KFTJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 2051
•13 July 2023
KFTJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2051 (13 July 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2691
Re:KFTJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Millar
Senior Member R SkarosDate:13 July 2023
Place:Adelaide
The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.
............................[SGD]........................... ............................[SGD]...........................
Senior Member K Millar Senior Member R Skaros
CATCHWORDS
MIGRATION – mandatory cancellation of Protection (Class XA) (Subclass 866) visa under section 501CA(4) – Applicant does not pass the character test – Applicant has a substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is set aside.
LEGISLATION
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
JNMK v Minister for Home Affairs [2019] FCA 1758
Pearson v Minister for Home Affairs [2022] FCAFC 203
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Guy J Coffey et al, ‘The meaning and mental health consequences of long-term immigration detention for people seeking asylum’ (2010) 70(12) Social Science and Medicine, 100-109
M von Werthern et al, ‘The impact of immigration detention on mental health; a systematic review’ (2018) 18(382) BMC Psychiatry, 110-128
Migration Regulations 1994
REASONS FOR DECISION
Senior Member K Millar
Senior Member R Skaros13 July 2023
INTRODUCTION
This is an application for review of a decision made by the delegate of the Minister of Immigration, Citizenship and Multicultural Affairs (the Respondent) on 24 April 2023 not to revoke the mandatory cancellation of the Applicant’s Protection (Class XA) (Subclass 866) visa (the visa) under subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
On 8 September 2017, the Applicant was convicted in the District Court of New South Wales of five offences for which he received an aggregate term of imprisonment of seven years and six months, with a non-parole period of five years.[1] As a result, his visa was cancelled, and the Applicant sought revocation of the decision to cancel his visa.
[1] Exhibit G, G7, 36-38.
On 7 September 2022, the Applicant was released on parole and transferred to Villawood Immigration Detention Centre (VIDC). On 24 December 2022, the Applicant was released from detention following the decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson), in which the Full Court found that an aggregate sentence of imprisonment did not fall within the definition of a ‘substantial criminal record’ under paragraph 501(7)(c) of the Act. As the Applicant’s visa was mandatorily cancelled on the basis of the aggregate sentence he received for his convictions, the cancellation of his visa was invalid.
On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (the Amending Act) commenced. The Amending Act inserted section 5AB into the Act, which provides that where a provision of the Act or Regulations (made under that Act) refers to a sentence of imprisonment, it makes no difference whether the sentence had been imposed with respect to one offence or multiple offences.
The Amending Act also includes provisions which retrospectively validated decisions affected by Pearson, including validating the previous mandatory cancellation of a visa.[2]
[2] Migration Amendment (Aggregate Sentences) Act 2023 (Cth), s 4.
The mandatory cancellation of the Applicant’s visa was retrospectively validated and the Applicant became an unlawful non-citizen. On 3 April 2023, the Applicant was re-detained at VIDC.
On 24 April 2023, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant’s visa, and on 26 April 2023 the Applicant applied for review of this decision.
The Applicant appeared before the Tribunal in person to give evidence at a hearing held on 29 and 30 June 2023. The Tribunal received oral evidence from the following witnesses called by the Applicant, in addition to the Applicant himself:
·Mr Tim Watson-Munro, Psychologist.
·Ms NM, the Applicant’s partner.
BACKGROUND
The Applicant is a 39-year-old citizen of Iran. His parents and five siblings live in Iran. He states his father suffered mental problems which affected the family, and his father was violent towards his mother. He lived in a poor neighbourhood and attended local schools before completing compulsory military service with the police in Iran.
The Applicant studied computer graphics in Iran before travelling to Malaysia to study, remaining in Malaysia for three years. The Applicant arrived in Australia in 2011 when he was 26 years old as the holder of a Higher Education Sector (Subclass 573) visa. In September 2011, he applied for a protection visa which was granted on 11 September 2012.
The Applicant completed a Bachelor of Business (Accounting) at RMIT University and worked as a cleaner whilst studying. In 2014, he moved to Sydney and commenced work for an accounting firm. He completed qualifications in finance and mortgage management and worked as a self-employed mortgage broker until 2017.
The Applicant is in a relationship with Ms NM, who is an Australian citizen. They have two Australian citizen children together, a nine-year-old daughter MM and a seven-year-old son YM. The Applicant and Ms NM have known each other since 2013 and say they have co-parented their children. They commenced a romantic relationship in January 2023. Ms NM is currently pregnant with the Applicant’s third child who is due in October 2023.
Ms NM’s 16-year-old daughter from a previous marriage, MK, arrived in Australia in November 2022 and is living with the family unit.
OFFENDING HISTORY
On 8 September 2017, the Applicant was convicted of the following offences:[3]
·Demanding money with intent to steal;
·Intentionally delivering a document knowing the document contained a threat to kill;
·Intentionally damaging a house, the property of the victim, by fire;
·Intentionally damaging two vehicles belonging to the victim; and
·Intentionally damaging the same two vehicles a second time by means of fire.
