Keane and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3279
•16 October 2023
Keane and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3279 (16 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5384
Re:Oliver Keane
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:16 October 2023
Place:Perth
The Reviewable Decision, being the decision of the Delegate dated 21 July 2023 not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) is affirmed.
.............. [Sgd]..................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – legal consequences of the decision – Applicant is a 38 year old citizen of New Zealand – Non-Revocation Decision is Affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s43
Migration Act 1958 (Cth) ss 189, 197C, 198, 499, 499(1), 499 (2A), 500(1)(b), 500(1)(ba), 500(6B), 500(6H), 500(6J), 501, 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F, 501E, 501E(2), 501G(1), 501G(2), 501G(4), 503
CASES
Bread Manufacturers of NSW v Evans (1981) 180 CLR 404
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) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Paewai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2978
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 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) – paras 5.1
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(5), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2(3)(c), 8.2(3)(d), 8.3, 8.4, 8.4(4), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9.1(3), 9.1.2(2), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
L M Gallagher, Member
16 October 2023
The Applicant seeks review of a decision made by a Delegate of the Respondent
(the Delegate) on 21 July 2023 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).[1]
[1]R1, G3.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 25 July 2023,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a Delegate under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa.
[2]R1, G2.
The hearing was held on 13 September 2023 at the Tribunal in Perth. The Applicant was self-represented. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. The Applicant and Mr Burgess appeared in person.
BACKGROUND FACTS
The Applicant is a 39-year-old citizen of New Zealand. The Applicant first arrived in Australia on 12 December 2005, where he stayed for three months before returning to New Zealand.[3] The Applicant again travelled to Australia on 16 November 2006, where he stayed for another three months before returning to New Zealand to complete his university degree.[4] On 9 June 2007, the Applicant travelled to Australia, returning to New Zealand on 16 August 2007 for his university graduation ceremony.[5] On 20 August 2007, the Applicant moved to Australia permanently and continued to travel to New Zealand regularly for short periods of time.[6] The Applicant failed to disclose any criminal convictions upon entry to Australia on any occasion.[7]
[3]R1, G57; Transcript, p 19.
[4]R1, G57; Transcript, p 19.
[5]R1, G57; Transcript, p 20.
[6]R1, G57; Transcript, p 20.
[7]R1, G7.
The Applicant’s ex-partner, minor age daughter, uncle, aunt and cousin live in Australia.[8] The Applicant’s mother, father and sister live in New Zealand.[9]
[8]R1, G11, p 78.
[9]R1, G11, p 78.
Applicant’s offending
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission run on 6 September 2021,[10] a History for Court Report by the Western Australian Police Force compiled on 9 August 2023[11] and a New Zealand Criminal History Check produced on 18 February 2022.[12] The details are recorded as follows:
TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
[10]R1, G4.
[11]R2, TB1.
[12]R1, G9.
Court Court Date
Offence
Court Result
Perth District Court
of Western Australia28/04/2021 Possess a prohibited drug
(Methylamphetamine); Misuse of Drugs Act 1981; 6 (2) RFine: $1250 Perth District Court
of Western Australia09/04/2021 Assault Occasioning Bodily Harm Imprisonment: 2 years
Concurrent from 26/03/2021Perth District Court
of Western Australia09/04/2021 Deprivation of Liberty Imprisonment: 18 Months
Partly cumulative from 25/03/2021Sutherland Local Court 20/10/2020 Drive vehicle under influence of drugs
-1st offFine: $1,200 AUTO
Statutory period driver – commencing 20/10/2020
Sutherland Local Court 20/10/2020 Not keep left of median strip-motor vehicle Fine: $300 Perth Magistrates
Court29/05/2019 Without lawful excuse trespassed on a
place; Criminal Code (WA); 70A (2)Fine: $1000 (global) Perth Magistrates
Court29/05/2019 Without lawful excuse trespassed on a
place; Criminal Code (WA); 70A (2)Fine: $1000 (global) Perth Magistrates
Court29/05/2019 Without lawful excuse trespassed on a
place; Criminal Code (WA); 70A (2)Fine: $1000 (global) Perth Magistrates
Court18/04/2018 Common Assault in Circumstances
of Aggravation or racial Aggravation;
Criminal Code (WA); 313 (1)(a)Fine: $2000 Perth Magistrates
Court18/12/2012 Breach of Violence Restraining Order Fine: $200 Perth Magistrates
Court18/12/2012 Breach of Violence Restraining Order Fine: $200 Perth Magistrates
Court18/12/2012 Breach of Violence Restraining Order Fine: $200 Perth Magistrates
Court18/12/2012 Breach of Violence Restraining Order Fine: $200 Perth Magistrates
Court18/12/2012 Breach of Violence Restraining Order Fine: $200 Perth Magistrates
Court18/12/2012 Possess a prohibited drug
(Methylamphetamine); Misuse of Drugs Act (WA) 1981; 6 (2) RFine: $400 Perth Magistrates
Court18/12/2012 Breach of Bail Undertaking.; Bail Act
(WA) 1982; 51 (1)Fine: $200 Perth Magistrates
Court18/12/2012 Breach of Violence Restraining Order Fine: $200
Perth Magistrates
Court27/11/2012 No Authority to Drive - Suspended Fine: $1000 Mdl
Disqualified: 9 months - CumulativePerth Magistrates
Court27/11/2012 False Name (Driver) Fine: $200 Perth Magistrates
Court04/07/2012 No Authority to Drive - Cancelled Mdl Disqualified: 9 months -Cumulative; Fine: $500 Newtown Local Court 03/11/2009 Drive vehicle recklessly/furiously or
speed/manner dangerousFine: $1000 Bond s9
18 months Costs – Court $76 Disqualification: 2 years commencing 18/09/2009
Newtown Local Court
03/11/2009
Use uninsured motor vehicle
Fine: $400
Newtown Local Court
03/11/2009
Use unregistered registrable Class A
motor vehicleFine: $400
TABLE OF THE APPLICANT’S OFFENDING HISTORY IN NEW ZEALAND
Court
Court Date
Offence
Court Result
Dunedin District Court
20/07/2006
Unlawfully In Building
Fine: $200; Court Costs - $130
Dunedin District Court
20/07/2006
Wilful Damage
Fine: $200; Court Costs $130 Reparation - $140
Dunedin District Court
09/05/2006
Fighting In Public Place
Fine: $250; Court Costs - $130
Dunedin District Court
21/04/2005
Drove With Excess Blood Alcohol Content Blood/Breath = 132
Analyst Fees $93.00; Medical Expenses: $80.00; 50 hours community work and 6 months disqualification from driving
Prior to his arrival in Australia, the Applicant committed a number of offences in New Zealand in 2005 and 2006, being driving under the influence of alcohol, fighting in a public place, wilful damage and being unlawfully in a building. The Applicant was issued numerous fines, disqualified from driving for six months and sentenced to 50 hours community work.
The Applicant commenced offending in Australia in 2009 at age 25 and continued until 2021.
The Applicant’s most serious offending is as follows:
(a)On 18 April 2018, the Applicant was convicted of common assault in circumstances of aggravation or racial aggravation and was fined $2000.[13] This offence took place on 29 April 2017, where the Applicant forcibly struck his then partner to the eye with the palm of his hand, causing significant bruising.[14]
(b)On 9 April 2021, the Applicant was convicted of:
(i)assault occasioning bodily harm and was sentenced to two years imprisonment (concurrent from 26 March 2021);[15] and
(ii)deprivation of liberty and was sentenced to 18 months imprisonment (partly cumulative from 26 March 2021),[16]
the total effective sentence being three years and six months imprisonment.[17] These two offences took place on 16 February 2019 and involved the Applicant viciously assaulting his then partner including headbutting and choking her in front of their then two-year-old daughter and depriving his then partner of her liberty to move around as she wished.[18]
[13]R1, G4.
