Kelly and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3674
•12 October 2023
Kelly and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3674 (12 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5399
Re:Bronson Kelly
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date of Decision: 12 October 2023
Date of written reasons: 10 November 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 19 July 2023 to not revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
...........[SGD]...........
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352
FYBR v Minister for Home Affairs [2019] FCAFC 185
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1000
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taulahi v Minister for Immigration and Border Protection (2018) 357 ALR 467
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member R Maguire
10 November 2023
INTRODUCTION
By application made on 24 July 2023, the Applicant seeks the review of a decision[1] made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) dated 19 July 2023 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made on 3 March 2023 under s 501(3A) of the Act to mandatorily cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
[1] G1 p 4.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under
s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
(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;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
On 22 November 2022, the Applicant was sentenced to five years’ imprisonment.[2]
[2] G1 p 32.
On 3 March 2023, whilst the Applicant was in custody serving a term of imprisonment the Respondent, acting pursuant to s 501(3A) of the Act, mandatorily cancelled the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment.
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[3]
[3] G1 pp 55-57.
Following the decision pursuant to s 501CA(4) of the Act, the Applicant made the present application to this Tribunal for a review of that decision.[4] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[4] G1 pp 4-6.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 12 October 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which the Tribunal is required to read, identify, understand and evaluate.[5]
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [22], [24] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[6]
[6] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[7]
[7] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The parties are in agreement that the Applicant does not pass the character test by virtue of his substantial criminal record.[8]
Is There Another Reason for the Revocation of the Cancellation of the Applicant’s Visa?
[8] Transcript p 5 lines 44-45; R1 p 3, [17].
Ministerial Direction No. 99
In considering whether to exercise the power in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[9] The Direction provides guidance for decision-makers on how to exercise the power in s 501CA(4) of the Act.
[9] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
Relevantly, the Direction states that:[10]
“Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”
[10] Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance or criminal or other serious misconduct 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.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the Considerations (both Primary and Other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that Primary Considerations should generally be given greater weight than the Other Considerations. Paragraph 7(3) provides that one or more Primary considerations may outweigh other Primary Considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These Considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
The Tribunal notes the importance of these Considerations being “Other” Considerations, as opposed to “Secondary” Considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[11] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these Considerations.
Applicant’s History of Offending and Other Serious Conduct
In considering the Applicant’s offending, the Tribunal notes that his criminal offending commenced before he attained the age of 18 years. Importantly, convictions were recorded in respect of all of those offences, and the Tribunal is therefore not precluded from considering those offences by the decision of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.
The totality of the Applicant’s offending may be summarised in the following table:
Court Date Offence Sentence Queensland Magistrates Court
December 2022
Breach of community service order
Conviction recorded
Not further punished
Queensland Supreme Court
November 2022
Trafficking in dangerous drugs
Conviction recorded
Sentenced to imprisonment: 5 years
Suspended for 5 years after serving 4 months
Possess dangerous drug specified in schedule 1 or 2
Conviction recorded
Sentenced to imprisonment: 1 month
Possess dangerous drug specified in schedule 1 or 2
(3 charges)Possessing anything used in the commission of a crime defined in part 2
Receiving or possessing property obtained from trafficking or supplying
Conviction recorded
Not further punished
Possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4
Conviction recorded
Sentenced to imprisonment: 2 years
To be suspended for 5 years after serving 4 months
Attempting to pervert justice
Conviction recorded
Sentenced to imprisonment:
9 monthsTo be suspended for 5 years after serving 4 months
Contravening order about information necessary to access information stored electronically
Conviction recorded
Sentenced to imprisonment:
6 monthsTo be suspended for 5 years after serving 4 months
Possessing anything for use in the commission of crime defined in part 2
Receiving or possessing property obtained from trafficking or supplying
Conviction recorded
Not further punished
Possess utensils or pipes etc that had been used
Fail to comply with requirement to stop private vehicle
(2 charges)Possess property suspected of having been used in connection with the commission of a drug offence
Conviction recorded
Not further punished
Queensland Magistrates Court
November 2019
Supplying dangerous drugs (6 charges)
Possessing anything used in the commission of crime defined in part 2
Possessing dangerous drugs
Possess property suspected of having been used in connection with the commission of a drug offence
Conviction recorded
Community service: 100 hours
Queensland Magistrates Court
March 2018
Contravene direction or requirement
Conviction recorded
Fined: $100
February 2018
Contravene direction or requirement
No conviction recorded
Fined: $200
November 2017
Possessing dangerous drugs
Conviction recorded
Fined: $500
October 2017
Contravene direction or requirement
No conviction recorded
Fined: $100
Possess utensils or pipes etc that had been used
Possessing/acquiring restricted items
No conviction recorded
Fined: $200
Possessing dangerous drugs
Possessing utensils or popes etc that had been used
Possessing anything used in the commission of crime defined in part 2
No conviction recorded
Fined: $200
October 2016
Stealing
Conviction recorded
Fined: $150
Restitution: $53.77
September 2016
Contravene direction or requirement
No conviction recorded
Fined: $50
December 2014
Stealing (3 charges)
Burglary and commit indictable offence
Enter premises and commit indictable offence by break
Wilful damage
Fraud – dishonestly gain benefit advantage
Conviction recorded
Sentenced imprisonment:
6 monthsRestitution: $655
Restitution: $350
Stealing (5 charges)
Wilful damage
(5 charges)Enter premises and commit indictable offence by break
Conviction recorded
Sentenced imprisonment:
1 monthRestitution: $350
Restitution: $655
Restitution: $350
Restitution: $655
Restitution: $800
Restitution: $350
Restitution: $17,499
Burglary and commit indictable offence
Conviction recorded
Imprisonment: 18 months
Restitution: $26,864
EVIDENCE AT HEARING
In evidence before the Tribunal the Applicant confirmed that he did not pass the character test. He also confirmed the accuracy of his offending as set forth in the G documents and the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), and that all of his communications with the Tribunal and the Department were true. He also confirmed that he was born in May 1995 and arrived in Australia at the age of 10 years and has lived here ever since.
The Applicant confirmed that he had known cancellation of his visa was possible if he offended. He also confirmed that his visa was cancelled following his conviction for drug trafficking, attempting to pervert the course of justice and a range of drug offences all committed in 2021. He had been incarcerated or detained since 8 June 2021.
He turned 18 in May 2013, and recorded his first conviction as an adult in December 2014. The Applicant was taken through his offending history and he confirmed that he had been convicted of drug driving, and various other driving offences including disqualified driving. His early offending involved property offences and then more serious drug offences.
The Applicant admitted to using methamphetamine, but repeatedly denied having trafficked it, even though he had been convicted of numerous counts of doing so. He admitted selling marihuana, MDMA, and cocaine. He said that the outcome if someone in the community used the drugs he supplied was “not very good.”[12] He agreed that potentially people could die from the use of those drugs.
[12] Transcript Day 1 p 31 lines 3-4.
The Applicant said that he had been the subject of “four or five” domestic violence orders.[13] He was questioned regarding the first order which arose from an incident which occurred in March 2016, and involved his pushing his then partner, who shall be referred to as Ms S, into the path of a vehicle.
[13] Transcript Day 1 p 14 lines 6-7.
The Applicant expressly denied any physical violence towards Ms S.[14] He further denied pushing Ms S into the path of oncoming traffic even though her complaint was corroborated by an independent witness. He nevertheless agreed that pushing someone into the path of traffic could lead to severe injury or death. The following exchange occurred:[15]
“So you exposed her to the risk of death, didn’t you?---Well - - -
Or certainly severe injury?---I don’t know what to say to that. Yes, but that’s what it says. I’ve – like, I don’t know. I’m not going to, like – I don’t know. I don’t know what to say to all that, man. Like, it’s – yes, I don’t – if that’s what it says, then that’s her statement against me, you know. If that’s what she said that I did, then – I didn’t do that, but I’m not saying that she did put a false statement in.
But if you did do it – let’s assume for a moment you did do it?---Yes.
You were exposing her to the risk of - - -?---Yes.
- - - possibly fatal injury, weren’t you?---I suppose I did do it, yes.”
[14] Transcript Day 1 p 14 lines 31-33.
[15] Transcript Day 1 p 31 lines 26-39.
The Applicant was questioned regarding a second DVO issued on 15 June 2017. This DVO concerned his current partner who shall be referred to as Ms L. The Applicant said that the terms of the DVO had been varied to allow contact on her written invitation, and she had visited him while he had been in prison.
