Jouini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 3589
•27 October 2022
Jouini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3589 (27 October 2022)
Division:GENERAL DIVISION
File Number: 2022/6893
Re:Kenny Jouini
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member K Raif
Date:27 October 2022
Place:Sydney
The Tribunal affirms the decision not to revoke the cancellation of a Class WE Subclass 050 Bridging E visa held by the applicant.
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Senior Member K Raif
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class WE Subclass 050 Bridging E visa – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – aggression related criminal history – lack of insight into conduct – family violence – best interests of children – links to the Australian community – expectations of the Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Raif
27 October 2022
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancelation of a Class WE Subclass 050 Bridging E visa (BVE) held by the applicant.
The applicant is a national of France, born in September 1990. He first travelled to Australia in January 2015 holding a Working Holiday visa. In January 2017 he applied for a Business visa but subsequently withdrew the application. In October 2018 the applicant made the application for a Partner visa and in association with that application he was granted a Bridging E visa that is the subject of these proceedings. The applicant’s relationship with the sponsoring partner has now ended.
The applicant was convicted of multiple offences, set out below, between 2016 and 2021. On 1 April 2021 the applicant’s BVE was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because it was determined that the applicant had a substantial criminal record. (His Partner visa was cancelled under s. 501F of the Act). The applicant was invited and made representations on multiple occasions about the revocation of the decision to cancel his visa. On 15 August 2022 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation decision. The applicant is seeking review of that decision.
It is not in dispute that the applicant had made representations about the cancellation of his visa. The issues before the Tribunal are:
(i)Does the applicant pass the character test, as defined by section 501 and if not,
(ii)Is there another reason why the original decision should be revoked.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501CA(3) provides that as soon as practicable after making a decision under
subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Minister, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in section 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)) …
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 15 April 2021 the Minister issued Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) under section 499 of the Act. Direction 90 is binding on the Tribunal in performing its functions, or exercising powers under section 501 of the Act.
Direction 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at clause 5.2(2) of Direction 90 states that:
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The primary considerations which are set out in clause 8 of Part 2 of Direction 90 are:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
15.The other considerations which are set out of clause 9 in Direction 90 are:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims;
d)Links to the Australian community including:
-Strength, nature and duration of ties to Australia;
-Impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations.
In this case, it is not in dispute that the applicant has made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met.
Does the applicant pass the character test?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Information before the Tribunal indicates that the applicant has been convicted of the following offences:
Offence date
Offence
Sentence
12/05/21
Resist officer in execution of duty
Common assault (x2)
Community correction order 9 mth
Imprisonment 12 months
12/03/21
Use etc offensive weapon to prevent lawful detention
Intimidate police officer in execution of duty
Stalk / intimidate intend fear physical etc harm (domestic)
Armed with intent commit indictable offence
Common assault
2 years imprisonment (reduced on appeal to 12 months imprisonment with a non-parole period of 5 months)
20/01/21
- Drive motor vehicle menaces another with intent
- Stalk / intimidate intend fear physical harm
- Destroy or damage property <= 2000
2 years community corrections order
29/01/20
- Common assault (DV)
- Stalk / intimidate intend fear physical etc harm (dom)
Community correction order 12 months
17/01/20
- Common assault
- Resist officer in execution of duty
CCO 14 months
CCO 9 months and compensation
06/01/20
Drive with middle range PCA
Fail to comply with request or signal to stop vehicle
Fine $600; driver disqualification, fine $200
02/12/16
Possess prohibited drug
s. 10 bond
The applicant submits that he has no criminal history in France and the Tribunal accepts that evidence.
The Tribunal finds that the applicant has been sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are not met.
Is there another reason why the original decision should be revoked?
In his evidence to the Tribunal the applicant states, essentially, that he wants to remain in Australia next to his daughter who is waiting for her dad to come home. The applicant states that he has made ‘a couple of mistakes’ in hard times after losing his assets and work during Covid. The applicant states that he has paid his debt to the community during jail and has spent more time in Villawood. The applicant states that he and his daughter deserve the right to see each other again and he has the duty to take care of his child. The applicant states that he regrets his action and has had time to think about his errors. The applicant refers to his job and states that his life is dedicated to his daughter, who is an Australian citizen.