[14]R1, G5, p 40; see R1, TB1
[15]R1, G4; R2, TB3.
[16]R1, G4; R2, TB3.
[17]R1, G5, p 47; R2, TB3.
[18]R1, G5, p 43; R2, TB3.
The Applicant’s criminal record in Australia also includes driving uninsured and unregistered, driving impaired by drugs (2 counts), driving recklessly, driving whilst under licence suspension or cancellation (2 counts), providing a false name to police, possession of methylamphetamine (2 counts), breaching a violence restraining order (6 counts)[19] and a breaching a bail undertaking.[20]
[19]The breach of violence restraining order offences took place on 4 May 2012 and 5 May 2012 and involved the Applicant attending the house of a former partner, sending her text messages and a photograph, leaving a voice message, resulting in multiple fines.
[20]R1, G4, p 36.
The Applicant is currently at Yongah Hill Immigration Detention Centre.
Present proceedings
On 17 January 2022, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act (the Cancellation Decision).[21] The Visa was cancelled on the basis that the Applicant did not pass the character test in subsection 501(7)(c) of the Migration Act, by virtue of having been sentenced to a term of imprisonment of 12 months or more.[22]
[21]R1, G55.
[22]R1, G55, pp 287-288. See subsections 501(6)(a) and 501(7)(c) of the Migration Act.
The Applicant was invited to make representations about why the Cancellation Decision should be revoked.[23]
[23]R1, G55, pp 288-289.
On 9 February 2022, the Applicant made representations and provided submissions to have the Cancellation Decision revoked under s501CA of the Migration Act.[24]
[24]R1, G23.
As noted above,[25] on 21 July 2023, the Delegate made the Reviewable Decision.
[25]See [1].
The Applicant was notified of the Reviewable Decision the next day.[26]
[26]R1, G60.
On 25 July 2023, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[27]
[27]R1, G2.
ISSUES
Sections 501(6)(a) and 501(7)(c) of the Migration Act preclude a person from passing the character test if they have a ‘substantial criminal record,’ which includes a person who has been sentenced to a term of imprisonment of 12 months or more.
On the basis that on 9 April 2021, the Applicant was sentenced to two terms of imprisonment, totalling three years and six months for assault occasioning bodily harm and deprivation of liberty, he has a substantial criminal record as defined in the Migration Act and therefore he does not pass the character test.
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[28] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason” why the decision to cancel the Visa should be revoked,[29] by having regard to the primary and other considerations in Direction No. 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 99).[30]
[28]See Direction No. 99 para 5.1(3).
[29]The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.[30] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), (23 January 2023).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 16 October 2023.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(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) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child;
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Migration Act further 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.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.)
Direction No. 99
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No. 99 under s 499 of the Migration Act. Direction No. 99 commenced operation on 3 March 2023, replacing the previous Direction No. 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 90), which was revoked on the same date.[31]
[31]Direction No. 99 para 3.
The Tribunal notes that the Reviewable Decision was made by the Delegate applying Direction No. 99, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 99, all decisions made on or after 3 March 2023 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[32]
[32]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[33] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 99.[34]
[33]Direction No. 99 para 5.1(4).
[34]Direction No. 99 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(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 No. 99 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed 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 non-citizens 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 cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens 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)[35] (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.
[35]As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
Informed by the principles set out in para 5.2 of Direction No. 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case.
The primary considerations in Direction No. 99, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[36]
(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;
(5) expectations of the Australian community.
[36]Direction No. 99 para 8.
Paragraph 9 of Direction No. 99 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(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 consequences of the decision;
b)extent of impediments if removed;
c)impact on victims;
d)impact of Australian business interests
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, ‘[t]aking the relevant considerations into account’, 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.
EVIDENCE
The Applicant gave oral evidence at the hearing and was cross-examined.[37] The Applicant also called Dr Jacqui Yoxall, Psychologist, to give evidence.[38] The Applicant also called Darrylin Brain[39] and Chris Bown,[40] to give evidence.
[37]The Applicant’s evidence is contained within and includes A5, cover email to A8, cover email to A10, R1, G10, G11, G22, G23, G36(b) and G44 and Transcript, pp 13 to 53 and pp 78 to 82.
[38]Dr Yoxall’s report filed on 1 September 2023 appears at A8 (Dr Yoxall’s report).
[39]Linkt Rehabilitation. Ms Bain’s statement appears at A4.
[40]The Applicant’s friend. Mr Bown’s statements appear at R1, G32, G47 and G53.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Pathways Program Completion Report dated 14 December 2022 (Exhibit A1);
(b)Mood Management Course Completion Certificate dated 26 June 2023 (Exhibit A2);
(c)Email from Centrecare to Applicant dated 3 August 2023 (Exhibit A3);
(d)Letter from Darrylin Brain, Linkt Therapeutic Day Centre, dated 26 August 2023 (Exhibit A4);
(e)Applicant’s submissions, undated, filed on 30 August 2023 (Exhibit A5);
(f)Applicant’s letter to Tara Keane, dated 30 June 2022 (Exhibit A6);
(g)Photos of Applicant and Applicant’s daughter, filed on 30 August 2023 (Exhibit A7);
(h)Dr Jacqui Yoxall’s Psychological Report dated 4 September 2023, including Applicant’s cover email with Applicant’s submissions (Exhibit A8);
(i)Prisoners Review Board Post Sentence Supervision Order determination dated 31 August 2023 (Exhibit A9);
(j)Magistrates Court Order dated 5 July 2023, including Applicant’s cover email with Applicant’s submissions (Exhibit A10);
(k)Respondent’s G-Documents, being a set of documents numbered G1 to G60, filed on 1 August 2023 (Exhibit R1);
(l)Respondent’s Tender Bundle, being a set of documents numbered TB1 to TB7, filed on 23 August 2023 (Exhibit R2); and
(m)Respondent’s Statement of Facts, Issues and Contentions, dated and filed 16 August 2023 (Exhibit R3).
The Tribunal has taken into account the letters of support from the Applicant’s sister, community contacts and friends.[41]
[41]See R1, G27, G31, G32, G47, G48, G53 and A4.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No. 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[42]
[42]s 501CA(4)(b)(ii) of the Migration Act.
The Tribunal understands that the Applicant takes the view that in circumstances where he has completed numerous rehabilitation courses, where he intends to continue his rehabilitation at a residential facility, he no longer uses substances, he believes he poses a low risk of reoffending, his support network is in Australia and where his minor age daughter resides in Australia, the Cancellation Decision should be revoked.[43]
[43]See, for eg, A5.
The Respondent is of the view, however, that the first, second and fifth primary considerations[44] weigh very heavily against revocation and outweigh any primary or other considerations in favour of revocation.[45] The Respondent is of the view, therefore, there is not “another reason” why the Cancellation Decision should be revoked.
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 99)
[44]Being, 1st: Protection of the Australian community; 2nd: Whether the conduct engaged in constituted family violence and 5th: Expectations of the Australian community.
[45]See, for eg, R3 [68].
Paragraph 8.1(1) of Direction No. 99 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
Paragraph 8.1(2) of Direction No. 99 then provides:
(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.
