JSDC and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 269
•27 February 2023
JSDC and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 269 (27 February 2023)
Division:GENERAL DIVISION
File Number: 2022/9948
Re:JSDC
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Dr Huntly
Date:27 February 2023
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 5 December 2022, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
..................[Sgd].....................................
Member Dr Huntly
Catchwords
MIGRATION – Migration Act s 501CA(4) – decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa – whether there is “another reason” to revoke the cancellation of the applicant’s visa – substantial criminal record – family violence – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – applicant is a 39-year-old man who came to Australia as a 5-year-old – there is “another reason” to revoke the cancellation of the applicant’s visa – reviewable decision set aside
Legislation
Migration Act 1958 (Cth) ss 189, 499(1), 499(2A), 500(6B), 500(6L), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(6)(c), 501(7), 501(7)(a) 501(7)(c), 501(7)(d), 501(7A), 501CA, 501CA(4), 501CA(4)(a), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G
Cases
Bread Manufacturers of NSW v Evans [1981] HCA 69
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 2390
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Nigro v Secretary to the Department of Justice [2013] VSCA 213
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Re Zaya and Minister for Immigration and Border Protection [2017] AATA 366
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
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)
REASONS FOR DECISION
Member Dr Huntly
27 February 2023
The Application
The Applicant seeks review of the decision of a delegate of the Respondent (the Minister) dated 5 December 2022 not to revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa (the Visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act) (the Reviewable Decision).
The Visa was cancelled under s 501(3A) of the Act on the basis that the Applicant did not pass the character test, by reason of his substantial criminal record, and that he was serving a full-time term of imprisonment for an offence against a law of a State (the Cancellation Decision).
The application is made pursuant to s 500(1)(ba) of the Act which allows application to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision of a delegate of the Minister made under s 501CA(4) of the Act.
Unless the context indicates otherwise, passages quoted in bold font and underlined have been emphasised by the Tribunal.
The Issue for Determination
The issues for determination are:
(a)whether the Applicant passes the character test (as defined by s 501(6) of the Act); and
(b)if he does not pass the character test, whether I am satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
Background
The Applicant is a 39-year-old New Zealand citizen. The Applicant first arrived in Australia in 1988 at the age of five and returned to New Zealand after three years. The Applicant re-entered Australia on 7 September 2006 on a TY Subclass 444 Special Category (Temporary) visa and has not departed Australia since.[1] It is this visa which is the subject of the present proceedings.
[1] Exhibit R3, 38-47; 64.
On 10 May 2021, the Applicant was convicted in the District Court of Western Australia on the charge of ‘[u]nlawfully assault and thereby did bodily harm with circumstances of aggravation’, for which he was sentenced to two years and ten months imprisonment.[2]
[2] Ibid 26-34.
On 8 June 2021, while serving this term of imprisonment, the Applicant’s visa was mandatorily cancelled, pursuant to s 501(3A) of the Act.[3] In compliance with s 501CA of the Act, the Applicant was invited to make representations as to why the visa cancellation should be revoked.
[3] Ibid 40.
On 1 July 2021, the Applicant made representations seeking revocation of his visa cancellation decision.[4]
[4] Ibid 55.
On 26 May 2022, on his release from prison, the Applicant was taken into administrative detention at Yongah Hill Immigration Detention Centre (the YHIDC), pursuant to s 189 of the Act.[5]
[5] Ibid 48.
On 5 December 2022, a delegate of the Minister decided not to revoke the Cancellation Decision because the delegate was not satisfied that there was another reason why the Cancellation Decision should be revoked.[6]
[6] Ibid 124-125; 4-20.
On 6 December 2022, the Applicant applied to this Tribunal for review of the delegate’s decision. In his application for review, the Application stated that he is seeking review of the Reviewable Decision because his ‘3 year old Daughter needs her father’.[7]
[7] Ibid 2.
A hearing of this matter was held in person at the Perth Registry of the Tribunal.
The Hearing and Evidence
At the time of the hearing, the Applicant was detained at YHIDC in Western Australia and appeared before the Tribunal on 13 February 2023. The Applicant was self-represented. The Respondent was represented by Mr A Gerard of Australian Government Solicitor, who appeared in person. The Applicant gave evidence on affirmation at the hearing. No other witnesses gave evidence at the hearing.
The Tribunal had the following materials before it:
(a)the Respondent’s Statement of Facts, Issues and Contentions (SOFIC), filed 17 January 2023;
(b)The Applicant’s application for review, filed 6 December 2022 (Exhibit A1);
(c)the Respondent’s Tender Bundle, filed 17 January 2023 (Exhibit R1);
(d)the Respondent’s Further Bundel of Documents, filed 27 January 2023 (Exhibit R2); and
(e)G-documents, filed 23 December 2022 (Exhibit R3).
The Applicant’s offending history
The Applicant has a criminal history in both Australia and New Zealand. The Applicant’s history of offending in Australia is detailed in tabular form at Annexure A. (Taken from Exhibit R3, 21-22 and Exhibit R1, 141-144)
The Applicant’s history of offending in Australia was summarised as follows by the Tribunal at the hearing:[8]
[8] Transcript, 15-16.
MEMBER: I note, between 2012 (March) and 2019 (July), your criminal history indicates that you engaged in violent criminal activity on six occasions, resulting in two years and ten months in prison and a seven-month suspended sentence. These crimes are clearly serious.
There’s also some character offences, stealing, and resisting, and obstructing police, dishonesty-type offences between 2012 (September) and 2019 (March), nine of these character type offences.
And then when we look at traffic offences, we have, between 2010 (December) and 2019 (January), 13 traffic offences, some of them are quite serious, blood alcohol, excessive speeds, no authority to drive and so forth. This resulted in you collecting fines and compensation orders amounting to $11,700 and a total of three years, seven months driving disqualification.
It’s not just the sentence of two years and ten months relating to your assault on your partner that’s really before me, it’s your entire record since you’ve been in Australia. There are some patterns. Your driving offences are pretty significant. Character offences, stealing and breach of bail and so forth. Destroying property. As I say, it’s not just two violent two incidences of violence. There’s six on your record. So it’s difficult to see a record like that anything other than as serious offending.
Is there anything you’d like to say in response to that?
JSDC: Yes. I take full responsibility for all those offences, and I made a error of judgment during that period, and I deeply regret all these charges that that’s behind my name.
MEMBER: … I just did want to ask, the fines that you collected over the years in Australia, have they all been paid off?
JSDC: Yes, I’ve paid them off in prison.
The Applicant’s history of offending in New Zealand was also before the Tribunal and is detailed in tabular form at Annexure B. (Taken from Exhibit R3, 23-24)
The Applicant’s history of offending in New Zealand was summarised as follows by the Tribunal at the hearing:[9]
[9] Ibid 16.
MEMBER: But thinking back to your time in New Zealand, over the page on page 23 and 24 of the bundle there’s your prior New Zealand record. Now, how old were you in 1999?
JSDC: Seventeen, I think.
MEMBER: Okay, so it starts at 17 and ends 2006, which is what, 25 ish?
JSDC: Yes.
MEMBER: So between the age of 17 and 25 in New Zealand, as I’ve gone through these offences, I can see three crimes of violence kidnapping, threatening to kill, offensive, disturbing use of a telephone between (July) 1999 and (April) 2000, for which you were given one and a half - well, one year, five months’ supervision order. Some character offences, quite a few actually, between 1999 (February) and 2006 (February), 16 all up - resulting in a total of two years, three months’ imprisonment, and one year, five months’ supervision order.
Then there’s the driving offences, seven of them, between 1999, (February) and 2004 (April) totalling fines of NZ$3519.06, a 10 month imprisonment, six years of disqualifications and 900 hours of supervised work orders. Now, did you pay all those fines off?
JSDC: I’m I really can’t remember.
MEMBER: Okay. So it’s possible that some of these are waiting for you back in New Zealand, yes?
JSDC: I’d say so.
One notable fact arising from the Applicant’s history of offending was a lack of offending recorded between February 2006 and November 2010. This represented a period of four years and 9 months without recorded incident. This was explored with the Applicant at the hearing:[10]
[10] Ibid 17-19.
MEMBER: So you had four years without any problems with the law on arrival. What changed?
JSDC: I think going off my medication and consuming alcohol.
MEMBER: What medication were you on in 2010?
JSDC: I was on major depression and anxiety.
MEMBER: Okay. So do you mind if I ask what actual medication you were on?
JSDC: Yes, paroxetine and sertraline.
MEMBER:Okay, and you found that, what, on arrival in Australia, you got onto some treatment? Is that what happened, or were you on treatment before you got to Australia?
JSDC: No, I got onto treatment when ‑ on my arrival.
MEMBER: Okay.
JSDC: Yes.
MEMBER:And why did you lapse in your treatment regime? Did you think you were better?
JSDC:I ‑ at times, I did. I woke up one morning and I thought I didn’t need it anymore, and the doctor said that’s not ‑ you know, that’s not a good way to go about my medications, and ‑ because I thought that I was healed from the anxiety and depression, but I was wrong.