The respondent submits, that while the best interest of the applicant’s child weigh in favour of the revocations, other considerations, and critically, the protection of the Australian community, must be weighed against that consideration.
The Tribunal’s considerations are set out below with regard to Direction 90.
Primary considerations
Protection of the Australian Community
Sub-clause 8.1 of Direction 90 provides as follows:
8.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
In considering the nature and seriousness of the applicant’s conduct to date, the Tribunal has had regard to the information in the NSW Police Facts Sheets that are before the Tribunal, sentencing remarks as well as the applicant’s own evidence.
The Tribunal has had regard to the Facts Sheet in relation to the December 2019 offence. It is stated that the applicant was driving a car when another person was trying to park and the applicant beeped his horn. The applicant is reported to have left his vehicle and approached the victim and started shouting at him. It is stated that the applicant then struck the victim on the ear, causing pain. When later approached by the police, the applicant is said to have made admissions to the assault. When he was escorted by the police, the applicant started swearing at the police and failed to freely walk to the police vehicle and the police used force to subdue him. In the scuffle, damage was caused to a constable’s watch.
The Tribunal has had regard to the Facts Sheet in relation to the second ‘road rage’ offence. It is stated that the applicant drove his car, changing lanes in front of the victim and almost colliding with her. The victim used the horn to alert the applicant. While stopped at the red light, the applicant left his car and walked towards the victim and pushed her as she attempted to leave the car, while shouting. The applicant kicked the door of the victim’s car before returning to his own. The applicant then reversed his car into the victim’s vehicle several times, colliding with the vehicle before driving off. (In oral evidence, the applicant states that even though he pleaded guilty on advice of his lawyer, he did not cause any damage to the victim’s car and did not reverse into the victim’s car multiple times but the applicant agrees there was a verbal confrontation.) It is recorded that the applicant then refused to provide information to the police when questioned. The victim identified the applicant during a photo board identification parade.
The applicant had provided a letter of apology to the court, stating that he was wrong and what he did was not acceptable behaviour. The applicant referred to pressures at work, causing him financial pressure and he referred to going through emotional difficulties with his partner. The applicant stated that since that time he no longer drives a car. The applicant stated that he recognises he has to control his anger and this has been a big lesson for him and he states that such an incident would never happen again.
In relation to the April 2019 offences, the Police Facts Sheet shows that the police were conducting random breath testing and the applicant was directed to stop at the site. The applicant ignored the police direction and continued driving and was apprehended following a chase. The roadside breath test returned a positive result and the applicant admitted that he used cocaine earlier that evening. (In oral evidence the applicant denied that he used cocaine but could not offer a satisfactory explanation why he admitted to the use of drug to the police if that was not true.) It is recorded that the applicant attempted self-harm while he was conveyed to the police station and he admitted to using cocaine and alcohol earlier in the day. A blood test was taken which showed the concentration of alcohol of 0.093 g / 100 millilitres of blood and the applicant points out that the test was negative for drugs.
The DVO refers to an incident when the applicant’s partner arranged for their child to be collected by her father. The applicant is said to have become violent, picking up and throwing items at his partner and onto the floor and he threatened to throw a bottle at her, causing her to feel threatened. When his partner called the police, the applicant grabbed her by the neck and lowered her on the floor, grabbed the phone and threw it on the floor. (This incident is also described in the sentencing remarks of Judge Yehia).
There is before the Tribunal the sentencing assessment report dated 9 March 2021 prepared by Sarah Molinia, community corrections officer. Ms Molinia refers to the applicant’s criminal history being largely aggression related, which she attributes to stressors in his relationship caused by his financial and addiction issues. It is stated that the applicant took responsibility for his bad choices and was able to articulate how they contributed to his offending behaviour. It is stated that the applicant reported to committing to abiding by legal orders for the sake of his daughter and believed his altercations with the police were due to his resent in the unfairness of his arrest. The applicant reported to drinking and getting drugs easily and he agreed that alcohol exacerbated his aggression, but he stated that he can stop drinking easily and reported to be abstinent. The applicant also admitted to having a gambling problem. The applicant reports to suffering stress and anxiety due to visa issues. Ms Molinia provides a risk assessment, stating there is a medium – high risk of reoffending.
