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

[2021] AATA 26

JNMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 26 (20 January 2021)

Division:GENERAL DIVISION

File Number:          2018/0484

Re:JNMK

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:20 January 2021

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 15 January 2018 to refuse the Applicant’s application for a Permanent Partner Visa, is affirmed.

...........................[Sgd].............................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

MIGRATION – refusal to grant a permanent partner visa – applicant initially came to Australia on student visa – character test – substantial criminal record – offences include Dangerous Driving Occasioning Death and Dangerous Driving Occasioning Bodily Harm – subsequent offences for driving under the influence of alcohol and unlicensed driving – Direction No 79 – primary and other considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to the Australian community should the Applicant commit further offences – best interests of minor children in Australia – expectations of the Australian community– impact on family members – impact on victims – impact of the COVID-19 pandemic – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth) – 189(1), 499(1), 499(2A), 500(6B), 501(1), 501(6), 501(6)(a), 501(7), 501(7)(d), 501F

CASES

Apire and Minister for Immigration and Border Protection [2014] AATA 193

Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
JNMK v Minister for Home Affairs (2019) 168 ALD 206
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 580
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

YNQY vMinister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(2), 6.2, 6.2(1), 6.3, 6.3(5), 6.3(6), 7(1)(a), 11(1), 11(1)(a), 11(1)(b), 11(1)(c), 11.1, 11.1(1), 11.1.1(1), 11.1.1(1)(a), 11.1.1(1)(b), 11.1.1(1)(c), 11.1.1(1)(d), 11.1.1(1)(e), 11.1.1(1)(f), 11.1.1(1)(g), 11.1.1(1)(h), 11.1.1(1)(i), 11.1.1(1)(j), 11.1.2, 11.1.2(3)(a), 11.1.2(3)(b), 11.2, 11.2(4), 11.2(4)(a), 11.2(4)(b), 11.2(4)(c), 11.2(4)(d), 11.2(4)(e), 11.2(4)(f), 11.2(4)(g), 11.2(4)(h), 11.3, 11.3(1), 12(1), 12.1, 12.2(1), 12.3(1), 12.4(1), Part B

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

20 January 2021

BACKGROUND

1. The Applicant is a 32-year-old man who is a citizen of the Republic of Zambia (Zambia) (G23/485).

2. He first arrived in Australia on 7 October 2008 as the holder of a Class TU Subclass 573 Higher Education Sector (temporary) visa (Student Visa) (G7/205).

3. In 2011, while he was studying at a university in Perth, the Applicant met his wife, who later became the sponsor of his partner visa application.

4. The Applicant pled guilty in the Perth Magistrates Court to four charges arising from an incident that occurred on 3 March 2012. The Applicant was driving under the influence of alcohol, lost control of his car which collided with a tree, killing his 30-year-old friend who was a passenger (G25/557) and injuring another 22-year-old friend who was also a passenger (G25/545). The Applicant also suffered serious head injuries which required him to be hospitalised until July 2012.

5. The Applicant was convicted in the Perth Magistrates Court on 29 October 2012 and was convicted of the following offences arising from the incident on 3 March 2012 (G26/571):

   (a)Driving under the influence of alcohol, with the specific offence being “Exceed 0.05g alcohol per 100ml of blood; >=0.07g/100ml but <0.08g/100ml”, for which he received a $300 fine and a three-month driving disqualification;

   (b)“No Authority to Drive – Never Held”, for which he received a $250 fine;

   (c)“Dangerous Driving Occasioning Death”, for which he was sentenced to nine months' imprisonment, suspended for 14 months and a two-year driving disqualification; and

   (d)“Dangerous Driving Occasioning Bodily Harm”, for which he was sentenced to three months’ cumulative imprisonment, suspended for 14 months and an 18-month concurrent driving disqualification.

   These offences will be collectively referred to as the First Driving Offences.

6. The Applicant returned to Zambia on 16 November 2012. At that time, his Student Visa had expired, and he was the holder of a Class WE Subclass 050 Bridging (General) (temporary) visa (G7/205).

7. On 10 July 2013, the Applicant married his wife who had come from Australia to join him in Zambia (G18/267).

8. On 16 July 2013, the Applicant lodged a combined application for a Class UF Subclass 309 Partner (provisional) visa (Provisional Partner Visa) and a Class BC Subclass 100 Partner (Migrant) (permanent) visa (Permanent Partner Visa) (G3/156; G6/168-204). It is the Permanent Partner Visa that is the subject of this application.

9. The Applicant returned to Australia on 16 January 2014 under the Provisional Partner Visa (G7/205).

10. The Applicant’s wife gave birth to their first child, a daughter (K), in Australia on 13 April 2016 (G18/268; A1/2).

11. On 30 November 2016, the Applicant lodged a Form 80, “[p]ersonal particulars for assessment including character assessment” with the Department of Immigration and Border Protection (the Department), as it was then called (G10/212-230).

12. In a letter dated 31 July 2017, the Applicant was given notice of the intention to consider whether his application for a Permanent Partner Visa should be refused under s 501(1) of the Migration Act 1958 (Cth) (the MigrationAct) (G12/234-237).

13. In a letter dated 28 August 2017, the Applicant’s migration agent made representations on his behalf which acknowledged that he did not pass the character test but requested that his Permanent Partner Visa not be refused (G13/237-245).

14. However, on 15 January 2018, a delegate of the Respondent found that the Applicant did not pass the character test and decided to exercise discretion under s 501(1) of the Migration Act to refuse his application for a Permanent Partner Visa (G4/160). This is the Reviewable Decision that is currently before the Tribunal.

15. In a letter dated 1 February 2018 sent by email to his migration agent, the Applicant was notified of the Reviewable Decision (G2/152-154; G24/486-489).

16. Also, by operation of s 501F of the Act, the Minister was taken to have decided to cancel the Applicant’s Provisional Partner Visa as well.     

17. Consequently, on 1 February 2018, the Applicant was taken into immigration detention (R1/2) pursuant to s 189(1) of the Act.

18. On 2 February 2018, the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal (the Tribunal) seeking a review of the Reviewable Decision (G1). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.

19. On 15 March 2018, the Applicant was convicted in the Perth Magistrates Court of the following driving offences which were committed on 27 January 2018 (G26/569-575):

    (a)“did drive (or attempt to drive) a motor vehicle on a public road with a blood alcohol content exceeding 0.05g”, for which he received a fine of $500 and was disqualified from holding or obtaining a driver’s licence for six months (concurrent); and

    (b)“No Authority to Drive (never held)”, for which he received a fine of $300 and was disqualified from holding or obtaining a driver’s licence for three months (concurrent).

    These offences will be referred to as the Second Driving Offences.