[3] Exhibit G, G8, 39.
The Applicant was found guilty by a jury of the offences following a trial in the District Court of New South Wales. On 8 December 2017, the Applicant was sentenced to an aggregate sentence of imprisonment of seven years and six months, with a non-parole period of five years.
The Applicant sought leave to appeal to the Court of Criminal Appeal (Supreme Court of New South Wales) on the ground that there had been a miscarriage of justice, in his lawyers failing to seek a permanent or temporary stay of proceedings. He also filed an application for bail. On 31 March 2021 the Court struck out the application for bail for want of jurisdiction,[4] and on 14 July 2021 refused the application for an extension of time to appeal against his conviction.[5]
[4] Exhibit G, G8, 51-63.
[5] Ibid, 64-88.
The facts in relation to each of the offences of which the jury found the Applicant guilty were set out by Judge Frearson SC in the sentencing remarks.[6] The offences were committed by the Applicant against Mr Song (the victim) following a falling out over a commercial property owned by the victim that was leased by the Applicant. The Applicant intended to use the premises as a backpacker hostel. The terms of the commercial lease, as negotiated, provided for a rent-free period of five months to enable the Applicant to obtain the required approval and renovate the premises. The lease was signed in June 2013 for a period of five years between a company owned by the victim and another and a company owned by the Applicant. A bank guarantee of $47,798 was required. Following the five-month rent-free period, the Applicant failed to pay the rent under the agreement, the lease was terminated in June 2014 and the Applicant forfeited the bank guarantee. Lawyers for the Applicant and the victim exchanged correspondence and the matter was referred to the Small Business Commissioner, however, the dispute could not be mediated. The Applicant initially sought $104,000 from the victim, who refused to pay. The Applicant then pursued a “sustained campaign of threats and violence”[7] directed at Mr Song demanding money.[8]
[6] Ibid, 39-50.
[7] Exhibit G, G5, p 16.
[8] Exhibit G, G8, 41-42 and 68-69.
Between May 2014 and April 2015, the Applicant demanded varying sums of money from the victim of up to $150,000.[9] On 14 May 2014, bottles of acid and a letter containing death threats towards the victim, his business associates, his wife, and his children, were delivered to the victim’s family home. On 16 May 2014, the victim received a text demanding money and threatening a bullet to his head. On 17 August 2014 the victim’s investment property was set on fire. Five international students were in the premises at the time. On 19 August 2014, the Applicant damaged the victim’s two cars. On 24 March 2015, the Applicant (in company) set alight the same two cars while they were parked in the driveway of the victim’s home.
[9] Ibid, 39.
The Applicant denied that he had threatened the victim and suggested that the threats were made by another person who had become aware of his claim against the victim. This account was rejected by the jury. On the totality of the evidence, it was found that “all of the vindictive activities directed at [the victim] were either by the [Applicant] or at his behest”.[10] Judge Frearson SC remarked that the Applicant, instead of taking legal action, which could have been pursued at the Local Court, took grossly criminal action. It was noted that the Applicant had failed to acknowledge the mountain of circumstantial evidence against him, putting his head in the sand and pretending it did not exist. Judge Frearson SC did not consider that the Applicant actually believed that he had a lawful claim. He found it to be a matter of high moral culpability, a relentless, callous and somewhat indefinite pursuit which only stopped because the police arrested the Applicant. He found that there had been an escalation over time, there were brazen warnings as to lack of utility in contacting police, there were threats to life and limb and there was much planning, deliberation, and determination on the part of the Applicant.[11]
[10] Exhibit G, G8, 43.
[11] Ibid, 44.
In determining the appropriate sentence, Judge Frearson SC considered that, in relation to the death threat letter of 14 May 2014, the use of a chemical was an aggravating factor and the offence was committed for financial gain. The Judge considered the damage to the investment property was minimal to moderate but was very serious because it was part of an ongoing vendetta, and five students were present when the property was set alight. The Judge also considered the damage to the vehicles to be moderate, but noted it was in close proximity to the victim’s house, and it was irrelevant whether the Applicant was one of the two people who actually set the vehicles alight.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. This provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
We are satisfied that on 7 July 2019 the Applicant made the representations required by paragraph 501CA(4)(a) when he sought revocation of the mandatory cancellation of the visa.
Accordingly, there are two issues before us:
·Does the Applicant pass the character test; and if not
·Is there another reason why the decision to cancel the Applicant’s visa should be revoked?
Does the Applicant pass the character test?
The character test is defined in subsection 501(6) of the Act. Under paragraph 501(6)(a), a person will not pass the character test if they have a ‘substantial criminal record’. This phrase is defined in paragraph 501(7)(c), which provides that a person will have a substantial criminal record if they have ”been sentenced to a term of imprisonment of 12 months or more”.