There are before the Tribunal incident detail reports prepared at VIDC, which show that the applicant had been involved in some incidents while in detention. He told the Tribunal that he barely leaves his room and he denied the description of some of these incidents in oral evidence.
The Tribunal has had regard to the sentencing remarks of Judge Yehia made in May 2021. It is noted that the applicant had committed offences in December 2019 and November 2019 and June 2020. In relation to the common assault committed in December 2019 the Judge notes that it was not a domestic violence related offence. The victim was parking his car when the applicant beeped his horn, an argument ensued and the applicant struck the victim with his hand. The Judge found this at the lower end of the range of objective seriousness, leading to the community corrections order (which the applicant breached).
In relation to the common assault committed in November 2019, the Judge notes that the offence was a domestic violence offence against the applicant’s then partner. It is stated that there was an argument between the applicant and his partner and the victim called the police. While she was speaking on the phone, the applicant approached her from behind, grabbed her by the neck and pushed her onto her knees, grabbed her phone and threw it on the floor. The judge found that this offence falls below the middle range of objective seriousness but not at the lower end of the range, given that it is a domestic violence related assault and that the applicant used his hand to grab the victim by the neck and pushed her towards the ground.
In oral evidence the applicant claims that he had been subjected to violence from his partner and had been a victim. He states that he had no money and could not afford to run his case and had the same lawyer as his partner. He states that he pleaded guilty because it was easier or cheaper or more convenient. He also states that he did not want his partner involved, because she is a good mother to their child. The Tribunal is of the view, however, that the fact of the conviction can be taken as evidence that the crimes had been committed.
With respect to the offences committed in June 2020, it is stated that that the victim complained of the applicant returning home intoxicated, in breach of the DVO, and she called the police. The applicant had left by the time the police arrived but he was later located and questioned by the police. He was told he was under arrest for breach of the DVO. The applicant then began to stand up and he pulled out a crowbar approximately 1 meter in length. He began to walk away but did not put down the weapon as instructed by the police until a taser was used. The Judge refers to these as serious offences, given that the conduct was directed at the police officers at the time and the applicant was armed with a crowbar. The Judge found that the offences fall well below the middle range of objective seriousness but not at the lowest end of the range, given that the police had repeatedly told him to drop the weapon and the applicant did not comply. The Judge found that the fact that the applicant was subject to the Community Corrections orders at the time to be an aggravating factor.
In oral evidence, the applicant told the Tribunal that he did not raise the crowbar and had no intention of harming anyone. The Tribunal does not accept his evidence, noting that it is unlikely (in the Tribunal’s view) that the police would have used capsicum spray and a taser if the applicant did not present a threat or was not perceived as being a threat. The applicant agrees that his conduct could have been intimidating.
The Judge also notes that the applicant had committed other offences, being possession of prohibited drug in 2016 and driving offences in 2019. The Judge was prepared to accept some nexus between the applicant’s adjustment disorder with mixed anxiety and depressed mood and the commission of offences, but noted that the commission of offences may have been related to substance use disorder, and was prepared to reduce the applicant’s moral culpability, given his mental health issues.
The applicant presented in his submissions to the delegate a number of character references, including a statement from his former partner and a statement from foster parents. The Tribunal accepts that those who provided the references believe the applicant to be a good person.
In his oral violence to the Tribunal the applicant states that he is not a violent person and had not hurt anyone and had never sent anyone to the hospital. In the Tribunal’s view that statement indicates lack of insight into his conduct, noting that the applicant’s offences (including the two road rage incidents) did involve violence or aggression (actual or perceived) towards innocent by-standers. The fact that the applicant did not ‘send anyone to hospital’ suggests that he does not believe any conduct short of significant physical harm leading to hospitalisation is problematic.
The Tribunal has formed the view that the applicant does not appreciate the significance of his conduct or its potential effect on others. His evidence to the Tribunal is that the 2016 drug use was not problematic because he was at a festival with others and everyone was using drugs and he was the one who was caught. He seems to believe that personal drug use is acceptable and excusable because others around him were also taking drugs. The applicant also repeatedly told the Tribunal that he had made one mistake over one year (referring to the domestic violence offences) and that his partner was, at least partly, to blame for his offending. The applicant does not seem to think that other offending, which includes assault, stalk / intimidating conduct and resist police, was an issue at all. Having regard to the applicant’s evidence, the Tribunal has formed the view that the applicant has no appreciation of the seriousness of his conduct.