MEMBER:Okay, bring it to today. Do you still have a predisposition to anxiety and depression?
JSDC: Yes, but I got, like, the proper medications ‑ ‑ ‑
MEMBER: So you’re back on your medication, are you?
JSDC: Yes, I’ve been on it for a while now.
MEMBER: A while being?
JSDC: Being the last two years.
MEMBER: Okay. And you find that’s beneficial?
JSDC: Yes, it is. Definitely.
MEMBER: Describe yourself off the medication and on the medication?
JSDC:When I’m off the medication, I just feel hopeless, negative thoughts, worthless, and just don’t want to socialise, don’t want to talk to people, just isolation. I isolate myself in the room.
MEMBER: And on the medication?
JSDC: None of that ever happens.
This issue of mood, pharmacological treatment and offending gaps lead to the following exchange between the Tribunal and the Applicant at the hearing:[11]
[11] Ibid 23-24.
MEMBER:Can I just ask, the head injuries you suffered as a younger man, do you have them periodically checked? Do you get MRI scans and things?
JSDC: No, I haven’t for the last - well, ever since I arrived here.
MEMBER:The sentencing judge for your major offence made specific reference to this. Is this not something that you think you should have an eye to following up on?
JSDC: Yes.
MEMBER: So what would that look like?
JSDC:Little - probably just to find out where I’m at with my head injuries and how my brain is working and stuff.
MEMBER:Samoans are renowned as big people who are physically very strong and who experience chronic disease at quite alarming rates, yes; the Samoan community?
JSDC: Yes.
MEMBER:One of the things that is a big risk factor for the Samoan community - particularly the men - is dementia. It comes from many different places. One is of course genetics, but increasingly people are worried about head injuries from sport. You’re probably aware of what’s been going on in the last 10 years with Australia Rules and rugby players in terms of chronic traumatic encephalopathy, which is brain damage caused by blows to the head during sport. Rugby is not a gentle game, particularly the way the Samoans and All Blacks play it. Added to that, you’ve had some actual documented head injuries. These things have all sorts of unintended consequences, like it can affect your speech, it can affect your thought patterns, it can affect your mood. Does any of that sound familiar?
JSDC: Yes.
MEMBER:Yes. It’s interesting to me. I mean, it’s not unusual for men not to think about their health. And when it’s your head, it’s a tricky thing because it’s really where you are, it’s who you are. Being vulnerable enough to actually go to a doctor and say, “I want you to check out my head,” that takes a bit of courage. You haven’t been tempted to do that yet?
JSDC: No, I haven’t.
MEMBER: No. Did you hear the Judge when he said it to you back in 2019?
JSDC: I can’t really remember.
MEMBER:I’m saying it to you now. You need to hear it. You’ve had some head trauma. That’s not just an overnight thing; that will be with you for the rest of your life. And you need to care for that just like you do with your mood, because it might be related. And it’s something that’s in the evidence before me, and I need to think about it. I need to think about the fact that we’ve got a Samoan man who - ethnically Samoan man who has played rugby as a child, has lived a rough life, had some knocks to the head, serious surgery as a result of some of the knocks to the head. And you’ve also got the kinds of things that we would associate with that kind of physical damage; mood problems, emotional regulation problems. And these are treatment needs. And again, it’s not just about you, it’s about your daughter. If I can put it to you this way, if one of her grandfathers had had knocks to the head, played rugby, and had mood disorders, what would you be saying to the grandfather?
JSDC: I’d be telling him off.
MEMBER: You’d be telling him, “You’d better get that checked out,” yes?
JSDC: Yes.
MEMBER: Maybe you need to be given those words yourself. You should be getting that checked out for her sake. Because even if she visits you in New Zealand, she doesn’t want to be visiting you in a hospital, and you want to be able to remember it when she comes.
The Applicant’s latest violent offending, for which he was sentenced to 34 months imprisonment in the Western Australian District Court on 10 May 2021, was addressed as follows in the Respondent’s SOFIC:
40. Prior DCJ described the index offending as a ‘serious example of domestic violence’ against the applicant’s ex-partner. His Honour described the offending as follows:
… In anger you then punched [victim] to the stomach, breasts and arms. There were multiple blows. You admitted this in your evidence. She fell to the ground. You were punching her while she was falling to the ground. When [victim] was on the ground, you hit her to the back. You did this by stomping her on the back. She was facedown and defenceless at the time.… As a result of the assault [victim] suffered extensive bruising to her breasts, abdomen, back, thighs and arms.
…
To use your words in your evidence, the assault extended to punishment of [victim].
…
Offences of this type you have committed often end up in more tragic examples, but this in the context is a serious example of domestic violence.
(Footnotes removed.)
Legislative Framework
Section 501(3A) of the Act relevantly provides that:
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) ...; 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.
Section 501(6) of the Act relevantly provides:
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)); or ...
(Original emphasis.)
A ‘substantial criminal record’ is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)...
(b)...
(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.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act provides that, ‘[a] person or body must comply with a direction under subsection (1).’
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled ‘Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 90).[12] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of ‘Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’.[13] (Direction 79).
[12] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[13] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are stated to be as follows:
(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) 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.
(3) 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 measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
Consideration
Does the Applicant pass the character test under the Act?
On 10 May 2021, the Applicant was convicted and sentenced to a term of imprisonment for two years and ten months for an indictment charging ‘[u]nlawfully assault and thereby did bodily harm with circumstances of aggravation’.[14]
[14] Exhibit R3, 22.
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[15] The character test is defined in s 501(6) of the Act (see [24] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has ‘a substantial criminal record’. Section 501(7)(c) of the Act provides that a person will have a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more...’. Section 501(7)(d) of the Act provides that a person will have 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’ (see [25] above). As noted above, by reference to s 501(6)(a) of the Act, the Applicant’s does not pass the character test by operation of law.
[15](2009) 106 ALD 666.
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is another reason why the decision under s 501(3A) of the Act should be revoked (see [27] above).
Is there another reason why the reviewable decision should be revoked?
Given the Applicant does not pass the character test, pursuant to s 501CA(4) of the Act, the decision-maker must consider whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.
In accordance with s 499(2A) of the Act, the Tribunal must comply with Direction 90 in making a decision regarding a request for revocation of a mandatory cancellation of the visa pursuant to s 501CA of the Act. Paragraph 5.1(4) of Direction 90 relevantly provides that the purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501CA of the Act.
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal in CZCV and Minister for Home Affairs[16](CZCV) summarised the task on review as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [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.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated, at [68]: “... 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.”…
[16] [2019] AATA 91.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the preceding Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant’s history of violent offending can be characterised as of increasing seriousness, within the contemplation of para 8.1.1(1)(d) of Direction 90. Further, the cumulative effect of the Applicant’s history of offending conduct described above is a significant relevant consideration in this case, in the sense that it is cumulatively very serious offending conduct within the contemplation of para 8.1.1(1)(e) of Direction 90.
The Respondent cogently draws attention to the granular detail of the Applicant’s record of offending in the following passage from the SOFIC:
Nature and seriousness of the conduct
35.The applicant has been convicted or found guilty of violent crimes, including in circumstances of domestic violence, which, pursuant to paragraph 8.1.1(1)(a) of Direction 90, are to be viewed as ‘very serious’, namely:
35.1. Aggravated assault occasioning bodily harm (against Ms B) (the index offending), for which he was sentenced to 2 years and 10 months’ imprisonment on 10 May 2021;
35.2. 2 counts of aggravated assault occasioning bodily (against his father), for which he was sentenced to a financial penalty in the sum of $1,500 for each count on 17 July 2015;
35.3. Assault police officer in the execution of duty without actual bodily harm, for which he was sentenced to a good behaviour bond of 6 months’ duration on 12 September 2012;
35.4. Common assault (involving a punch to the face in circumstances akin to a ‘home invasion’), for which he was sentenced to 7 months’ imprisonment, suspended upon entering into a good behaviour bond of 6 months’ duration on 12 September 2012; and
35.5. Common assault (in circumstances where he punched an individual at a liquor store), for which he was sentenced to a financial penalty in the sum of $1,200 on 21 May 2012.
36.In the absence of particulars and noting that the offending is juvenile, the applicant’s record from the Otahuhu Youth Court in New Zealand does not appear to be relevant. For the avoidance of doubt, the respondent relies upon that other serious conduct solely for the purposes of the Tribunal’s assessment of when the applicant first started offending and not for any other purpose.
37.The Tribunal is required to consider the sentence imposed by the courts for those crimes, noting that crimes of a violent nature against women and acts of family violence must be considered as very serious in any event (paragraph 8.1.1(1)(c) of Direction 90).
38.Consideration of the applicant’s criminal offending history, as a whole, reveals that his conduct over an almost 10-year period (between his first Australian offence and his incarceration on 27 July 2019) was frequent and persistent. The longest period where the applicant has not committed any offence is 17 months.
Assault Offences
39.The applicant’s 3 convictions for aggravated assault occasioning bodily harm are each an instance of family violence which involved actual violence toward the victims. This must be given significant weight against the applicant.