The Applicant was questioned regarding a third DVO issued on 21 October 2019, which concerned his mother who shall be referred to as Ms C.
The Applicant accepted that his conduct would have scared all three of the women to whom the DVOs related, but denied violence towards any of them.[16]
[16] Transcript Day 1 p 18 lines 5-20.
The Applicant said that the DVO concerning his mother had also been varied, and he later moved in with her.
The Applicant was unable to explain why none of the DVO variations were apparent in court subpoenaed documents.
The Applicant was questioned regarding further DVOs issued on 6 October 2021 and
15 October 2021, but could not remember to whom those orders related.
A summary of the allegations pertaining to the DVO in favour of Ms S was read to the Applicant, and he said that he did not remember that exact incident, saying, “I guess if I assaulted her and all this was true, I would’ve been charged for it.”[17] He maintained that they had “just argued”.
[17] Transcript Day 1 p 22 lines 19-20.
Asked by the Tribunal if he was suggesting Ms S had lied to police, the Applicant said[18]:
“-Well, I’m not – I’m not denying anything. I’m just saying that didn’t happen. Otherwise – I can’t – I can’t remember the full extent of what happened that night, but I know from hearing this that didn’t definitely happen…..I didn’t assault her. That’s it.”
[18] Transcript Day 1 p 22 line 31-p 23 line 3.
The Applicant was unable to explain why an independent witness to the episode would claim to have seen him throw Ms S into the path of oncoming traffic by her hair. Neither was he able to explain how Ms S incurred her injuries. When asked if he had used drugs that day he replied “No, just probably marihuana”.[19]
[19] Transcript Day 1 p 34 line 4.
When questioned about the DVO regarding Ms C, the Applicant said that he did not remember this episode as he had used marihuana that day, and “may have” used ice.[20]
[20] Transcript Day 1 p 25 line 12.
The Applicant agreed that Ms C would have been terrified if he had been smashing up her property, but denied that he did so, or that he raised his fist to her. He also denied that she would have made a false statement to police, and could not explain why she would.
The Applicant was questioned regarding the incident which led to the DVO concerning his partner Ms L in October 2017, but was unable to recall it, and said he was probably taking marihuana and ice that day. He denied that he was ever violent towards her, and said he had never assaulted her.
Ms Black put to the Applicant:[21]
[21] Transcript Day 1 p 28 line 11-p 29 line 33.
“So are you saying that [Ms L] made a false statement to the police on that day in 2017?---Well, I’m not saying that all. I’m just saying that I didn’t – I’m not – I didn’t assault her.
So she’s saying that it did happen and she told the police that it happened, and you’re saying that it didn’t happen and she wasn’t telling the truth when she told the police that that happened?---I wouldn’t have a clue.
You understand that both stories can’t be true? So if [Ms L] has said to the police that it did happen, and you’re saying that it didn’t happen, only one of you could possibly be telling the truth. Do you understand that, Mr Kelly?---I understand.
And you’re saying that it’s you who’s telling the truth and [Ms L] who’s not telling the truth?---Well, like, I’m – I didn’t – all – that whole thing, I didn’t – I don’t know, really, right. So to be honest, if – she’s obviously got to put a statement against me and saying I did this, right, so I don’t know what else to say. Like, I’ve never been – like, if all that was true and they – like, I should be convicted, really, but I’ve never been convicted of a – of a DVO assault ever. I’ve just had DVOs put against me because of, I guess, these reasons.
There are a number of reasons why people might not be convicted of an incident whether or not it took place?---Yes.
So whether or not you’ve been convicted of the incident is a separate question to whether or not the incident took place?---Okay.
So my question isn’t whether you’ve been convicted, but whether the incident took place as Ms L has recounted it?---Yes.
And you’re saying that it didn’t take place?---Well, not to that extent, no. From - - -
To what exten[t] did it take place?---From my, I guess – like, I – to be honest, I can’t remember. That’s 2017, I think. But I’d say that we had a fight, and that’s all I can really say, really. I can’t say what the extent of the argument or fight was, or what really happened in detail.
So if you can’t remember, how do you know that it didn’t take place as [Ms L] has recounted?---I don’t know. I can’t really – because I - - -
MEMBER: Mr Kelly, you’ve been convicted of attempting to pervert the course of justice?---Yes.
On your evidence this morning, three people have made false statements to the police, which is exactly what you were convicted for. Are you seriously suggesting that three of them have exposed themselves to charges of attempting to pervert the course of justice?---I don’t know. I’m just - - -
Well, you are or you are not?---Well - - -
Don’t evade the question. Answer it, please?---I’m just saying that that didn’t happen. That’s all. To these extents. So - - -
My question was addressed to - - -?---Yes. - - - they’re exposing themselves to a charge of attempting to pervert the course of justice?---I don’t know, your Honour. I - - -
It would be extraordinary… if there individuals … elected to expose themselves to that sort of offence?---Yes.
It’s an extraordinary coincidence. I find it hard to believe?---Yes.
What do you say to that?---I agree.”
The Applicant agreed that he and Ms L had been in an intimate relationship at the time.[22]
[22] Transcript Day 1 p 29 lines 37-38.
The Applicant said that he had been trafficking and dealing in everything except meth, and maintained that he never supplied meth, but had one count of offering it. He maintained he had been selling MDMA, Cocaine, and marihuana. He accepted that people might die from use of those drugs.
When asked to hypothetically accept the allegation that he had pushed Ms S into the path of oncoming traffic, the Applicant accepted that if he had, he had exposed her to the risk of possibly fatal injury, and that if he had kicked her while she was on the ground, the outcome for her was “not very good.”
He admitted that he was using and trafficking drugs after his daughter D was born and he had contact with her at the time. He accepted that it would have been fatal if she had consumed any of the drugs he had.
The Applicant accepted that someone could have been killed if he had crashed a car while committing any of his 19 traffic offences. He also accepted that if he continued offending, in any of the nature of the 61 offences he had been convicted of over the past 10 years, that the outcome could be loss of life for members of the Australian community.[23]
[23] Transcript Day 1 p 32 lines 28-31.
The Applicant said that when he had previously said he had made one bad mistake in his life, and was now facing deportation, he was referring to an offence which attracted a term of or over 12 months. He no longer maintained that his offending was “out of character”.
The Applicant acknowledged that he had previously failed to report as required by a community service order to which he had consented, and had performed none of the 100 hours he was ordered to perform. He had also breached the order by further offending during its currency.
The Applicant said that in his Personal Circumstances form, at the time he had told the Minister that he had completed courses, he had not. He had only been enrolled.
The Applicant said that he said had completed a couple of courses in family violence, but when it was put to him that there was no evidence in the material that he had done so, he said that he had done some courses, parts of which addressed family violence.
The Applicant admitted that he had used suboxone while in prison, and had tried what he thought was heroin once. When he said he had stayed clean in detention he was referring to immigration detention, not prison. The Applicant said that he used drugs in prison possibly more than 30 times, and at least once a week or fortnight. In Exhibit A1 when he stated he had stayed clean despite the availability of drugs, he was only referring to his time in detention, not prison.
The Applicant had participated in the Opioid Substitution Treatment Program which involves a depot injection every three weeks.
Drugs had always been a big thing for him, and he had seen a Drug and Alcohol counsellor four times, and had attended one Smart Recovery session of about an hour and a half. He had never actually completed a drug rehabilitation program, and had only had four or five hours counselling, but thought he was halfway to being fully rehabilitated. He planned to do further rehabilitation in the community, but could not do a live-in course if he was working. He was not able to provide much detail about his proposed rehabilitation courses.
The witness Mr Skillington is a contractor with ELGAS and has offered him a job. He did not know what the salary would be, but would start within a week if released into the community. Mr Skillington is aware of, but not concerned about his criminal history. He thought his work would involve refilling and distributing gas bottles.
The Applicant was questioned regarding Exhibit A 22 which contained copies of certificates for online courses he had said that he completed for free whilst in detention. It was put to him by Ms Black that the courses were not free, and he did not explain how he was able to do them for free. He was also unable to explain why the certificate for Drug and Alcohol Abuse 101 bore a date of 10 January 2023, approximately two months before he entered detention. He said that another detainee had helped him to register and enrol online, and he completed the content of each course himself and sat an exam at the end. It took a minimum of five hours for each course. He was unable to provide much detail of what he had learned in the courses.
He had not provided any expert evidence as to the risk of his reoffending.
