KDFF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 116
•31 January 2024
KDFF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 116 (31 January 2024)
Division: GENERAL DIVISION
File Number(s): 2023/8447
Re:KDFF
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:31 January 2024
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 13 October 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s visa is revoked.
...................................[SGD].....................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – visa cancellation – mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth) – where the Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Ministerial Direction No. 99 – protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
31 January 2024
BACKGROUND
KDFF is a 40-year-old citizen of India who arrived in Australia on 22 September 2005. On 6 September 2005, the Applicant was granted a TU572 Student (Voc Ed Sctr) visa offshore.
The Applicant’s recorded convictions commence in 2009, as follows:
Date Event 26 March 2009 The Applicant is convicted in the Liverpool Local Court of drive with middle range PCA and is fined $700 and disqualified from driving for a period of 12 months. 10 June 2009 The Applicant is convicted in the Goulburn Local Court of drive while disqualified from holding a licence and receives a fine of $1,200 and a two year disqualification from driving. 13 January 2010 The Applicant is convicted in the Bankstown Local Court of drive with middle range PCA and is fined $1000 and disqualified from driving for a period of 12 months. 4 February 2010 The Applicant is convicted in the Liverpool Local Court of the following offences:
drive while disqualified from holding a licence;
drove with middle range PCA; and
deposit litter (lit cigarette).The Applicant receives multiple fines, a 2 year disqualification from driving, and a section 9 good behaviour bond for a 12 month period. However, all except for the $50 fine for deposit litter (lit cigarette) were quashed.
22 April 2010 The Applicant is convicted in the Blacktown Local Court of two counts of common assault (DV) - T2 and of stalk/intimidate intend fear of physical/mental harm - T2.
The Applicant receives a fine of $500 for each count of assault and an 18 month section 9 good behaviour bond in relation to the offence of stalk/intimidate.6 May 2010 The Applicant is convicted in the Blacktown Local Court of stalk/intimidate intend fear of physical/mental harm - T2 and common assault - T2.
The Applicant receives fines of $200 and $500, respectively.4 May 2011 The Applicant is convicted in the Fairfield Local Court of negligent driving (not occasioning death/gbh) and not give particulars to other driver.
The Applicant was fined $1,140 and $1,500 respectively and disqualified from driving for a 12 month period.22 June 2011 The Applicant is convicted in the Fairfield Local Court of the following offences:
stalk/intimidate intend fear of physical/mental harm - T2;
drive with middle range PCA;
drive while disqualified from holding a licence; and
knowingly make false/misleading statement.The Applicant received cumulative community service orders of 100 hours, 80 hours and 160 hours, a two year disqualification from holding a drivers licence and 9 months imprisonment (suspended on entering a s 12 bond).
23 September 2013 The Applicant is convicted in the Fairfield Local Court of the following offences:
stalk/intimidate intend fear of physical/mental harm - T2;
fail to appear in accordance with bail undertaking;
make false/misleading statement for authority/benefit (5 occasions);
dishonestly obtain financial advantage etc by deception - T1;
drive with middle range PCA;
drive while disqualified from holding a licence;
knowingly make false/misleading statement;
goods in personal custody suspected being stolen (not m/v);
goods suspected stolen in/on premises (not m/v) (2 occasions);
dishonestly obtain property by deception - T1;
possess identity info to commit etc indictable offence - T1 (2 occasions);
use false document to obtain financial advantage etc - T1 (2 occasions);
possess false document to obtain property - T1 (3 occasions); and
make, possess etc equipment etc to make false document - T1.The Applicant was sentenced to a 6 month Intensive Correction Order for these offences.
10 November 2016 The Applicant is convicted in the Parramatta Local Court of drive motor vehicle during disqualification period - 1st off and is fined $2500 and is sentenced to 12 months imprisonment (suspended on entering a s 12 bond). He is disqualified from driving for 12 months. 22 March 2017 The Applicant is convicted in the Fairfield Local Court of Affray - T1 and is sentenced to 12 months imprisonment (suspended for 12 months on entering a bond).
On 27 August 2018, the Applicant lodged an application for a Protection, Temporary Protection or Safe Haven Enterprise visa. On 28 May 2019, a delegate of the Respondent decided that the Applicant was not a person in respect of whom Australia has protection obligations pursuant to section 36(2)(a) or (aa) of the Migration Act 1978 (Cth) (‘the Act’).
On 5 August 2019, the Applicant applied for a Bridging E (Class WE) visa (‘the visa’). On 18 September 2019, the Applicant was notified of the intention to consider refusal of his visa application pursuant to section 501(1) of the Act.
