set out the convictions or the sentencing remarks of the Court: they are set out in Exhibit R1 at pp 41ff. I note that I have considered the remarks carefully and adopt them as the proper basis for considering the applicant’s application to this Tribunal.  An aggregate sentence of 12 months’ imprisonment was imposed commencing on 5 August 2020 when the applicant was taken into custody. A non-parole period of six months, concluding on 4 February 2021, was fixed.

33. As I have said, on 28 January 2021, the applicant’s visa was cancelled mandatorily under section 501(3A) of the Act. In his or her consideration of the matter, the delegate applied Direction 90, and I have already indicated that I shall also apply this direction.

DIRECTION 90

34.  I set out the background to Direction 90 in Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at [32]ff:

“32.I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

33.I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

34.First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

35.I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

36.Informed by these principles, I am required under Part 2 the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

PRIMARY CONSIDERATIONS

35.  I turn now to consider the primary considerations. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) requires me to bear 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 noncitizens. I should have particular regard to the principle that remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are law-abiding and will not cause or threaten harm to individuals or the Australian community. I bear this in mind.

36.  As a part of my assessment, I must consider the nature and seriousness of the noncitizen’s conduct to date and the risks to the Australian community should the noncitizen commit further offences or engage in other serious conduct. I note that the convictions the applicant has in respect of his conduct were in evidence before me in Exhibit R1 at pages 36ff. I have already referred to the sentencing remarks at pp. 41ff.  In considering the nature and seriousness of the applicant’s criminal offending and other conduct to date I must have regard to a number of matters which are specified in paragraphs (a) to (g) of para 8.1.1(1).

37.  Paragraph (a) is directly applicable.  The paragraph addresses crimes of a violent nature against women and acts of family violence whether or not there is a conviction or a sentence imposed. These crimes are to be treated very seriously and I do so in this case.

38.  The 2016 episode is of significance. The report to which I have referred indicated that the offending involved the holding of a glass vase up to the victim’s throat on a number of occasions. It must have instilled real fear in her. I note that the older child left the granny flat, presumably to summon help from the main house. The incident occurred in the course of an abusive exchange and while the victim was holding a baby, which is a further aggravating feature of the offending.

39.  I take into account also that the attack upon KR’s brother occurred in domestic premises where the applicant had no right to be. Rather than leaving the premises, the applicant engaged in a violent encounter with his brother-in-law in which he inflicted a savage bite. He also sought to grab a phone from his mother-in-law, an older female, who was, understandably, concerned to summon police to have the applicant ejected from the premises and thereby secure her family’s safety. I also include within the category of violent crimes the hurling of the chair against the cabinet in the presence of KR who must have found the act confronting to say the least.   These are all very serious matters.

40.  Some of the offences have resulted in the applicant breaching the AVOs taken out against him. That is an aggravating feature and serious matter.  An AVO is an official order issued by a competent public authority requiring the person to whom it is addressed to comply strictly with its terms.  It is issued in order to protect the community member concerned.

41.  It does not matter, in my opinion, that KR may not have wanted the AVO or that KR may have assisted the applicant to breach it by inviting him to premises which he ought not to have attended in the circumstances.  I think that is largely irrelevant.

42.  It is a fact that the applicant has shown scant respect for the AVOs. He has attended his wife’s workplace and his mother-in-law’s premises in breach of them. He has disturbed the premises he has visited, and in the case of his mother-in-law’s premises, both the mother-in-law and her son (the applicant’s brother-in-law) have been subjected to violence or rough-handling and threats. This serious misconduct is completely unacceptable. It has all stemmed from the applicant’s refusal to comply with the law. I regard these matters as very serious because the behaviour is strongly antisocial and defiant.

43.  I am required to have regard to the sentences imposed by the courts, and I do so. I note that there is an exception in respect of sentences imposed in respect of acts of family violence and acts of a violent nature against women as these are always to be regarded very seriously. I regard the violence extended towards the mother-in-law and toward the brother-in-law as acts of family violence and of course the incidents involving KR are also examples of family violence. I have regard to the fact that the sentences were not suspended.