Regarding his connections to Australia, the Applicant was questioned regarding the impact on D of his deportation. The Applicant accepted that he had offended about three weeks after D was born, and continued committing drug offences around this time, when he was living with D and Ms L. He has also committed numerous other offences in the first year of her life.
D was a little over 2 years old when he went to prison. He continued offending on his release. He has been incarcerated since she was 3 years and 1 month old, and has committed 23 criminal offences and 9 traffic offences since she was born.
The Applicant said that he and his parents were all born in New Zealand, and Miss L’s mother was too. He has a grandmother in New Zealand, but not really anyone else. He has extended family there but he does not really know them or speak to them. He only speaks to his grandmother.
He has visited New Zealand 15 times since he first came to Australia. He stayed at the Bay of Islands with family. He did not know if he was still a New Zealand citizen. He did not know if he was eligible for health care or social security or public housing. He did not know that New Zealand offers an identical OST program. He did not know of Ms L’s citizenship, but said she would not move to New Zealand, and that D had a good school to attend in Australia. He did not know if D was eligible for New Zealand citizenship.
The Applicant was advised he was welcome to clarify any answers he had given in the course of his examination if he thought it necessary.
Evidence of Mr Sam Skillington – Ex A9
Mr Skillington gave evidence via telephone and confirmed the veracity of his statement. He told Ms Black he had known the Applicant about five years. He was happy to offer the Applicant employment because he believed everybody deserved a second chance. The Applicant did not require a driver’s licence for the position. He would receive all necessary training to do the job. There was no re-examination.
Day 2
Evidence of Ms C – Applicant’s Mother Exhibit A15
Ms C appeared in person and affirmed the veracity of her statement.
Ms C said that her mother and aunts were still living in New Zealand. Her aunts were in Dunedin in the South Island. All of the times the Applicant had been back to New Zealand he had gone to the North Island. She had gone with him 14 times and stayed in Moerewa, in the far north of the North Island with his step-father, with whom she has now lost contact.
The witness was referred to what she had told Police regarding the incident which led to the DVO at SG 82 p 405 and confirmed that it was accurate, and reflected how she felt at the time. She was then asked if the Applicant had raised his fist against her in the past in a way that made her fearful for her physical safety prior to that incident, and said she was not sure. She denied that there had been similar incidents in the previous ten years.[24]
[24] Transcript Day 2 p 77 lines 36-46.
Ms C said that she thought that the Applicant had his head focused now, and had woken up.[25] She agreed that she had provided considerable support for him in the past and it had not been sufficient to prevent him from further offending. Her level of support for him would not change.
[25] Transcript Day 2 p 79 lines 6-8.
There was no re-examination.
Evidence of Mr Gregory Field Ex A10
Mr Field affirmed his statement which was Exhibit 10 before the Tribunal.
He said he had known the Applicant since 2009 through being his work supervisor at a roadworks company. Mr Field said he had no criminal history, and was a former correctional officer at Townsville. He had been shocked to see the Applicant at the prison during the past two years.
Mr Field confirmed that he considered the Applicant’s most recent offending to be out of character for him, as he was a hard worker. He was the best worker they had and he would trust him with anything. He worked properly and honestly.
Mr Field said that he thought the Applicant was rehabilitated because he has had several conversations with him in the last six months and thinks he has learned a lesson. He has a good relationship with his mother, and has responsibilities for his family, mother and his daughter.
There was no re-examination.
Evidence of Ms L Exhibits A13 and A14.
Ms L affirmed her statements, and said that she met the Applicant through social media, and had known him for seven years, and had commenced a relationship with him in 2016, soon after they met. They started living together in 2018 after she became pregnant, but were evicted after six months for non-payment of rent, and they both went back to living with their parents.
Ms L said she is an Australian citizen. Her mother is an Australian citizen. Ms L had little contact with her extended family in NZ and she was not sure where they lived.
Ms L was questioned regarding the incident on 14 May 2017 recorded at SG 82 p 400. She said she did not recall if what she told the police was true or accurate, and she did not really remember. The following exchange occurred:[26]
MEMBER: Well you didn’t tell any lies that night, did you? I mean it’s an offence to tell lies to the police?---Yes, I know.
You would have been telling the truth, wouldn’t you?---Yes, maybe a little over-exaggerating but - - -
Say again, so you exaggerated?---I’m not too sure. I just can’t remember.
Well if you’re not sure if you exaggerated, why did you say you did?---I don’t know. Yes. Probably, yes.Well you didn’t tell lies to the police, did you?---No, I wouldn’t have. No.[26] Transcript Day 2 p 87 lines 28-39.
Ms L said that the Applicant had been violent towards her two or three times in the early stages of their relationship.
The witness was questioned in regard to DVO records at SG 80 pp 212-216, and the DVO which the police had issued on 15 June 2017 and which was effective until 15 June 2022. She said she had not been given paperwork in respect of it, and was unsure of its terms. She had become aware of it when a vehicle the Applicant was driving was intercepted by police. She said she had applied to the Townsville Magistrates Court to have the order removed, when the Applicant was in prison, possibly in 2019. She had fallen pregnant to him during the currency of the DVO. She did not know of any other DVOs being issued regarding the Applicant .
Ms L did not know when the Applicant resumed his offending after D was born, and she was not aware of his drug usage at the time, and only became aware when he was being charged with offences.
The Applicant had on occasions cared for D alone overnight when she was busy. She had not been aware that he had drugs at the premises, and only found out when he was raided by police. She was a little bit concerned that he was trafficking drugs from the premises when D slept over, but he was a good father. She knew the police had found “copious amounts of different drugs” at his premises,[27] but she trusted him taking care of their daughter.
[27] Transcript Day 2 p 92 lines 19-20.
Ms L confirmed that her parents had expressed concern to police about her relationship with the Applicant, and that they remained so concerned, and that is why he has not stayed at her parents’ residence.
D was aged 2½ years old when the Applicant last went to prison. D and the Applicant have maintained a relationship through video calls since he has been in detention. Prior to his incarceration, the Applicant had driven a car when D was a passenger. She realised he was using drugs when the police started raiding in 2020. She had allowed the Applicant access to D even though she knew he was using drugs.
Ms L said that she has no criminal record. She had been present at a police raid in 2017 when the police found significant drugs on the premises, and knew he was using drugs at that time. She thought he had ceased using drugs after she became pregnant, but knew he had continued selling them. She said that he stopped using drugs for a while after she became pregnant, and she was not aware when he resumed drug usage.
Ms L had been oblivious to his drug usage for a period of years as he hid it from her “very well”.[28] She just thought he was selling them, and she had known from quite early in their relationship that he was selling drugs. The Applicant had lied to her about his drug use and selling and she believed him. She had chosen to turn a blind eye to his other offending.[29]
[28] Transcript Day 2 p 95 line 7.
[29] Transcript Day 2 p 97 lines 4-8.
There was no re-examination.
Respondent’s Closing Submission
Ms Black submitted that the Applicant had been convicted of 61 criminal offences in the
10 years since he turned 18 years of age and the Applicant has agreed that his offending has escalated in its seriousness over time with his early convictions being for property crimes, such as burglary, forced entry, wilful damage and his later convictions being for such serious offences as trafficking dangerous drugs, dealing dangerous drugs and attempting to pervert the course of justice.
There was no expert evidence to support the Applicant’s contention of rehabilitation, and he had continued to reoffend after prior terms of imprisonment. He had taken suboxone and what he believed to be heroin whilst recently in prison.
His participation in the opioid substitution program gave limited protection as his criminal record extended over ten years, and his opioid usage only commenced comparatively recently, and opioids were not to be seen as a causative factor in is prior offending.
The courses the Applicant had undertaken and the one SMART recovery session and four drug and alcohol counselling sessions were insufficient to significantly reduce his risk of reoffending, and his claim that he was halfway there in terms of rehabilitation meant that he showed little insight into his future rehabilitation needs. He had no concrete plans for rehabilitation in the community.
The Applicant’s job plans were vague and he had no realistic plans to re-enter the community.
The Applicant could not explain how he accessed paid courses for free, and he had been unable to recount any substantive content from any of the courses he said he had undertaken. He claimed to have undertaken the courses whilst in detention, but had failed to explain why one of the certificates pre-dated his detention. Based on the Applicant’s very vague and inconsistent evidence in relation to those certificates, and their quite strange appearance, they ought to be afforded little or no weight by the Tribunal and were, in no way, demonstrative of a reduced risk of the Applicant’s future reoffending.