40.Prior DCJ described the index offending as a ‘serious example of domestic violence’ against the applicant’s ex-partner. His Honour described the offending as follows:
… In anger you then punched [Ms B] to the stomach, breasts and arms. There were multiple blows. You admitted this in your evidence. She fell to the ground. You were punching her while she was falling to the ground. When [Ms B] was on the ground, you hit her to the back. You did this by stomping her on the back. She was facedown and defenceless at the time.... As a result of the assault [Ms B] suffered extensive bruising to her breasts, abdomen, back, thighs and arms.
…
To use your words in your evidence, the assault extended to punishment of [Ms B].
…
Offences of this type you have committed often end up in more tragic examples, but this in the context is a serious example of domestic violence.
41.The assaults against the applicant’s father are described in the Statements of Material Facts, produced under summons by WA Police, as separate instances where the applicant punched his father to the face, causing the father’s ‘mouth to bleed and swelling to his cheek’ and his father’s dentures to snap in half, respectively. In the earlier instance in May 2014, the applicant’s father also suffered a broken rib from falling against an armrest before landing on the floor.
42.Further, the applicant’s 2 convictions for common assault also involved the use of violence:
42.1. on the first occasion, the applicant punched a man outside of a bottle shop. The applicant was fined $1,200. While the sentence demonstrates the offending was at a lower level, it should nevertheless still be considered as serious; and
42.2. on the second occasion, the applicant broke into a family home. He struck the victim with a closed fist on the side of the head. The fear caused by the applicant during the offending led to 2 young nephews of the victim escaping out a window. The applicant was given a 7-month suspended term of imprisonment, which marks the seriousness of that offence.
43.The Minister also submits that adverse weight should be placed upon the increasing trend of seriousness in the applicant’s violent offending. The nature and gravity of the applicant’s violent offending has increased over time, progressing from assault simpliciter to very serious acts of domestic violence.
Traffic Offences
44.The applicant’s repetitive and frequent traffic offending should lead to the Tribunal considering the cumulative effect of the offences weighs adversely against the applicant.
45.In Re Zaya and Minister for Immigration and Border Protection [2017] AATA 366, Deputy President Kendall (as his Honour then was) stated as follows (at [54]):
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.
46.The applicant has engaged in repeated violations of driving while unlicensed. That is, he was clearly driving while he should not have been doing so. The applicant also has a history of driving while under the influence of alcohol. While the applicant has received only one conviction in Australia, he had multiple traffic offences in New Zealand (which ultimately led to a term of imprisonment).
47.The applicant’s traffic record demonstrates a blatant disregard for the law and for safe driving laws designed for the protection of the Australian community. While the applicant’s offending has not yet caused any physical harm, offences of the type committed by the applicant can often result in far more tragic consequences.
48. The applicant’s traffic offending history must weigh against revocation.
Other Offences
49.The applicant has been convicted of Obstructing public officers, Resist or hinder police officer in the execution of duty and Assault police officer in execution of duty w/o abh. It is clear from the respective entries on the applicant’s criminal record that the conduct involved the applicant committing a crime against a public official in the course of that person carrying out their duties. This must be viewed seriously (paragraph 8.1.1(1)(b)(ii) of Direction 90). The facts of these offences include:
49.1. the first incident occurred on 12 February 2017, after the applicant was stopped by police following the assault which is described at [42.2] above. The accused pushed a police officer, struck them on the shoulder with his forearm and attempted to strike the officers as they tried to restrain him. The officers were required to use capsicum spray to subdue the applicant. For this offence, the applicant was given a 6-month good behaviour bond; and
49.2. the second incident occurred on 26 February 2017. The applicant was stopped by police officers when driving (without authority). The applicant became aggressive toward the officers and refused to answer questions. The applicant pushed an officer and, when resisting arrest, ‘shaped up’ to the officer and threatened to ‘smash’ all of the officers. For this offence, the applicant was given a 6-month community corrections order.
50.The applicant has also been convicted of property offences, including destroying and damaging property and stealing, offences, which the applicant had also previously engaged in while in New Zealand. The fines imposed for this offending indicates that these were at the lower end of seriousness, however should still have some weight against revocation.
51.There are also a number of convictions for breaching bail undertakings and community-based orders. Like the applicant’s traffic offending, this demonstrates a disregard for the law and the inability to tell right from wrong.
52.The applicant’s other offending, while less serious in nature than his violence and traffic offences, is nevertheless unsatisfactory and unacceptable, and should weigh against revocation.
False or misleading information provided to the Department
53.Upon entering Australia in 2006, the applicant declared that he had not been convicted of any criminal convictions. As the applicant’s Criminal History Report shows, he had, in fact, been convicted of 20 offences in New Zealand. He had been sentenced to a 10-month term of imprisonment, serving 7 and a half months before being released upon parole. In these circumstances, the Minister submits that there is no possible basis to contend that there could have been any misunderstanding as to what the question asked.
54.The false information provided in the applicant’s passenger card, which facilitated his entry into Australia, weighs against revocation.
(Footnotes removed; original emphasis.)
I note that when the discretion to revoke a decision to cancel a visa is being considered, para 5.2(2) of Direction 90 also identifies as a relevant consideration the principle 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.’ As required at para 6, this is one of the principles informing the application of considerations required by Direction 90.
The Tribunal finds that, on balance, the reasonable assessment required by para 8.1.1 of Direction 90, being a consideration of the nature and seriousness of the Applicant’s criminal offending or other conduct to date including those offences referred to above and at Annexure A, leads to the conclusion that it is very serious conduct from which the Australian community is entitled to be protected in the relevant sense.
It is not in contention between the parties that the Applicant’s offending conduct has been very serious. This is a central factor to be weighed by the Tribunal when considering the protection of the Australian community.[17]
[17] Direction 90 paras 8.1(1) and (2).
Quite apart from the Applicant’s extensive criminal history in New Zealand prior to his arrival in Australia in 2006, the Applicant’s record of offending resulting in criminal convictions for violent crimes and his serious character-related offences in Australia as discussed above has been both frequent in the period 2010 to 2019 and, in the sense described at Direction 90 paragraph 8.1.1(1)(d), trending towards increasing seriousness. I have considered the cumulative effect of the Applicant’s history of repeated criminal offending and other conduct to date upon the community; the Applicant’s family of origin; his former partner; and, on his youngest natural child who is presently subject to child protection orders and under the care of the Department of Communities.
The cumulative effect of the Applicant’s offending on these parties, although impossible to quantify, is extremely serious and will, unquestionably, continue to be experienced by them for years (and potentially decades) to come, regardless of any subsequent rehabilitation and reparations effected by the Applicant into the future.
8.1.2 Likelihood of reoffending
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or 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 on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
It is worth noting here that the Applicant has not been in the community since his most recent offence, having been taken into immigration detention on completion of his term of imprisonment for that offence.
Counsel for the Respondent made the following submissions relating to the risk assessment required at para 8.1.2(2):
Nature of the harm to individuals or the Australian community
56.The nature of the harm to the community should the Applicant engage in the criminal behaviour which he has in the past (namely acts of violence or recklessness) is self-evident and serious.
57.The Tribunal can be satisfied that there will be serious harm to individuals and the Australian community should the applicant engage in similar violent offending like that described under the ‘Assault Offences’ above. The nature of this harm has been demonstrated as being physical, psychological and emotional, and extends beyond the immediate victims who are exposed to the harm.
58.The harm from the applicant’s offending included physical harm to the victims. Prior DCJ remarked that Ms B ‘was in a significant amount of pain as a result of the injuries she sustained from [the applicant] assaulting her’ and that ‘it is fortunate that [Ms B] did not sustain any significant long-term physical injuries’. It should not be overlooked that, as Prior DCJ stated, similar incidents to those which the applicant was convicted of often have more tragic consequences. The assaults on the applicant’s father saw the father feel ‘strong pain’ and require medical attention. The assault which occurred in 2012 when the applicant struck the victim of his home invasion led to the victim feeling ‘pain’.
59.In addition to the physical harm that the similar violent offending will provide, there is the psychological harm of such events. When police officers attended the applicant’s residence to conduct a welfare check in respect of the index offending, they observed Ms B as ‘frightened and skittish’. Prior DCJ noted the impact on her ‘psychologically and emotionally is likely to be continuing’, despite Ms B stating she wanted to move on with her life. The psychological harm also extends to those who were present, or witnessed, the offences, such as the 2 young nephews who felt so fearful that they escaped through a window late in the evening because of the applicant’s conduct.
60.The potential harm which repeated traffic offending would cause should not be lightly dismissed. Traffic related offences, even if considered to be minor, can lead to the most devastating harm which transcends beyond the immediate victim. In Zaya, reference is made to ‘loved ones’. Repeated offending increases the risk of this harm.
61.The Minister contends that the wide-reaching potential for serious harm that may arise from similar offending is so significant that any risk is unacceptable. The harm to the community should the applicant again commit similar offences is of such a nature that the community should not be expected to tolerate any risk of similar offences being repeated.