Nature and seriousness of the conduct (para 8.1.1 of Direction No. 99)
Paragraph 8.1.1(1) of Direction No. 99 provides:[46]
[46]See also Direction No. 99 para 8.1(2)(a).
(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).
h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
(Emphasis added).
The Tribunal has considered the Applicant’s submissions in relation to the nature and seriousness of his offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction No. 99.[47] The Tribunal has also considered the Applicant’s expressed views in writing and at the hearing regarding the circumstances of his offending conduct, being:[48]
[47]See, for eg R1, G23.
[48]See R1, G4, p 36 and G36, p 226; Transcript, pp 20-21,46-47 and R2, TB1.
(a)As to his having driven while impaired by drugs on 20 September 2010,[49] he does not recall this having happened but does not dispute that it did. Despite being disqualified from driving as a result, he continued to drive. He was unsure of whether he continued to hold a licence at that time.
[49]The Applicant was found by police laying on the road after a member of the public had seen the Applicant slumped over the steering wheel of a vehicle at a traffic intersection. The Applicant is recorded to have told police he had taken some “smack” and was found in possession of what was believed to be heroin. The Applicant is also recorded to have told police that he had used the drug “ICE” heavily in the last three days. On 4 April 2011, the Applicant was convicted of drive while impaired by drugs, fined $800 and disqualified from driving for six months. (R2, TB1; R1, G4).
(b)His recollections of his other convictions where drugs were involved are “probably hazy”[50] and he is prepared to accept the facts of these offences as recorded by the police.
[50]Transcript, p 22.
(c)It’s “definitely possible” he was using heroin at the time of his offence 4 April 2011. He was a regular user of methamphetamine at that time, smoking marijuana and was also “possibly,” “definitely likely” taking prescription painkillers recreationally at that time.[51]
[51]Transcript, p 22.
(d)When he was convicted of no authority to drive – cancelled on 4 July 2012,[52] he understood at that time that his licence had been cancelled.
[52]R1, G4. The Applicant was stopped by police on 14 May 2012 and charged for driving without a licence (R2, TB1).
(e)As to his having given a false name to police while driving on 12 October 2012,[53] he does not recall being pulled over by police, giving the false name, or that his motorcycle was impounded.
[53]R2, TB1. The Applicant was convicted of this offence (and again driving with a suspended licence on the same day) on 27 November 2012 (R2, TB1; R1, G4).
(f)As to his having been issued with a violence restraining order in 2012 against a previous partner,[54] he recalls being subject to a restraining order that was long than 72 hours. He does not recall calling his then partner just prior the two-year order being issued, accusing her of lying, of seeing someone else or stating to her that he was going to kill her.[55] He did not say those things.
[54]Firstly, a 72-hour order issued on 2 March 2012, then a two-year order issued on 30 April 2012 (R2, TB2).
[55]As recorded in the police incident report dated 27 April 2012 (R2, TB1).
(g)As to earlier reported domestic violence incidents against a previous partner,[56] he denies these incidents ever occurred. However, it is possible these events occurred, but he cannot recall them because of his drug use.
[56]R2, TB1.
(h)He does, however, accept that on 4 May 2012, four days after the two -year violence restraining order was issued, he sent a text message to his previous partner asking her to catch up with him (knowing he was not allowed to do so), attended her house the next day, sent her three more text messages, a voice message, and a half-naked photograph of himself. He cannot recall whether he meant to send her this photograph.
(i)He was out of control and severely intoxicated when he committed his offending for which he was imprisoned.
(j)He has not used drugs and alcohol for three years.
(k)He and his ex-partner (being his daughter’s mother) commenced their relationship in 2015 and their daughter was born in July 2016.
(l)As to the first domestic violence incident against his ex-partner recorded by police to have occurred on 24 October 2016,[57] he recalls their having had a disagreement. He also recalls having shut himself in a room with their daughter to prevent her from leaving with their daughter, which he did because his ex-partner was high on methamphetamine and he did not want her to do so. He does not recall, however, becoming agitated or threatening her. He was not using methamphetamine that evening, as recorded by police.
[57]R2, TB1.
(m)As to the statement of facts that resulted in his conviction for common assault in circumstances of aggravation or racial aggravation,[58] he entered a plea of ‘not guilty’:
[58]R2, TB1.
MR BURGESS: It says here that "While sitting in the lounge room you brought up the subject of her meeting with another man whilst they were separated - whilst you were separated." You became angry and annoyed. You asked her for her phone and located a message on it in relation to the other male she had met previously. Is that accurate?
APPLICANT: It is, yes.
MR BURGESS: And said, "The accused was clenching his fists and yelling at the victim". Is that accurate?
APPLICANT: I don't recall specifically.
MR BURGESS: It says, "The victim was sitting on the couch. The accused grabbed the victim by the hair and threw her off the couch into the wall". Is that accurate?
APPLICANT: Not exactly.
MR BURGESS: Why do you say "not exactly"?
APPLICANT: Like very close, like I didn't grab her by the hair. I just shoved her off with the palm of my hand, I didn't like propel her into the wall.
MR BURGESS: It says, "The victim attempted to get up off the floor and you pushed her down towards the floor whilst holding onto her hair." Is that accurate?
APPLICANT: I don't recall that specifically.
MR BURGESS: Did you stop her from getting up?
APPLICANT: I - I did, yes. Yes.
MR BURGESS: And it says you used your open palm to strike her three to four times to the face. Did that occur?
APPLICANT: I don't recall the three to four times. I recall once I couldn’t be sure.
MR BURGESS: Was that while she was still on the floor?
APPLICANT: I don't recall.
MR BURGESS: It says that she sustained bruising to her eye. Is that - that's accurate?
APPLICANT: It is accurate, yes.
MR BURGESS: In respect of your plea of not guilty, why had you pled not guilty to those facts?
APPLICANT: Because I'd said that when she was trying to grab the phone back out of my hand that was when I'd - like smacked her away - like pushed her away with the palm of my hand, so I was just contesting the fact that it was - that I'd - like how I would I even hit her on the floor.
MR BURGESS: That is what happened though isn't it?
APPLICANT: What?
MR BURGESS: You had held her on the floor and hit her on the floor?
APPLICANT: I don't recall. The only bit I recall is when I first hit her with the palm of my hand when she reached for the phone.
(n)Following this offence, he had no contact with his ex-partner until June 2018,[59] when his ex-partner amended the restraining order to allow him some supervised access to his daughter. He was no longer using drugs that that time.
[59]R2, TB3.
(o)He disagrees with the sentencing Judge’s remark, to an extent, that in the course of him committing the assault occasioning bodily harm offence that he “head-butted” his ex-partner[60]:
[60]See R1, G5, p 41.
MR BURGESS: After describing the incident of you touching her on the thigh, for which you were acquitted, she says she pushed your hand away, she said, as you grabbed her head and head-butted her.’ Just in relation to that last part, that you grabbed her head and head-butted her, do you accept that’s what occurred?
APPLICANT: Well, I grabbed her head and I was yelling at her and then I ground my face into her face. I didn’t head-butt her like you’d head-butt a soccer ball, but I grabbed her by the face and was screaming at her.
…
MR BURGESS: What do you say occurred in relation to the term ‘thrashed her around the floor’?
APPLICANT: I’m not sure. I was just, you know, crazy.
MR BURGESS: It says that you were then holding her on the ground with your elbow on her throat, causing difficulty breathing. Is that accurate?