20. On 11 April 2018, the previously constituted Tribunal heard the application. On 24 April 2018, the Tribunal affirmed the Reviewable Decision (Previous Tribunal Decision).

21. On 25 July 2018, the Applicant’s wife gave birth to their second child, a daughter (F) (A1/15).

22. The Applicant appealed the Previous Tribunal Decision to the Federal Court of Australia. The Court allowed the application for judicial review and upheld one of the four grounds of review (being ground 2). This ground alleged that “the Tribunal fell into jurisdictional error because it failed to give proper, genuine and realistic consideration” to the effect of any separation from the Applicant on his then 2-year-old daughter, K, because the Tribunal found that the family would probably relocate to Zambia (JNMK v Minister for Home Affairs (2019) 168 ALD 206, 210-216 [25]-[53]).

23. Constitutional writs were issued to quash the decision, and to require the Tribunal to determine the application according to law.

24. Following the issue of these writs by the Federal Court, the matter was re-constituted to the current Tribunal and the application was re-heard on 3 November 2020.

    ISSUES

25. The issues for determination by this Tribunal are:

    (a)whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and

    (b)if the Applicant does not pass the character test, whether the Tribunal should exercise discretion under s 501(1) to refuse to grant the Partner Visa.

    MATERIAL BEFORE THE TRIBUNAL

26. The Applicant appeared by video conference from immigration detention at the hearing of this application. Mr Lochore appeared as counsel for the Applicant, instructed by Ms Cornu. Mr Papalia appeared for the Respondent.

27. The Applicant gave oral evidence at the hearing and was cross-examined. He did not call any other witnesses, relying upon witness statements filed with the Tribunal.

28. The Tribunal admitted the following documents into evidence at the hearing:

    (a)Applicant’s material in the hearing bundle comprising pages 1 to 52 and page 108 (Exhibit A1); and

    (b)Respondent’s material in the hearing bundle comprising pages 140 to 608 (Exhibit R1).

    LEGISLATIVE FRAMEWORK

    Migration Act

29. Section 501(1) of the Migration Act provides:

    (1)  The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

    Note: Character test is defined by subsection (6).

    (Original emphasis.)

30. Section 501(6) of the Migration Act provides that:

    (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)); …

    (Original emphasis.)

31. A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…

    (Original emphasis.)

    Direction No 79

32. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:

    (1)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.

33. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”. 

34. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of Visa under s501CA under s 499 of the Migration Act, which commenced operation on 28 February 2019 (Direction No 79). This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014) (Direction No 65).

35. Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with

    
    

    paragraph 6.1(2) being relevant to the Reviewable Decision currently before the Tribunal:

    (2)  Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

36. Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:

    (1)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 principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

37. Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by decision-makers, including the Tribunal:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

38. Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part B of Direction No 79, with regard to the specific circumstances of the case (paragraph 11(1) of Direction No 79). Specifically, paragraph 11(1) of Direction No 79 provides:

    (1)In deciding whether to refuse a non-citizen's visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian Community.

39. Paragraph 12(1) of Part B of Direction No 79 lists other considerations that must be taken into account:

    (1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Impact on family members;

    c)Impact on victims;

    d)Impact on Australian business interests.

40. Paragraph 7(1)(a) of Direction No 79 outlines how a decision-maker is to exercise discretion when deciding whether to grant a visa:

    (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

    a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or…

41. Further guidance as to how a decision-maker is to apply the considerations in

    
    

    Direction No 79 can be found in paragraph 8, “Taking the relevant considerations into account”, which provides:

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

    (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4)Primary considerations should generally be given greater weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

1. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.

2. A person has a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” (s 501(7)(d) of the Migration Act).

3. As noted above, on 29 October 2012, the Perth Magistrates Court sentenced the Applicant to a total term of 12 months’ imprisonment. This comprised a nine-month term of imprisonment, suspended for 14 months and a three-month term of imprisonment (cumulative), suspended for 14 months.

4. Although the Applicant’s prison terms were suspended, “[s]ection 501(7)(c) is concerned with the sentence that has been imposed on a person rather than the term of imprisonment actually served” (Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 580 at 588 [27]; see also Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 142 [114]). Thus, an applicant can still have a substantial criminal record if the whole or part of his or her sentence is suspended.

5. Consequently, the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(d) of the Migration Act.

6. The Applicant conceded that he does not pass the character test (see paragraph [36] of the Applicant’s Statement of Issues, Facts and Contentions (SIFC)).

   SHOULD THE TRIBUNAL EXERCISE THE DISCRETION UNDER SECTION 501(1) OF THE MIGRATION ACT TO REFUSE TO GRANT THE PARTNER VISA?

   Primary consideration: Protection of the Australian community from criminal or other serious conduct (11(1)(a) and 11.1 of Direction No 79)

7. Paragraph 11.1(1) of Direction No 79 provides that:

   (1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision­makers 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 non-citizen’s criminal offending or other conduct to date (11.1.1(1) of Direction No 79)

8. Paragraph 11.1.1(1) of Direction No 79 further provides:

   (1)In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:

   a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

   b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

   e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

   f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

   g)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

   h)The cumulative effect of repeated offending;

   i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

9. Although paragraph 11.1.1(1)(a) of Direction No 79 considers violent and/or sexual crimes to be very serious, it does not limit the range of offences that may be considered serious. Indeed, the Tribunal has often regarded driving offences to be of a very serious nature.

10. For example, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 (Apire) Member Webb stated at [16]:

    Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection at [7] – laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values. …

    (Footnote omitted.)

11. In a decision concerning a citizenship application, Zaya and Minister for Immigration and Border Protection [2017] AATA 366 (Zaya) at [54], Deputy President Kendall (now Judge Kendall) referred to the serious consequences of driving under the influence. His Honour cited the above passage from Apire and stated:

    The Tribunal agrees with this assessment. There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated. The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.

12. In Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 (Bartlett) Senior Member Tavoularis also noted the serious nature and adverse consequences of driving offences at [43]-[45]:

    There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.

    I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.

    The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community’. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.

    (Footnotes omitted.)

13. In MJNN and Minister for Home Affairs [2019] AATA 3205 (MJNN), this Tribunal applied the above comments of Member Webb and Senior Member Tavoularis and stated at [55]:

    The Applicant’s record of repeat driving offences tends to indicate an [in]ability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. It is for these reasons that the Tribunal finds that the totality and nature of the Applicant’s driving offences should also be viewed as serious.