On 8 December 2017, the Applicant was sentenced to an aggregate term of imprisonment of seven years and six months with a non-parole period of five years for the five offences for which he was convicted.
Following commencement of the Amending Act we find that the aggregate sentence imposed on the Applicant is a sentence of imprisonment of more than 12 months and amounts to a substantial criminal record. It follows, and we find, that the Applicant does not pass the character test. This is not disputed by the Applicant.[12]
[12] Applicant’s Statement of Facts, Issues and Contentions at [31].
The issue remaining before us is whether there is another reason why the cancellation should be revoked.
Is there another reason why cancellation of the Applicant’s visa should be revoked?
In considering subparagraph 501CA(4)(b)(ii) of the Act, the Tribunal is bound by subsection 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) applies in considering whether the cancellation of the Applicant’s visa should be revoked.[13]
[13] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and replaced by Direction No. 90, which in turn was replaced by Direction No. 99 on 3 March 2023.
In deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction provides the framework within which decision makers must approach this task. The Direction sets out five primary considerations and four ‘other’ considerations as well as specifying how to take the relevant considerations into account.
The principles that are found in paragraph 5.2 of the Direction are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.5(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.
Applying the Direction
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out the primary considerations. These are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out ‘other’ considerations which, include:
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
We note the importance of the ‘other’ considerations being “other” considerations, and not “secondary” considerations.[14] As stated in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[15] particular circumstances may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations.[16]
[14] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
[15] [2022] FCAFC 19.
[16] Ibid at [34].
Paragraph 7 sets out that information from authoritative and independent sources should be given appropriate weight, that primary considerations should generally be given greater weight than the other considerations, and that one or more primary considerations may outweigh other primary considerations.
We have considered each of the primary and other considerations.
PRIMARY CONSIDERATION 1 – THE PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering the protection of the Australian community, paragraph 8.1 of the Direction requires 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. The Direction specifies that decision makers must have regard to the principle that entering or remaining in Australia is a privilege conferred 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.
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.
The nature and seriousness of the conduct to date
In examining the nature and seriousness of the Applicant’s conduct to date decision makers must have regard to the conduct viewed as very serious or serious by the Australian government, the sentence imposed, the frequency of offending and/or any trend of increasing seriousness, the cumulative effect of repeated offending, and whether the Applicant has reoffended since being warned of the consequences of further offending.
In determining the appropriate sentence, Judge Frearson SC considered the use of a chemical to be an aggravating factor in relation to the death threat of 14 May 2014. The judge found offences were found to have been committed for financial gain. The Judge considered the damage to the investment property was minimal to moderate but was serious because it was part of an ongoing vendetta, and five students were present when the property was set alight. The Judge also considered the damage to the vehicles to be moderate, but noted it was in close proximity to the victim’s house, and that it was irrelevant whether the Applicant was one of the two people who actually set the vehicles alight.
During the hearing, the Applicant was referred to police reports from the period when he was on bail for the offences for which he was convicted. No charges were laid as a result of these reports. The Applicant said one incident involved a road rage problem after he turned the wrong way down a lane and as a result he had to go to hospital. Both he and the other party called the police. In another incident he is the reported victim, and said he found drugs in his car and a bullet in his garage. The opinion of the police was that he was seeking witness security. The third incident involves the person who was surety for his bail wanting to withdraw the surety. The Applicant said that he was not allowed bail unless it was his money. He said he did not know what this was about. Documents later tendered by the Minister show that a surety was provided by a third party and that this surety was replaced with a surety from Ms NM in the approximate time of the police report.
No charges were laid, and the Applicant was not interviewed by police in relation to the road incident or the surety. We are not satisfied there is sufficient probative evidence to show that the Applicant has been involved in other offending or serious conduct that should be taken into account in assessing the nature and seriousness of his conduct to date and that the nature and seriousness of the offences for which he has been convicted are what we must consider.
Is the conduct viewed very seriously or seriously by the Australian government and the Australian community?
Without limiting the range of conduct that may be considered very serious, paragraph 8.1.1(1)(a) of the Direction provides that violent crimes are viewed very seriously by the Australian Government and the Australian community. The items considered serious conduct in paragraph 8.1.1(1)(b) do not apply in this case.
The offences for which the Applicant has been convicted include crimes that place members of the Australian community at serious risk of harm and were calculated to cause fear. While they did not cause physical harm, there was a real risk of serious harm being caused to the victim, his family or the residents of the property that was set on fire.
We consider the offending conduct to be very serious due to the nature of the threats of violence that occurred over a period of almost one year. The offences involved a serious risk of harm in sending acid in a letter, lighting a premises on fire when people were in the premises, and in setting fire to a vehicle in close proximity to the house where the victim and his family resided.
The sentence imposed
The Tribunal must take into account the sentenced imposed by the court for the offences.
The sentence imposed was seven years and six months, with a non-parole period of five years. We consider the lengthy prison sentence reflects the seriousness of the offences for which the Applicant was convicted, which include violent crimes.