APPLICANT: I don’t recall that exact. [sic]
…
MR BURGESS: And the doctor concluded that the bruising to the right eye could be consistent with the injuries sustained by a head-butt. That’s not consistent with the way that you describe the head-butt. Given that evidence that was lead, how do you say she sustained injuries to her eye?
APPLICANT: (Indistinct), look, I do, I say that when I grabbed her and I’m yelling at her and I grind my face into her face, it’s with force, enough force to be considered a head-butt, and enough force to give her that bruise. I accept that.
MR BURGESS: Okay. So it wasn’t just pressing her head against yours?
APPLICANT: No, it was with force, yes.
MR BURGESS: So when you said ‘it’s not like’ – I think your wording was, ‘it wasn’t like a head-butt’, what did you mean by that?
APPLICANT: I just mean it wasn’t like I was holding her by the shoulders and head-butted her ‑ ‑ ‑
MR BURGESS: Okay?
APPLICANT: I grabbed her by the hair and I …pulled at her face.
…
MR BURGESS: The judge found beyond reasonable doubt – it was found beyond reasonable doubt, that while on the floor you continued to apply a headlock, causing her to suffer difficulty in breathing resulting in her feeling dizzy and body going tingling and numb. Do you have – having re-read that – do you have any recollection of that?
APPLICANT: Not specifically, like, I was really intoxicated, and just, yes, completely out of control…
(Emphasis added.)
(p)In relation to him having suffered depression for years, he had attended one counselling session and “gave it away,” his treatment being mainly pharmacological and managed by his general practitioner. He currently takes a low dose antidepressant.[61]
[61]Transcript, pp 42-43.
The Respondent made a number of observations and contentions in relation to the nature and seriousness of the Applicant’s offending conduct and in support of its position that the Applicant’s conduct should be viewed as very serious.[62]
[62]These are set out in R3 [32]-[36].
The first primary consideration, Protection of the Australian community from criminal or other serious conduct,[63] requires the decision-maker to look at “the non-citizen’s criminal or other conduct to date” (emphasis added). [64] For completeness, the Tribunal notes there is no “other conduct” to date that falls for consideration in this matter.
[63] Para 8(1) of Direction No. 99.
[64] Direction No. 99, para 8.1.1(1).
In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offending and the convictions imposed.
The Applicant’s offending conduct is briefly detailed above.[65] The facts of the Applicant’s assault occasioning bodily harm and deprivation of liberty offences are set out in the remarks of Bowen DCJ on 9 April 2021:[66]
[65]See [6]-[10] above.
[66]R1, G5 pp 41 to 44. The sentencing Judge was satisfied beyond reasonable doubt that these offences occurred in the circumstances as described by the Applicant’s ex-partner.
[The Applicant’s ex-partner’s] evidence is that you went to the bedroom, she was lying on the bed. After describing the incident of you touching her on the thigh for which you were acquitted and she said that she pushed your hand away, she says you grabbed her and head-butted her.
You let go of her head then you banged her head into the wall three times leaving a small dent in the wall. You were screaming at her that she was not going to take your daughter away.
You then slung your arm around her neck and dragged her from the bed. She ended up on the floor. She says that whilst on the floor you thrashed her around the floor. [The Applicant’s ex-partner] said that you were holding her on the ground with your elbow in her throat causing her difficulty in breathing.
She said she felt dizzy and her body went numb. She felt her body go numb and said her body was all tingling and her daughter who was present in the room was screaming and you then let her go.
…
The doctor agreed that the tenderness at the back of the head could be consistent with her head being banged against the wall. The bruising to the right eye could be consistent with the injuries sustained by the head-butt and the tenderness and redness around the back of the neck could be consistent with being choked. [The Applicant’s ex-partner] told the doctor that she didn’t lose consciousness…
…
In relation to [the Applicant’s] evidence…I didn’t find your evidence to be persuasive. I took the view that you were attempting to denigrate [the Applicant’s ex-partner] at every opportunity including cross-examining about whether she took intimate photos of herself in the context of a new relationship and you endeavoured generally to try to minimise any contribute [the Applicant’s ex-partner] made to the relationship and degraded her role as a mother.
You minimised and justified your prior violent behaviour and appeared reluctant to accept that you had issued with alcohol and/or violence. Your evidence was I find tailored so that you’d only admit what he [sic] evidence compelled you to admit.
…
[Following the assault, the Applicant’s ex-partner] gathered the child and took the child into the lounge room.
Whilst in the lounge room you were angry and berated her. You instructed her to sit in the lounge room, continued to scream at her. During your emotional outburst… you referred to having two choices…to kill [the Applicant’s ex-partner] and yourself and the result of that would be that [their daughter] was left in a foster home.
You were physically in close proximity to [the Applicant’s ex-partner], leaning from the couch on which you were seated in the direction of [the Applicant’s ex-partner] who was seated in the lounge chair. During the period of time that you abused and denigrated [the Applicant’s ex-partner’s] role as a mother she was in fear of her life.
When she tried to get some water for her daughter she was told to sit down. I find you were in a heightened emotional state, you were threatening her. On [the Applicant’s ex-partner’s] own evidence you eventually settled down and allowed her to put [their daughter] to bed.
She did so and lay on [their daughter’s] bed. Shortly after this you came [sic] to her room and lay on the bed and subsequently the three of you fell asleep. I am satisfied that [the Applicant’s ex-partner] was deprived of her free choice to move around as she wished.
She was deprived of her liberty I find from the commencement of the assault and it continued until such time you’d calmed down and allowed her to put [their daughter] to bed…
(Emphasis added.)
In assessing the Applicant's offending and other conduct against the considerations identified in para 8.1.1 of Direction No. 99, the Tribunal has regard to the fact that the Applicant has been in Australia for over 16 years, having permanently moving to Australia in 2007 as a 22 year old. Since 2009, the Applicant has engaged in offending and in 2021 he was sentenced to a term of three years and six months imprisonment.
In relation to para 8.1.1(1(a) of Direction No. 99, the Tribunal finds that the Applicant’s offending is, by its very nature, very serious. The Applicant has committed multiple violent crimes,[67] including against women[68] and in a family violence setting.[69]
[67]Para 8.1.1(1)(a)(i) of Direction No. 99.
[68]Para 8.1.1(1)(a)(ii) of Direction No. 99.
[69]Para 8.1.1(1)(a)(iii) of Direction No. 99.
The Tribunal has regard to the fact that the Applicant’s history of offending includes numerous driving and traffic offences, which are serious crimes against other road users. The Tribunal has previously and often cited the seriousness of driving related offences such as those committed by the Applicant.[70] The repeated nature of the Applicant’s driving offences and the fact that the Applicant was driving under the influence of illegal substances at these times further demonstrates the seriousness of the offending and the increased potential for catastrophic harm.
[70]See QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51]-[54].
The Applicant’s offending involved conduct for which he was ultimately sentenced to three years and six months imprisonment. This conduct forms the basis of the finding that the Applicant did not pass the character test,[71] and is in the Tribunal’s view, probative of the seriousness of that offending conduct.
[71]Para 8.1.1(1)(b)(iii) of Direction No. 99.
Further, the sentencing Judge remarked that the Applicant’s assault occasioning bodily harm offence against his ex-partner “was a vicious and violent assault on a vulnerable woman in an intimate relationship.”[72] The Tribunal adopts this view.
[72]R1, G5, p 44.
In considering para 8.1.1(1)(b) of Direction No. 99, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage[73] and any crime committed while in immigration detention.[74] In the Tribunal ‘s view, none of the Applicant’s offending or other conduct falls within these categories.