14. Road traffic laws are in place to protect the community, including innocent road users, from harm. A breach of road traffic laws can have the most serious of consequences. As outlined above in paragraph [4], these consequences were realised on 3 March 2012 when the Applicant lost control of his car whilst driving under the influence of alcohol (with his blood alcohol reading being 0.075 grams of alcohol per 100 ml of blood – G25/538) and collided with a tree (see generally, G25). This accident resulted in the death of his 30-year-old friend from “severe head and neck injury” (G25/503; 527) and bodily harm (G25/538) to his

    
    

    22-year-old friend who were both passengers. The Applicant was also seriously injured (G25/541-542). The consequences of the Applicant’s offending illustrate the serious nature of the offending.

15. Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a disregard for the safety of innocent members of the community who are passengers or who share the roads as drivers, cyclists and pedestrians. This is applicable to the Applicant because following the accident on 3 March 2012, on 27 January 2018, police pulled over the Applicant on a highway and undertook a breath analysis which gave a reading of 0.061 grams of alcohol per 210 litres of breath, which was calculated to be 0.054 grams of alcohol per 100 mls of blood (G26/560, 569). The Applicant did not have a driver’s licence, was the holder of a learner’s permit, was not accompanied by an authorised person and did not display his “L” plates (G26/569). However, fortunately, this offending did not have a tragic outcome as did the First Driving Offences. Overall, the Tribunal finds the Applicant’s driving offences to be serious, particularly due to their actual, and potential, tragic consequences.

16. Paragraph 11.1.1(1)(b) of Direction No 79 provides that violent offences against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant has not committed any offences that would fall within this category, and consequently this consideration is not applicable to the Applicant.

17. Similarly, paragraph 11.1.1(1)(c) of Direction No 79 which provides that crimes committed against vulnerable members of the community, or government representatives or officials in the performance of their duties are “serious” is not applicable to the Applicant’s offending.

18. Paragraph 11.1.1(1)(d) of Direction No 79 is not applicable to the Applicant because he has not committed any crime while in immigration detention or as otherwise described in that paragraph.

19. Paragraph 11.1.1(1)(e) of Direction No 79 is also not applicable because the Applicant failed the character test due to having a substantial criminal record under s 501(6) (as defined by s 501(7)) of the Migration Act, rather than under a subjective limb of the character test.

20. The Tribunal must also have regard to the sentences imposed by the Courts (paragraph 11.1.1(1)(f) of Direction No 79). With respect to the First Driving Offences, as noted above at paragraph [5], the Applicant received a fine of $300 and a three-month driving disqualification for the driving under the influence offence. He received a fine of $250 for the no authority to drive offence. He received a total term of imprisonment of 12 months (comprised of 9 months for the dangerous driving causing death offence and three months for the dangerous driving causing bodily harm offence), with both terms being suspended for 14 months. The Applicant also received driving disqualifications for these two offences. The Applicant was not sentenced to a term of imprisonment for the Second Driving Offences but instead received fines and disqualifications. The Applicant was very fortunate that his prison sentences were suspended, given the serious nature of the offences.

21. The Tribunal notes the submission on behalf of the Applicant that there was an issue with one of the tyres on the car which “show[s] that there was more to this case than mere driving under the influence and driving with excessive speed” (A1/113). A Major Crash Investigation report dated 21 May 2012 stated that “[s]eparation of tread from front right tyre may have contributed to the collision” (G25/535). The Statement of Material Facts also records, “[a] subsequent vehicle examination … identified that a contributing factor to the crash was caused by complete failure of the front right tyre due to insufficient tread causing delamination” (G25/539).

22. It was submitted on behalf of the Applicant that the issue with the front right tyre may explain why the Magistrate imposed suspended sentences of imprisonment (A1/113). However, the sentencing remarks are not before the Tribunal and so it would be speculative for the Tribunal to draw such an inference. It is also the Tribunal’s opinion that even if a tyre contributed to the accident, it does not diminish the seriousness of the Applicant’s conduct. There will sometimes be factors outside of a driver’s control that will contribute to an accident, for example, wet weather, poor visibility at dusk, a pedestrian or an animal crossing the road unexpectedly, or hidden faults with a vehicle such as faulty brakes. That is why the law requires drivers to pass the qualification requirements to hold a driver’s licence, requires vehicles to be licensed and requires drivers not to be under the influence of drugs or alcohol which impair their ability to react to unanticipated road conditions and events.   

23. The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 11.1.1(1)(g) of Direction No 79). The Applicant has not frequently offended, with his offences arising from two separate incidents. The First Driving Offences were committed on 3 March 2012, and the Second Driving Offences were committed approximately six years later, on 27 January 2018. The Applicant’s offences have not increased in seriousness, however as noted above, it is fortunate that the Second Driving Offences did not have tragic consequences.

24. With respect to the cumulative effect of repeated offending (paragraph 11.1.1(1)(h) of Direction No 79), the Applicant’s offences arose from two separate incidents, which would not have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.

25. The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 11.1.1(1)(i) of Direction No 79). In his application for the Permanent Partner Visa dated 25 March 2013 the Applicant ticked the box marked “no” to the question, “[h]ave you … been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?”. He also ticked the box marked “no” to the question “[h]ave you … been charged with any offence that is currently awaiting legal action?” (G6/195). However, the Applicant stated the following in the explanation box to be completed if he answered “yes” to any of the questions (G6/195):

    The accident that happened caused some financial problems I did not have the amount of money to pay the hospital. I have been in contact with them, we have to make a paying arrangement.

26. In the Applicant’s “personal particulars for assessment including character assessment” form dated 10 August 2017, the Applicant ticked the box marked “yes” to the question, “[h]ave you … been convicted of an offence in any country (including any conviction which is now removed from official records)?” (G10/220). The Applicant also answered “yes” to the question, “[h]ave you … ever had any outstanding debts to the Australian Government or any public authority in Australia?”. In the explanation box he stated, “[a]ll my yes answers are due to the car accident that I had, no prison was involved, just fines which I payed [sic] for” (G10/220). The Tribunal accepts the Applicant’s explanation that “I think I didn’t understand the question very well so I wrote I don’t have any convictions because I was thinking it meant have I ever been to prison” (transcript/8) and does not draw any adverse inference.

27. Paragraph 11.1.1(1)(j) of Direction No 79 is not applicable because the offence was not committed in another country.

28. In view of the above considerations, including the serious actual and potential consequences of the Applicant’s offending, the Tribunal finds that the Applicant’s offending is serious and weighs very strongly against the grant of the Permanent Partner Visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (11.1.2 of Direction No 79)

29. A decision-maker must also have regard to the following principle, described in paragraph 11.1.2 of Direction No 79 as follows:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

    (2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.    information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

    ii.   evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

    iii. the duration of the intended stay in Australia.

    (4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

    The nature of the harm

1. Broadly speaking, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. This firstly requires a consideration of the nature of the harm should the Applicant engage in further criminal or serious conduct (paragraph 11.1.2(3)(a) of Direction No 79).