The frequency of the offending
The Tribunal must take into account the frequency of the offending and whether there is any trend of increasing seriousness under paragraph 8.1.1(1)(d) of the Direction.
The Applicant was convicted of five offences committed over the course of approximately 12 months. The offences commenced with demanding money with menaces and progressed to sending a threat to kill, then setting alight the door of a property and setting fire to cars on the victim’s property. There is a trend of increasing seriousness in the offences committed in the 12-month period. The offending is frequent within this limited period.
The Applicant does not have an extensive criminal history and the offences for which he was convicted in 2017 are the only offences on his criminal record. Nevertheless, we consider that the Applicant’s offending conduct between May 2014 and April 2015, which was described by the sentencing judge as a “relentless campaign to menace and terrorise [the victim]”,[17] was frequent and increasing in seriousness, and only stopped because the Applicant was arrested by police.[18]
[17] Exhibit G, G8, 40.
[18] Ibid, 44.
The cumulative effect of repeated offending
The cumulative effect of repeated offending must be taken into account under paragraph 8.1.1(1)(e) of the Direction.
In this case, the cumulative effect is not without significance to the victim of the offending who was subjected to repeated threats and damage to his property over the course of a 12-month period. The cumulative effect of the offending weighs against the Applicant.
The Tribunal considers the cumulative effect of repeated offending is to be taken into account in assessing the nature of the risk to the Australian community.
Providing false or misleading information to the Department
Providing false or misleading information to the Department must be taken into account under paragraph 8.1.1(1)(f). There is no information before us that the Applicant has provided false or misleading information to the Department or has failed to disclose any criminal offending.
Reoffending since being formally warned
Whether the Applicant has reoffended since being formally warned is a matter to be taken into account under paragraph 8.1.1(1)(g) of the Direction. There is no information before us that the Applicant has received a formal warning.
Offences committed in another country
Whether the Applicant has committed an offence in another country that is classified as an offence in Australia must be taken into account under paragraph 8.1.1(1)(h). There is no information before us to suggest that that the Applicant has committed offences in another country.
Conclusion: the nature and seriousness of the conduct to date
In examining the nature and the seriousness of the conduct and having had regard to the matters specified in paragraph 8.1.1 of the Direction, this factor weighs heavily against revoking the cancellation of the Applicant’s visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction specifies that in considering the need to protect Australian community from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (paragraph 8.1.2(1)).
Paragraph 8.1.2(2) provides that in considering the cancellation of a visa, in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The Applicant accepts that his criminal history involves conduct that, if repeated, could cause harm to the Australian community.[19]
[19] Applicant’s Statement of Facts, Issues and Contentions at [44].
The sentencing judge remarked that the matter was a “relentless, callous and somewhat indefinite pursuit”,[20] there was a close proximity of the vehicles set on fire to the house in which the victim and his family were living, and the property which was set on fire was the residence for international students.
[20] Exhibit G, G8, 44.
A victim impact statement provided to the Court[21] states that the victim remains worried for the safety of the tenants in his investment property. He and his wife do not sleep well and have installed surveillance in their house and the investment property. The offending has also had an effect on the victim’s wife and his son as they had to relocate to a hotel, during his son’s examinations, in case of an attack by the Applicant.
[21] Exhibit TB, 26.
If the Applicant were to offend again in a similar way, particularly in setting fire to a property and to vehicles, there is a risk of death or serious injury. The threats included threats of physical harm to the victim, his wife and his business associates. This type of offending can reasonably be supposed to cause significant and ongoing psychological harm to the victim and his family members. The damage to property also caused financial harm.
Likelihood of engaging in further criminal or other serious conduct
The Applicant contends that he is a low risk of reoffending because before he was convicted of the five offences, he had no history of offending. He has not been convicted of any further offences committed while in the community on bail, or in the period he was released from immigration detention. There have been no reports of any behaviours of concern in prison or in immigration detention.
The Applicant’s corrections records[22] show he was granted bail on 20 April 2015. He remained in the community on bail for approximately two years and five months before he was found guilty on 8 September 2017. There are no records of any charges or convictions for breach of his bail. He spent approximately three months in the community between December 2022 and April 2023 following the decision in Pearson with no charges or convictions in this period in the community.
[22] Exhibit G, G9, 89-91.
A report by Dr Olav Nielssen,[23] a psychiatrist, was provided to the Court for sentencing. Dr Nielssen reports that the Applicant has good prospects of rehabilitation due to the absence of any previous criminal convictions, the absence of any pattern of substance abuse, the successful completion of a university degree, a history of employment and because of his attachment to his children.
[23] Exhibit TB, 27.
This report was taken into account by the sentencing judge who concluded the lack of a prior offending history and reported good character and education did not align with the “extreme criminal acts”[24] committed by the Applicant, and were not explained by the report from the psychiatrist. The sentencing judge states that the Applicant’s “prospects must be guarded”[25], which we take to be a comment on the prospects of rehabilitation.