The Tribunal is mindful that some of the offences involve unprovoked aggression of violence towards others (such as the two road rage incidents), some involved resisting police in the execution of duty and other offences involve family violence. The offending conduct occurred over a period of time and the applicant’s exposure to the criminal justice system would have given him the opportunity to recognise the seriousness of his conduct and to reform. It does not appear that in the past, he has taken that opportunity, but he continued to offend. The earlier offences resulted in the Community Corrections Orders, rather than terms of imprisonment, yet the applicant had breached the CCO. The aggressive or violent nature of the offending conduct and its repeated nature indicate that the applicant’s conduct to date has been serious.
The Tribunal has considered the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
The applicant presented with his submission to the delegate evidence of having completed several programs while in detention. He states that he is remorseful for his actions and has paid his debt to the government, being behind bars. The applicant notes that he has no criminal history in France and his criminal history in Australia was due to an overall breakdown in his life. The applicant states that prison has had a huge impact on him, he broke up his routine and became a spiritual person and refuses to use alcohol ever again.
The applicant presented a statement from David Czitter, a registered clinical counsellor at VIDC. Mr Czitter states that the applicant has been doing a lot of individual counselling and rehabilitation, has been transparent, reflective and insightful and has been proactive in doing work on himself by completing online courses and education. It is stated that the applicant is also keen to use other coping strategies and that he seems genuine in his desire to continue parenting and supporting his daughter.
In support of his character submission to the delegate the applicant presented a brief to the psychologist. In his submission to the delegate the applicant included a psychological assessment report dated 10 May 2021, completed by Dr Kala Ram. Dr Ram outlines the applicant’s background and his circumstances. Dr Ram states that the applicant claims to have a close bond with his daughter Keira and wants to provide her with a safe family environment. The applicant reports to have stated that it would be traumatic for him to leave the country in terms of the separation with his daughter and his desire to bring his daughter to his family. It is stated that the applicant reported commencing alcohol at the age of 18 and experimenting with drugs from the age of 12 but he reports his drinking as being infrequent. The applicant reports that his use of alcohol increased from February 2020 after he lost his job and he reports that his drinking was heavy and he had also started gambling. The applicant reported being depressed at times, feeling socially isolated and having no support network around him.
Dr Ram refers to her conversation with the applicant’s partner about his relationship with his daughter. It is stated that the applicant’s partner expressed concern about the possibility of the applicant being deported and the impact a long distance relationship would have on their child and her mental health.
Dr Ram refers to the applicant’s description of events in June 2020 which led to his most recent conviction. It is stated that the applicant reports to have stopped drinking on 1 July 2020 following his arrest, that during his incarceration he has returned to religious practice and prays on a daily basis and his religious involvement helps him stay away from alcohol and gambling. The applicant has expressed his desire to reconcile with his partner and support his daughter.
Dr Ram concludes that the psychological assessment of the applicant revealed ongoing disruption of significant attachments and general instability throughout the majority of his childhood, with such unpredictability likely creating instability, insecurity and associated anxiety when he was growing up. It is stated that it is ‘probably’ that the applicant’s personal childhood experiences have strengthened the value he places on fatherhood and the attachment he shares with his daughter.
Dr Ram states that the applicant’s mental health gradually deteriorated following the birth of his daughter in January 2018, the loss of his job in February 2022 and ongoing financial stress. The applicant had reported to using alcohol to cope with difficult emotions and challenging life events. Dr Ram suggests that during the commission of the offences and currently, the applicant meets the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood and moderate alcohol use disorder (in early remission). Dr Ram suggests that the combination of the above conditions directly related to the offending misconduct insofar as impairing his decision-making. It is stated that if his appeal is successful and if he is able to maintain a consistent and living connection with his daughter, the prognosis is promising.
Dr Ram states that the fact that the applicant ceased alcohol use since July 2020 (prior to incarceration in March 2021) is an important factor in the rehabilitation process and additional protective factors include the strong support of his foster parents and biological parents and family in France, his daughter and his relationship with his former partner, prosocial attitude, absence of clinical psychopathology and drug and alcohol problems, positive attitude towards help seeking behaviour, employment prospects and strong work ethic, his faith and realistic direction for his future. Dr Ram suggests that these factors, along with HCR-20, support a positive prognosis and a reduced risk of recidivism.