2. The serious harms that can result from driving offences, including driving under the influence of alcohol and without a valid driver’s licence, have already been identified in the discussion of relevant Tribunal decisions above including Apire, Zaya, Bartlett and MJNN. In summary, should the Applicant commit further driving offences, members of the public (including other road users, passengers and pedestrians) could suffer injury, death, and possibly psychological trauma. The family members of persons killed or injured in traffic accidents may also suffer adverse emotional and financial consequences following the injury or death of a family member or loved one.

   Likelihood of engaging in further criminal or other conduct

3. Next, the Tribunal is required to consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 11.1.2(3)(b) of Direction No 79).

4. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124–5 [42]-[43]):

   An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.

   Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.

   (Footnotes omitted.)

5. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational”. Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] Kenny J also referred to the basis for the assessment of the likelihood of re-offending as requiring a “rational and probative basis”.

6. The Applicant has expressed remorse for his offending. Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. The Applicant stated in his statutory declaration that he realised the impact that his offending has had on the victims’ families (A1/3):

   Looking back at the impact occasioned by me on the victims’ families it haunts me day and night and I truly believe that I will never be able to forgive myself for the pain I have caused them.

7. The Applicant has also resolved never to consume alcohol again. In his statutory declaration the Applicant stated (A1/4):

   Knowing that alcohol can destroy people’s lives just like what it did to the victims, their families, and my family, and reflecting on the pain I have caused the victims’ families and from what I learned in the drug and alcohol course. I have decided NOT to consume any alcohol as long as I am still alive. I do not want to hurt my young family in any way more especially related to intoxication.

   If permitted to remain in Australia I will in role in courses to ensure that I maintain my sobriety.

8. The Applicant’s remorse is, however, somewhat called into question by his re-offending. If the Applicant truly appreciated the impact of driving under the influence of alcohol and whilst unlicensed after committing the First Driving Offences, he would not have done so a second time when he committed the Second Driving Offences.

9. The Applicant has the strong support of his wife and her family (A1/42). However, the Applicant had this support following the First Driving Offences yet went onto commit the Second Driving Offences.

10. Following the First Driving Offences the Applicant was not separated from his wife and child because he received a suspended sentence. However, the Applicant has now been in immigration detention since 1 February 2018 (A1/2). The Applicant also described the impact of being separated from his family and the pain that he has caused his family in his statutory declaration as giving him the motivation not to drink again (A1/5):

    … I have put my family, my children and my wife in so much pain and I would never ever want to cause them pain like this again.

    I have never been to prison. Detention is the first time I have been separated from my family. I never want to be separated from my wife and kids again. If I was given a second chance and allowed to re-enter Australia, I would not let my friends influence me to drink. Being separated from my family has made me very strong and I would never give in to peer pressure again and to treat any anxiety and stress I feel.

    I wouldn’t do anything to jeopardise my future with my family.

11. The Applicant’s separation from his family whilst he has been in immigration detention, and his desire not to be separated from them again, may be a protective factor that motivates him not to consume alcohol, or to reoffend, again.

12. In the Applicant’s statutory declaration, he stated that his “anxiety and stress about the visa issues” contributed to his “making wrong decisions” and driving under the influence of alcohol on 27 January 2018 (see also transcript/20). At the hearing the Applicant stated that “it [his visa situation] was making me to make wrong decisions like drinking and driving again”. It is of concern that the Applicant consumed alcohol and drove a car in response to feeling stressed. If the Applicant is released into the Australian community, there will likely be other stressful life events and the Tribunal is concerned that the Applicant may repeat this conduct. Also, this incident occurred some six months after he received the 31 July 2017 notice of the intention to consider whether to refuse his application for a Permanent Partner Visa. The Applicant’s evidence was that he knew from receiving this notice that if he was charged with another offence that it would affect his visa status (A1/2), and yet this did not prevent him from again driving under the influence of alcohol.

13. The Tribunal is also concerned that the Applicant tried to deflect some of the blame onto his friends. As stated in paragraph [80] above, the Applicant stated, “I would not let my friends influence me to drink”. During cross-examination, Mr Papalia asked, “[t]he last time you got into a vehicle when you weren’t authorised to drive and when you had been drinking, someone died. Your friend died. Do you agree?”. The Applicant answered, “[y]es, and I said I was not supposed to drive. O [full name omitted] was supposed to drive”.

14. The following exchange is also relevant and raises some concerns for the Tribunal (transcript/22):

    MR PAPALIA: In your view, the 2012 crash was caused by the faulty tyre?

    APPLICANT:   Yes.

    MR PAPALIA: You say that you were the one that was supposed to die, and not your friend?

    APPLICANT:   Yes.

    MR PAPALIA: Well, the concern is when you have been driving, one of your friends has died, the other has been injured, and you yourself have been injured. You have been put on notice that you might not actually get a visa if you commit further offences, and you knew that you actually had to prove that you were of good character to the Department.  Those are all fairly sobering factors. You have got a wife, and at that stage you had a child, and your wife was pregnant with your second child. You essentially did the same thing as you did in the 2012 incident, didn’t you?

    APPLICANT:   No.

    MR PAPALIA: Why is it not the same?

    APPLICANT:   The car conditions of the 2012 and the car condition of 2018 were different. 2018 had full Zambian licence and an Australian learners permit, which I never had in 2012. 

    MR PAPALIA: You did not have authority to drive in this state, did you, without supervision and under the influence of alcohol?

    APPLICANT:   Yes.

    MR PAPALIA: The major crash investigation report for the 2012 incident indicates that there was clear visibility that streetlights were operating, that it was dry, and that it was a 60 kilometre per hour area on Herdsman Parade. The difference that you are pointing out is the finding that the rear right tyre was derimmed and showed evidence of treads starting to separate from the tyre. Rear-right wheel rim also showed signs of damage and scraping the bitumen adhering to the damage area.  Separation of tread from front-right tyre may have contributed to the collision. Is that - that is the difference you are pointing to, is it?

    APPLICANT:   Yes.

    MR PAPALIA: You do not accept that you driving without permission and under the influence of alcohol may have caused the crash, do you?

    APPLICANT:   I agree. It’s a combination of both the car condition plus the drinking and driving.

    MR PAPALIA: Why weren’t they possible consequences of you driving in 2018?

    APPLICANT:   2018, I had a learners’ permit and the car conditions were good.