44.  I must have regard to the frequency of the applicant’s offending. I do have regard to that frequency. I have also proceeded on the basis that the applicant has on more than one occasion threatened his wife with a glass vase. I also proceed on the basis that there must have been many occasions when arguments broke out that were abusive and well exceeded the bounds of normal disputation that can arise between domestic partners. 

45.  I am to have regard to any trend of increasing seriousness, and I do so in this case. I bear in mind that an AVO was taken out in 2016 in order to persuade the applicant to desist from his threatening and antisocial behaviour within the family. Nevertheless, the applicant committed further offences and I am particularly concerned that the applicant should return to premises in December 2019 on two occasions on successive days. The slashing of the car tyres seems to me to be an act of wanton aggression and intimidation towards KR. I bear in mind that this behaviour prompted her to call the police.

46.  The cumulative effect of repeated offending must also be taken account of and I do so. Both KR and the applicant’s mother-in-law have now been the victims of repeated abusive behaviour which has sometimes manifested itself in violent episodes. This is not a case where there has been simply one episode, but there have been, rather, many episodes.

47.  In this connection I should also make mention of the applicant’s misuse of illicit drugs. This has a strongly antisocial element to it because the use of ice would not have assisted the applicant to control his impulsive and violent tendencies: to the contrary I proceed on the basis that its use would have exacerbated his tendencies in this regard substantially. Moreover, the applicant was simply wasting important family financial resources to fund an illicit habit to the detriment of his wife and children. His drug-taking was in my opinion a strongly antisocial and pernicious habit, as well as a criminal one, that could only have aggravated an already difficult relationship with his wife and children.

48.  I would also take into account the fact that some of the applicant’s offending must have been seen, or at least heard, by his children. This is a serious matter in my opinion as children who witness serious domestic arguments or physical aggression can suffer psychologically. They have a legitimate right as young community members to a secure and peaceful home environment.

49.  I must consider the risk to the Australian community should the noncitizen commit further offences or engage in other serious conduct. I shall not set out paragraph 8.1.2(1) but I have regard to the principle therein stated.

50.  In assessing risk, I must have regard to “cumulatively” the nature of the harm to individuals or the Australian community should the noncitizen engage in further criminal or other serious conduct and the likelihood of the noncitizen engaging in further criminal or other serious conduct taking into account in particular the matters specified in subparagraphs (i) and (ii).

51.  I think the nature of the harm to individuals should the applicant engage in further criminal or other serious conduct is potentially very grave. Aggression, particularly in a person who regularly uses ice, is often unpredictable and can escalate quickly to encompass a range of disinhibited or uncontrolled behaviours. I regard the holding of the glass vase to the throat of KR in 2016 as very serious indeed. I also regard the violence meted out to the brother-in-law as very serious. The brother-in-law was seeking, as the sole adult male on the premises apart from the applicant himself, to eject the applicant in circumstances where the applicant was correctly perceived as a potential threat to those lawfully on the premises. That legitimate action led to a quite savage attack, and it could easily have been worse but for the mother-in-law’s intervention when she struck the applicant in the head with a plastic container. In my opinion, the applicant has displayed behaviour showing that if a person seeks to defend himself or herself or property, that person is at risk of serious physical aggression.

52.  I must have regard to “cumulatively” the likelihood of the applicant engaging in further criminal or other serious conduct. I must take into account information and evidence on the risk of the applicant reoffending and I must also take into account evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since his most recent offence. I have considered the specialist opinion of Mr Borenstein who indicated in his report dated 26 May 2021 that in his view the applicant is highly unlikely to reoffend: Exhibit R1, p 235. I was pressed with this opinion by Mr Poynder.

53.  There are difficulties in accepting Mr Borenstein’s opinion in an unqualified way. I think parts of his reports proceed on false premises. I think the applicant’s explanation that he slashed the tyres on his wife’s car because he did not want his wife to go to her brothers to use cocaine, ought not to have been accepted by Mr Borenstein, especially given the other violence. Mr Borenstein accepted in his oral evidence to the Tribunal that he had interviewed the applicant remotely and did not have the advantage of psychometric testing. I accept, however, that attributing some of the applicant’s behaviours to his ice habit and grief following his mother’s death was reasonable.