The Tribunal acknowledges and accepts the professional views expressed by Dr Ram. The Tribunal is mindful that the stress factors identified by Dr Ram have not been entirely removed (such as limited social support in Australia, the presence of various stressors even outside of his relationship, etc) and while the Tribunal is prepared to accept that the applicant had not used alcohol while in prison and detention and that there are other protective factors present, the Tribunal also places some weight on the fact that the applicant’s resolve not to turn to alcohol has not been fully tested in the community.
The stressors and social isolation that the applicant may experience in the community are unlikely to be the same as what he had experienced in detention. Alcohol is more prevalent and more easily available in the community. When the applicant is released from detention, he would be more exposed to financial pressures than while he was in detention. All the factors that had affected him in the past, leading to alcohol consumption and criminal behaviour, will be present to a far greater degree if the applicant is not in detention. On the evidence before it, the Tribunal is not satisfied that in these circumstances, the applicant will not again turn to alcohol as a coping mechanism and, should he do so, the Tribunal is not satisfied that he would not reoffend.
The applicant submits in his written submission to the delegate dated 28 April 2021 that he is of good character (as attested by various references). He states that he was in a toxic relationship which has now ended and that the sentence is a ‘one-off blight’ because of the relationship gone wrong, which won’t happen again. The applicant repeated these claims in his oral evidence to the Tribunal. However, as noted above, the Tribunal is mindful that the applicant has had multiple convictions prior to the most recent offending in 2021 and in the Tribunal’s view, to call his offending a ‘one off blight’ because of a relationship gone wrong suggests that the applicant lacks insight into his offending.
Similarly, the Tribunal has been provided with notes prepared by Ms Molinia from a conversation she had with the applicant on 5 February 2021. Ms Molinia reports that the applicant claimed to have ‘never been in trouble’ prior to the most recent offending. The Tribunal is mindful that the applicant has a long list of convictions prior to 2021, as noted above, so that statement is incorrect. When making the application for review, the applicant also referred to ‘making a couple of mistakes’. The applicant appears to fail to recognise that his past conduct (which resulted in convictions) was inappropriate and contrary to the Australian laws. These comments also suggest that the applicant lacks insight into his conduct. In the Tribunal’s view, the applicant’s inability or unwillingness to recognise his offending as criminal conduct and his failure to recognise his culpability for the offending conduct increases the risk of reoffending.
In his statement to the Tribunal of 12 July 2022 the applicant also states that he had made countless mistakes which he regrets and he acted irrationally, anti-socially for which he is deeply sorry. He refers to depression and substance abuse, self-medication with alcohol which clouded his judgment. The applicant refers to his childhood and states that he had the tendency to escape his troubles through bad vices as a means of coping. The applicant states that he hopes to be reunited with his daughter and sobriety is the only solution which would help improve his life and relationships and he states that he is committed to changing his ways.
In oral evidence the applicant told the Tribunal that he has a place to stay if he is released from detention and has support from friends in the community. The Tribunal accepts that evidence and acknowledges that having a stable place of residence and perhaps employment may act as a deterrent in the future but the Tribunal does not consider these factors to be a significant deterrent, given that the applicant did have a stable place of residence, as well as income and employment when past offences were committed.
The Tribunal is prepared to accept that the risk of reoffending is reduced. This is because the possibility of future incarceration, of visa cancellation and of being separated from his daughter would act as significant deterrents for the applicant, as would his faith. However, the Tribunal does not consider that the risk has been removed altogether. The Tribunal is concerned that should the applicant be again subjected to stressors (he refers to emotional and financial stressors in the past), he may not be able to control his temper, which may result in him causing harm to others. That is, the Tribunal is of the view that the risk of reoffending, should the applicant be released into the community, remains, even if that risk is lower than before. That is consistent with the finding made by Ms Molinia in her report who has identified the risk of reoffending as medium to high.