15. In the above exchange the Applicant appears to be trying to mitigate his decision to again drive under the influence of alcohol and without a valid drivers’ licence because the car was in better condition than the car in 2012, and because he had a Zambian licence and an Australian learners’ permit. It appears to the Tribunal from this exchange that the Applicant did not fully appreciate the seriousness of committing similar offences and the potential consequences of repeating his conduct, despite the tragic consequences of the First Driving Offences. It is also of concern that the Applicant chose to ignore the conditions of his learners’ permit which did not permit him to consume any alcohol, required a qualified driver to be in the car to supervise him and required his “L” places to be displayed. The Tribunal further observes that the interests of his pregnant wife and child did not have a deterrent effect on the Applicant in committing the Second Driving Offences. 

16. The Applicant attended drug and alcohol counselling on 1 August 2017 and 14 August 2017 (A1/9; G19/282) but his evidence was that he did not continue with this course because it mainly focussed on drugs (A1/3; transcript/23). The Applicant also committed the Second Driving Offences after attending this counselling, which confirms that the counselling was not effective.

17. He later attended a drug and alcohol program with the Holyoake Men’s Group, which he completed on 18 June 2018 (A1/3 and 10). When asked by the Tribunal what he had learnt from completing the program the Applicant stated (transcript/26):

    We - drug and alcohol, especially I will refer to alcohol, affects your things like self-esteem. It also affects your decision-making. Alcohol is a depressant, so it slows down your thinking. You may be - because it slows down your thinking, you may be thinking you are doing things fast in a good way, but actually it’s the other way around. You are slow and doing things in a slow way. That’s why drinking and driving is not something people should be doing.

18. The Applicant stated that after completing this program he continued to attend drug and alcohol classes at the detention centre. However, he was subsequently moved to another detention centre where he did not have access to courses and could not afford private treatment (A1/3). Unfortunately, there are no reports or assessments by counsellors or treatment assessors regarding any treatment gains that the Applicant may have made as a result of completing the Holyoake Men’s Group Program. The Applicant also stated in his statutory declaration that “[i]f permitted to remain in Australia I will enrol in courses to ensure that I maintain my sobriety” (A1/4), however he otherwise does not appear to have a comprehensive relapse prevention plan in place.

19. As at the time of his statutory declaration on 17 June 2020, the Applicant’s evidence was that he had not consumed any alcohol for two years and four months (A1/3). This period of abstinence is likely to assist him to continue to abstain from alcohol if he is released into the Australian community.

20. The Applicant has also attended weekly bible study classes whilst in immigration detention and his bible study mentors have offered to give him “ongoing support” if he is released into the community (A1/3 and 11). A friend of the Applicant’s, L, also submitted a statutory declaration in support of him (A1/44), as did his friend O who the Applicant stated was supposed to be driving the car in 2012 (A1/47-48; G19/280-281). Another friend of the Applicant’s attested as to the validity of the Applicant’s relationship for his Permanent Partner Visa application (A1/49-51). Various other friends and community members (G19/286, 288-290), his mother in law and wife’s aunt all provided statements in support of the Applicant (G19/284 and 287). The Tribunal accepts that the Applicant has the support of friends and family members in the community who may be able to support him to abstain from alcohol and to not reoffend.

21. The Applicant has also submitted a statutory declaration from a former employer stating that, subject to availability, he would offer the Applicant employment if he is released into the Australian community (A1/43), as well as a statutory declaration as to his character (R1/278). If the Applicant can gain employment and can make productive use of his time, this may be a protective factor that could help to reduce the risk of his reoffending.

22. The Applicant does have some protective factors that may assist him not to re-offend. These include his current separation from his wife and children whilst he has been in immigration detention, and the potential for a more permanent separation from them if his Permanent Partner Visa is not granted. He has some support in the community and has demonstrated some remorse. He has also completed some voluntary rehabilitation.

23. However, it is the Tribunal’s opinion that these protective factors are outweighed by other factors, which were discussed above. These include:

    (a)the limited nature of the rehabilitation that the Applicant has undertaken, and the lack of any treatment gains being specified or measured by program facilitators;  

    (b)the Applicant’s family (including his wife and child) not being protective enough to motivate him not to consume alcohol and offend in the past;

    (c)his lack of consequential thinking, as demonstrated by his committing the Second Driving Offences despite the tragic consequences of the First Driving Offences;

    (d)his attempts to minimise his Second Driving Offences by attributing them to the stress of his visa status and attempting to distinguish the circumstances from the First Driving Offences; and

    (e)although the Applicant has stated his intention to enrol in courses to maintain his abstinence from alcohol if he is released into the Australian community, at this stage he appears to have no comprehensive plan in place.

24. Overall, after considering the relevant submissions and evidence, the Tribunal finds that there is, at the very least, a moderate likelihood that the Applicant may consume alcohol and drive again. If he does so, it could have tragic consequences. Taking into account the serious nature of the harm that could be caused to the Australian community if the Applicant were to reoffend in a similar manner, and the factors discussed above, the Tribunal finds that this part of the first primary consideration weighs very strongly against the grant of the Permanent Partner Visa.

    Summary on paragraph 11.1(1) of Direction No 79

25. In summary, the Tribunal has found that the “nature and seriousness of the non-citizen’s criminal offending or other serious conduct” part of this primary consideration (that is, paragraph 11.1.1(1) of Direction No 79) weighs very strongly against the grant of the Permanent Partner Visa, and the “risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” (that is, paragraph 11.1.2 of Direction No 79) also weighs very strongly against the grant of the Permanent Partner Visa.

    Primary consideration: Best interests of minor children in Australia affected by the decision (11(1)(b) and 11.2 of Direction No 79)

26. Paragraph 11.2 of Direction No 79 provides, in part:

    (1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

    (3)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.

27. Paragraph 11.2(4) of Direction No 79 continues to outline the factors that a decision-maker must consider when determining the best interests of a child:

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

    c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

    d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

    e)Whether there are other persons who already fulfil a parental role in relation to the child;

    f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

28. The Applicant and his wife have two daughters who were born in Australia and are Australian citizens. K is approximately 4 years and nine months of age and F is approximately two and a half years of age.

    The Applicant’s eldest daughter, K

29. Paragraph 11.2(4)(a) of Direction No 79 requires the Tribunal to consider the nature and duration of the relationship between the child and the Applicant. The Applicant is K’s biological father. The Applicant’s evidence was that prior to the Applicant going into immigration detention on 1 February 2018, both he and his wife jointly contributed to caring for K (A1/4 and attachment K; G19/284).

30. Since going into detention, the Applicant has only been able to see his daughters during weekend visits (A1/5) and via video call following in-person visits being on hold due to the COVID-19 pandemic (A1/41). Despite being in detention, the Applicant has a very close relationship with K who has been missing her father and has been waking up crying for him in the night (A1/5 and attachment L). The children have also made him collage photographs for Fathers’ Day (A1/108).