Regarding D being a protective factor, Ms Black submitted that the Applicant only had contact with his daughter for 37 months before he was incarcerated in June 2021 and he never lived with her full-time after she was three months of age, and had committed a further 23 criminal offences in the 37 months after his daughter was born. D had slept over at his place while he was possessing and trafficking dangerous drugs and in possession of drug paraphernalia.
In June 2021, Police had found methamphetamine, cannabis, testosterone, nandrolone and a range of drug paraphernalia within the premises where D was occasionally sleeping. The Applicant had agreed that had his daughter consumed any of the dangerous drugs that were within those premises when she was sleeping over, she could have died. It was contended that the birth of the Applicant’s daughter has clearly not acted as a protective factor against the Applicant’s reoffending.
Ms Black said that the Minister accepted that generally it is in the best interests of minor children that a family be kept together, however this Applicant had exposed D to the risk of dangerous drugs in his residence. He had also committed family violence towards D’s mother, and at least one DVO had been issued. There was evidence that the Applicant had driven a car with D as a passenger during a period when he was regularly using meth. There was a risk that he might have D as a passenger when under the influence of meth. The Applicant had in the past exposed D to danger and there was a significant risk he might do so in the future.
The Applicant had maintained a close relationship with D via video link and he could continue that from New Zealand.
The Applicant had shown absolutely no remorse or insight into his acts of family violence. All three complaints met the definition contained in the Direction. The Applicant maintained that in each instance the complainant had essentially made false statements to police. It was submitted that the Applicant’s evidence in this regard was unreliable and clearly untruthful. Both Ms L and Ms C had confirmed the veracity of their statements to police.
It was also submitted that the Applicant’s character witness’s evidence that the Applicant’s most recent offending was out of character was unconvincing given that the Applicant had been convicted of 61 offences over the past 10 years.
It was submitted that little weight should be given to the evidence of Ms C that the Applicant’s deportation would adversely impact on her as she was a New Zealand citizen who had visited there many times since moving to Australia, and had her mother and extended family there, and the Applicant had subjected her to family violence.
Ms L’s evidence was that the Applicant had been untruthful to her about his drug use and drug offending, had exposed their daughter to a risk of harm, had been violent towards
Ms L in the course of their relationship and the police statements show that Ms L has stated to the police that the Applicant had expressed coercive and controlling behaviour in the course of their relationship. Ms L and the Applicant had not lived together since early 2018
It was submitted that little weight ought to be afforded to the assertion that a non-revocation decision would have a significantly adverse impact on Ms L as it would maintain what had been the status quo for several years. Video link had enabled the maintenance of a relationship, and Ms L would not be subjected to any further violence or coercive and controlling behaviour by the Applicant.
Regarding impediments to the Applicant’s return to New Zealand, it was submitted that he had an extensive support network there including his grandmother, stepfather and extended family. As a New Zealand citizen, he was eligible for New Zealand health care, including the opioid substitution depot, which was available in an identical fashion in New Zealand as in Australia, and for all other social services available to New Zealand citizens. The Applicant was familiar with the language, and the culture, and had visited 15 times and stayed with family on a number of those occasions.
The Applicant had maintained contacts in New Zealand and visited there regularly and had not provided any evidence that he would face any impediment not faced by other citizens.
It was submitted that the Minister contended that the Considerations of the seriousness of the Applicant’s prior offending, the likelihood of the Applicant reoffending, and the risk this would pose to the Australian community, and the expectations of the Australian community far outweighed any other Considerations that may arise in favour of revocation such that a non-revocation decision would be the correct and preferable decision in this matter.
The Applicant agreed that the evidence had been fairly accurately summarised. By way of closing submissions, the Applicant relied upon the statement he had provided to the Tribunal.
Credibility
Before turning to the specifics of Direction 99, the Tribunal first turns to the credibility of the Applicant.
The Applicant’s evidence in relation to the alleged instances of family violence was a model of lies, inconsistency and evasion, and was irreconcilable within itself. He expressly denied violence towards all three of the ladies concerned, in the face of clear evidence that he committed serious assaults on both Ms S and Ms L, and gestured in a violent and threatening manner towards Ms C and damaged her property.
His pièce de résistance and blueprint for his evasions in the other two episodes may perhaps be found in a passage pertaining to his conduct towards Ms S.
He had smoked marihuana that day, and initially said he did not recall the exact incident, he said if the allegations were true he would have been charged. The reality is that, as detailed below, he was in fact charged – a fact he would have well known – but that Ms S withdrew the charges in consequence of the stress it was causing her. When it was put to him that he was saying Ms S had lied to police he said:[30]
“I’m not denying anything. I'm just saying that didn’t happen .... I can’t remember the full extent of what happened that night, but I know from hearing this that didn’t definitely happen.”
[30] Transcript day 1 p 22 lines 32-34.
He could offer no explanation of how Ms S sustained her injuries, or why an independent witness would have said what was said to police.
In a similar fashion, the day of the incident involving his mother, he had smoked marihuana again, and could not recall if he had used ice, but said he may have. Once again he denied allegations of smashing his mother’s property and raising his fist to her. He did not think his mother would make a false statement to police and could offer no reason why she would do so.
In a similar vein, the Applicant said that he could not recall the events on the day of the incident involving Ms L, and said that he had used marihuana and ice that day. Once again he denied ever being physically violent towards her, and maintained that if all she said was true he should have been convicted, and he had not been. He could offer no reason why Ms L would make a false statement to police.
The Tribunal put to the Applicant that it would be an extraordinary coincidence for Ms S,
Ms C, and Ms L to all make false complaints to police and expose themselves to charges of attempting to pervert the course of justice, and he agreed. The Applicant’s evidence in relation to the three episodes is inconsistent, contradictory, implausible, improbable and totally against the weight of the contemporaneous evidence compiled by the Queensland Police Service, which the Tribunal regards as an independent, authoritative and credible source. The Applicant’s evidence in relation to each of these episodes is rejected as untruthful. The Tribunal finds that the alleged episodes occurred as recorded in the documents compiled by the Queensland Police Service.
Moreover, the Applicant made an untrue statement at G12 p 68 when he claimed to have completed courses in jail when he had not.
The Applicant also made a false statement to the Department on his incoming passenger card on 6 December 2016 when he failed to disclose convictions.
The Applicant has previously attempted to pervert the course of justice by lying to police.
In his evidence before the Tribunal, the Applicant repeatedly denied having trafficked in methamphetamine even though he had convictions for doing so. Indeed, her Honour Bowskill CJ remarked when sentencing the Applicant in the Supreme Court on
22 November 2022:[31]
“You are being sentenced for the possession of the methylamphetamine on the basis that you possessed it for a commercial purpose and that is not contested by you, appropriately.”
[31] Exhibit G 7 p 39 lines 20-22.
Having regard to all of the foregoing, the Tribunal finds that the Applicant is not a reliable witness, and his evidence is rejected, save to the extent it is expressly or implicitly accepted in these reasons.
Has the Applicant Committed Acts of Family Violence?
In considering issues of family violence, regard must be had to both s 5G of the Act which broadly defines “relationships and family members”, as well as para. 4(1) of the Direction which defines “member of the person’s family”, noting that both definitions are inclusive.
Section 5G of the Act is as follows:
5G Relationships and family members
1For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
2For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a)a de facto partner of the person;
(b)someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c)anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
Para. 4(1) of the Direction which defines “member of the person’s family” includes present and former intimate partners:
“member of the person’s family, for the purposes of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.”
The Applicant’s mother is plainly a member of his family, and the Tribunal so finds.
The Applicant conceded in his evidence[32] that Ms S had been his partner, and that they were in fact living together at the time of the episode in March 2016. Based on this evidence, the Tribunal finds that Ms S was at the relevant time, a member of the Applicant’s family for the purposes of the definition.
[32] Transcript Day 1 p 14 lines 24-29.
As noted earlier, the Applicant agreed that he and Ms L had been in an intimate relationship at the time of the alleged violence in June 2017.[33]
[33] Transcript Day 1 p 29 lines 37-38.
Likewise, the Tribunal has already found that that the alleged episodes occurred as recorded in the documents compiled by the Queensland Police Service.
Whilst the Applicant denied engaging in physical violence in each of the episodes, the Tribunal has rejected that evidence. He has however conceded[34] that on each of the occasions in question, his conduct would have scared each of Ms S, Ms C, and Ms L, and his evidence in this regard is accepted.
[34] Transcript Day 1 p 18 lines 8-20.