54.  I am not as sanguine as Mr Borenstein, however, who assessed the applicant’s risk of reoffending as low. Nevertheless, there are other matters I believe I should take into account in the applicant’s favour. I take into account that the applicant entered jail on 4 August 2020 and was, as I understand matters, transported directly from jail to immigration detention when he was paroled. At the time of the hearing, he was in immigration detention on Christmas Island. At the time of my decision on 20 December 2021, he had been deprived of his liberty for some 16 to 17 months, which is a very significant period of time. This is, as far as I am aware, his first period of extended incarceration.  I have said in other cases and repeat here that the reality of the end of his life in Australia and of his imminent separation from family must have been brought home to the applicant very clearly by the cancellation of his visa and his removal into immigration detention. He will know that any further repetition of his behaviour will see only a longer term of imprisonment imposed (given his criminal record) and the cancellation of his visa would automatically follow. The applicant could entertain no reasonable hope of persuading this Tribunal a second time that his visa should be reinstated. This provides a very strong deterrent effect.

55.  I do not have direct evidence of the effect of jail and immigration detention upon the applicant as rehabilitative measures, but I should proceed, I believe, on the basis that this lengthy period of incarceration will have had at least some rehabilitative effect given that it is the applicant’s first period of extended incarceration.

56.  I take into account also that on the evidence before me the applicant has been forced to cease his use of ice since entering jail. His physical dependence on the drug has been broken, but I am well aware that drug dependency is not simply a matter of physical addiction but involves complex psychological issues that must be addressed. These have yet to be addressed by the applicant. I accept that the applicant has begun a process of engagement in courses addressing violence and anger management: see for example Exhibits A7 and A8. That at least is a start, but it is only a start.   I do accept, however, that it does indicate a willingness on the applicant’s part to seek to turn his life around.

57.  KR has given evidence, which I accept, that she wishes to re-engage in her marriage. The couple have two children together. The love and the support of his family are powerful incentives for the applicant to reform his life. Evidence was given at the hearing by a friend who has had difficulties in his own marriage and life, and he will assist the applicant to build a law-abiding and fulfilling life: Ex A8. There are, therefore, supports in place to assist the applicant. He does have a work history although not the prospect of immediate re-employment on re-entry into the community. The evidence suggests that he is a good worker when he remains focussed: Ex R1, p 386. He has achieved a welding qualification while in jail and this will assist him also to find work in the community. I bear in mind that KR no longer lives in the granny flat or with her mother. There will be no reason for the applicant to visit the premises occupied by the mother-in-law or by the applicant’s brother-in-law.

58.  In my opinion, all in all, it is not appropriate to assess the applicant’s risk to the community as low, but rather somewhere between low and medium. I bear in mind, however, that I must have regard to matters “cumulatively” under para 8.1.2(2) and do so.

59.  The second primary consideration to which I must have regard involves the acts of family violence committed by the applicant. I note that paragraph 8.2(1) records the serious concerns the Government has about conferring on noncitizens who engage in family violence the privilege of remaining in Australia. I note this concern. I must have regard to factors which are listed in sub paragraphs (a), (b), and (c) of subparagraph (3). I am concerned by the frequency of the applicant’s conduct and the trend of increasing seriousness in that it has escalated into actual physical conflict. I have regard, but only limited regard, to the efforts the applicant has made to address his violence as these have only been a start in the right direction. The applicant has certainly said that he accepts responsibility for his violent conduct, but I must say I am not convinced that this is the case because I doubt that the applicant presently understands the impact of his behaviour on those whom he has abused and on his children. I accept that he has some limited understanding from the courses he has undertaken while detained, but, as I have said, this is a start only. I am certainly aware of, and bear in mind, the very serious concerns that arise from family violence.