[24] Exhibit G, G8, 47.
[25] Ibid, 49.
The Applicant claims to have remained in the community without incident, however police records show disputes with a previous employer[26] and the employer’s wife who was surety for his bail.[27] As stated above, we do not consider there to be sufficient probative evidence to consider this to be adverse conduct. He has not been charged with or convicted of any breach of his bail conditions.
[26] Exhibit TB2, 207-215.
[27] Exhibit TB2, 209.
The pre-release report[28] records that assessment on the Level of Service Inventory – Revised Schedule the Applicant was assessed as being a low risk of reoffending. It was stated that due to his low-risk rating, the Applicant did not complete any offence related programs in custody. This report records that the Applicant displayed a poor attitude to his offending as he refuted all involvement and believed the police had set him up. It records that on entering custody the Applicant has been consulting with a psychologist within the first year and in early 2020 again engaged with psychology. He has not expressed regret towards the victims but reported a willingness to engage in interventions.
[28] Exhibit A1, 93-99.
On his release from detention following Pearson, the Applicant completed a risk assessment which placed him in a medium-low risk of reoffending, and the supervision condition of his parole order was suspended, which means he was not actively supervised.[29] As he was on parole, he remained bound by a good behaviour condition and regular compliance checks were carried out.
[29] Exhibit A1, 5.
The Applicant states he has recognised the need for treatment with a psychologist and provided a referral letter from his general practitioner to a psychologist dated 12 January 2023.[30] He states he was unable to access a psychologist before being returned to immigration detention.
[30] Ibid, 6.
A report was provided from Mr Tim Watson-Munro, a registered psychologist, who assessed the Applicant over the course of two telehealth appointments. Mr Watson-Munro considers the Applicant suffers severe and recurring depressive disorder and an anxiety disorder which are aggravated by his detention and being unable to join his partner and his children in the community. Mr Watson-Munro said he also assessed the Applicant as being a medium-low risk and stated at the hearing that accessing psychological treatment would “not hurt” in managing this risk. Mr Watson-Munro cited the facts that deter the Applicant from further offending as being his attachment to his partner and children, his motivation to work, his stated willingness to access treatment, that he has no history of drug or alcohol use and that he has no forensic history prior to the offences for which he was convicted.
The Applicant completed an anger management course on 18 June 2023, and an emotional healing course on the same day. While in custody he completed courses on digital printing and warehouse management. He said he was unable to complete any other rehabilitation in prison and immigration detention and says he was told he was not eligible because he was considered low risk. Under cross-examination he said psychology services were available, but he felt too embarrassed to access these services in prison because everyone would know he had seen a psychologist. He said he preferred to talk to other prisoners and his case officer about his circumstances and says he read books about depression.
We find it difficult to accept he would not be offered any rehabilitation courses if he were willing to undertake the courses, as his non-parole period was five years. We consider this reflects his reluctance to acknowledge that he committed the offences for which he was convicted and his reluctance to access other services such as counselling that were available to him in prison.
The Applicant provided a letter from an employer stating he is prepared to offer the Applicant employment as a sole trader courier driver if he is released from detention. The Applicant says he was offered a position a few days before he was again detained.
The Applicant does not accept the facts underlying the offences for which he was convicted. He says he recognises that he needs psychological treatment but had not undertaken this rehabilitation at the time of this decision. However, despite his attitude towards his offending, the assessed level of his risk of reoffending has been low or medium/low. He will be subject to parole and subsequent supervision until approximately March 2025.
We find the Applicant’s commitment to his children and desire to support his family together with the protective factors of his education, potential for work and lack of any history of drug and alcohol abuse results in a low to medium risk of reoffending.
Having had regard cumulatively to the nature of the harm to individuals or the community if the Applicant were to engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in further criminal or other serious conduct, we find this consideration weighs moderately against revoking the cancellation of his visa.
Conclusion: Primary Consideration 1
Primary Consideration One weighs moderately against revoking the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction pertains to the Government’s serious concerns about non-citizens who engage in family violence. There is no information before the Tribunal which suggests that the Applicant has engaged in family violence related conduct. This consideration is therefore neutral.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant is in a relationship with Ms NM, with whom he has had two children, MM, who is nine years old and YM, who is seven years old. The Applicant and Ms NM commenced a relationship in January 2023, however, they have known each other for a long period of time as they ‘co-parented’ their two children. Ms NM is currently pregnant with the Applicant’s third child who is due to be born in October 2023.
Ms NM and the children currently live in the family home in Sydney, where the Applicant hopes to return if released from detention. In his statutory declaration, the Applicant stated that his children are his world and that he is worried about them, especially his daughter, who is not coping with his absence. He stated that his daughter is very attached to him and is a very anxious child because of the separation. He said he has missed many years of his children’s childhood and wants to be there to support them. He regularly speaks with them, and they visit him in detention. He would like to be present for the birth of his third child. He said that he is Ms NM’s only family in Australia. She has chronic health issues and will need his assistance. He said Ms NM is also struggling financially.