62.Nevertheless, the risk posed by the applicant is, at the very least, moderate and therefore entirely unacceptable.
63. In this regard, the Prior DCJ stated as follows:
Now, I do not consider you a high risk of reoffending, but you are a risk of reoffending in a similar way unless you adequately address your treatments needs that I’ve identified.
64.The ‘treatment needs’ referred to related to ‘family violence, emotional regulation, substance abuse, consequential thinking and mental health issues’.
65.In his letter, the applicant states that while in prison he was ‘attending drug and Alcohol sessions every week’. The applicant has provided letters which state that he attended 32 Recovery from Addition meetings while at Acacia prison. The applicant was incarcerated at Acacia Prison for just under 12 months. Accordingly, he did not attend sessions ‘every week’. Further, attendance in the sessions is not reflective of participation. The applicant has not explained what he learned from these courses or how they will reduce his chance of relapse.
66.Further, the fact that while being in immigration detention the applicant has been found to be intoxicated or in possession of alcohol is indicative that the attendance at these meetings appears to have had little to no rehabilitative effect.
67.The applicant also claims to have undertaken parenting courses, however there is no evidence of this in the materials. While the applicant admitted to having issues with Family and Domestic violence, and that he would seek treatment in the community for these issues, the Minister does not consider this adequately addresses the risk the applicant poses if he is allowed to remain in Australia. This is particularly so where, as stated above, the applicant has not addressed his alcohol-related issues which were, on the materials before the Tribunal, involved in each of the assault-based offences committed by the applicant.
68.Similarly, the applicant appears to be supported by his brother and his pastor, and has the option of employment, however these are not compelling factors which reduce the risk of re-offending and should be afforded limited weight, if any.
69.The Minister acknowledges that the Prior DCJ accepted that the applicant showed some remorse for his violent offending, as follows:
You also stomped on Ms B when she was defenceless on the ground. As you proceeded to trial and were convicted, you’re not entitled to any discount on your sentence pursuant to section 9AA of the Sentencing Act. The mitigating factors in your case are the following. Although initially I accept you might have minimised your behaviour by blaming the victim, you have accepted some responsibility for your offending behaviour. In my view, you were open about what you did to Ms B, the subject of the conviction and in particular how many times you hit Ms B and there was an element of remorse in your evidence. (emphasis added)
70. Further, in a letter written by the applicant, he states:
… Then in 2019 February the 24th My mother Past away losing her battle with bowel cancer then when I told my father that my mother past away he was in shock and speechless he suddenly felt sick and needed to be in hospital for a couple of weeks I couldn’t cope with knowing that my mother was gone and that it affected my father. Which at that point placed a huge amount of pressure on me I then turned to alcohol to try and get past everything I was dealing with but then it took a turn for the worst as my relationship with Ms B got out of control one night Ms B and I had argued then it escalated to a physical altercation that had me and Ms B fighting each other then once we had finished we went to bed like nothing happened the next day I was arrested and went to prison I was worried that my father would not be taken care of…I deeply regret assaulting Ms B and I would like to sincerely apologise to her in person if given the opportunity. I finally understand and realise that violence will never solve a situation I take full responsibility for my actions.
71.However, the applicant’s expression of remorse, however genuine, is only as strong as his commitment to address the factors which led to his conduct in the first place. Actions speak louder than words. The applicant has been unable to address the underlying issues which led to his offending. He has engaged in the same causally related behaviours (consumption of alcohol) despite being in an environment where such substances are prohibited. That is, the applicant actively sought out alcohol when it was not readily available to him. This reflects poorly on the applicant’s risk of reoffending in circumstances where he would have ready access to these substances without almost any restriction.
72.Further, the applicant has not demonstrated any remorse for his other convictions or actions. For example, he has not taken any steps to take responsibility for his deplorable driving record.
73.The Minister contends that the applicant’s risk is, at minimum, moderate. Such a risk, given the serious nature of the harm that would arise if the applicant were to re-offend, is unacceptable (see paragraphs 5.2(5) and 8.1.2(1) of Direction 90).
(Footnotes removed; original emphasis.)
Relevant to the Applicant’s risk of reoffending was the period of four years after his arrival in Australia in 2006 during which no record of offending occurred. The Tribunal questioned this obvious and sustained break in offending conduct by the Applicant at the hearing (also referred in para [20] above).[18]
[18] Transcript, 17-19.
MEMBER: So you had four years without any problems with the law on arrival. What changed?
JSDC: I think going off my medication and consuming alcohol.
MEMBER: What medication were you on in 2010?
JSDC: I was on major depression and anxiety.
MEMBER: Okay. So do you mind if I ask what actual medication you were on?
JSDC: Yes, paroxetine and sertraline.
MEMBER: Okay, and you found that, what, on arrival in Australia, you got onto some treatment? Is that what happened, or were you on treatment before you got to Australia?
JSDC: No, I got onto treatment when ‑ on my arrival.
MEMBER: Okay.
JSDC: Yes.
MEMBER: And why did you lapse in your treatment regime? Did you think you were better?
JSDC: I ‑ at times, I did. I woke up one morning and I thought I didn’t need it anymore, and the doctor said that’s not ‑ you know, that’s not a good way to go about my medications, and ‑ because I thought that I was healed from the anxiety and depression, but I was wrong.
MEMBER: Okay, bring it to today. Do you still have a predisposition to anxiety and depression?
JSDC: Yes, but I got, like, the proper medications ‑ ‑ ‑
MEMBER: So you’re back on your medication, are you?
JSDC: Yes, I’ve been on it for a while now.
MEMBER: A while being?
JSDC: Being the last two years.
MEMBER: Okay. And you find that’s beneficial?
JSDC: Yes, it is. Definitely.
MEMBER: Describe yourself off the medication and on the medication?
JSDC: When I’m off the medication, I just feel hopeless, negative thoughts, worthless, and just don’t want to socialise, don’t want to talk to people, just isolation. I isolate myself in the room.
MEMBER: And on the medication?
JSDC: None of that ever happens.
In addition to this evidence, I have also taken note of the following comments of the sentencing judge on 10 May 2021. His Honour stated that:[19]
Whilst in custody you’ve been assessed by a medical practitioner and prescribed medication for depression and anxiety and if you keep taking that prescribed medication, that will assist your rehabilitation for offending and in particular the impact your depression and anxiety has on you. You’ve suffered two head injuries in 1999 and 2001 when you were hit with a baseball bat and a piece of wood. You suffered a fractured skull and were placed in an induced coma. A metal plate was inserted into your skull.
It’s unclear what impact those head injuries may have had of a continuing nature on your behaviour. I think it’s likely it’s had some impact, but generally you’re of good physical health. Now, your childhood was marred by family violence with your father abusing alcohol and as a result being abusive towards your mother. In my view, that is a mitigating factor. Your father used excessive physical punishment as a disciplinary technique on you and your brother, so violence and alcohol abuse were normalised to you as a child.
Now, I do not consider you a high risk of reoffending, but you are a risk of reoffending in a similar way unless you adequately address your treatments needs that I’ve identified…
[19] Exhibit R3, 31-32.
Given the impulsivity, lack of insight and disordered moods exhibited in the Applicant’s history of offending and, given also the lengthy gap in that record of offending which the Applicant ascribes to psychotropic medication and compliance, one would have expected more consideration of this matter in the available commentary on the Applicant’s treatment needs and his rehabilitation planning. As it happens, while the specialist rheumatologist reports contained in Exhibit R1,128-134 note the unrelated diagnostic artefacts of ‘Anti-social personality disorder’ and ‘Skull fracture 1999 in New Zealand’, no subsequent referrals for acquired brain-injury baselines or routine assessment in connection with the Applicant’s history of mood disorders and aggression appears to have occurred at any time.
I questioned the Applicant about this at the hearing, specifically in the context of his risk of reoffending and his capacity to be a positive contributor to the life of his infant daughter into the future. The context of the following extract was a series of questions addressed to the delegate’s prior findings regarding the Applicant’s risk of reoffending in the final visa cancellation decision. The relevant passage of the hearing transcript was as follows:[20]
[20] Transcript, 23-24.
MEMBER:Moving along, we’ve got paragraph 33. There’s a list of some concerns about your alcohol use and cannabis use, meth use, treatment needs relating to your emotional regulation and family violence, substance abuse, mental health issues. Anything you’d like to say about those things?
JSDC:Yes. I turned to alcohol and drugs when I was out of control. And just my anxiety and depression just got the better of me and clouded my judgement. So I finally understood later - afterwards that it wasn’t a wise decision to look to alcohol and drugs to try and escape what I was going through.
MEMBER:Can I just ask, the head injuries you suffered as a younger man, do you have them periodically checked? Do you get MRI scans and things?
JSDC: No, I haven’t for the last - well, ever since I arrived here.
MEMBER:The sentencing judge for your major offence made specific reference to this. Is this not something that you think you should have an eye to following up on?
JSDC: Yes.
MEMBER: So what would that look like?