Based on this evidence, the Tribunal finds that the Applicant has committed acts of family violence against each of Ms S, Ms C, and Ms L in the manner described in the documents compiled by the Queensland Police Service. The Applicant has been afforded procedural fairness in respect of these allegations, and the Tribunal therefore finds that consideration of paragraph 8.2 of the Direction is enlivened in consequence of paragraph 8.2(2)(b) of the Direction.
The Tribunal now turns to the specific Considerations of Direction 99. In doing so, the Tribunal does not propose to restate the extensive evidence set out above, and which forms the basis for its reasons.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction compels decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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 possession they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of crimes or conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has a very serious history of offending spanning a period of some ten years. He has committed property and dishonesty offences which have resulted in the loss of tens of thousands of dollars’ worth of property. He has multiple counts of disqualified driving. He has committed the very serious offence of drug driving, and the even more serious offence of attempting to pervert the course of justice. Moreover, he has a very serious history of possessing and trafficking dangerous drugs, (with a clientele of some 49 individuals) and some such offences were committed on conditional liberty, and in the face of a community service order. Added to that, he has a very serious history of multiple instances of violent conduct towards women, including pushing his then partner in the path of a vehicle which had to take evasive action to avoid hitting her. As her honour Bowskill CJ observed, the Applicant has a history of “causing harm to many, many people.”[35]
[35] Exhibit G22 p 112 line 24.
The potential of that harm is borne out by the Applicant’s admission before the Tribunal that his conduct could have resulted in fatalities, including that of his own child D, whom he exposed to his usage of drugs.
Conclusion Sub-paragraph (a)
Sub-paragraph (a) weighs very heavily against revocation.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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 possession they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The evidence in this case does not enliven consideration of this sub-paragraph.
Conclusion Sub-paragraph (b)
Sub-paragraph (b) is given neutral weight.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to subparagraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
The Applicant received a series of custodial sentences on the very first occasion he was sentenced as an adult on 2 December 2014. On that occasion he was convicted of 19 offences, some of which were committed when he was under 18, and some whilst on bail. The seriousness with which the court viewed his offending – even as a child – can be gleaned from the fact that he received sentences of imprisonment on every one of the 19 charges, the longest sentence being 18 months imprisonment. Even though, the court ordered immediate parole, 18 months is a very long period of imprisonment to be imposed on a person at such an early age, particularly with no previous convictions. It is worth noting that the Applicant was employed at the time of his offending, and he was ordered to pay restitution totalling $48,528.28.
On the occasion of the Applicant’s most recent episode of sentencing on
22 November 2022, he received terms of imprisonment suspended after four months as follows:
5 years;
1 month;
9 months;
2 years; and
6 months.
In sentencing the Applicant, Bowskill CJ remarked:[36]
“So, it is a serious example of trafficking because it went for 17 months and involved multiple drugs, including three in Schedule 1, but also cannabis. It might be balanced against the fact that mostly it was supplying cannabis. I pause to note that the maximum penalty for that offence is 25 years’ imprisonment. It reflects how seriously our community regards drug offending. When you enable the supply of drugs like MDMA, cocaine, methylamphetamine, and cannabis for that matter, to other people you are causing harm to many, many other people, not only to those people who are then using the drugs, but you cause harm indirectly to their family members and to other people in the community, and that is why harsh penalties are called for to try to deter this….
I am told that you worked in the construction industry until about 2020 so you have, in the past, demonstrated a good work history…”
[Emphasis added]
[36] Exhibit G 7 p 38 lines 17-27; p 39 lines 34-36.
Having regard for her honour’s employment of the word “harsh” to describe the penalties imposed, very heavy weight is warranted in respect of this Consideration.
Conclusion Sub-paragraph (c)
Sub-paragraph (c) weighs very heavily against revocation.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
This Applicant has committed 61 offences over a period of some ten years. His early offending consisted of a broad range of property and dishonesty offences including burglary, and drug offences much less serious than those dealt with by Bowskill CJ. His most recent offending was described by Bowskill CJ as a “serious example of [drug] trafficking.”
Conclusion Sub-paragraph (d)
Sub-paragraph (d) weighs very heavily against revocation.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
This Applicant has caused harm to an unknown number of people over a period of some ten years. He has caused many thousands of dollars’ financial loss to many people. He has caused harm to those to whom he has supplied dangerous drugs, and indirectly to their families and the wider community as was observed by Bowskill CJ. He has a very poor traffic history, including exposing any passengers he may have had, other road users and pedestrians to great danger when driving whilst drug affected. He has lied to the police, and attempted to pervert the course of justice, demonstrating disrespect for the Australian legal system.
Conclusion Sub-paragraph (e)
Sub-paragraph (e) weighs very heavily against revocation.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant failed to disclose criminal offending to the Department in his incoming passenger card in December 2016.
Conclusion Sub-paragraph (f)
Sub-paragraph (f) weighs very heavily against revocation.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned or otherwise informed about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence before the Tribunal so as to enliven consideration of this
sub-paragraph.
Conclusion Sub-paragraph (g)
Sub-paragraph (g) weighs neutrally.
Sub-paragraph (h) arises for consideration where an offence or conduct was committed in another country.
There is no evidence before the Tribunal so as to enliven consideration of this
sub-paragraph.
Conclusion Sub-paragraph (h)
Sub-paragraph (h) weighs neutrally.
8.1.2 The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)
the nature of the harm to individuals or the Australian community should the
non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)
where consideration is being given to whether to refuse to grant a visa to the
non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The assessment of the risk to the Australian community were the Applicant to engage in further offending or other serious conduct, is properly informed by the nature of his offending and other serious conduct to date. This assessment is also informed by the provision in paragraph 8.1.2(1) of the Direction which stipulates that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that 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 is unacceptable.
8.1.2(2)(a) – The Nature of the Harm
As can be seen from the foregoing, the nature of the harm which might be suffered by individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is very serious.
The Applicant accepted a suggestion by Ms Black that if he continued offending, in any of the nature of the 61 offences he had been convicted of over the past 10 years, that the outcome could be a loss of life for members of the Australian community.[37]
[37] Transcript Day 1 p 32 lines 28-31.
Such harm is clearly so serious that any risk that it may be repeated is unacceptable.
8.1.2(2)(b) - The likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
The Tribunal does not have the benefit of any expert evidence as to the Applicant’s risk of reoffending.
It does however have before it a Queensland Corrective Services Commission report[38] created on 25 August 2023 which recorded that the Applicant was a HIGH security classification, with a moderate risk of further general offending. It also noted that “any future offending will cause considerable harm to the community.”
[38] Exhibit SG 89 p 546.
It also recorded that he had not completed any programs, but had self-referred for participation in the Short Substance Intervention, Low Intensity Substance Intervention and Build Don’t Break- Resilience Program.
Although he was not breached in custody, there is evidence that his conduct there was far from exemplary. He admitted to the Tribunal that he had used drugs not less than 30 times whilst in prison.[39] This is neither evidence of rehabilitation nor a preparedness to comply with the law.
[39] Transcript Day one p 40 lines 25-26.
The Applicant has provided certificates of paid courses he claims to have undertaken free of charge whilst in detention. The Tribunal notes its earlier findings as to his credibility, and that the Applicant made a false statement to the Department that he had completed courses at a time when he had not. The Applicant was not able to satisfactorily explain how it was that one of his certificates provided in Exhibit A22 for “Drug and Alcohol Abuse 101” was dated 10 January 2023, some two months prior to his entering detention. In these circumstances, the Tribunal has some doubts as to the authenticity of the certificates he provided. However, assuming they are all genuine, the Applicant was unable to say in any other than broad and vague terms what he had gained from the courses evidenced by the certificates, and he did not appear to have learned much.
The Applicant conceded that he had not completed any specific rehabilitation course. He attended one SMART Recovery session a few weeks before the current hearing. He also attended four drug and alcohol counselling sessions.
The Applicant claims that he is halfway to recovery, however, having regard for the very limited amount of rehabilitation he has undertaken as well as the Tribunal’s earlier findings as to his credibility, the Tribunal rejects this evidence.
Not only does the Applicant continue to live in denial regarding his family violence conduct, he seems to be completely remorseless about it, and does not appear to have taken any meaningful steps towards rehabilitation.
If released into the community, the Applicant plans to live with his partner Ms L. However, the last time they shared a residence they were evicted for non-payment of rent, and he says that they have been “blacklisted” for renting premises, however the basis for this assertion is not clear to the Tribunal. It may be that they struggle to secure accommodation.