1. The evidence of the Applicant’s wife is that the Applicant speaks to his daughters nearly every day, including by video call conversations (A1/41). Her evidence was that before the Applicant went into immigration detention, “he was supportive emotionally and an immense help in raising K” and was “actively involved in her daily care”. She further stated that K loved the Applicant’s cooking and that he would often cook her his traditional food (A1/42).

2. The Tribunal accepts that the Applicant is a loving father and that K has a very close relationship with the Applicant.

3. There are approximately 13 years until K turns 18. The Applicant is a loving father who would jointly contribute to K’s upbringing if he were released into the Australian community.  The Applicant is likely to be a positive role model to K, who would benefit from having her father’s personal involvement in her life until she turns 18 (paragraph 11.2(4)(b) of Direction No 79).

4. There is no evidence that any prior conduct of the Applicant has had a negative impact on K (paragraph 11.2(4)(c) of Direction No 79).

5. The Tribunal must consider the likely effect any separation from the Applicant would have on K (paragraph 11.2(4)(d) of Direction No 79). The evidence of the Applicant’s wife was that if the Applicant is refused a Permanent Partner Visa, his wife and children would not relocate with him. The Applicant’s evidence was that both he and his wife think that it is in the best interests of the children to stay in Australia so they can attend Australian schools. The Applicant further stated in his statutory declaration that his children would experience cultural and language barriers in Zambia, and that the Australian health care system is better than in Zambia (A1/5). The Applicant’s wife gave similar evidence in her statutory declaration (A1/41-42). The Applicant’s evidence was that the children are also very close to their Australian relatives, including the grandmother they are living with, so returning to Zambia would also separate the children from these family members (A1/5 and attachments N and O). 

6. Although his wife stated that she and the children could visit the Applicant in Zambia, if he were denied the Permanent Partner Visa and had to return there, they could not afford to visit often and the children’s relationship with their father would suffer (A1/41). The Tribunal also notes the unpredictability of travel due to the COVID-19 pandemic which may make visiting Zambia difficult or impossible in the foreseeable future. This means that K would effectively face a permanent separation from her father which, given her young age, would be emotionally and possibly financially detrimental to her. In this regard, the Tribunal notes that the Applicant’s wife is reliant on Centrelink and has moved in with her mother, because she could no longer afford to rent the house she and the Applicant shared (A1/41-42; transcript/12). 

7. Although it may be possible for the Applicant to continue to maintain contact with K in other ways, for example, through telephone or the internet, even with occasional visits to Zambia (if that were possible) this would be a very poor substitute for the Applicant being physically present and involved in her life and in her upbringing. The Tribunal notes the Applicant’s wife’s evidence that K has been upset after video calls with her father because she is missing him (A1/41). The ability of her father to share his culture with K would also be detrimentally impacted if the Applicant were returned to Zambia and they could no longer engage in activities such as eating his traditional home cooked meals together. The Tribunal finds that being separated from her father would be detrimental to K from both an emotional and financial perspective and is not in her best interests.  

8. The Applicant’s wife currently fulfils a parenting role in relation to K (paragraph 11.2(4)(e) of Direction No 79). However, the Tribunal accepts that K would benefit from having both parents involved in her upbringing.

9. The Tribunal also accepts that K is missing her father and that she wants him to come home (A1/42) (paragraph 11.2(4)(f) of Direction No 79).

10. There is no evidence that the Applicant abused or neglected K in any way in the past (paragraph 11.2(4)(g) of Direction No 79), nor is there any evidence that K has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (paragraph 11.2(4)(h) of Direction No 79). To the contrary, the evidence is that he is a loving and involved father.

11. Overall, the Tribunal finds that the refusal of the Applicant’s Permanent Partner Visa is not in the best interests of K. The Applicant is a loving father and has a close relationship with K. K has been suffering emotionally due to his absence, and if the Applicant were returned to Zambia, she faces permanent separation from him. Considering the number of years until K turns 18 and the ability of the Applicant to be a positive role model, the Tribunal finds that the best interests of K weigh strongly in favour of the Applicant being granted a Permanent Partner Visa.

    The Applicant’s youngest daughter, F

12. The Applicant is F’s biological father (Direction No 79, paragraph 11.2(4)(a)). The Applicant has never lived with F, who was born while the Applicant was in immigration detention, although he was taken to the hospital when she was born (A1/4). In immigration detention, the Applicant was only able to see F during weekend visits (A1/5) and more recently via video call due to COVID-19 visiting restrictions (A1/41). As noted above regarding K, the children have also made the Applicant collage photographs for Fathers’ Day (A1/108). The Applicant speaks to his daughters nearly every day, including by video call conversations (A1/41). The Tribunal accepts that the Applicant is a loving father to F and that the Applicant and F have a close relationship.

13. There are approximately 15 and a half years until F turns 18. The evidence before the Tribunal is that the Applicant is a loving father. As he did with K, the Applicant would jointly contribute to F’s upbringing if he were released into the Australian community. As with K, the Applicant is likely to be a positive role model to F, who would benefit from having her father’s personal involvement in her life until she turns 18 (paragraph 11.2(4)(b) of Direction No 79).

14. There is no evidence that any prior conduct of the Applicant has had a negative impact on F (paragraph 11.2(4)(c) of Direction No 79).

15. The Tribunal must consider the likely effect that any separation from the Applicant would have on F (paragraph 11.2(4)(d) of Direction No 79). As discussed above regarding K, if the Applicant is refused a Permanent Partner Visa, his wife and children are unlikely to relocate with him. Travelling to Zambia to visit him is likely to be difficult for financial reasons and due to COVID-19 related travel restrictions. Thus, like K, F would also face a permanent separation from her father if his Permanent Partner Visa were refused, which would be detrimental both emotionally and financially. It may be possible for the Applicant to continue to maintain contact with F through telephone or the internet. However, given her young age, this would be a poor substitute for the Applicant being physically present and involved in her life and in her upbringing, even if occasional travel were possible. Like K, F would face difficulties in learning about her cultural heritage from her father if he were returned to Zambia. Similarly, to K, the Tribunal finds that being separated from her father would be detrimental to F from both an emotional and financial perspective and therefore the refusal of the Applicant’s Permanent Partner Visa is not in her best interests. 

16. The Applicant’s wife currently fulfils a parenting role in relation to F (paragraph 11.2(4)(e) of Direction No 79). Like K, F would benefit from having both parents involved in her upbringing.

17. Considering F’s very young age, there are no known views of F before the Tribunal (A1/42) (paragraph 11.2(4)(f) of Direction No 79).

18. Similarly to K, there is no evidence that the Applicant abused or neglected F in any way in the past (paragraph 11.2(4)(g) of Direction No 79), nor is there any evidence that F has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (paragraph 11.2(4)(h) of Direction No 79). As discussed above regarding K, the evidence is that the Applicant is a loving and involved father.