60.  The third factor that I must consider is the best interests of minor children in Australia. I note that the delegate accorded this factor some weight in favour of revocation. There are two minor children involved, namely one born in 2012 and the other in 2015. KR believes the children miss their father. KR referred in Ex A2 to the children having become more emotional recently given the father’s absence. They do not understand why their father cannot return home. Mr Borenstein has recorded KR’s view, expressed to him at interview, that she is struggling as a single parent (see page 3 of his report at Exhibit A6). There is a further references to the children inquiring after their father and to their being emotionally “labile” and fearful (see page 7 of his report at Exhibit A6). Mr Borenstein refers to KR struggling to support the children. The children are, in Mr Borenstein’s opinion, at greater risk of developing psychological symptoms if forcibly separated from their father. I accept that expert evidence.

61.  On balance, I accept that the interests of the children do favour revocation of the cancellation decision. I think the reality is that the children would lose one-on-one contact with their father if he were removed to the Philippines. I accept that there may be ways in which contact could be maintained visually (through FaceTime or Skype for example), but one-on-one contact is very important. I accept that KR already fulfils a parental role in relation to the children and so the impact of the applicant’s removal would be mitigated partially. I must also have regard to the fact that at least some of the family violence has been perpetrated by the applicant in the presence of the children although there is no evidence before me that the applicant has directed his anger at the children per se. Mr Poynder referred me to a specialist academic article on the psychological impact of detention and deportation on US migrant children and families (which I received as Exhibit A9). I was referred to the discussion at page 540 in particular. The article in question is directed to the deportation of immigrants who have illegally arrived in the United States. The sudden deportation of a parent can, of course, disturb a child’s psychological state markedly. So far as it goes, the article makes perfect sense, but I bear in mind that the applicant was also a very disruptive member of his household. I accept that the children have affection for him and wish him to come home, but I must also balance up the risk to them of any recurrence of family violence. Were there to be any recurrence of violence, my belief is that the interests of the children would be better served by the applicant’s removal as difficult as that might be for the children initially. As I said in the hearing, children are often victims of domestic discord and violence, and all the more so because they are unable to escape it or fend for themselves and have only an immature capacity to understand and rationalise explosive displays of aggression.

62.  Having said that, I do accept that children are best raised in a stable family unit where both mother and father are present and jointly contributing to their children’s welfare. I accept the assessment in Mr Borenstein’s report that KR is struggling at the present time to support the children and that her own state of health is impaired as a result of the single parenting role she has had to adopt. I also accept that the children would benefit substantially from a peaceful and interested father. Their interest in that regard is quite substantial in my opinion, and I am conscious of the fact that a decision to deport the applicant will result in the fracturing of a family and the imposition of a substantial burden on two children who are innocent victims of family discord.

63.  I must have regard to the expectations of the Australian community. These are set out in paragraph 8.4, and it is made clear in subparagraph (4) that I must proceed on the basis of the Government’s views as articulated in paragraph 8.4 and not assess the community’s expectations for myself. I will not set out paragraph 8.4 but it is quite clear that this consideration counts substantially against the applicant given the violence, particularly the family violence, in which he has engaged.

OTHER CONSIDERATIONS

1. I must have regard to other considerations which are listed non-exhaustively in paragraph 9 (1). International non-refoulement obligations do not arise for consideration. I do not think that there are any significant impediments to the applicant re-establishing himself in the Philippines. Of course, there will be some limited period of initial dislocation but Mr Poynder did not press the extent of the impediments, and I agree that it is a matter of very limited significance in this case.

1. I am to have regard to the impact on victims. I have already considered the interests of the children and taken into account the fact that they have witnessed violence. I have no evidence before me concerning the applicant’s mother-in-law and brother-in-law and therefore I regard that as a neutral matter. KR is also a victim. 