At the hearing, the Applicant gave evidence that he and Ms NM commenced a romantic relationship in January 2023 (when he was released into the community), and prior to that they were just friends and co-parents to their children. He said they were not in a relationship prior to that because he was not in a stable situation for many years and was struggling. He said Ms NM assisted him while he was in prison by bringing the children to visit him. He said Ms NM has carried the weight of raising the children on her own for so long and has not been able to study or work, which has been her dream. When he was released, Ms NM was able to enrol in TAFE to study aged care and she was offered a job by Anglicare. He gave evidence that when he returned to detention, the impact on Ms NM and the family was devastating.
In her statutory declaration, Ms NM stated that the Applicant and the children are her only family here in Australia. She has no other support system in Australia. She is a casual support worker at Anglicare. She is studying a Diploma of Community Services (Case Management) at TAFE and is raising the children on her own while living with chronic illnesses that have an impact on her life. In 2012 she was diagnosed with HIV and Hepatitis B which has compromised her immune system. She is constantly fatigued and gets ill easily. Since becoming pregnant, she is more prone to illness and exhaustion. Ms NM said she is struggling to cope on her own, especially as child MM requires extra emotional support. She said following the Applicant’s release from detention in December 2022 her life completely changed. The children were completely taken care of, and the Applicant encouraged her to pursue the work which she had been wanting to do. She was only able to return to work after the Applicant was released. In the Applicant’s absence she does not know if she can continue to support the children on her own, especially in the later part of her pregnancy when she is expecting to be further immunocompromised. She is already feeling especially weak since becoming pregnant. She gets tired very easily and has been told by her doctor that her immune system will become very weak after she gives birth. She cannot take care of herself, a newborn, and the other children while she is depleted and needs the Applicant’s assistance. She said their daughter is in desperate need of child psychological treatment, but she cannot afford it on her own and needs the Applicant’s assistance. If the Applicant is released from detention, their daughter will be able to get the psychological assistance needed.
Ms NM stated that the Applicant’s detention and separation from the children has had a devastating impact on them. We have had regard to the evidence about the children in greater detail below when separately considering each of their best interests.
Ms NM said that the Applicant is a great father. He is the glue that keeps the family together and they are falling apart without him. She said the children are suffering without their father and she is at breaking point.[31]
[31] Exhibit A1, 17-20.
We have considered the letter from Senior Counsellor at Sydney Local Health which indicates that Ms NM has three children in her care and that she is pregnant with her fourth child. It confirms that Ms NM has HIV and Hepatitis B, which places additional stress on her, and that she is being medically managed by doctors in Western Sydney Local Health District. The senior counsellor confirmed that Ms NM’s studies and has casual employment as a carer and states that given the demands on Ms NM, she would benefit from the support of her partner (the Applicant).
At the hearing, Ms NM gave evidence which was entirely consistent with that provided in her statutory declaration. She said she took the children to visit the Applicant in prison every week, travelling six hours to the prison. She takes the children to see the Applicant in detention every week and they speak whenever they can. She said when the Applicant was released from detention, it completely changed their family’s life for the better and especially the lives of the children. She said the Applicant’s return to detention has left them without any support because they have no extended family in Australia.
Ms NM gave evidence that her eldest child, a daughter from her first marriage, arrived in Australia in November 2022. She said her eldest daughter, who is 16 years of age, has been living with her. She said her daughter only speaks Russian and Uzbek, so she and the Applicant had limited communication, however, the Applicant supported her and encouraged her to speak English. Given Ms NM’s eldest daughter is a minor, we have considered her best interests further below.
The Respondent contends that the weight given to the relationship with Ms NM and the impact on the children should be mitigated because their romantic relationship is in its early stages and there is limited evidence regarding their plans for the future. It was also contended that Ms NM had been able manage her health issues, care for the children, and support them financially without the Applicant’s assistance during the extended period he has been in prison and in detention.
While we acknowledge that the full circumstances of the history of the relationship between Ms NM and the Applicant is not entirely known, we accept that the parties have known each other for over ten years and that they have two children together whom they co-parent. At the hearing, Ms NM gave evidence that she and the Applicant had lived in shared accommodation (though not in one room) at different points in time, initially in 2013 and later in about July or August 2016 when the Applicant assisted her in getting rental accommodation, because she did not have the financial capacity to secure a rental property and was caring for the Applicant’s children. We accept that Ms NM and the Applicant entered a committed relationship with one another in January 2023, established a household and are having a third child together. In her recent statutory declaration, Ms NM said that they are committed to a future relationship with each other and raising their family together.
The evidence before us indicates that the children have maintained regular meaningful contact with the Applicant and visited him regularly when he was in custody and detention. The evidence before us, including letters and cards written by the children and the written and oral evidence, indicates that the children have a strong relationship with their father.