[73]Para 8.1.1(1)(b)(i) of Direction No. 99.
[74]Para 8.1.1(1)(b)(iv) of Direction No. 99.
The overall seriousness of the Applicant’s offending is not, in the present matter, further indicated by his prison sentence, given that violence crimes against women and acts of family violence are excepted from this circumstance.[75]
[75]Para 8.1.1(1)(c) of Direction No. 99.
The Applicant’s offending has been frequent in the Tribunal’s view notwithstanding there was a five-year period from 2013 to 2017 during which the Applicant did not offend.[76]
The Applicant’s offending is also marked with a trend of increasing seriousness,[77] his most recent convictions attracting terms of imprisonment totalling three years and six months because the nature of the offences were so serious[78] that no other sentence in the circumstances would be justified.[79]
[76]Para 8.1.1(1)(d) of Direction No. 99.
[77]Para 8.1.1(1)(d) of Direction No. 99.
[78]Being acts of family violence, assault occasioning bodily harm, deprivation of liberty and driving offences.
[79]R1, G5, p 45.
The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent that the Applicant committed a considerable number of offences over an extended period of time) is a significant feature of his offending.[80]
[80]Para 8.1.1(1)(e) of Direction No. 99.
The Applicant provided false and misleading information to the Department by failing to disclose his prior criminal offending on his incoming passenger cards on eight occasions.[81] While the Applicant says this was unintentional with him being under the mistaken impression that only offending resulting in custodial sentences were required to be reported,[82] the Tribunal considers these repeated failures to disclose are serious.
[81]Para 8.1.1(1)(f) of Direction No. 99.
[82]R1, G35, pp 229 to 230; A5.
For completeness, the Tribunal considers that none of the Applicant’s offending or other conduct falls with the scope of para 8.1.1(1)(g)[83] of Direction No. 99.
[83]The Applicant was never formally warned about the consequences of further offending on his migration status.
In relation to para 8.1.1(1)(h)[84] of Direction No. 99, the Tribunal notes the Applicant’s history of offences committed in New Zealand[85] and that these offences would be classified as offences in Australia.
[84]The Applicant has a known criminal history outside Australia.
[85]See R1, G9.
Overall, the Tribunal finds that the Applicant has engaged in a range of offending, which, applying Direction No. 99, is serious or very serious. The Applicant has a substantial criminal record offending spanning a 13-year period and has engaged in violet offending including in a family violence setting. Over time, the Applicant’s offending has escalated in frequency and seriousness, as evidenced by his most recent offence.
Therefore, having regard to the evidence to which paras 8.1.1 of Direction No. 99 are relevant, the Tribunal considers the Applicant’s offending and conduct to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 99)
Paragraph 8.1.2 of Direction No 99 states, in part:[86]
[86]See also Direction No. 99 para 8.1(2)(b).
(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:
iinformation and evidence on the risk of the noncitizen re-offending; and
iievidence 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).
…
(Emphasis added.)
The Tribunal in CZCV and Minister for Home Affairs[87] (CZCV) summarised the task for the Tribunal as follows:
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) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & 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 & Border Protection [2016] FCA 1181 Moshinsky J stated that, 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.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[87][2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 99 (the CZCV matter itself falling for consideration by Direction No. 90) Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 99)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.
This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[88]
[88]Para 8.1.2(2)(a) of Direction No. 99.
The Tribunal accepts that the Applicant has, if only more recently, developed any level of insight that may be seen as being remorseful for his domestic violence offending.[89] However, the Tribunal remains unconvinced that the Applicant understands the significant harm that would be caused to the Australian community[90] should he engage in further offending, in particular violent offending and acts of domestic violence. Rather, the Tribunal sees the Applicant’s remorse as being tied to the consequences that would flow should he be removed, in relation to potentially being unable to see his daughter in person in future.
[89]That being said, the Tribunal remains largely unconvinced in relation to the Applicant’s evidence regarding his driving offences in that he attempted to downplay his knowledge at the time of offending stating initially that he was aware that he was driving without a licence, then later stating that he wasn’t aware and later still, stating that he wasn’t sure if he was aware. This leaves a question mark over the Applicant’s insight or ability to be remorseful for those particular offences.
[90]The Australian community including any future domestic partners generally, not just the Applicant’s ex-partner.
The Respondent submitted that the nature of the harm that would be caused to the Australian community if the Applicant were to reoffend is very serious and may have wide reaching effects on the community, including physical harm, financial harm, ongoing psychological consequences, and broader financial and other consequences for the Australian justice and health systems.[91]
[91]R3 [39].
The Applicant has been convicted of a significant number of offences, most recently, the violent offending and acts of family violence. In the Tribunal’s view, should the Applicant commit further similar offences, in particular violent offences, family violence, driving offences and offending whilst under the influence of illicit substances, this would clearly result in further serious harm that may cause considerable physical, psychological and economic harm to members of the Australian community.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 99)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[92]
[92]Para 8.1.2(2)(b)(i) of Direction No. 99.
The Applicant contended that he poses a low risk (or no risk)[93] of reoffending in the future.[94] In doing so, the Applicant provided evidence of his rehabilitation efforts[95] (addressed below), confirmed his mental health issues are under control and noted his involvement in community support groups such as Thrive, Narcotics Anonymous and men’s violence groups.[96]
[93]R1, G10, p 67.
[94]A8.
[95]See for eg, R1, G23, p 159.
[96]A5, A8.
The Applicant also expressed his plans to complete a Linkt residential program if released:[97]
[97]Transcript, p 51.
MR BURGESS: You said earlier that when you get out of – if you’re allowed back into the community you would live at the Linkt rehabilitation centre run by Darrylin Brain?
APPLICANT: Yes.
MR BURGESS: You said that you’d be going there to sleep at night; is that right?
APPLICANT: Yes. So to undertake therapy in the evenings. Yes. It’s just - it’s a supervised place for me to reintegrate. There’s no risk of me running back or forwards.
MR BURGESS: What’s your understanding of what you would and wouldn’t be able to do when you are staying at Linkt?
APPLICANT: Well, outside of work hours I’d be required to be there.
MR BURGESS: Is there anything else that you are aware that you’d be required to do whilst there?
APPLICANT: Urine tests, and like I’m required to attend the counselling.
The Respondent contended that the Australian community should the Applicant commit further offences or engage in other serious conduct is unacceptable and weighs very heavily against revocation because:[98]
[98]R3, [40]-[41].
(a)The Applicant has shown limited insight into the impacts of his offending, nor has he shown remorse. For example, the Applicant pled not guilty to the most recent offences and was noted by the sentencing Judge to have minimised his prior violent behaviour and blamed the victim for his offending. At trial he was noted to have cross examined his ex-partner (the victim) about whether she sent intimate photos of herself in the context of a new relationship and he attempted to denigrate her at every opportunity he could, including degrading her role as a mother.[99]
[99]See R1, G5, p 42.
(b)Whilst the Applicant has produced some evidence of rehabilitative courses he had undertaken whilst incarcerated, his resolve has not been tested outside the structured environment of prison and detention.
(c)Given the Applicant has a history of committing violent offences, as outlined above. The Tribunal is “entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past.”[100]
(d)The tenor of Dr Yoxall’s report is that the Applicant will have a low risk of reoffending if he is able to stay off drugs, and maintain his social supports and drug and alcohol rehabilitation. That “if” is a significant if, given the Applicant’s lengthy past history of drug use and the nature of the drugs which the Applicant has used, specifically, methylamphetamines and alcohol.