JSDC:Well - probably just to find out where I’m at with my head injuries and how my brain is working and stuff.
MEMBER:Samoans are renowned as big people who are physically very strong and who experience chronic disease at quite alarming rates, yes; the Samoan community?
JSDC: Yes.
MEMBER:One of the things that is a big risk factor for the Samoan community - particularly the men - is dementia. It comes from many different places. One is of course genetics, but increasingly people are worried about head injuries from sport. You’re probably aware of what’s been going on in the last 10 years with Australia Rules and Rugby players in terms of chronic traumatic encephalopathy, which is brain damage caused by blows to the head during sport. Rugby is not a gentle game, particularly the way the Samoans and All Blacks play it. Added to that, you’ve had some actual documented head injuries. These things have all sorts of unintended consequences, like it can affect your speech, it can affect your thought patterns, it can affect your mood. Does any of that sound familiar?
JSDC: Yes.
MEMBER:Yes. It’s interesting to me. I mean, it’s not unusual for men not to think about their health. And when it’s your head, it’s a tricky thing because it’s really where you are, it’s who you are. Being vulnerable enough to actually go to a doctor and say, “I want you to check out my head,” that takes a bit of courage. You haven’t been tempted to do that yet?
JSDC: No, I haven’t.
MEMBER: No. Did you hear the Judge when he said it to you back in 2019?
JSDC: I can’t really remember.
The Applicant was observed during the hearing to be rational, measured and reflective throughout his evidence. There is nothing in that evidence requiring the Tribunal to draw an adverse credibility inference from the Applicant’s evidence either during his examination in chief or on subsequent cross-examination. Rather, the nature of the present matter comes down, as it often does in similar matters, to an assortment of partial and problematic evidence that must be weighed, on one side by a documented history and on the other side against an unknowable future. As counsel for the Respondent phrased the question, it requires a leap of faith. Here the uncertainty lies in both directions, not only in one. Assess the risk of reoffending too harshly and one removes the day to day influence of a father from the developmental stages of a daughter’s early life. Assess the risk too lightly, and one exposes the same daughter to the sorts of damaging interactions that marred the development of the same father. On the one hand, the externalities are borne only by an infant child and a non-citizen father. On the other hand, the externalities are borne by both the infant child and the community as a whole. One must take care in such circumstances not to engage in a purely utilitarian calculus of the greater good to the greater number.
The evidence before the Tribunal suggests strongly that part of the Applicant’s path to rehabilitation includes a comprehensive mental health, neurological and pharmacological management plan. There is strong reason to expect – given his four clear years without documented offending conduct while he was receiving suitable mental health treatment – that the Applicant has good rehabilitation prospects if he engages in suitable mental health and neurological treatment in addition to the cognitive behaviour programs in which he has demonstrated a willingness to participate. The evidence before the Tribunal suggests that the Applicant is much more contemplative of such assessment, treatment and monitoring than at previous times in his life. Such engagement would have the dual benefit of optimising the Applicant’s own cognitive, mental and emotional health, but would act to safeguard the wellbeing of those closest to the Applicant on a daily basis.
I note that the sentencing judge did not rate the Applicant’s risk of reoffending as being high even without him adequately addressing his treatment needs in this respect. There is every reason to believe that, given the Applicant’s subsequent salutary experience of extended incarceration in prison and then in administrative detention, he will be more astute and fastidious about his mental and neurological health. On that basis, I find that the Applicant represents a low risk of reoffending in the future for the purposes of Direction 90, para 8.1.2(2)(b)(i).
Given that the Applicant has spent no time in the community since his most recent offending, the consideration at Direction 90, para 8.1.2(2)(b)(ii) is not particularly informative. Having said that, I note that the Applicant appears to be compliant as to medication and there is some evidence that he has engaged in voluntary support-group type counselling while in prison and detention. On this point, counsel for the Respondent made the following cautionary observations:[21]
There is some attendances at Alcoholics Anonymous, and that is really the sum total, other than self‑reflection, of the applicant’s rehabilitation, and one that clearly has not had success, given his behaviour in immigration detention. Fundamentally, the absence of anything directed to anger management, resolving his own anxiety and depression, any ‑ the issues you raised about potentially ongoing and referred him ‑ matters from his head injuries. This is all matters where the tribunal would usually look to something concrete, particularly when you’re looking at violent conduct, and particularly when you’re looking at family violence conduct, in relation to reassuring yourself, and that’s not here, and that’s really problematic.
[21] Ibid 78.
In response, the Applicant made the following brief closing remarks:[22]
That I will follow through with my programs and my head injury - MRI scans - and make things work with my daughter’s case manager and the foster-parents. Mainly target my issues with the alcohol, anger management, and - yes, those are the main things that I have to look at.
[22] Ibid 80.
On the basis of the foregoing considerations, I find that the Applicant has demonstrated significant remorse for his offending conduct. That remorse is informed by a genuine concern for and desire to reunite with his infant daughter, who is currently in protective State care. The Applicant has also demonstrated both insight into his past offending and ongoing treatment needs and has expressed a desire to be compliant with a number of key treatment modalities that have proved to be protective in the past.
The Tribunal therefore finds that, on balance, para 8.1.2 of Direction 90, being the risk to the Australian community should the Applicant commit further offences, weighs slightly in favour of revocation of the Cancellation Decision.
I further find, in summary, that the first primary consideration, being the protection of the Australian community, should be given slight weight in favour of revoking the Cancellation Decision.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 relevantly provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
A decision-maker is required to consider, as a primary consideration, any family violence committed by a non-citizen holding a visa. Direction 90 states that the Australian Government has serious concerns about non-citizens who engage in family violence being given the privilege of entering or remaining in Australia.
Paragraph 4(1) of Direction 90 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
…
j) unlawfully depriving the family member … his or her liberty.
(Original emphasis.)
The Respondent’s initial submissions on this aspect of Direction 90 were as follows:
75. Direction No 90 introduced a primary consideration directing decision-makers to have regard to evidence of family violence committed by an applicant. Family violence is defined in Direction 90 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Direction 90 contains a non-exhaustive list of examples of behaviour that may constitute family violence which includes (relevant to this matter), an assault.
76.Family violence is referred to in the principle enunciated at paragraph 5.2(5) of the Direction as conduct which is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory visa cancellation in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. Family violence is also expressly referred to in the primary consideration of the protection of the Australian community as conduct which is viewed very seriously by the Australian Government and the Australian community. It is also expressly referred to in the primary consideration of the expectations of the Australian community as conduct of such seriousness that the Australian community would expect the Australian Government to refuse entry or cancel the visas of non-citizens.
77.This primary consideration begins with a statement of principle that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. Direction 90 states that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen. The inclusion of family violence in Direction 90 reflects a clear statement of government/public policy that crimes of family/domestic violence are to be regarded as matters of exceptional seriousness.
78.Furthermore, this Tribunal has consistently expressed the seriousness with which family violence should be viewed. Family violence has been described as ‘a corrosive blight on the Australian community’, ‘plainly abhorrent’ and an offence which ‘warps and destroys the healthy bonds that should exist between partners and within families’. Other language to describe family violence includes a ‘scourge’, a ‘plague’ and a ‘pernicious blight’ upon the community.
79. The applicant has been convicted of 3 offences where the statutory circumstances of aggravation for the offending was that the applicant was in a familiar or domestic relationship with the victim, namely his father and partner respectively (paragraph 8.2(2)(a) of Direction 90).
80.The Direction requires the Tribunal to consider the seriousness of the family violence engaged in having regard to the factors set out in paragraph 8.2(3). Dealing with each tranche of domestic violence:
80.1. two of these offences occurred in 2014 against the applicant’s father. There was a period of only 4 months between the offending. The father did not report the first offence until after he had been the subject of the second assault. The applicant has not accepted responsibility, or acknowledged this conduct. There is no recognition of the impact the behaviour may have had on his father and, as noted, there is nothing before the Tribunal to indicate that the applicant has participated in programs or courses addressing family violence or emotional regulation.
80.2. the third family violence offence (being the index offending) was against the applicant’s now ex-partner, Ms B, in 2019. The serious nature of the family violence is evident from the applicant being sentenced to 2 years and 10 months’ imprisonment. A Family Violence Restraining Order was also imposed for a period of 5 years. The offending against Ms B was a ‘one-off incident’ which was fuelled by the applicant’s consumption of alcohol and the belief (or ‘jealousy’) that Ms B had been unfaithful. The Minister accepts that the applicant has accepted responsibility for his offending against Ms B. It is not apparent on the materials the extent to which the applicant understands the impact of the offending on Ms B, or her children (including the applicant’s daughter), therefore this should not be given any weight. There is also limited evidence of genuine efforts to address the factors which led to the offending.