In any event, the Tribunal does not view residing with Ms L as a protective factor in terms of future rehabilitation and risk of further offending. She and her parents have in the past complained that he has subjected her to coercive and controlling behaviour, and there is accepted evidence that she has been the victim of significant family violence. This may offer some insight into why she has in the past either failed to notice his drug use, and turned a blind eye to it, and his other offending when she should have reported him to police. She has failed to realise that he was lying to her when he said he had ceased drug use. At no time does she appear to have taken active steps to steer him in the path of rehabilitation. They have been together for 7 years, and during that period his offending has escalated very significantly.
If the Applicant resides with Ms L, it is assumed that D will reside with them, and the Tribunal is concerned that this may expose D to possible harm particularly if the Applicant continues to use and or traffic in drugs, or drive a vehicle whilst affected by drugs. Added to this, the Applicant accepted that if she were to consume any of his drugs it might be fatal for her. A risk of this nature is unacceptable. The Tribunal is not satisfied that the Applicant’s residing with Ms L will provide any protection against his future offending at all.
The assertion by the witness Mr Field that the Applicant’s offending is “out of character” is not accepted. The Tribunal sees that assertion as very much contrary to the weight of the evidence, including the concession made by the Applicant himself at the hearing.[40]
[40] Transcript Day 1 p 34 lines 18-20.
The Tribunal accepts that Mr Skillington has made an offer of employment to the Applicant in good faith, and genuinely wishes to help the Applicant re-enter the community. The Tribunal very much doubts that secure employment will afford any protection against further offending by this Applicant, as it is clear from both sets of sentencing remarks referred to above that current employment and a good work history has provided no impediment whatsoever to the Applicant’s offending in the past.
The Applicant has not demonstrated to the Tribunal’s satisfaction that he has achieved any significant rehabilitation since his last offending, and has not laid out any clear and satisfactory pathway for future intended rehabilitation in the community.
Given the duration of the Applicant’s drug usage and offending, the Tribunal considers that he is at least a moderate risk of reoffending.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
The Tribunal is satisfied that this Applicant has committed significant acts of family violence on not less than three occasions. The Tribunal notes that the Applicant conceded that his conduct in each instance caused fear to each of the ladies involved.
Details of the Applicant’s family violence against Ms S, on 6 March 2016, drawn from paragraph 49 of the Respondent’s SFIC are as follows:
(a)on the street outside the victim's home, the Applicant ripped the victim's shirt, exposing her breasts;
(b)the Applicant spat in the victim's face;
(c)the Applicant threatened future violence on the victim, saying words to the effect of “You and your family better watch yourselves as I know your family's routine and I'll roll youse”.
(d)when the victim took out her mobile phone to call the police, the Applicant grabbed the mobile phone from the victim, threw it onto the road, and stomped on it with his foot until it broke;
(e)the Applicant grabbed the victim by her hair and dragged her by her hair onto the bitumen road, causing scratches to the Applicant's legs and a cut to her foot;
(f)the Applicant kicked the victim in the back;
(g)the Applicant pushed/dragged the victim into the path of oncoming traffic; and
(h)a child witnessed the assault.
The Tribunal notes that at SG 82 p 398, the following appears in relation to this episode:
“The aggrieved expressed a high level of fear after the assault and took shelter in the residence of the witnesses who are unknown to both the aggrieved and respondent. The respondent has made threats to the aggrieved to return to her house and bash her and roll the house if the aggrieved went to Police.”
[Emphasis added]
The Applicant was charged with one count each of Assault Occasioning Bodily Harm and Wilful Damage as a result of this episode. It is clear from SG 82 p 438, that the Ms S withdrew the complaints as she told police “she wished to withdraw these matters as it was placing too much stress on her in her personal life and was making her sick.”
The Tribunal is nevertheless satisfied that notwithstanding the absence of conviction, the assault as described was committed: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, [33] per French CJ, Hayne, Kiefel, Bell and Keane JJ; Taulahi v Minister for Immigration and Border Protection (2018) 357 ALR 467; [2018] FCAFC 22, [31] per Robertson J (North J and Besanko J agreeing);
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2021] FCA 1000, [30] per Nicholas J;
Material may tend to show that a non-citizen may have engaged in criminal, inappropriate or otherwise harmful conduct if it indicates that he or she has been charged with an offence. The non-citizen need not be convicted of or charged with an offence before the Minister may lawfully have regard to the alleged conduct. Section 501 “is not confined to prohibiting the entry or presence in Australia of persons who have been convicted of criminal conduct”: Ngaronoa v Minister for Immigration and Citizenship [2007] FCA 1565 at [51]- [53], [56], [58] per Jacobson J, affirmed on appeal: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 244 ALR 119 at [11] per Bennett and Buchanan JJ (with whom Moore J agreed); see also SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [92] per Katzmann J and Parker v Minister for Immigration and Border Protection [2016] FCA 938 at [29]- [31] per Katzmann J.
The Tribunal is satisfied that this episode constitutes family violence in terms of the definition contained in the Direction.
Details of the Applicant’s family violence against Ms C, on 15 October 2019, drawn from paragraph 50 of the Respondent’s SFIC are as follows:
(a)the Applicant attended his mother's home and asked to use her phone;
(b)the Applicant's mother refused because she did not have sufficient credit;
(c)the Applicant became aggressive and verbally abused his mother to the extent that she became fearful for her safety and hid from the Applicant around the corner of her house; and
(d)the Applicant then inflicted significant property damage to his mother's house.
The Tribunal notes that at SG 82 p 405, Ms C:
“told police she was scared he was going to hit her… She was refusing to return to her house as she was scared the situation would escalate again.”
[Emphasis added]
The Tribunal is satisfied that this episode constitutes family violence in terms of the definition contained in the Direction.
A summary of the Applicant’s family violence against Ms L, on 14 May 2017, drawn from paragraphs 51-53 of the Respondent’s SFIC are as follows:
51On 14 May 2017 the Applicant committed domestic violence on his current partner, Ms L. The incident took place at Ms L's residence which, is also the residence of the Applicant's minor child. The details of the incident are recorded at (SG82, 400) as follows:
(a)the Applicant slapped Ms L in the face with an open hand;
(b)when Ms L attempted to flee from the Applicant, the Applicant followed her outside and tackled her to the ground;
(c)the Applicant kicked Ms L three times in her left leg whilst she was on the ground;
(d)the Applicant ripped Ms L's shirt; and
(e)Ms L fled from the Applicant on foot down a rural road.
52Following this incident, Ms L advised police that:
(a)the Applicant had isolated Ms L from her family, friends, and support networks
(b)the Applicant was exhibiting coercive and controlling behaviours towards Ms L;
(c)the Applicant had been violent towards Ms L in the past; and
(d)the Applicant's violence towards Ms L was escalating.
53Ms L's parents also advised the police that, in their view, the Applicant had exhibited coercive and controlling behaviours towards Ms L (SG82, 401).