(e)While it acknowledges Dr Yoxall’s evidence that drugs and alcohol are available to take in detention and in prison and it accepts there are no positive urinalysis results to suggest that the Applicant was in fact using drugs in prison:
(i)The Applicant, in any event, has committed violent offences against his ex-partner whilst abstinent from methylamphetamines; and
(ii)The Applicant’s abstinence from drugs, and from alcohol in particular, remains untested in the community.
(f)Similarly, while it accepts the Applicant is now remorseful regarding his domestic violence offences, that resolve hasn’t been tested in the community.
(g)The risk to the community is a risk to the Applicant’s future domestic partners in general and not just a risk to the mother of his child. This is demonstrated by the fact that there is evidence that the Applicant committed family violence against a previous partner. While there is no conviction for a violent or family violence offence against the first partner, there was a domestic violence order which resulted from her being scared and reporting that she believed she was at risk of the Applicant hurting her or killing her.
[100]Citing Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 (Muggeridge) at [36].
The Tribunal heard evidence from Dr Yoxall in relation to Dr Yoxall’s report. In her report, Dr Yoxall gives the opinion that:[101]
(a)If the Applicant maintains abstinence from drugs and alcohol, manages his mental health and utilises knew knowledge and strategies learnt (through his rehabilitation efforts), then he will present a low risk of domestic violence reoffending and generally reoffending in the future. The Applicant’s risk of domestic violence reoffending and general reoffending is partially dependant on his ability to do so (and partially dependant on static historical risk factors he cannot change).
(b)If the Applicant were to relapse to alcohol or drug use, and/or experience a deterioration in mental health; and/or fail to utilise his newly learnt skills in a new relationship; and/or fail to seek professional support and intervention, his risk of domestic violence reoffending and general offending could be moderate to high.
[101]A8, pp 47 to 48.
When asked to comment on the likelihood of the Applicant maintains abstinence from drugs and alcohol, in light of her “low risk” rating hinging on this being the case, Dr Yoxall said the Applicant has
“…a much better chance now than he’s probably had in his life to date. I think that there are a lot of things in place to support him to maintain abstinence. But … you can never say never in any form of addiction.”[102]
[102]Transcript, p 63 [25].
The Tribunal also heard evidence from Darrylin Brain regarding the Linkt residential program and from Mr Bown regarding the Applicant’s intentions regarding his employment, if released.
Mr Bown confirmed he could provide immediate full-time supervised employment in the constructions industry to the Applicant if he were released.[103]
[103]Transcript, p 65 [40]-[45].
Ms Brain explained the Linkt program and supported accommodation as follows:[104]
[104]A4 and transcript, pp 68 to 72.
(a)Linkt provides 10 places in a six-bedroom facility.
(b)If permitted to reside at Linkt, a member of staff will supervise external appointments to ensure program compliance.
(c)Residents may not leave the property without permission. If they do so, they are not permitted to return.
(d)There are strict guidelines for recovery.
(e)Residents have access to, and use of, a phone, but do not have access to their own phone.
(f)Face-to-face social visit are limited to close family.
(g)She recommends the Applicant attend the Linkt program for six months.
(h)Residents are permitted to work with a Linkt-affiliated employer with permission and while wearing a tracking device.
(i)Mostly, it’s “difficult” for a resident to obtain and work in their own employment and return to the facility at night. Whilst the Applicant has discussed with her his wish to do so:
“[I]t’s only been his wish. It doesn’t mean he’ll actually get that…
…
…you don’t come to our place for employment. You come to our place for recovery and then if everything works out okay then employment is something that you might look forward to... We don’t offer people accommodation to go to work. There’s a big difference in that…
The Tribunal has considered the available evidence and the parties’ submissions in relation to the Applicant’s risk of reoffending.
Firstly, the Tribunal recognises that the Applicant has taken a number of steps to rehabilitate, albeit only in more recent times and to continue to rehabilitate if released. The Applicant has provided evidence that he has undertaken a number of courses while in prison and detention:[105]
(a)Standing on Solid Ground;
(b)ReSet Introduction to Parenting;
(c)Numerous ASETS an South Regional TAFE courses;
(d)Stopping Family Violence Program;
(e)Pathways Program;
(f)Domestic Violence 101; and
(g)Thought Diary 2.
[105]See R1, G18 to G20, G24, G52, A1 and A2.
The Applicant is also involved in Narcotics Anonymous.[106]
[106]R1, G27.
The Tribunal notes the Applicant’s wish to complete the Linkt residential recovery program. While the Tribunal accepts the Applicant has made enquiries regarding the program and there is currently a place available, it is uncertain whether Linkt would accommodate the Applicant wish to work full time for Mr Bown. Whilst Ms Brain effectively gave evidence that it was theoretically possible that the Applicant could undertake full time employment and be able to be admitted into her facility, it was still a matter that she would need to assess and is yet to be assessed.
In any event, the Applicant is seeking to work full time immediately upon release (if released), in accordance with Mr Bown’s offer.[107] However, Dr Yoxall is of the view that full time employment immediately following release (if released), as opposed to a transitional approach would not offer the Applicant the best opportunity to integrate their learnings and maintain their abstinence and implement their relapse prevention plan as they progress back to community.[108]
[107]R1, G32, p 201.
[108]Transcript, p 62.
Further, the degree to which the Applicant has plans to undertake the Linkt program is, as noted by Senior Member Burford in Paewai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2978:[109]
a protective factor… tempered by the fact the program is voluntary and should the Applicant determine he no longer wishes to engage with the program he would be free to disengage.
[109]At [136].
The Tribunal makes the same observation.
As to Dr Yoxall’s opinion regarding the Applicant’s low risk of general and violent reoffending if he maintains abstinence from drugs and alcohol, manages his mental health and utilises knew knowledge and strategies learnt (through his rehabilitation efforts), the likelihood of such abstinence being difficult to determine:
(a)In light of the Full Court’s decision in Muggeridge, the Tribunal is entitled to speculate as to what might happen in the future by reference to evidence of what has occurred in the past.
(b)In the past, the Applicant has had periods of abstinence from drugs, then relapsed into drug use when faced with stressful situations.[110]
[110]For example, the Applicant gave evidence that he was not using drugs in June 2018 when he was allowed some supervised contact with his daughter. The Applicant said that after his ex-partner left and took their daughter, he had a “really bad relapse” for about a month or more.
Therefore, while the Tribunal accepts the Applicant has not used drugs in recent years, that he has undertaken rehabilitation courses and seeks to continue to rehabilitate, at this point in time, the Tribunal cannot be satisfied that the Applicant has demonstrated a level of insight into his offending (that one might view as a protective factor against reoffending) that if he were presented with a stressful situation in future, he would not relapse into drug use. If he did so, the Tribunal notes Dr Yoxall’s opinion that this would elevate the Applicant’s risk of reoffending to “moderate to high.”
Overall, having considered all of the evidence of the Applicant’s circumstances, the Tribunal is of the opinion that there is a moderate risk that the Applicant will reoffend in a similar manner. Given the significant risk of harm from violent and family violence offences, if the Applicant does engage in offending consistent with his previous offence, there is a risk of significant harm to any future partner of the Applicant and to the community in general.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs very strongly against revocation of the Cancellation Decision.
Second primary consideration: Whether the conduct engaged in constituted family violence (para 8.2 of Direction No. 99)
Paragraph 8.2 of Direction No. 99 provides that decision-makers must have regard to family violence perpetrated by the non-citizen when deciding whether to refuse or cancel a visa under s 501 of the Migration Act:
(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 non citizen, 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 non citizen's migration status, should the non-citizen engage in further acts of family violence.