80.3. there is no evidence that the applicant committed domestic violence following an explicit warning about the consequences of further acts of family violence. It can be assumed that the applicant would have received a warning (about the seriousness of that conduct) in the Armadale Magistrates Court on 17 July 2015, when he was being sentenced for the offending against his father, and there is also evidence to the effect that the applicant was released on bail with protective bail conditions (that is conditions imposed for a purpose mentioned in clause 2(2)(c) or (d) of Part D of Schedule 1 to the Bail Act 1982 (WA)) following his arrest for that offending (in September 2014). Any such release on bail would have required the undertaking to be explained and then given by the applicant. However, there is nothing to suggest that the applicant appreciated the significance of further offending of this kind for his migration status. Nevertheless, the absence of such a formal warning should not be considered in the applicant’s favour (paragraph 8.2(3)(d)).
81.The Minister contends that the family violence here is a prime example of the type of offending which cuts to the heart of paragraph 8.2, such that the Government’s serious concerns referred to in 8.2(1) of the Direction ought to weigh heavily against revocation.
(Footnotes removed.)
As discussed at both the hearing and above in the Respondent’s SOFIC, the Applicant’s record of criminal offending contains three convictions for assault amounting to family violence, each in circumstances of aggravation. This satisfies the requirements of the Direction relating to cumulative offending. While the Applicant has accepted responsibility for the offences, he has only recently begun to demonstrate significant insight and remorse for his offending in this important respect. The trend of offending demonstrated in the Applicant’s record of offending, specifically with respect to family violence, is clearly one of escalating violence. Further, the effect of this family violence was the subsequent placing into State care of his infant daughter. The consequences of this factor alone means that, given the Applicant’s own experience of domestic violence as a developing child, there are generational implications flowing from the Applicant’s own abhorrent conduct.
It is the case that the Applicant’s steps towards rehabilitation are recent and partial. While in administrative detention the Applicant’s father died and his brother has recently returned to New Zealand. Despite these challenging personal circumstances, the Applicant has taken positive steps to reunite with his infant daughter including, within the constraints of the post sentencing violence restraining order and his daughter’s protective care arrangements, he is working constructively with his former partner towards a co-parenting arrangement that would necessarily include ongoing supervision by the Department of Communities.
It is clear that the Applicant’s history of family violence is complex, cumulative, escalating and extremely serious. On this basis, the expectations of the Australian community require that this consideration be weighed appropriately as truly abhorrent and unacceptable. I so find.
The Tribunal therefore finds that, on balance, para 8.2 of Direction 90, being family violence committed by the non-citizen the risk to the Australian community, weighs significantly against revocation of the Cancellation Decision.
I further find, in summary, that the second primary consideration should be given significant weight against revoking the Cancellation Decision.
Third primary consideration: Best interests of minor children in Australia affected by the decision (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of 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.
(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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has a biological three-year-old daughter with his former partner. The Applicant also has three older children about seven, eleven and 20 years of age from a previous relationship, however the Applicant is no longer in contact with them.
During his evidence the Applicant described his relationship with his children as follows:[23]
[23] Ibid 65.
MR GERRARD: We spoke a little bit about your other children from another relationship. And you said that you, or you confirmed, that you’ve had no involvement in their upbringing. That’s correct, right?
APLICANT:Yes.
MR GERRARD: You still have no contact with those children?
APLICANT:Still.
MR GERRARD: Still. I think at the time when you were asked about this, you said it’s because at the time you were young and not ready. Is that reason for why you weren’t involved with them?
APLICANT:Yes. One of the reasons.
MR GERRARD: Well, what are the other reasons?
APLICANT:We wasn’t together. Like, the mother and that.
MR GERRARD: So is it the case that the mother is not supportive of you having contact with these children, or is it just it was a bad breakup and you just haven’t been involved?
APLICANT:We wasn’t actually together, it was just a one night thing here and there.
MR GERRARD: All right. So is that for all of the children?
APLICANT:Most of them.
MR GERRARD: Most of them. But in particular, the two younger children? The ones that aren’t adults?
APLICANT:Yes.
MR GERRARD: And you’re not in contact with their mother?
APLICANT:No.
MR GERRARD: No. They’re still very young, so what I’m interested in is why you’ve taken no steps to be involved in their lives, but you are saying that your primary reason for wanting to stay here is so that you can be involved in daughter E’s life, and I think you probably need to explain why that is? What’s the difference?
APLICANT:Daughter E’s younger. The youngest.
MR GERRARD: That’s true, but they’re still very young. I think they will be about seven and 11 years old, is that right?
APLICANT:Yes.
MR GERRARD: But that’s still very young. Why have ‑ have you ‑ ‑ ‑?
APLICANT:Because it’s just daughter E is different, because she looks like my mother.
MEMBER: So can I ask a question, Mr Gerrard?
MR GERRARD: Yes.
MEMBER: When daughter E was born, were you present?
APLICANT:Yes.
MEMBER: And when you ‑ when daughter E came home from the hospital, did you take daughter E home from the hospital with her mother?
APLICANT:No, just the mother was ‑ she had to stay there, like, for the next day after giving birth, and then, I came back home with her two kids, and then, she was cleared and discharged the next day.
MEMBER: And from that time until your arrest, daughter E lived with you?
APLICANT:Yes.
MEMBER: Now, with the other children, were you present when they were born?
APLICANT:No.
MEMBER: Were you living with their mother when they were born?
APLICANT:No.
MEMBER: Okay, thank you. Mr Gerrard.
MR GERRARD: In answer to a previous question, you did say that you wanted to have a relationship with all of your children, is that correct?
APLICANT:Yes.
MR GERRARD: But you haven’t taken any steps in relation to that yet, except for daughter E, is that correct?
APLICANT:Yes.
MR GERRARD: When would you think you are likely to take steps? Is this something in the immediate future or is it just something you haven’t really properly thought about yet?
APLICANT:In the future.
MR GERRARD: So you went to prison when daughter E was only three months old?
APLICANT:Yes.
MR GERRARD: And so you’ve ‑ you were an active parent for that three‑month period, but since then you obviously haven’t been in a position where you can provide that parental role, have you?
APLICANT:No.
Having regard to the expectations of the Australian community as per paras 5.2 and in particular para 5.2(4) of Direction 90, the Tribunal accepts that the community may afford a higher level of tolerance for the criminal conduct or other serious conduct by non-citizens who, like the Applicant, have lived in the Australian community for a large portion of their life.
In this case, I note that since 2006, Australia has for all practical purposes been the Applicant’s home. Since that time, his mother in New Zealand has died and his father, until recently a resident of Australia, has also died. The Applicant’s only sibling has returned to New Zealand and the only blood relation remaining to him is his infant daughter in Australia. I accept that the community would have some sympathy for the Applicant, given this personal history. I also accept that the burden of his removal would most disadvantage his infant daughter, although this is balanced against his record of frequent and persistent offending in New Zealand and Australia for most of his life.[29]
[29]Exhibit R3, 21-24.
Due to the application of the ‘norm’, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the Cancellation Decision. In this case, I find that moderate weight should be given to this consideration.
In summary, I find that that the fourth primary consideration, being the expectations of the Australian community should be given moderate weight against revoking the Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the ‘Other considerations’ to be taken into account as follows:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests
International non-refoulement obligations (para 9.1)
Paragraph 9.1 of Direction 90 relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
…
Written submissions to the Tribunal that might be characterised as being relevant to this consideration, on closer inspection, do not bear upon questions of non-refoulement.[30] No cognisable non-refoulement obligations have been identified in any of the materials before the Tribunal.
[30] Exhibit R3, 72; SOFIC, 19.
In the present case, I find that the non-refoulement consideration does not arise in the context of the decision to revoke the Cancellation Decision, given that the Applicant’s return to New Zealand does not give rise to any non-refoulement obligations.
This consideration is therefore neutral with respect to the requirements of Direction 90.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Properly framed, this consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c) of Direction 90, the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy.
The Applicant made the following brief statement of relevance in his Personal Circumstances Form in response to the notice of intention to cancel his visa. In response to the question ‘[a]re there any other problems you would face if you have to return to your country of citizenship?, the Applicant answered: ‘Homeless poverty, Nobody that can help me. I would not know what to do but feel hopeless. I might [sic] have a place to go to.’[31]
[31] Ibid 72.
Relevantly, the Respondent made the following submissions and concessions in relation to the extent of any impediments that the Applicant may face if removed from Australia:
98. The applicant’s circumstances are as follows:
98.1. he is 39 years of age;
98.2. he is reported as suffering from anxiety with depression, Dyslipidemia (unhealthy levels of particular types of fats in the body), osteoarthritis and rheumatoid arthritis. The applicant’s rheumatoid arthritis appears to be managed by medication (resulting in the dissipation of almost all symptoms), and takes antidepressant medication for his anxiety with depression;
98.3. the applicant previously resided in New Zealand for 15 years;
98.4. the applicant has been employed as a forklift driver, and is stated to have qualifications as a mechanic; and
98.5. the applicant does not appear to have any family support in New Zealand.
99. The Minister accepts that the applicant is likely to experience some hardship as a consequence of returning to New Zealand without any family or social support. However, such impediments would by no means be insurmountable. There is no information to suggest that there are any disparities in access to services in New Zealand, or that the applicant could not obtain a broadly comparable level of access to employment, health services, education and social security.