Greater detail is found at SG 82 p 400:
THE AGGRIEVED AND RESPONDENT HAVE BEEN IN AN INTIMATE PERSONAL RELATIONSHIP FOR APPROXIMATELY ONE YEAR, THEY CURRENTLY LIVE TOGETHER AT THE OCCURRENCE ADDRESS, THEY HAVE NO CHILDREN. AT APPROXIMATELY 1PM ON SUNDAY THE 14TH DAY OF MAY 2017, THE AGGRIEVED AND RESPONDENT HAVE WOKEN UP AFTER SLEEPING INSIDE THEIR BEDROOM AT THE OCCURRENCE ADDRESS. THE RESPONDENT HAS THEN STARTED A VERBAL ARGUMENT WITH THE AGGRIEVED. THE RESPONDENT ACCUSED THE AGGRIEVED OF BEEN [sic] UNFAITHFUL IN THE RELATIONSHIP. THE VERBAL ARGUMENT HAS THEN ESCALATED AND BECOME PHYSICAL. THE RESPONDENT HAS STRUCK THE AGGRIEVED WITH AN OPEN HAND TO THE RIGHT SIDE OF HER FACE IN A SLAPPING MOTION. AFTER THIS THE AGGRIEVED HAS ATTEMPTED TO LEAVE THE OCCURRENCE ADDRESS ON FOOT. WHEN THE AGGRIEVED HAS WALKED OUTSIDE THE RESPONDENT HAS TACKLED THE AGGRIEVED TO THE GROUND. THE AGGRIEVED HAS GOTTEN UP FROM THE GROUND AND WHILST DOING SO THE RESPONDENT HAS KICKED HER THREE TIMES TO HER UPPER LEFT LEG. THE SHIRT OF THE AGGRIEVED HAS RIPPED AS A RESULT OF THIS ALTERCATION. THE AGGRIEVED HAS THEN RUN AWAY FROM THE OCCURRENCE ADDRESS. THE AGGRIEVED HAS CONTINUED TO WALK FOR A NUMBER OF KILOMETRES DOWN CHISHOLM TRAIL. WHILST WALKING THE WITNESS HAS NOTICED THE AGGRIEVED WALKING TO THE SIDE OF THE ROADWAY. AT THIS TIME THE AGGRIEVED WAS LOOKING DISTRESSED AND UPSET. THE WITNESS HAS ASKED THE AGGRIEVED IF SHE COULD ASSIST AND OFFERED TO TAKE THE AGGRIEVED TO THE NEAREST POLICE STATION. THE AGGRIEVED HAS DECLINED THIS OFFER, HOWEVER SHE ACCEPTED THE OFFER OF TRANSPORT. THE WITNESS HAS THEN TRANSPORTED THE AGGRIEVED TO HER PARENT’S RESIDENCE OF . [sic) THE WITNESS HAS BEEN CONCERNED FOR THE SAFETY OF THE AGGRIEVED AND HAS CONTACTED POLICE TO PERFORM A WELFARE CHECK ON THE AGGRIEVED AT THAT ADDRESS. AT 3:31PM, POLICE ATTENDED [address redacted] AND SPOKE TO THE AGGRIEVED. SHE PROVIDED THE VERSION AS PREVIOUSLY STATED. SHE FURTHER STATED SHE IS FEARFUL OF THE AGGRIEVED AND WAS IN LOTS OF FEAR WHEN THE INCIDENT OCCURRED. THE AGGRIEVED STATED THAT IN THE PAST THEY BOTH HAD VERBAL ARGUMENTS AND THERE WAS OFTEN PUSHING AND SHOVING. SHE FURTHER STATED THAT THE LEVEL OF VIOLENCE HAS BEEN ESCALATING AND COLLIMATED [sic] INTO THE INCIDENT EARLIER IN THE DAY. THE AGGRIEVED STATED TO POLICE THAT THE RESPONDENT IS EXTREMELY CONTROLLING OF HER. SHE STATED SHE IS NOT ALLOWED TO GO OUT WITH ANY OF HER FRIENDS AND THAT SHE MUST ALWAYS REMAIN WITH THE RESPONDENT EVERYWHERE HE GOES. THE AGGRIEVED STATED TO POLICE THAT THE RESPONDENT IS CONSTANTLY CHECKING HER FACEBOOK ACCOUNT AND THEN ACCUSING HER OF BEEN UNFAITHFUL ON MANY OCCASIONS. SHE STATED THAT SHE WANTS OUT OF THE RELATIONSHIP. DURING THE CONVERSATIONS WITH THE AGGRIEVED POLICE OBSERVED HER TO BE UPSET AND CRYING WHEN PROVIDING HER VERSION TO POLICE. POLICE OBSERVED THE AGGRIEVED TO HAVE FRESH GRAZE MARKS ON HER RIGHT FOREARM AND RIGHT KNEE. WHEN QUESTIONED BY POLICE THE AGGRIEVED STATED THOSE INJURIES WERE AS A RESULT OF THE RESPONDENT TACKLING HER TO THE GROUND. POLICE ALSO OBSERVED A BLACK T SHIRT THAT WAS RIPPED DOWN THE FRONT. THE AGGRIEVED STATED TO POLICE SHE WAS WEARING THAT ITEM OF CLOTHING DURING THE INCIDENT AND IT HAD BEEN RIPPED AS A RESULT OF THE RESPONDENTS ACTIONS. POLICE ALSO SPOKE TO THE AGGRIEVED PARENTS WHO STATED THEY ARE WORRIED FOR THE SAFETY OF THEIR DAUGHTER AS THE RESPONDENT EXHIBITS EXTREMELY CONTROLLING BEHAVIOUR TOWARDS THE AGGRIEVED AND HAS NOW USED PHYSICAL VIOLENCE TOWARDS HER. POLICE ATTENDED THE OCCURRENCE ADDRESS IN AN ATTEMPT TO LOCATE THE RESPONDENT, HOWEVER THERE WAS NOT PRESENT UPON POLICE ARRIVAL. POLICE BELIEVE IT IS NECESSARY TO PROTECT THE AGGRIEVED DUE TO THE EXTREMELY CONTROLLING BEHAVIOUR THE RESPONDENT EXHIBITS TOWARDS THE AGGRIEVED, THE PAST INSTANCES WHERE THE AGGRIEVED HAS BEEN ASSAULTED BY THE RESPONDENT AND THE ESCALATING VIOLENT NATURE OF THE ATTACKS TOWARDS THE AGGRIEVED. THE RESPONDENT IS ESCALATING THE LEVEL OF VIOLENCE TOWARDS THE AGGRIEVED AND THE VIOLENCE IS BECOMING MORE FREQUENT IN THE RELATIONSHIP.
[Emphasis added]
The Tribunal is satisfied that this episode also constituted a serious assault on Ms L as well as family violence as contemplated by the Direction.
Having regard to paragraph 8.2(3)(a) of the Direction, the Tribunal considers that the Applicant’s family violence conduct has been frequent, although confined to a three year period. It was nevertheless, consistently serious, but there is no trend of increasing seriousness.
Having regard to paragraph 8.2(3)(b) of the Direction, evaluating the cumulative impact of the Applicant’s repeated acts of family violence is complicated by the fact that two of his victims gave sympathetic evidence in support of his application. What is clear, is that episodes of family violence by this Applicant are particularly violent and destructive.
Having regard to paragraph 8.2(3)(c)(i) of the Direction, the Applicant appears to continue to be in total denial regarding his family violence conduct, and does not appear to accept any responsibility for it at all. Moreover, having regard to paragraph 8.2(3)(c)(ii) of the Direction, the Applicant has not convincingly manifested any understanding at all of the impact of his behaviour on his various family violence victims. Further, and having regard to paragraph 8.2(3)(c)(iii) of the Direction in the absence of any acceptance of responsibility or understanding of the impact of his behaviour, the Tribunal is not satisfied that the Applicant has made any credible effort or progress to address factors which contributed to his conduct.
Conclusion Primary Consideration 2
Primary Consideration 2 weighs very heavily against revocation.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction requires consideration of 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.
Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia. More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(3) requires consideration of the non-citizen’s 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.
Paragraph 8.3(4) requires consideration of 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 then 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-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant arrived in Australia at the age of 10 in November 2005. A perusal of his movement records[41] reveals that in the 18 years since, he has returned to New Zealand on 15 occasions, for periods totalling about 7 and a half years. He completed his primary schooling and secondary schooling here. Notwithstanding his offending, he appears to have a good work history.
[41] SG 107 pp 610-611.
Paragraph 8.3(1): Impact on Relevant Family Members
For the purposes of the Direction, the relevant family members are the Applicant’s daughter D, his partner Ms L, and his mother Ms C. All three of them will no doubt suffer a significant emotional burden in the event that the Applicant is deported. There is no clear evidence of any impact arising from this decision on the Applicant’s wider family.
A decision adverse to the Applicant will put great strain on his relationship with Ms L, the mother of D. They have been together for a period of seven years, and Ms L has evinced no intention of joining the Applicant in New Zealand. Ms L will be deprived of whatever familial support she has received from the Applicant, and will bear the burden of raising D as a sole parent. Evidence of Ms L concerning the impact on herself of the Applicant’s deportation is fairly sparse, although she did say it would have a “massive” impact on herself, her daughter, and the Applicant’s mother. Beyond this, her evidence focussed on the Applicant’s nature and character, and expressed strong concern for the impact his deportation would have on their daughter rather than herself.
The Applicant is the only child of Ms C, and whilst she has other family in Australia, she has none who live near where she lives. He has lived with her most of his life, his removal will mean the removal of a permanent fixture in her life.
The Tribunal nevertheless accepts that the Applicant’s deportation will have a massive impact on Ms L, D, and Ms C. All three are likely to suffer emotionally, particularly D, who – experience tells – may well develop issues as she matures. All three are likely to be limited to video link or telephonic communication, which is accepted as being a poor substitute for physical presence and contact.