The Tribunal considers that the harm to the community, should the applicant reoffend, could be very serious, given the nature of offending (unprovoked aggression towards others during the road rage incidents, domestic violence, resisting the police, drug and driving offences). The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Expectation of the Australian Community
Clause 8.4 of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The applicant refers to his relationship with his partner and the reasons for its breakdown. The applicant refers to mutual violence in his relationship. He states that he has not hurt anyone and is not a violent person. As noted above, that is not entirely consistent with the information in the police facts sheets summarised above, which indicate there was violence or a threat of violence on multiple occasions, resulting in convictions (even if the applicant denies the accuracy of some of the reports). The fact that nobody ended in hospital as a result of the applicant’s actions does not exonerate his conduct. The applicant concedes that some of his conduct could have been perceived by others as intimidating.
The applicant refers to his relationship with his daughter and the difficulty of seeing her again, if his visa remains cancelled and if he is to leave Australia. The Tribunal accepts that evidence and accepts that the applicant’s relationship with his daughter, as well as the length of his stay in Australia and his links to Australia could raise a degree of sympathy. However, regard must also be had to the nature of the applicant’s conduct. In particular, the Tribunal has formed the view that the repeated offensive behaviour over a number of years, violent conduct in relation to others and the potential harm to the community arising from violent and drug / alcohol - related offences, are such that the Australian community would expect that the applicant should not hold a visa.
The Tribunal finds that the community expectations would weigh considerably against revocation.
Whether the conduct engaged in constituted family violence
The November 2019 and January 2020 conduct was an assault committed against the applicant’s then partner and constitutes family violence. The circumstances of these offences are described above. The applicant has been issued with the Apprehended Domestic Violence Order in relation to his former partner and has been found to have breached that order.
The applicant’s evidence is that he had also been subjected to family violence and had been a victim. The Tribunal acknowledges that there is evidence that would appear to support these claims but in the Tribunal’s view, it does not exonerate the applicant’s own conduct.
The Tribunal finds some of the conduct engaged in constitutes family violence. This consideration weighs against the revocation.
The best interests of minor children in Australia
The applicant has a minor daughter in Australia, who is an Australian citizen. In his various submissions the applicant refers to a close relationship he has with the child and his desire to raise the child and provide her with a safe environment. The applicant presented to the delegate statements from his former partner, outlining their relationship and also referring to the applicant’s relationship with his daughter. The applicant presented to the delegate the Parenting Plan which refers to equally shared parental responsibility for the child and giving the applicant access to the child. There is also evidence of the applicant’s frequent telephone contact with the child while he has been incarcerated and in oral evidence the applicant told the Tribunal that he speaks to his daughter at least a couple of times a week.
In his written submission to the delegate, in requesting the revocation of the cancellation, the applicant states that his daughter would be significantly affected for the rest of her life if the cancellation of the visa is not revoked and the applicant refers to Dr Ram’s report outlining his attachment to the child and of the effect on the development of the child if deprived of a parent.
The Tribunal accepts that evidence and accepts that it is in the child’s best interests to maintain a relationship with her father. The Tribunal acknowledges that the applicant is able to maintain electronic contact with his daughter irrespective of his place of residence, as he has done since his incarceration, but the nature of such relationship will not be the same. The Tribunal also accepts the applicant’s evidence that if his visa is cancelled, he will be unable to return to Australia in the future to spend time with his daughter and the only option he would have of seeing his child is if she would travel to France.
The Tribunal has formed the view that it is in the best interests of the applicant’s daughter that the cancellation of his visa is revoked, which would enable the applicant to obtain other Australian visas. The Tribunal finds that this consideration weighs heavily in favour of the revocation.
Other considerations
International non-refoulement obligations
The applicant does not claim, and there is no evidence before the Tribunal to indicate that Australia’s non-refoulement obligations arise in this case. This consideration is neutral.
Extent of impediments if removed
In his submission to the Tribunal the applicant states that he has not been diagnosed with medical or psychological conditions. The applicant states that he is fearful of the impact on his family and himself if he is removed to France and that separation from his child would ‘drive him crazy, not supporting his partner would hammer him with remorse’. The applicant states that he left France 5 years ago without planning to come back, he has nothing waiting for him there and has built his life in Australia. The applicant states that he would have to find a place to live, living far from his family or even finding a job, as infrastructure is totally different and his salary would be far lower so it would be impossible to support his daughter.
The applicant’s oral evidence to the Tribunal is somewhat different as the applicant told the Tribunal that he does not wish to remain in Australia and, if released into the community, that he would dispose of his things and return to France where he has a better support network. The applicant’s evidence is that he is seeking the visa to have the opportunity to return to Australia in the future, rather than to live in Australia at present.