100. There are also organisations such as People at Risk Solutions (PARS) which aid persons who are removed from Australia to New Zealand, which the Tribunal has considered on a number of occasions when concluding that any hardship faced upon return to New Zealand is not insurmountable. Further the New Zealand Ministry of Social Development offers a number of social welfare services to citizens which the applicant can explore his eligibility for on his return. These include assistance with housing, finding employment and healthcare.
101. Further, the Minister notes that the applicant resided in New Zealand for 15 years prior to moving to Australia. There is nothing to indicate that he experienced any cultural barriers during his time in New Zealand. The applicant has reported that he holds mechanic qualifications, and has been employed as a forklift driver whilst in Australia. These skills are transferable, and will assist the applicant when he returns to New Zealand.
102. The Minister accepts that this factor weighs in favour of revocation. However, that weight should be moderated having regard to the applicant’s age and health, the lack of any substantial language or cultural barriers and the availability of technology to maintain his connections to Australia.
(Footnotes removed.)
The Applicant is a 39-year-old with multiple complex physical and mental health challenges. I note that he appears motivated to seek appropriate treatment for these emerging needs. He does hold some relevant qualifications and experience that might assist his capacity to establish and maintain basic living standards, in the context of the basic living standards of other citizens of New Zealand. He identifies no substantial language or cultural barriers; and the social, medical and/or economic support available to him in that country is equivalent to that enjoyed by permanent residents in Australia. However, his connection to that country has diminished over time since his arrival in Australia in 2006, particularly since his mother’s death.
On balance, I find that the effect of impediments if removed consideration does arise in the context of the decision to revoke the Cancellation Decision in this instance, given that the Applicant’s return to New Zealand implicates a number of obvious impediments in the relevant sense. This other consideration weighs in favour of revoking the Cancellation Decision.
The Tribunal finds that the second other consideration, being the extent of impediments if removed, weighs in favour of revoking the Cancellation Decision. The Tribunal further finds that slight weight should be given to this consideration.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant made no written submissions to the Tribunal on this consideration.
The Respondent made the following written submissions and concessions relevant to this consideration:
104.The Minister acknowledges the statement of Ms B, a victim of the applicant’s most serious offence, which states that she supports the applicant remaining in Australia, and does not wish for him to be removed.
105.The Minister also acknowledges that, prior to his passing, the applicant’s father also expressed support for the applicant to be ‘released’.
106.This other consideration weighs in favour of revocation on the basis of those known views from the applicant’s victims in favour of revocation.
(Footnotes removed.)
The Tribunal approaches the evidence of victims in support of perpetrators of domestic violence. The issue is extremely vexed and complicated, particularly where infant children shared between the parties are concerned. Nevertheless, it is clear that Ms B has moved on with her life to some extent and, according to the best evidence, has re-partnered since the imprisonment of the Applicant. There does not appear to be any observable duress, undue influence or documented breaches of the protective Violence Restraining Order by the Applicant. It is not possible in these circumstances to characterise the statement of Ms B as anything other than having been freely made.
As for the Applicant’s father, I note the evidence that the Applicant’s late father wished for him to be released into the Australian community, in the full expectation that he would return to reside with that person in the former family home.
On balance, I find that this consideration does arise in the context of the decision to revoke the Cancellation Decision in this instance. This other consideration weighs in favour of revoking the Cancellation Decision.
The Tribunal finds that the third other consideration, being the impact on victims, weighs in favour of revoking the Cancellation Decision. The Tribunal further finds that slight weight should be given to this consideration.
Links to the Australian Community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
The strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of non-revocation of the visa cancellation decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community.
The Applicant made the following summary statement of relevance in his Personal Circumstances Form in response to the notice of intention to cancel his visa. The statement responds to the question ‘[d]o you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?” However, these comments directly relate to this other consideration: ‘I have no family members in New Zealand. My only family I have are my father [now deceased], Brother [now in New Zealand] and my baby daughter who are here in Perth Western Australia.’[32]
[32] Ibid.
The Respondent made the following written submissions and concessions relevant to this consideration:
108.The applicant has resided in Australia for a total period (including his time prior to his departure in 1991) for approximately 19 years. The applicant’s offending commenced approximately 4 years after his arrival in 2006.
109.The applicant’s employment history is limited. He records having worked as a forklift driver for a period of 9 months. However, the letter from the applicant’s employer indicates that he applicant was employed for only 5 months. There is also information suggesting the applicant assisted with his local church commencing on or around 2015. The applicant also acted as a primary carer for his father from 2011 until his incarceration in 2019. While not significant, the Minister accepts that the applicant has spent some time contributing to the Australian community.
110.The applicant’s immediate remaining family, his brother, [name redacted], and daughter, E, remain in Australia. The applicant’s brother is very supportive of the applicant, and wishes for him to remain in Australia. The applicant states that he has no remaining ties in New Zealand.
111.The Minister concedes that the strength, nature and duration of ties to Australia should have moderate weight in favour of revocation.
(Footnotes removed.)
Allowing for the changed circumstances surrounding the location of the Applicant’s brother, who is either temporarily or permanently residing in New Zealand, it is clear that there is no contention between the parties about this aspect of the fourth other consideration, namely the strength, nature and duration of ties to Australia.
Given the Tribunal’s observations above relating to the specific interests of the Applicant’s infant daughter E, the unique role that the Applicant might play in the future life of that infant child adds particular content to this consideration in the present case.
I find that this aspect of the fourth other consideration, namely the strength, nature and duration of ties to Australia weights in favour of revoking the Cancellation Decision.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant made no submissions relevant to this aspect of this consideration, namely the impact on Australian business interests.
The Respondent made the following written submission relevant to this consideration:
112.The applicant’s employment history, which is limited to a period of 5 months of casual employment at a flour mill, has not been such that his removal from Australia would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised.
(Footnotes removed.)
I find that this aspect of fourth other consideration, namely the impact on Australian business interests raises nothing of substance in the context of requirements of Direction 90.
This consideration is therefore neutral with respect to the requirements of Direction 90.
I have considered the other consideration ‘Links to the Australian Community’ required at Paragraph 9.4 of Direction 90. Cumulatively, I find that this other consideration weighs in favour of revoking the Cancellation Decision. I also find that moderate weight should be given to this other consideration.
THE WEIGHING EXERCISE
Direction 90 gives direction to a decision-maker on how to apply the primary and other considerations. Relevantly, paragraph 7 provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations
(3)One or more primary considerations may outweigh other primary considerations
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[33] (Suleiman) and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[34]
[33](2018) 74 AAR 545.
[34](2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[35] At para [21] Wigney J cited para [23] of Colvin J’s judgment, which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[35][2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
I adopt the approach directed by the above cases. The Applicant does not pass the character test as defined in s 501(6)(a) of the Act for the reasons set out earlier. This enlivens the discretion under s 501(1) of the Act to refuse the Applicant’s visa application, taking into account the primary and other considerations set out in Direction No 90 when exercising the discretion.
Direction No 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including the circumstances of his partner and family members in Australia. The Tribunal has considered all the relevant considerations and weighed them according to the guidance provided by Direction No 90 to determine whether the discretion to refuse the visa should be exercised.
in summary
Primary Considerations
Primary Consideration 1
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in paras [42]–[67] above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct is low.
Considering the significant harm that would be caused to the community if the Applicant were to reoffend; the Tribunal has found that the likelihood of him reoffending is low, and this consideration should be given slight weight in favour of revoking the Cancellation Decision.
Primary Consideration 2
Given that the Tribunal has found that the Applicant has engaged in family violence, for the reasons set out at paras [68]–[76] above, the second primary consideration, family violence does arise. Accordingly, should be given significant weight against revoking the Cancellation Decision.
Primary Consideration 3
For the reasons set out in paras [77]–[90] above, the third primary consideration, the best interests of minor children in Australia weighs in favour of the revocation of the Cancellation Decision. Significant weight should be given to this primary consideration.
Primary Consideration 4
For the reasons set out at [91]–[106] above, the fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the Cancellation Decision. Moderate weight should be given to this primary consideration.
Other Considerations
International non-refoulement
For the reasons set out above in paras [107]–[111] as the Applicant’s return to New Zealand does not give rise to a non-refoulement obligation, the Tribunal has found that this other consideration has a neutral weight in the context of the decision to revoke the Cancellation Decision.
Extent of impediments
With respect to the second other consideration, being the extent of impediments if removed, the Tribunal has found at paras [112]–[118] above that this consideration weighs in favour of revoking the Cancellation Decision. The Tribunal further finds that slight weight should be given to this consideration.
Impact on victims
With respect to the third other consideration, being the impact on victims as directed by para 9.3 of Direction 90, for the reasons set out above at para [119]–[125] the Tribunal finds that this other consideration does arise in favour of revoking the Cancellation Decision and that slight weight should be given to this consideration.