We are satisfied that the Applicant’s immediate family, being his partner and two minor children, are Australian citizens. We find that the Applicant has strong family ties to Australia. If the visa is not revoked the Applicant will remain in detention for an indefinite period. We accept that this will likely cause significant emotional, psychological and financial hardship on Ms NM and the children.
In relation to the other ties the Applicant has to the Australian community, we note that the Applicant did not reside in Australia during his formative years. He travelled to Australia when he was 26 years of age. He completed qualifications in Australia and contributed to the community through his employment in the accounting/finance industry. Of the 12 years he has been in Australia, over half has been spent in gaol or immigration detention. He commenced offending in April 2014, which was just over three years after his arrival.
The Applicant has completed studies in the Australian community. He has a Diploma of Finance and Mortgage Broking Management, a Certificate IV in Finance and Mortgage Broking and a Bachelor of Business (Accounting). We have had regard to the letter from a former colleague, and client, whom he assisted with obtaining a home loan and re-finance, which refers to the Applicant’s knowledge, skills, and professionalism as a mortgage broker.[32]
[32] Exhibit G, G19, 219.
In summary, the Applicant’s ties to his partner and children are very strong, however, the length of time he has spent in in the community in Australia is limited. He has contributed to the community through his employment and by co-parenting his children. His ties to the community other than with his partner and children are limited.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs moderately in favour of revoking the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction requires 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 considerations. 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. These include:
(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; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are his two biological children, child MM and child YM, and his stepdaughter, child MK.
The Applicant’s biological children
The minor children in Australia affected by this decision include the Applicant’s two biological children, his daughter MM who is nine years of age and his son YM who is seven years of age. We acknowledge that Ms NM is pregnant with the Applicant’s third child, however, as noted by the Respondent, an unborn child is not a minor child for the purposes of this consideration.[33]
[33] JNMKvMinister for Home Affairs [2019] FCA 1758 at [23].
In his statutory declaration, the Applicant said that his children are his “whole world”[34]. He worries about them, and especially his daughter who is not coping with his absence. He said his daughter is very attached to him and is an anxious child. He said that the focus of his life moving forward is his children. He wants to raise and support them through all their mental health issues. The Applicant said he regularly speaks with his children but wants to be there for them fully. He wants to take them to school, sports games and to the park. He wants to be physically present in their lives and be someone they can go to anytime they need. He does not want to parent from within the detention walls.[35]
[34] Exhibit A1, 3.
[35] Ibid.
In her statutory declaration, Ms NM said even though child MM was a baby when the Applicant went to prison, MM still felt his absences severely. At the age of three MM was experiencing tremors and disturbed sleep from the anxiety of missing her father. A copy of a patient assessment report was provided dated August 2014 in which the assessing general practitioner noted that MM had presented with anxiety, tremors, and sleep disturbance. It was noted that she was missing her father and displayed irrational fears.
Ms NM said that child MM, at three years of age, lost about six to seven kilograms in two weeks and took several months to get back to a healthy weight. She said child MM completely lost her appetite and was wetting herself. She said when the Applicant first went to gaol, child MM started sleeping on the floor next to the front door waiting for the Applicant to return home. Ms NM said when the Applicant was re-detained, it was difficult for child MM, whose symptoms were worse than the first separation.
Ms NM said they told the children a few days before the Applicant had to go back to the detention centre and the children started crying and shouting and asking why. She said the Applicant had to hand himself in to the police station and the children went with him because they wanted to be with him until the last minute. She said the children were confused and destroyed and she did not know how to explain to them why their father had to be re-detained. She said after they got home without the Applicant, child MM began behaving very erratically. She dressed a teddy bear in the Applicant’s clothes and called it “her daddy”. Ms NM said it was scary and disturbing to see her daughter behave in this way. She said child MM sprays the teddy bear with the Applicant’s cologne and sleeps with the Applicant’s clothes next to her.
Ms NM said the Applicant calls them a few times every day, so the children know that he is there for them whenever they need him, however, child MM cries when they talk because she misses him. Ms NM said the children do not feel safe and fear that they will lose their mother also. She said the child MM asks if she can go to the detention centre to live with the Applicant. Her drawings depict her crying and missing her father. She said child MM is not well and that her health was deteriorating again due to the separation from the Applicant.
In relation to child YM, Ms NM said that he was quite young when the Applicant first left. He was less anxious than child MM. She said as he got older, he observed his sister and also started to get anxious. She said while child YM was doing better than child MM for many years, after the Applicant was re-detained, child YM’s mental health declined. He idolises his father. His drawings also depict him crying and missing his father. He does not want to go to school because he is afraid his mother will also be taken away. He is wary and afraid of the world. She said child YM has expressed to her his loneliness and sadness and that his teachers have expressed some concern for him. They told her that child YM does not focus in class and he was referred to a child counsellor. She said child YM’s condition had worsened since the Applicant was re-detained because he is now old enough to remember his father being taken away from him.