2. KR has made it clear that she considers it to be in her interests that the applicant not be deported. I do have to weigh up the impact of my decision on KR. She is both a victim and a family member, his spouse. A decision to deport the applicant would have the benefit of protecting KR from any further violence. I believe therefore that, in one sense, it would be in her interests for the applicant to be removed to the Philippines.  It does not matter that KR may not see it that way: very frequently, those involved in abusive relationships do not appreciate fully their own best interests. On the other hand, I do take into account that KR is apparently committed to the relationship and has a genuine interest in maintaining it. She is presently experiencing stress and has the ongoing difficulties of being a single parent. I accept that if the applicant were to behave appropriately, she would derive support from him. She wishes to re-establish a mutually supportive and respectful marriage, and I do not exclude that as a fanciful desire on her part.  On balance, I regard it as being in KR’s interests that the applicant remain in Australia. I also bear in mind that if the applicant secures gainful employment, he will make a financial contribution to her financial welfare.  Notwithstanding past issues with absenteeism, I believe the applicant has reasonable prospects in this regard given his work history and his welding skills.

3. I must also have regard to links to the Australian community. I have already considered the impact on KR and the interests of the minor children. I do not believe there are other ties to which I need to have regard.

4. I believe I should also take into account the impact on the applicant himself of separation from his family. I believe it is in his own interests that he maintain personal contact with them.

   WEIGHING THE CONSIDERATIONS

5. Weighing the various considerations in this case has proved extremely difficult. I am particularly concerned by the prospect of family violence in this case directed towards KR. I believe that the risks to KR’s mother and brother are limited because there is no inevitability of encounter through commonly occupied premises, but certainly the risks to KR are there.

70.  I must take account of the very strong position the Direction takes in respect of family violence, and I do so.

71.  In this case, I believe it is appropriate to pay particular attention to the overall interests of the children and of KR herself, although I have actively considered that she runs the risk of further violence if she cohabits with the applicant. In that regard, I understand that it will be open to KR to calibrate the amount of contact she has with the applicant so that he gradually and peacefully resumes contact with family members.

72.  Like the delegate, I do believe that the interests of the children do favour revocation of the decision. I am mindful of the adverse effects the fracturing of family relationships can work upon children. I do not believe this family has been so damaged by violence and aggression that seeking to reinstate it would be pointless. I do believe there are legitimate grounds for optimism, albeit cautious optimism. The cessation of the drug habit is a positive. Mr Poynder suggested that the fact that the children are older and therefore less demanding at night in terms of feeding and so on is also a positive; but I would note in that connection that rearing children imposes different stresses at different life stages. The applicant will be exposed to all sorts of stressors in his life with KR. These may arise from money worries, ill health, problems at work, or difficulties arising from interactions with neighbours. These are examples only of the problems that all community members must face. Whilst I accept that it is true that the needs of babies and young children impose themselves in a particular way, it is not the case that stress in life necessarily declines as children get older.  I have referred, however, to what I regard as positives for the applicant including the rehabilitative effect of a significant period of incarceration and the deterrent effect of both jail and more importantly immigration detention. I believe that in the applicant’s case, the deterrent factor is a very powerful one.

73.  I am persuaded that on balance the interests of KR and the children do favour revocation of the cancellation decision. I am fortified in this view by my assessment that the risks of danger to the community more generally are limited. The physical violence in question, while substantial, has been confined within a family context and the other victims of that violence (namely, the applicant’s mother-in-law and brother-in-law) are not likely in my opinion to be exposed to any further violence since there will be no reason for the applicant to attend their premises.

CONCLUSION

74.  In all the circumstances of this very difficult case, I have decided that the proper weighing of the discretionary factors leads to a conclusion that favours revocation of the visa cancellation decision. In my opinion, the preferable decision on review is a conclusion that I am satisfied that there is, to revert to the language of the Act, “another reason” for the cancellation decision to be revoked.  I do not say that the opposite decision is not open.  In my view, however, the decision I have reached is the preferable or correct decision on balance on the evidence before me.

75.  A formal decision reflecting this conclusion was drawn up, signed, and emailed to the parties on 20 December 2021.

I certify that the preceding 75  [seventy-five]  paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

....................[Sgnd].........................

Administrative Assistant Legal

Dated:   19 January 2022  

Dates of hearing:  16 & 17 December 2021

Advocate for the Applicant:  Nicholas Poynder, FREDERICK JORDAN CHAMBERS

Advocate for the Respondent:  Lauren Hargrave, CLAYTON UTZ