(Emphasis added.)
“Family violence” is defined in para 4(1) of Direction No. 99 as:
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
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
(Emphasis added.)
For the purposes of the definition of family violence in Direction No. 99, member of the person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person. The Applicant’s ex-partner therefore falls within this definition.
The Tribunal is required to consider whether family violence considerations arise on any of the submissions, materials or evidence before the Tribunal.
The Applicant has been convicted of numerous violent assaults against his ex-partner and of depriving her of her liberty. The facts of these offences have been well detailed earlier in this decision.[111]
[111]See [6] – [9] above.
The Respondent contended that this consideration weighs very heavily against revocation of the Cancellation Decision.[112]
[112]R3, [44] and [45].
The Tribunal has considered that the Applicant family violence offending has been repeated over a number of years.[113] In which case, any cumulative effect would be serious.[114]
[113]Para 8.2(3)(a) of Direction No. 99
[114]Para 8.2(3)(b) of Direction No. 99.
Although the Applicant has apologised for the hurt he has caused to his ex-partner,[115] the Tribunal is unconvinced that he takes full responsibility for his conduct or fully understands the impact of his offending behaviour on both his ex-partner, the victim and his daughter, who was present at the time of his violent offending.[116] For example, even at the hearing, the Tribunal gained the impression the Applicant was still somewhat contesting the manner in which the sentencing Judge found him to have head-butted his ex-partner.
[115]See, for eg, A6.
[116]Para 8.2(3)(c) of Direction No. 99.
While there is no evidence that the Applicant has re-offended since being made aware by a Court of the consequences of further acts of family violence, the Tribunal does not consider this is any way reduces the seriousness of the Applicant’s family violence conduct.[117]
[117]Para 8.2(3)(d) of Direction No. 99.
Based on the above, in circumstances where Direction No.99 emphasises that the Government has serious concerns about conferring upon a citizen who has engaged upon family violence a right to remain in Australia,[118] the Tribunal considers that this primary consideration weighs very strongly against revocation of the Cancellation Decision.
Third primary consideration: The strength, nature and duration of ties to Australia (para 8.3 of Direction No. 99)
[118]Para 8.2(1) of Direction No. 99.
Direction No 99 provides that:
(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 a 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 Australia 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 the 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
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Applicant gave evidence that:[119]
(a)He has lived in Australia his entire adult life and has no support networks in New Zealand.
(b)He has been consistently employed in Australia in the construction and mining sectors. Working in the mines is “what he knows” and he had contributed to a large number of very important construction projects. He has secure full-time employed with Mr Bown if he is released.
(c)He lived in Australia for 14 years before his first and only custodial sentence.
(d)He is still in contact with his sister, who lives in New Zealand and has a family of her own.
(e)He did not know his father growing up and his mother is deceased.
(f)His ex-partner, daughter, uncle, aunt and cousin live in Australia.
(g)He is an avid member of Thrive community group, founded by Mr Bown.
(h)His family and Thrive group mentees will suffer should he return to New Zealand.
[119]A5; R1, G11 and G23 and Transcript, p 51.
The Respondent submitted that the strength, nature and duration of the Applicant’s ties to Australia weighs in favour of revocation, however less weight should be placed on this consideration:[120]
(a)The Applicant has permanently resided in Australia since 2007, when he was 22. While the length of time he has resided in Australia is a factor that must be brought into account, this factor should be countervailed against the fact that the Applicant did not ordinarily reside in Australia during his formative years, and accordingly, the length of time he has spent in Australia should be given less weight.
(b)The consideration should also be given less weight because the Applicant failed to disclose his previous convictions on arrival and commenced offending shortly after arrival.
(c)The Applicant appears to have made some contribution to the Australian community through his work as a licensed surveyor.
(d)The Applicant has one child, an uncle, aunt and cousin who all reside in Australia. Other than the Applicant’s daughter, the remaining family members have not provided any statement about the effect the Applicants removal and as such, their interests should be given little weight.
[120]R3, [46]-[50]; Transcript, p 11.
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to reside.[121] As to ties to children, more weight should be given to those children who are Australian citizens, permanent residents of Australia or have an indefinite right to reside.[122]
[121]Para 8.3(1) of Direction No. 99.
[122]Para 8.3(2) of Direction No. 99.
The Applicant has provided a body of lay evidence regarding familial (largely relating to his daughter) and social connections in support of his case.[123]
[123]See R1, G27, G28, G31, G32, G44, G47, G48, G53 and A4.
The evidence predominantly focuses on his claimed relationship with his daughter, his work contributions and involvement with the Thrive community group. The Tribunal does not seek to, nor does it consider it necessary, to summarise the entirety of the evidence here and notes it has considered the available statements in the context of this consideration. In doing so, the Tribunal notes that other than the Applicant’s daughter, none of the Applicant’s family members in Australia have provided statements, therefore their views about the Applicants removal (if removed) are unknown and their interests can only be given minor weight.
The Applicant has recently been restrained by injunction from approaching or contacting his ex-partner and daughter. The Applicant gave evidence that prior to this being ordered, he would speak to his daughter multiple times per week during prison visits facilitated by his ex-partner’s father.
The Applicant made no specific submission regarding the expectations of the Australian community.
In relation to the expectations of the Australian community, the Respondent submitted that this consideration weighs heavily against revocation, because:[148]
(a)Observing the norm stipulated in para 8.5(1) of Direction No. 99, and in accordance with principles 5.2(2) to 5.2(5) of Direction No. 99, the Australian community would expect that the Applicant should not hold a visa on account of his serious criminal offending.
(b)The Australian community would expect that the Applicant should not hold a visa on account of the serious crimes, in particular, the ‘vicious and violent assault on a vulnerable woman in an intimate relationship’ he committed.[149]
[148]R3, [56]-[58].
[149]See R1, G5, p 44.
The Tribunal considers that the nature of the character concerns in this instance are objectively serious, and the nature of the Applicant’s offending is such that the deemed community expectation that the cancellation is not revoked ought to be applied.[150]
[150]Paras 8.5(2)(a) and (c), referring to the Applicant having engaged in family violence and violent offending against a vulnerable member of the community.
The Applicant’s conduct has breached this community expectation by not obeying Australian laws. The Applicant has engaged in family violence, violent offending, driving related offences, including driving without a licence and driving with a high blood alcohol concentration and offended while under the influence of illicit substances. Consequently, the expectation of the Australian community would be that the visa should remain cancelled.
Due to the application of the “norm” in para 8.5(1) of Direction No. 99 and the deeming operation of the corresponding direction as found by the Full Court in FYBR, this primary consideration weighs very strongly against revocation of the Cancellation Decision.
The Tribunal makes this finding notwithstanding the fact that the Applicant has been in Australia for approximately half his life (although not from a very young age) and that a slightly higher tolerance level may be afforded to him.[151]
[151]Para 5.2(5) of Direction No. 99.
Other considerations (para 9 of Direction No. 99)
Paragraph 9 of Direction No. 99 states:
(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 consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of decision under section 501 or 501CA (para 9.1 of Direction No. 99)
Paragraph 9.1 of Direction No. 99 states:
(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) In 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.
(Emphasis added.)
Paragraph 9.1.2 of Direction No. 99 states:
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, 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. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation 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 makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
This consideration requires the Tribunal to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[152]
[152]Para 9.1 of Direction No. 99.