19. Overall, the Tribunal finds that the refusal of the Applicant’s Permanent Partner Visa is not in the best interests of F. Despite the Applicant being in immigration detention since F’s birth, he is a loving father to F. If the Applicant is not granted a Permanent Partner Visa, F faces permanent separation from her father. As with K, the Applicant can be a positive role model which will be important to F’s development as there are approximately 15 and a half years until she turns 18. Accordingly, the Tribunal finds that the best interests of F weigh strongly in favour of the Applicant being granted a Permanent Partner Visa.

    Primary consideration: Expectations of the Australian community (paragraph 11(1)(c) and 11.3 of Direction No 79)

20. Paragraph 11.3(1) of Direction No 79 provides:

    (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government's views in this respect.

21. The Tribunal is guided by the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR (FC)). The plurality in FYBR (FC) agreed with the approach adopted by Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY), where her Honour stated:

    [76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [77]I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]–[66]).

    (Emphasis added.)

22. FYBR (FC) concerned a refusal to grant a visa under the previous Direction No 65. However, it is equally applicable to the current Direction No 79 as there were no changes to the wording of paragraph 11.3 when the Direction was updated.

23. FYBR (FC) confirmed that the community expectations primary consideration operates as a kind of deeming provision (see Charlesworth J at 470 [61] and Stewart J at 475 [89]). That is, paragraph 11.3 of Direction No 79 contains a statement of the government’s views as to the expectations of the community. The decision-maker (in this case the Tribunal) must have regard to those views. As noted by Charlesworth J at 472 [67], “[i]t is not for the decision-maker to make his or her own assessment of the community expectations…” Further, as noted by Stewart J at 476 [91], “‘community expectations’ as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different”.

24. Even though the community expectations primary consideration operates as a kind of deeming provision, it does not determine the outcome of the overall decision. As stated by Stewart J, at 476 [91] “‘community expectations’ as expressed by the Government do not speak to the outcome in any particular case”. This is because community expectations comprise one primary consideration, which must be weighed against the remaining primary and other considerations in the exercise of discretion under the Direction. Thus, as Charlesworth J stated at 474 [79], “[i]n an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be”. Although in most cases community expectations will favour
    the exercise of discretion to refuse to grant a visa application, paragraph 11.3 does not dictate an inflexible conclusion (Charlesworth J at 473 [75] and Stewart J at 477 [97]). It is up to the decision-maker to determine the weight to be applied to this consideration (Charlesworth J at 473-474 [76]-[77] and Stewart J at 478 [102]).

25. The community expectations primary consideration was summarised in straight forward terms by Stewart J as follows (at 478 [101]):

    … community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”

26. Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
    the Tribunal must give effect to the norm stipulated in paragraph 11.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of the Tribunal exercising discretion to refuse to grant a visa application.

27. Paragraph 11.3 states the expectation of the Australian community that non-citizens will obey Australian laws while in Australia. However, the Applicant broke the law on 3 March 2012 when he committed the First Driving Offences. These involved the Applicant driving under the influence of alcohol and without ever having held an Australian driver’s licence. That conduct contributed to an accident that killed one friend and seriously injured another, as well as the Applicant suffering serious injuries that required months of hospitalisation. He was convicted of the offences of “Exceed 0.05g alcohol per 100ml of blood; >=0.07g/100ml but <0.08g/100ml”, “No Authority to Drive – Never Held”, “Dangerous Driving Occasioning Death” and “Dangerous Driving Occasioning Bodily Harm”, on 4 September 2012.

28. The Applicant then broke the law again on 27 January 2018 when he committed the Second Driving Offences. These involved the Applicant driving under the influence of alcohol and without ever having held an Australian drivers’ licence. He was convicted of these offences on 15 March 2018.

29. The Tribunal notes the general guidance in 6.2(1) of Direction No 79 that “[t]he Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”. The Applicant’s conduct is of a serious nature because of the harms that can result to passengers and other innocent road users from driving under the influence of alcohol and whilst unlicensed.  Indeed, some of those harms described were fully realised with the death of the Applicant’s friend, and the serious injury of the Applicant and his other friend, and yet he subsequently engaged in the same conduct (driving unlicensed and under the influence of alcohol) several years later. Fortunately, on this second occasion, the Applicant’s conduct did not result in the dire consequences it had on the previous occasion, although it could have. Accordingly, the Tribunal finds that the Australian community would expect the Applicant not to be granted a Permanent Partner Visa.

30. The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision, as part of the overall weighing exercise.

    Other considerations

31. Paragraph 12(1) of Direction No 79 provides:

    (1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Impact on family members;

    c)Impact on victims;

    d)Impact on Australian business interests.

    International non-refoulement obligations

32. The Tribunal is required to consider whether Australia’s international non-refoulement obligations (paragraph 12.1 of Direction No 79) arise in any of the submissions, materials or evidence before the Tribunal.

33. No non-refoulement claims were raised in the Applicant’s SFIC, and none otherwise arose on the materials before the Tribunal. The Tribunal is satisfied that this other consideration is not applicable to this application.

    Impact on family members

34. Paragraph 12.2(1) of Direction No 79 requires the Tribunal to consider the impact of visa refusal on immediate family members in Australia. Specifically, it provides: 

    (1)  Impact of visa refusal on 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;

35. The Applicant married his Australian wife in Zambia on 10 July 2013. As discussed above, they have two minor children together, K and F. The Tribunal has already discussed the detrimental impact on the Applicant’s daughters if his Permanent Partner Visa is not granted under the primary consideration of the best interests of minor children in Australia.

36. The Applicant and his wife were in a relationship at the time of the First Driving Offences in 2012. The Applicant’s wife is committed to their marriage (A1/41) and has continued to support the Applicant despite the many troubles that he has faced. In her statutory declaration the Applicant’s wife stated that her mother has been helping her with the care of the two children and with financial and emotional support whilst the Applicant has been in immigration detention (A1/42). The Applicant’s wife is studying to become a teacher, however, as noted above, she is currently financially reliant on Centrelink. She moved in with her mother because she could no longer afford to rent without the Applicant being able to contribute to the family’s finances.

37. As also discussed above, the evidence of the Applicant’s wife was that she and the children would not relocate to Zambia with him because both the Applicant and his wife believe it to be in the best interests of the children to stay in Australia. Consequently, if the Applicant’s Permanent Partner Visa is not granted, she will most likely be separated from her husband and will be a single parent raising two very young children without him. There is, however, a possibility that the Applicant’s wife could subsequently choose to re-locate with the Applicant and the children to Zambia and that accommodation and support would be available there from the Applicant’s family. If the Applicant’s wife chooses this option in the future, she would face having to adjust to life in a foreign country and would be separated from her family members in Australia with whom she has a close relationship. 