In 2021, the Applicant was convicted of further offences as follows:
Date Event November 2021 The Applicant is convicted in the Parramatta Local Court of drive with middle range PCA - 1st off and is fined $500, disqualified from driving for 3 months and ordered to participate in the Alcohol Interlock Program for 12 months. 26 September 2022 The Applicant is convicted in the Mt Druitt Local Court of drive with interlock device not functioning/circumvented etc and receives a fine of $750.
On 13 October 2023, a delegate of the Respondent decided to refuse to grant the visa to the Applicant (‘the Reviewable Decision’).
On 14 November 2023, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision. The matter was heard by the Tribunal on 25 January 2024 and the Applicant attended the hearing in person.
It agreed between the parties that the Applicant had been sentenced to a term of imprisonment of more than 12 months, and accordingly he does not pass the character test. The issue before the Tribunal is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[1] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[2]
[1] [2018] FCAFC 151.
[2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
INTIAL COMMENTS
This hearing was initially listed on 18 and 19 January 2024 however it was rescheduled to 25 January 2024 because the Applicant failed to appear. When contacted on 18 January 2024 by telephone, the Applicant stated that he had notified the Tribunal and the Respondent by email that he would be unable to attend that day.
The Respondent agreed that the matter should be held over for one week, however noted the 84th day was shortly after the Australia Day public holiday. The Applicant said that he wanted to produce witness statements from several people including his partner, and that he also wanted those persons to give evidence at the hearing. The Applicant was told of the importance of him filing all of the material on which he intended to rely with the Tribunal at least two business days before the hearing date. The Applicant did not file any further material with the Tribunal nor did he send the material to the Respondent.
At the hearing on 25 January 2024, the Applicant said that he had filed the material with the Tribunal but that it had been sent to the wrong address. It was explained to the Applicant that the Tribunal would be unable to consider the material he claimed to have filed and that, as previously was explained to him, it was his responsibility to ensure that the material was properly filed with the Tribunal and sent to the Respondent two business days before the hearing.
It should also be noted that at the hearing, the Applicant’s evidence was somewhat confused and at times inconsistent. Given the absence of witnesses, many of his statements could not be corroborated.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
the person has been sentenced to death; or
the person has been sentenced to imprisonment for life; or
the person has been sentenced to a term of imprisonment of 12 months or more; or
the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision.
MINISTERIAL DIRECTION NO. 99
Subsection 499(1) of the Act provides:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Subsection 499(2A) of the Act provides that ‘A person or body must comply with a direction under subsection (1).’
On 23 January 2023, the Minister, for the purposes of section 499 of the Act, made a Direction titled Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The commencement date for operation of the Direction was 3 March 2023.[3]
[3] Upon its commencement, the Direction revoked the operation of “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
Paragraph 5.1 sets out the objectives of the Direction. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.1(4) provides:
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of the Direction sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse a visa under section 501 of the Act. These principles are 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 the Direction provides:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[4] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’
[4] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the strength, nature and duration of ties to Australia;
4)the best interests of minor children in Australia; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)legal consequence of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant was questioned extensively as to his criminal offending which commenced in 2009, approximately four years after he arrived in Australia.
In particular, the Applicant was questioned about his domestic violence offences. When taken through the Police Facts relating to the incident in April 2010, the Applicant disputed some of the facts were correct but admitted that he had pushed his former wife. He also referred to his wife’s promiscuity as a reason for his behaviour towards her and accepted that after this incident, his wife applied for an apprehended domestic violence order against him. When questioned about this conviction, the Applicant agreed that he had not sought any treatment or advice from a psychologist.
The Applicant was questioned on his conviction of Affray – T1 on 22 March 2017 and also disputed some of the Police Facts. He agreed that he had not sought any assistance or counselling following this conviction. The Applicant was also questioned in relation to his convictions in 2013 for dishonesty and being in possession of goods suspected of being stolen. He stated that this had essentially ‘nothing to do with him’ and related to the activities of a person with whom he had been sharing the house with but had moved out at the time of the offence, leaving goods in the room he had previously occupied.
The Applicant accepted that he had initially applied for a Protection, Temporary Protection or Safe Haven Enterprise Visa in August 2018, and that he had subsequently applied for the visa on 5 August 2019. He accepted he had received a letter from the Respondent on 18 September 2019 to consider refusal of his visa application under section 501(1) of the Act, along with a number of subsequent letters requesting further information. He accepted that following the letters from the Respondent, he was further convicted of a number of criminal offences.
When questioned about his family, the Applicant said that his daughter, HKG, was six years old. At the time of the hearing, he said that she was in India with his partner but would return on 30 January 2024. He said that he loves his daughter very much, that he wants to be a part of her life and that as his partner does not work, he was responsible for financially supporting his family. The Applicant said that he did not drink the way that he used to and that his partner was a positive influence in his life.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of the Direction 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.
1) Nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction 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, 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).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Although many of the Applicant’s offences, taken individually, may be seen as being of lesser seriousness, the cumulative effect of even his minor offences must be seen as serious. The Applicant started to offend relatively shortly after arriving in Australia in 2005 and continued to offend for most of his time in Australia. His domestic violence offending is very serious involving physical assault, verbal assault and an attempt to intimate his former wife. The Applicant also assaulted his former wife’s friend who was present at the time.
Similarly, the Applicant’s offence of Affray must be viewed as serious, involving a fight inside a hotel and later on a public street. Both the Applicant and the other party required hospital treatment for their injuries.
The Applicant was given numerous chances by the criminal justice system to reform, particularly in relation to his driving offences, however he simply continued to offend. The offences also with relation to the stolen property are also objectively serious. Overall, the Applicant’s offending should be viewed as very serious.
2) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 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 other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence 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).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Given the nature of the Applicant’s offending, it is likely that any further offending would cause serious harm to the Australian community including physical and financial harm.
The Applicant gave evidence that he has not sought any psychological counselling or other assistance with relation to his offending. He has also demonstrated limited insight into his offending particularly for his domestic violence and Affray convictions. On the other hand, I accept that the Applicant has a good relationship with his current partner and that she is a positive influence in his life. Further, although it was not corroborated, I am inclined to accept the Applicant’s evidence that he is drinking less heavily and that he wants to be a positive influence in the lives of his current partner and his daughter. I also accept that there may have been a degree of provocation in relation to the Affray conviction.
In light of the evidence before the Tribunal, which was somewhat scamped, I am of the opinion that the Applicant’s risk of reoffending is moderate and this appeared to have been accepted by the Respondent at the hearing. Overall, Primary Consideration 1 weighs heavily against the revocation of the Mandatory Visa Cancellation Decision.
Primary consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence, and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.
Paragraph 8.2 of the Direction 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.
Paragraph 4(1)(a), (c) and (e) of the Direction define the phrase ‘family violence’ 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’, and includes ‘assault’, ‘stalking’ and ‘intentionally damaging or destroying property’.
In determining the seriousness of the Applicant’s offending, it must be taken into account that the Applicant was convicted of two counts of common assault in relation to his former wife and that he was also convicted of the offence of stalk/intimidate intend fear of physical/mental harm – T2. The Applicant hit his wife on at least two separate occasions and threatened to kill her, again on two separate occasions. It is of concern that the Applicant denied a number of offences for which he was convicted which would indicate that he has not fully accepted responsibility for his behaviour.
It is not an excuse that the relationship with the Applicant’s former wife could properly be described as ‘toxic’ or ‘turbulent’ or that his former wife’s behaviour was very upsetting to the Applicant. I note that the Applicant has not been convicted of any further family violence offences.
For the reasons stated above and having applied the guidance in paragraph 8.2 of the Direction, the Tribunal finds that Primary Consideration 2 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(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)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
It is clear from the limited evidence available to the Tribunal that if the Applicant were to be deported, it would have a seriously detrimental effect on his partner and their six-year-old daughter. The Applicant gave evidence, which I accept, that he has been responsible for the financial support of the family and that he is very close to his partner and daughter. His partner has been a very positive influence on his life. There was no evidence before the Tribunal of any other close relatives or friends within Australia who would be impacted if the Applicant were to be deported.
The Tribunal notes that the Applicant has lived in Australia for almost 20 years and came to Australia as a young man. He has worked for most of his time in Australia. It is unfortunate that the Tribunal has no objective evidence to support the Applicant’s ties to the Australian community more generally. I find that Primary Consideration 3 weighs heavily in favour of revocation.
Primary Consideration 4 – Best interests of minor children in Australia affected by the decision
Paragraph 8.4(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.4(2).
It is unfortunate that there is no objective evidence either from the Applicant’s partner or from any third party in relation to the Applicant’s relationship with his daughter. I accept, however, the Applicant’s evidence that he loves his daughter very much, that they have been an important part of eachothers lives, and that he wants to be there for her. His financial support is very important for the child. I note that in his Personal Circumstances form provided to the Respondent dated 17 December 2022, the Applicant stated ‘'I live with my daughter and wife, we spend time every day, I adore my daughter and wife and they adore me as well. I spend time with my daughter from the day I have her in my life. I help her studying, learning things, playing outdoors. She loves me as a father and also she thinks of me as a mentor and best friend.'
The Applicant showed genuine distress at the prospect of being separated from his daughter and was clearly concerned about her future including the effect separation from him would have on the child. In light of the evidence available to the Tribunal, I give Primary Consideration 4 heavy weight in favour of revocation.