Given the applicant’s stated intention and his preference to return to France, even if granted the Partner visa, and to live primarily in France and visit Australia from time to time, the Tribunal does not consider there would be any significant impediment for the applicant to return to his home country. This consideration is neutral. However, the Tribunal does acknowledge that if the cancellation is not revoked, the applicant is unlikely to be able to return to Australia and this is addressed more fully below.
Impact on victims
There is no evidence before the Tribunal concerning any impact on victims. This consideration is neutral.
Links to the Australian community
The applicant has been residing in Australia since January 2015 for a period of approximately eight years, although following the expiry of his Working Holiday visa, the applicant has not held a substantive visa. The applicant’s immediate family reside overseas but his daughter and former partner live in Australia. The applicant told the Tribunal that he has no intention of reuniting with his partner (he referred to it as ‘suicide’) and he states that most of his friends live in other countries and he has no support network in Australia.
There is before the Tribunal evidence of the applicant’s past employment. There are also before the Tribunal statements from some of his friends and the Tribunal accepts that the applicant has some social ties in Australia. The Tribunal accepts that the length of the applicant’s residence in Australia is significant and that during that residence he has formed ties to Australia, including family and employment ties.
These factors weigh somewhat in favour of the revocation.
Other matters
The applicant submits that a decision not to revoke the cancellation of his visa and his return to France would have a detrimental effect on his daughter and his ability to fulfil his parenting obligations in relation to his daughter. While the visa in question is not a visa that would permit the applicant to gain residence in Australia and to be with his daughter, the Tribunal acknowledges that the cancellation of the BVE has resulted in the automatic cancellation of the applicant’s Partner visa and, should a decision be made to revoke the cancellation of the BVE, the applicant would have the opportunity of pursuing his Partner visa, or another Australian visa in the future. That is, the applicant will possibly have an option of living in Australia or visiting Australia in the future if the present cancellation is revoked and he may not have that opportunity if the cancellation not revoked. The Tribunal acknowledges the serious consequences of its decision and the practical consequence of separating the applicant from his child, if he cannot remain in, or visit Australia in the future. These factors also weigh in favour of the revocation.
Conclusion
The Tribunal has found that the applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the applicant had committed serious offences, in particular, offences involving family violence and offences involving unprovoked violence towards others. The nature of his past offending is such that the applicant’s conduct is against the expectations of the Australian community. The Tribunal has formed the view that the protection of the Australian community and the expectations of the Australian community weigh heavily against the revocation. These are primary considerations and the Tribunal gives these significant weight.
The other primary consideration, the best interests of a minor child in Australia, weighs strongly in favour of the revocation. In this case, the Tribunal accepts that the applicant has a close relationship with his daughter and that the applicant may have very limited personal contact with her, should his visa remain cancelled, preventing the applicant from re-entering Australia. The Tribunal has formed the view that it is in the best interests of the applicant’s daughter that the cancellation of his visa is revoked.
With respect to other considerations, the Tribunal accepts that the applicant has some ties to Australia and has been living here for over five years (although he had never been granted a permanent visa). The Tribunal does not consider there would be a significant impediment to the applicant if he is removed from Australia, given the applicant’s stated intention to return to France even if he is granted the Partner visa but the Tribunal acknowledges that the cancellation of the visa would prevent the applicant from returning to Australia in the future. Australia’s non-refoulement obligations do not arise in this case.
Overall, the Tribunal acknowledges that there are factors in favour of the revocation, most significantly the best interests of the applicant’s child. However, in the particular circumstances of this case, the Tribunal has decided to give greater weight to the primary considerations of protection of the Australian community and the expectations of the Australian community.
The Tribunal has formed the view that the applicant has engaged in serious and repeated conduct and that there remains a risk of reoffending. The Tribunal has decided that, in all the circumstances of this case, these two primary considerations should be given greater weight. The Tribunal has decided that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancelation of a Class WE Subclass 050 Bridging E visa held by the applicant.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif
....................................[sgd]....................................
Associate
Dated: 27 October 2022
Date of hearing: 25 October 2022 Applicant: Self-represented Solicitors for the Respondent: Mr M. Burnham, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Jurisdiction
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