1. The Tribunal accepts the Applicant’s evidence that his wife “has been struggling financially, emotionally and practically” without him (A1/4), and that she would continue to do so if the Applicant’s Permanent Partner Visa is not granted because she and the children would be separated from him.

2. Refusing to grant the Applicant’s Permanent Partner Visa is also likely to impact on the Applicant’s mother in law (his wife’s mother) who is assisting her daughter and grandchildren with accommodation, as well as providing financial and emotional support. The Tribunal also notes the statutory declaration of the Applicant’s mother in law which states that the Applicant has helped her with gardening work and house maintenance (G19/284).

3. The Tribunal acknowledges that there are other family members who may potentially be negatively impacted if the Applicant’s Permanent Partner Visa is not granted, although there is minimal information available to the Tribunal regarding the potential impact on them (A1/5; G19/287).  

4. The Tribunal finds that the negative impact that not granting the Permanent Partner Visa would have on the Applicant’s wife and children, and potentially on other family members, weighs strongly in favour of granting the Permanent Partner Visa.

   Impact on victims

5. Paragraph 12.3(1) of Direction No 79 provides that the Tribunal is to consider the:

   (1)  Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

6. Although the Applicant’s friend O, who was the victim of the offence of “Dangerous Driving Occasioning Bodily Harm”, provided statutory declarations in support of him (G19/279-281; A1/47-48), there is no information regarding the impact of refusing to grant the Permanent Partner Visa on O. Additionally, there is no information before the Tribunal regarding the impact of a decision to grant the Permanent Partner Visa on the family of the Applicant’s friend, D, who was the passenger killed in the 2012 accident. The Tribunal therefore regards this consideration as being neutral.

   Impact on Australian business interests

7. Paragraph 12.4(1) of Direction No 79 provides that the Tribunal is to consider the:

   (1)  Impact on Australian business interests if the non-citizen's visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

8. This consideration does not arise on the material before the Tribunal.

   Impact of the COVID-19 pandemic

9. The COVID-19 pandemic has impacted on the Applicant’s ability to see his children whilst he has been in immigration detention due to visitation restrictions.

10. If the Tribunal affirms the Reviewable Decision, he will continue to be detained in immigration detention until he can be removed from Australia, with restrictions on international travel possibly prolonging his removal. Additionally, international travel restrictions may also impact upon the ability of his wife and children to travel to Zambia to visit him in the foreseeable future.

11. The Tribunal finds that the impact of the COVID-19 pandemic, particularly with respect to the Applicant potentially spending longer in detention without being able to see his family, weighs slightly in favour of granting the Permanent Partner Visa.

12. The Applicant’s submissions also refer to the health care system in Zambia being of a lesser standard than that of Australia. They refer to a United Nations document, which states that and that “Zambia’s health system is … expected to come under severe stress owing to COVID-19”. It was submitted that “the applicant faces an increased risk of long-term impacts should [he] be infected with COVID-19”, and further that a declining economic situation in Zambia may make it more difficult for the Applicant to find work (A1/123). These matters (whether the Applicant will contract COVID-19 in the future and his ability to find work due to the impact of the COVID-19 pandemic) are too speculative for the Tribunal to make a definitive finding. To add to this speculation, there are potentially countervailing factors such as the Applicant’s university degree, which may assist him to find work, and the financial stability of his parents who may be able to provide him with some assistance (transcript/13).  

    WEIGHING THE CONSIDERATIONS

13. The Tribunal found above that the third primary consideration, being the expectations of the Australian community (paragraph 11.3 of Direction No 79) would be that the Applicant should be refused the Permanent Partner Visa.

14. The Tribunal must now determine the weight to be applied to this consideration.

15. In determining this weight, the Tribunal notes that the first primary consideration, regarding the protection of the Australian community (paragraph 11.1(1) of Direction No 79), weighed against the Applicant. This consideration was comprised of the nature and seriousness of the conduct (paragraph 11.1.1(1) of Direction No 79) and the risk to the Australian community should the Applicant reoffend (paragraph 11.1.2(1) of Direction No 79), which both weighed very strongly against the grant of the Permanent Partner Visa. In reaching this conclusion the Tribunal considered the serious nature of the harm that can be caused to the community from driving offences such as those committed by the Applicant.

16. Overall, the Tribunal found that the first primary consideration weighed very strongly against the revocation of the Cancellation Decision. 

17. Further, in determining the weight to be applied to the third primary consideration, the Tribunal must balance the first primary consideration of the protection of the Australian community alongside the primary and other considerations that weigh in the Applicant’s favour.

18. With respect to the primary consideration of the best interests of minor children (paragraph 11.2 of Direction No 79), the Tribunal found that the best interests of both K and F weighed strongly in favour of granting the Permanent Partner Visa. Additionally, the Tribunal found that the impact on the Applicant’s wife, children and other family members in Australia (paragraph 12.2(1) of Direction No 79) also weighed strongly in favour of granting the Permanent Partner Visa. The Tribunal also considered the impact of the COVID-19 pandemic, which slightly weighed in favour of granting the Permanent Partner Visa.

19. With respect to the weight to be afforded to the expectations of the Australian community primary consideration, the Tribunal is guided by the principle in 6.3(5) which states:

    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    The Applicant came to Australia as an adult in 2008 on a student visa to study at university, and subsequently entered Australia in 2014 under the Provisional Partner Visa. Thus, in the Tribunal’s opinion, the Applicant fits into this category whereby the community would have a lower tolerance of his conduct.

20. Additionally, paragraph 6.3(6) states that “Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia”. Thus, the tolerance by the Australian community of the Applicant’s conduct would be low due to the Applicant being a visa applicant.

21. After balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would weigh very strongly against the Applicant being granted a Permanent Partner Visa.

    CONCLUSION

22. The Applicant does not pass the character test under s 501(6) of the Migration Act.

23. The Tribunal finds that the first primary consideration of the protection of the Australian community and the third primary consideration of the expectations of the Australian community outweigh the primary and other considerations that favour the grant of the Permanent Partner Visa, including the best interests of the Applicant’s children, the impact on family members and the impact of the COVID-19 pandemic.

    DECISION

24. For the reasons outlined above, the Reviewable Decision, being the decision of a delegate of the Respondent dated 15 January 2018 to refuse the Applicant’s application for a Permanent Partner Visa, is affirmed.

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.....[Sgd]................................................................

Associate

Dated: 20 January 2021

Date of hearing:

3 November 2020

Counsel for the Applicant:

Solicitor for the Applicant:

Counsel for the Respondent:

Mr PD Lochore

Ms C Cornu, Forbes Kirby Lawyers & Consultants

Mr J Papalia, The Australian Government Solicitor