Primary Consideration 5 – Expectations of the Australian Community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties
(e)…
(f) ...
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
In considering the weight of this consideration, I take into account that the Applicant arrived in Australia as a young man and that the community has more tolerance for offending committed by a long-term resident. It must be taken into account, however, that the Applicant’s offending commenced within five years of his arrival and has continued for most of his time in Australia. His offending also included serious domestic violence.
It is of concern that the Applicant has limited insight into his offending, and that there was no evidence of any psychological illness which might explain his conduct before the Tribunal. I give this consideration moderate to heavy weight against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction sets out the ‘Other considerations to be taken into account in making a decision under section 501(1) as follows:
(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) legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
While the Primary considerations carry particular weight, the Direction provides at paragraph 9 that ‘Other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[5]
Direction 65 [now Direction 99] 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.
[5] (2018) 74 AAR 545, [23].
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
a) Legal consequence of the decision
Paragraph 9.1 of the Direction provides:
1)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 in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) 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.
2)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.
3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction contains specific provisions relevant to non-citizens in relation to whom a protection finding has been made (paragraph 9.1.1) and to non-citizens in relation to whom no protection finding has been made (paragraph 9.1.2). A protection finding has been made in relation to the Applicant, and therefore paragraph 9.1.1 is relevant to his circumstances.
Paragraph 9.1.1 provides:
9.1.1 Non-citizens covered by a protection finding
(1)Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2)Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3)Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
Section 197C provides:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
…
At the Hearing, the Applicant did not raise any claims related to Australia’s non-refoulement obligations. The Respondent raised that the Applicant had previously been refused a protection visa. The only relevant evidence that was before the Tribunal was the delegate’s decision record refusing the Applicant’s protection visa. The threats were alleged to have been made to the Applicant by phone, however there is no written material to support his claims and the evidence in relation to the Applicant’s religion was described as ‘vague, lacking in detail, and unconvincing’. Put simply, there was no evidence before the Tribunal that the Applicant was in any real danger of persecution if were to return to India. The Tribunal finds that this Other Consideration is given neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;[6]
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country
[6] The word “health” in paragraph 9.2(1) of the Direction is understood to mean any aspect of a person’s physical wellbeing and includes “the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury: Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
There was no evidence before the Tribunal that the Applicant suffered from any previous health conditions. The Applicant stated that he was taking medication, however the nature of any illness is unclear. There are no language or cultural barriers for the Applicant if he was to return to India, although it is likely it would take some time for him to re-establish himself in India. The Applicant’s mental health is also likely to be affected by separation from his partner and their daughter.
There is no evidence that the Applicant would receive any support from family or other networks if he were to return to India. The Applicant has not visited India for approximately 18 years, and it is likely that India would have changed significantly since that time. In summary, although the Applicant may not have linguistic or cultural barriers in returning to India, it is clear that he would face at least significant initial difficulties in finding accommodation, employment and adjusting to life without his partner and his daughter.
On the basis of the evidence before it, the Tribunal finds that this Other consideration should be given moderate to heavy weight in favour of revocation.
CONCLUSION
This case has been particularly difficult to decide given the paucity of the evidence. The fact that the Applicant is self-represented and that he was unable to present evidence to support his case because of the application of the two-business day rule must be considered.
The Applicant was released from gaol in December 2022 and has not re-offended. He has been caring for his daughter and on the limited evidence before the Tribunal, he has a close and loving family. The Applicant’s offending cannot be downplayed, especially the incident of family violence and the ongoing nature of the Applicant’s offending indicates a lack of respect for the Australian legal system.
Against this, the Applicant has lived in Australia for most of his adult life. His current partner and his daughter are dependent on him both financially and emotionally. Although his partner may be able to work if the Applicant is deported to India, she is likely to struggle both financially and emotionally. It is unlikely that the Applicant would be able to provide financial support from India and emotional support would be very limited as the wife and daughter, who are both Australian citizens, have not returned to live in India. There is no evidence that they would do so. The Applicant is also likely to suffer emotionally if he returned to India both because the country is unfamiliar to him, and because he is separated from any support networks he might have.
The Tribunal’s task is to come to a conclusion based on the evidence considered in its totality. In weighing all of the issues, I have come somewhat reluctantly reached the conclusion that the Mandatory Cancellation Decision should be revoked.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 13 October 2023 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s visa is revoked.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
..............................[SGD]..........................................
Associate
Dated: 31 January 2024
Date(s) of hearing:
25 January 2024
Applicant:
Self-represented, In person
Solicitors for the Respondent:
L. Hargrave, Clayton Utz Lawyers
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