The Applicant did not make any representations with respect to non-refoulement issues arising from his return to New Zealand or with respect to any other legal consequence of the Cancellation Decision.
The Respondent submitted that the legal consequences of a decision consideration weighs neutral, noting for completeness in the present context:[153]
…if the [A]pplicant were removed from Australia it is unlikely that he would be able to return in the future. It’s presently a requirement of most visas that there is a… category which requires the person not to have had their visa cancelled on the 501 and it’s also a requirement of a TY444 visa which the [A]pplicant was on that the person hasn’t been removed from Australia…
[153] Transcript, p 12 [10]-[20].
The Tribunal acknowledges the legal consequences of a decision not to revoke cancellation of the Visa. As the effect of cancellation and removal are taken into account under other considerations,[154] the Tribunal considers this consideration should be given neutral weight.
[154]Including the third and fourth primary considerations and the “extent of impediments if removed” considerations.
Extent of impediments if removed (para 9.2 of Direction No. 99)
Paragraph 9.2 of Direction No. 99 states:
(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;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
(Emphasis added.)
In relation to the extent of impediments if removed to New Zealand, the Applicant submitted he has no social or economic support in New Zealand.[155] The Applicant submitted and his friends and colleagues reside in Australia, that his mother is deceased, and he has no relationship with his father in New Zealand. The Applicant said he has nowhere to stay, live or work in New Zealand he wishes to continue his ongoing management with his mental health conditions with long term general practitioner in Australia. The Applicant gave evidence that he is still in contact with his sister who resides in New Zealand.
[155]For eg, A5.
The Respondent’s position with respect to the impediments to the Applicant if he were removed is that this consideration weighs in favour of revocation but little weight should be placed on it:[156]
(a)The Applicant will have access to inferably equivalent social, medical and economic support systems (for example, in relation to his mental health issues and previous addiction issues) in New Zealand such that there would be little impediment to him maintaining basic living standards in New Zealand.
(b)The Applicant spent the first 22 years of his life in New Zealand, including his schooling and university and has a sister who has written a letter of support for him. He has travelled back to New Zealand frequently since settling in Australia. Accordingly, it is not a place that is unfamiliar to him and he is likely to have some access to familial assistance.
[156]R3, [62]-[64].
Having considered the available evidence and the parties’ submissions in the context of this other consideration, the Tribunal accepts the factors raised by the Respondent[157] and adds that it also accepts the Applicant would likely face emotional hardship if removed. Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs slightly in favour of revocation of the Cancellation Decision.
[157]See [140] above.
Impact on victims (para 9.3 of Direction No. 99)
Paragraph 9.3 of Direction No. 99 states:
(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.
Neither party made any submission on this consideration. There is no victim impact statement in the present matter. The Tribunal is satisfied that it is not a relevant consideration in this matter and is therefore given neutral weight.
Impact on Australian business interests (para 9.4 of Direction No. 99)
Paragraph 9.4 of Direction No. 99 states:
(1)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 Tribunal is satisfied that this factor is not relevant in the present case and should be given neutral weight.
CONCLUSION - THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act. Therefore, the Tribunal has considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary considerations and relevant other considerations in Direction No. 99.
As to how to apply the primary and other considerations in Direction No. 99, the Tribunal is guided by Deputy President Boyle in Wightman at [107]-[109]:[158]
[158]Again, noting that the provisions of Direction No. 99 contain generally similar wording to the corresponding provisions in Direction No. 90. See also fn 123 above.
Direction 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 (see [31] above). It 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. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above 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. …
(Emphasis added, footnotes omitted.)
The Tribunal follows the approach directed by the above cases. The Tribunal also takes guidance from the principles set out in paragraph 5 of Direction No. 99, in particular paragraph 5.2(6) of Direction No. 99,[159] which in turn refers to paragraph 8.5(2) of Direction No. 99.
[159]See [32] above.
In relation to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 99), 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 offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [45]-[90] above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 99); and
(b)the serious nature of the harm and the moderate risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 99),
the primary consideration of the protection of the Australian community weighs very strongly against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 99), family violence weighs very strongly against revocation of the Cancellation Decision.
With respect to the third primary consideration, the strength, nature and duration of ties to Australia (para 8.3 of Direction No. 99), the Tribunal has found that this primary consideration weighs slightly in favour of revocation of the Cancellation Decision (see para [101]-[110]).
With respect to the fourth primary consideration, the best interests of minor children in Australia (para 8.4 of Direction No. 99), the Tribunal has found that for the reasons set out in para [113]-[120] above, the best interests of the Applicant’s minor daughter weigh slightly in favour of revocation of the Cancellation Decision.
The fifth primary consideration, the expectations of the Australian community (para 8.5 of Direction No. 99) weighs very strongly against revocation of the Cancellation Decision.
In relation to the “other considerations” identified in para 9 of Direction No. 99:
(a)The Applicant does not enliven Australia’s non-refoulement obligations, as part of the legal consequences of a decision under section 501CA, therefore this consideration carries neutral weight (para 9.1 of Direction No. 99).
(b)The extent of impediments if the Applicant were removed from Australia consideration weighs slightly in favour of revocation of the Cancellation Decision (see paras [138]–[140] above) (para 9.2 of Direction No. 99).
(c)The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 99).
(d)The impact on Australian business interests (para 9.4 of Direction No. 99) has no relevance to the present matter and hence is a neutral consideration.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision against each other, the Tribunal finds that:
(e)The first, second and fifth primary considerations weigh very strongly against revocation.
(f)The third and fourth primary considerations and the extent of impediments if removed consideration weigh slightly in favour of revocation.
(g)The three remaining other considerations carry neutral weight.
The Tribunal emphasises that while “primary considerations should generally be given greater weight than the other considerations”[160] the considerations are not hierarchical – one or more primary considerations may outweigh other primary considerations.[161]
[160]Para 7(2) of Direction No. 99.
[161]Para 7(3) of Direction No. 99 and see [42] and [152] above.
Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them. Particularly, the Tribunal is satisfied that the circumstances of the Applicant’s case warrant the strong weight placed on the first, second and fifth primary considerations. Those circumstances being:
(a)The very serious view taken by the Australian Government and the Australian community in relation to violent crimes, crimes of a violent nature against women and acts of family violence.[162]
(b)The serious concerns held by the Government about conferring on non-citizens who engage in family violence the privilege of remaining in Australia.[163]
(c)That the best interests of minor children consideration expressly stipulates that regard must be had to evidence that a child has been exposed to or is at risk of being exposed to family violence.
(d)That the Australian community expects the Australian government to cancel visas of those persons who raise serious character concerns through conduct expressly including acts of family violence, commission of serious crimes against women or other vulnerable members of the community.[164]
[162]See Para 8.1.1 of Direction No. 99.
[163]See Para 8.2(1) of Direction No. 99.
[164]See Para 8.5 of Direction No. 99.
Therefore, despite the considerations weighing in the Applicant’s favour (albeit slightly), the Tribunal is satisfied that the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) is a primary consideration which, in addition to the family violence consideration and the expectations of the Australian community consideration, outweighs any and all considerations weighing in the Applicant’s favour.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No. 99, the Tribunal is not satisfied there is another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 21 July 2023, not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
............... [Sgd].........................................................
Associate
Dated: 16 October 2023
Date of hearing: 13 September 2023 Applicant: In person Solicitors for the Respondent: Mr Ashley Burgess from Sparke Helmore Lawyers
See s 501CA(4)(a) of the Migration Act and [14] above.
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