Links to the Australian community
The consideration of the strength, nature and duration of the ties and the Applicant’s links to the Australian community, particularly with respect to his infant child in Australia, involves a number of factors in tension. This consideration weighs in favour of the revocation of the Cancellation Decision. For the reasons set out above at paras [126]–[133], moderate weight should be given to this other consideration.
Impact on Australian business interests
Having considered the evidence before it above at paras [134]–[139], the Tribunal finds that this consideration is neutral with respect to the requirements of Direction 90.
Conclusion
As noted by Deputy President Boyle in James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[36] whether a consideration does or does not outweigh any other particular consideration (or considerations) is not the relevant test.
In weighing the considerations, primary and other, the exercise is not one of comparing one against another, but rather of giving weight to each of the considerations and weighing them as a whole, those for and those against revocation and determining which have the greater weight in total, those for or those against revocation.
[36][2022] AATA 2390, [112].
Having weighed the relevant considerations in favour of the revocation of the Cancellation Decision and the relevant considerations against the revocation of the Cancellation Decision, the Tribunal finds that the considerations in favour of revocation outweigh those against revocation.
Accordingly, the Tribunal finds that there is another reason why the Reviewable Decision should be revoked.
Decision
The Reviewable Decision, being the decision of the Delegate dated 5 December 2022, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, pursuant to 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Member Dr Huntly
...................[Sgd]...........................................
Associate
Dated: 27 February 2023
Date of hearing: 13 February 2023 Applicant: In person Counsel for the Respondent: Mr Gerard Solicitors for the Respondent: Australian Government Solicitors Annexure A
Court Date Offence Date Offence Result Perth District Court of Western Australia 10/May/2021 23/Jul/2019 Unlawfully assault and thereby did bodily harm with circumstances of aggravation. Imprisonment 2 years and 10 months Armadale, Magistrates Court 03/May/2019 12/Mar/2019 Person who breaches CRO or community order without reasonable excuse $300 fine Armadale, Magistrates Court 26/Feb/2019 12/Feb/2017 Breach of Community Based Order of 11/10/2018 CBO to Continue Armadale, Magistrates Court 26/Feb/2019 03/Jan/2019 No authority to drive - suspended DL Disqualified: 9 months; $1500 fine Armadale, Magistrates Court 11/Oct/2018 12/Feb/2017 Obstructing public officers Community Based Order: 6 months Armadale, Magistrates Court 13/Jul/2018 12/Jul/2018 Breach of Bail Undertaking $400 fine Perth Magistrates Court of Western Australia 10/Jul/2017 12/Feb/2018 No authority to drive - suspended DL Disqualified: 9 months; Community Based Order 8 Months Armadale, Magistrates Court 07/Jan/2016 22/Nov/2015 No authority to drive - suspended; and exceeding $1500 fine; DL disqualified 9 months Armadale, Magistrates Court 07/Jan/2016 22/Nov/2015 Exceed speed limit in a speed zone between 20-29km/h $400 fine Armadale, Magistrates Court 06/Aug/2015 17/Jun/2015 No authority to drive - suspended DL Disqualified: 9 months; $1000 fine Armadale, Magistrates Court 17/Jul/2015 23/Apr/2015 Exceed speed limit in a school zone $200 fine Armadale, Magistrates Court 17/Jul/2015 23/Sep/2014 Aggravated Assault Occasioning Bodily Harm $1500 fine Armadale, Magistrates Court 17/Jul/2015 11/May/2014 Aggravated Assault Occasioning Bodily Harm $1500 fine Armadale, Magistrates Court 22/May/2015 23/Apr/2015 No Authority to Drive - Suspended $500 fine; DL disqualified: 9 months Armadale, Magistrates Court 12/Feb/2015 31/Dec/2014 No Authority to Drive (Fines Suspended) $200 fine Armadale, Magistrates Court 12/Feb/2015 31/Dec/2014 Exceed 0.08g alcohol per 100ml of blood DL Disqualified: 7 months; $550 fine Perth Magistrates Court of Western Australia 10/Dec/2014 13/Mar/2011 Stealing $500 fine Perth Magistrates Court of Western Australia 10/Jan/2014 26/Oct/2013 Unlicensed Vehicle (Owner/Driver) $150 fine Perth Magistrates Court of Western Australia 10/Jan/2014 26/Oct/2013 False Number Plate (Not Issued For that vehicle) $200 fine BANKSTOWN, Local Court NSW 12/Sep/2012 Destroy or damage property $400 fine BANKSTOWN, Local Court NSW 12/Sep/2012 Common assault Imprisonment 7 months suspended on enter bond BANKSTOWN, Local Court NSW 12/Sep/2012 Destroy or damage property <=$2000 $500 fine; Compensation: $400 BANKSTOWN, Local Court NSW 12/Sep/2012 Resist or hinder police officer in the execution of duty 6 Months bond BANKSTOWN, Local Court NSW 12/Sep/2012 Assault police officer in execution of duty 6 Months bond Perth Magistrates, Court 21/May/2012 16/Mar/2012 Common Assault $1200 fine Perth Magistrates, Court 07/Feb/2012 05/Jan/2012 No Authority to Drive (Fines Suspended) $500 fine Perth Magistrates, Court 07/Dec/2010 02/Nov/2010 No Authority to Drive (Fines Suspended) $400 fine Annexure B
Court Date Offence Date Offence Result Manuka District Court 23/02/2006 17/02/2006 Breach Of Local Liquor Ban Fine - $100.00 Manukau District Court 02/09/2005 08/08/2005 Failure To Answer Police Bail Fine - $200.00 Manukau District Court 02/09/2005 28/07/2003 Theft Ex Car (Under $500) Reparation - $472.50 Manukau District Court 23/09/2004 20/07/2004 Failure To Answer District Court Bail Discharged Manukau District Court 23/09/2004 24/05/2004 Unlawful Takes Motor Vehicle Etc Imprisonment 5 Months / Denied Leave to Apply For Home Detention Manukau District Court 23/09/2004 24/05/2004 Theft Ex Car ($500-$1000) Imprisonment 5 Months / Denied Leave to Apply For Home Detention Manukau District Court 23/09/2004 24/05/2004 Possess Instruments For Conversion Imprisonment 5 Months / Denied Leave to Apply For Home Detention Manukau District Court 23/09/2004 29/04/2004 Failure To Answer District Court Bail Discharged Manukau District Court 23/09/2004 16/07/2003 Failure To Answer District Court Bail Discharged Auckland District Court 19/12/2003 17/10/2003 Theft Ex Car (Under $500) Fine - $300.00 Manukau District Court 28/03/2003 08/02/2003 Wilful Damage Reparation - $350.00 Otahuhu Youth Court 11/07/2000 29/04/2000 [Redacted] [Redacted] Otahuhu Youth Court 11/07/2000 06/04/2000 [Redacted] [Redacted] Otahuhu Youth Court 16/09/1999 20/07/1999 [Redacted] [Redacted] Otahuhu Youth Court 16/09/1999 20/07/1999 [Redacted] [Redacted] Otahuhu Youth Court 16/09/1999 10/06/1999 [Redacted] [Redacted] Otahuhu Youth Court 16/09/1999 05/02/1999 [Redacted] [Redacted] Traffic Offences Manukau District Court 23/09/2004 02/06/2004 Drove While Disqualified Imprisonment - 6 Months / Denied Leave to Apply For Home Detention / Disqualification From Driving - 2 Years Manukau District Court 23/09/2004 12/04/2004 Operated Motor Vehicle Causing Sustained Loss Of Traction Disqualification From Driving - 2 Years Manukau District Court 23/09/2004 12/04/2004 Drove With Excess Breath Alcohol - 3rd Or Subsequent Blood/Breath = 1007 Assessment Centre Fee - $150.00 / Imprisonment - 10 Months / Denied Leave to Apply For Home Detention, Standard Release Conditions, Special Release Conditions / Indefinite Disqualification Manukau District Court 23/09/2004 12/04/2004 Drove While Disqualified Imprisonment - 6 Months / Denied Leave to Apply For Home Detention Manukau District Court 18/09/2003 22/06/2003 Drove While Disqualified Community Work (SA) - 300 Hours / Disqualification From Driving - 1 Year Manukau District Court 18/09/2003 22/06/2003 Drove With Excess Breath Alcohol - 3rd Or Subsequent Blood/Breath = 790 Community Work (SA) - 300 Hours / Disqualification From Driving - 1 Year Manukau District Court 18/09/2003 23/11/2002 Drove With Excess Blood Alcohol Content Blood/Breath = 197 Community Work (SA) - 300 Hours / Disqualification From Driving - 1 Year Manukau District Court 18/09/2003 23/11/2002 Operated A Vehicle Carelessly Disqualification From Driving - 1 Year Manukau District Court 08/05/2003 04/04/2003 Breath Alcohol Level Over 400 Mcgs/Litre Of Breath Blood/Breath = 701 Fine - $601.00/ Disqualification From Driving - 6 Months Otahuhu Youth Court 16/09/1999 05/02/1999 [Redacted] [Redacted]
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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Jurisdiction
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Statutory Construction
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Remedies
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Natural Justice
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