Paragraph 8.3(2) Ties to Child D
The Tribunal accepts that the Applicant would like to play a positive role in D’s future, and has strong emotional ties to her, notwithstanding his absences from her life. In determining the weight to be given to paragraph 8.3(1) of the Direction, in accordance with the paragraph 8.3(2) of the Direction, the Tribunal gives more weight to the ties that the Applicant has to D.
Conclusion Paragraph 8.3
The weight to be attributed to this Consideration is tempered to some degree in that in the past, the Applicant has committed documented acts of family violence against both Ms L and Ms C, and has, on his own evidence, possessed, used, and trafficked in dangerous drugs during times when he has had contact with D, and this particularly, is a major concern for the Tribunal. The Applicant’s removal will have a positive impact in that the risk of repetition of this past conduct will also be removed.
Paragraph 8.3(1) of the Direction weighs moderately in favour of revocation.
Paragraph 8.3(3) Strength, Nature, and Duration of Ties With Any Family or Social Links Generally
In determining the weight to be attributed to this Consideration, the Tribunal has had regard for the Considerations mandated by paragraph 8.3(4)(a) of the Direction.
The Applicant has been present in Australia for about two thirds of the time since he was 10 years old. He has been here since his formative years, and this factor requires considerable weight in accordance with paragraph 8.3(4)(a)(i) of the Direction, regardless of when his offending commenced and the level of that offending. Some of his friends have asserted that they will suffer from loss of his emotional and physical support, and that may well be the case.
There have been two positive judicial remarks regarding the Applicant’s work history, and the Tribunal regards these as indications of positive contribution to the community as described in paragraph 8.4(4)(a)(ii) of the Direction. So too are his contributions to the PCYC, Red Cross, and help for the homeless.
In determining the weight to be attributed to this Consideration, paragraph 8.4(4)(a)(iii) of the Direction is not relevant.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs heavily in favour of revocation.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the Visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Consideration of Best Interests of the Relevant Minor Child
The Applicant has one child, his daughter D, who is presently five years old.
With regard to sub-paragraph (a) of paragraph 8.4(4) of the Direction, the relationship is parental, and lifelong. There have however been long periods when the Applicant has been substantially absent from D’s life. He has not lived with her full time since she was three months old, and only had contact with her for 37 months before he was incarcerated in June 2021, and has had limited meaningful contact since that date.
With regard to sub-paragraph (b) of paragraph 8.4(4) of the Direction, the extent to which the Applicant is likely to play a positive role in D’s future, bearing in mind that it is some
13 years until she reaches the age of 18, is problematic, as it hinges on his prospects of rehabilitation, abstaining from use or possession of drugs and cessation of offending, and none of this presently appears to be particularly likely.With regard to sub-paragraph (c) of paragraph 8.4(4) of the Direction, it is clear the Applicant has used, and trafficked in dangerous drugs during periods when he was having contact with D, and at times she stayed with him overnight. He has accepted that were she to accidentally consume drugs he had, the consequences might have been fatal for her. He has claimed that he never had drugs in the house when she was with him, but the Tribunal rejects that as unlikely given its earlier findings, and the frequency of his own drug use, and Ms L’s evidence that police found “copious quantities of drugs” when he was raided. There is no clear evidence that he has driven a vehicle while she was a passenger when he was under the influence of drugs, but given the frequency of his drug use, that risk is a matter of great concern to the Tribunal. Given the Applicant’s lack of demonstrated rehabilitation, the Tribunal is gravely concerned at the risk his future conduct may present to D’s future welfare should he be returned to the community.
With regard to sub-paragraph (d) of paragraph 8.4(4) of the Direction, the Tribunal accepts that D will suffer emotionally from separation from her father. Experience tells that the full adverse emotional consequences of separation may not manifest themselves until later in life. The Tribunal accepts that whilst modern technology allows contact of sorts, it is no substitute for the emotional comfort which can be derived from physical presence.
With regard to sub-paragraph (e) of paragraph 8.4(4) of the Direction, Ms L presently fulfils the parental role for D, and has for the most part, since she was three months old.
With regard to sub-paragraph (f) of paragraph 8.4(4) of the Direction, there are no known views of the child, but the Tribunal accepts that were she able to articulate her feelings, she would wish the Applicant to remain in Australia.
With regard to sub-paragraph (g) of paragraph 8.4(4) of the Direction, the Tribunal considers that the Applicant’s use of drugs throughout periods of contact with D may be regarded as neglect of her well-being.
With regard to sub-paragraph (h) of paragraph 8.4(4) of the Direction, there is no evidence which enlivens this concern.
Conclusion Primary Consideration 4
Primary Consideration 4 weighs heavily against revocation.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or
non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.”
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[42]
[42] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This Applicant has committed numerous acts of brutal family violence, and scores of serious offences. He has caused tens of thousands of dollars’ worth of financial loss to his victims, and directly and indirectly harmed an untold number of people through his trafficking in dangerous drugs. When given an opportunity to perform community service, he did what Bowskill CJ described as a “hopeless job”[43] and the Tribunal does not consider that he has made any demonstration of remorse, or insight into his past conduct, particularly his family violence. He has shown contempt for the law in many ways. The Applicant continues to present an at least moderate risk of reoffending, and the nature of his offending and other serious conduct is unacceptable to the Australian community, even allowing for the increased tolerance he is to be afforded in consequence of the fact that he has lived in the Australian community since a very young age.
[43] G22 p 111 line 41.
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs very heavily against revocation.
Paragraph 9: Other Considerations
Under the heading Other Considerations, paragraph 9(1) of the Direction provides a
non-exhaustive list of Considerations (where relevant) as follows:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Other Consideration (a): Legal Consequences of the Decision
The Applicant made no submission that this was a relevant Consideration, and the Respondent submitted that it was not a relevant Consideration.
In these circumstances, this Other Consideration is given neutral weight.
Other Consideration (b): Extent of Impediments if Removed
The Applicant is a 28 year old drug addict, who appears otherwise to be in reasonable health, and fit for employment. The Tribunal accepts that deportation may well have a detrimental effect on the Applicant’s mental and emotional health which may impact his drug usage. He is presently receiving treatment for his addiction which should be available to him in New Zealand which has a similar health care system to Australia. Should he seek to continue his current treatment, any exacerbation of his condition should be observable during the course of that treatment, and dealt with accordingly.
The Applicant has spent a considerable period of time in New Zealand, and has not suggested that he will encounter any substantial language or cultural barriers there.
The Applicant will have access to the same level of social, medical and economic support as what is generally available to other citizens in New Zealand (9.2(1)(c)). He has expressed concerns about homelessness, gang involvement and coping emotionally without his family. He has however been said to have a good work record, and he offered no explanation as to why he would not be able to work in New Zealand, and house himself. All deportees can be assumed to suffer emotionally from separation from loved ones, and unfortunately that is the price they pay for their offending and other conduct. To the extent that he may be exposed to gang violence in New Zealand, there is no reason to believe he will not be able to avail himself of the assistance of police just like any other citizen of New Zealand.
Extent of impediments if removed weighs moderately in favour of revocation.
Other Consideration (c): Impact on Victims
The only evidence before the Tribunal as to the impact of his deportation on his victims, comes from Ms L and Ms C, and has been discussed earlier. That impact is offset to some degree by the fact that any future risk of being subjected to family violence will be removed. Their evidence, however, suggests that this is a risk they are both prepared to assume.
Impact on victims weighs moderately in favour of revocation.
Other Consideration (d): Impact Australian Business Interests
Neither party submitted that this was a relevant Consideration.
Findings: Other Considerations
Overall, the Other Considerations weigh moderately in favour of revocation.
CONCLUSION
Primary considerations 1,2,4, and 5 each weigh very heavily against revocation, and clearly substantially outweigh the combined weight of primary consideration 3 together with the other considerations.
Having regard to these findings, the Tribunal finds that there is not another reason to revoke the mandatory cancellation of the Applicant’s visa.
In the circumstances, the Tribunal finds for the purposes of s 501CA(4)(b)(ii) that there is not another reason why the original decision should be revoked.
Therefore, the discretion to revoke the mandatory cancellation contained in s 501CA(4) is not enlivened, and the original decision must be affirmed.
DECISION
The Tribunal affirms the original decision.
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 19 July 2023 to not revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 251 (two hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
........................[SGD]........................
Associate
Dated: 10 November 2023
Date(s) of hearing: 27-28 September 2023 Applicant: In person Advocate for the Respondent: Ms Sarah Black Solicitors for the Respondent: MinterEllison
0
16
0