We have also had regard to the photographs of the Applicant with the children, the children’s drawings, and copies of the letters and cards they had written to the Applicant when he was in detention.
We have considered the best interests of MM and YM together as the factors in paragraph 8.4(4) pertaining to each of them are similar, although Ms NM states there was a greater impact on MM when the Applicant went to prison as she was older. Where their interests differ, we have articulated this accordingly. We make the following observations in relation to each of the circumstances in paragraph 8.4(4).
The relationship between the Applicant and his children is a parental one. There has been a long period of physical separation (since 2017) because the Applicant was either in prison or in detention. The children visited weekly with Ms NM in person when this was possible in the context of COVID-related visiting restrictions. The Applicant and the children were reunited for a period of about three months when the Applicant was released from detention until he was re-detained in April 2023. The Applicant has maintained regular contact with the children by telephone and video, and the children also visited the Applicant in gaol and at the detention centre: paragraph 8.4(4)(a).
There are nine years until child MM turns 18 and eleven years until child YM turns 18. This is a significant period of the children’s formative years. The evidence before us indicates that the Applicant loves, cares, and wants the best for his children. He has maintained regular contact with them, and the children appear to greatly miss their father. If he is released from immigration detention, the Applicant will live with Ms NM and assist in the care of the children. We consider that if the Applicant does not engage in any violent or threatening conduct, he is likely to play a positive role in the lives of the children: paragraph 8.4(4)(b).
In relation to the Applicant’s prior conduct, we are not aware of any conduct committed by the Applicant which had a negative impact on the children other than his imprisonment and detention which removes him from the family unit: paragraph 8.4(4)(c).
The children have been able to maintain frequent contact with their father by telephone and video calls and they regularly visit him in detention. However, the evidence before us indicates that the physical separation of the children from their father has been quite distressing. Child MM has exhibited distress, anxiety and sleep disturbance to the extent that she has been referred to a psychologist. YM has expressed fear, loneliness, and lack of engagement at school which caught the attention of his teachers. The children are young and communicating through physical contact rather than electronically is in their best interests. Given the positive relationship between the children and their father, we consider physical separation to be detrimental to the children: paragraph 8.4(4)(d).
We accept the Respondent’s contention that Ms NM has been fulfilling a parental role as the primary care giver of the children. There is no evidence before us that anyone other than Ms NM and the Applicant have fulfilled a parental role for MM and YM. The evidence before us, however, indicates that Ms NM, who suffers from various health issues, is pregnant with the Applicant’s third child, is completing studies and is in casual employment. The evidence also indicates that during the three months the Applicant was not in detention he played a significant parental role, caring for and looking after the children. Given the change in Ms NMs circumstances, we consider it likely that she will experience significant difficulties (including physical, emotional, and financial) in fulfilling the parental role alone: paragraph 8.4(4)(e).
In relation to the views of the children, we have had regard to copies of letters, cards, and drawings by the children to the Applicant, which indicate that they love their father, miss him greatly and want to be reunited with him: paragraph 8.4(4)(f).
In relation to the risk of harm or neglect, there is no evidence before us which suggests that the children have been, or are at risk of being, subject to, or exposed to family violence, abused, or neglected by the Applicant: paragraph 8.4(4)(g).
In relation to trauma, there is no evidence before us which suggests that the children have experienced any physical or emotional trauma arising from the Applicant’s conduct: paragraph 8.4(4)(h).
In considering the evidence overall, we are satisfied that the best interests of the Applicant’s minor biological children weigh heavily in favour of revocation. This is because the relationship is parental, the children have meaningful and regular contact with their father, the lengthy period of time until the children turn 18, and the love and care the children will receive from the physical presence of their father, which they had the opportunity to recently experience over a three-month period when the Applicant was in the community.
Having found, for the above reasons, that it is in the best interest of the Applicant’s biological children for the visa cancellation to be revoked, we find that this consideration weighs heavily in favour of revoking the cancellation of the Applicant’s visa.
The Applicant’s minor stepdaughter
Ms NM gave evidence at the hearing that she has a daughter from her first marriage, child MK, who has been living in Uzbekistan. Child MK arrived in Australia in November 2022. She has been living with Ms NM since her arrival, including during the time the Applicant was released from detention. Ms NM gave evidence that the Applicant has supported her eldest daughter and encouraged her to speak English, however, their communication is limited because her eldest daughter only speaks Russian and Uzbek.
We have assessed the best interests of child MK by reference to subparagraph 8.4(4) as follows. The relationship between the Applicant and his stepdaughter is non-parental. The Applicant and child MK lived in the same household for a short period (three months) when the Applicant was in the community from December 2022 to April 2023. Prior to this time, it appears there was no existing relationship between the Applicant and child MK: paragraph 8.4(4)(a).
Child MK was born in September 2006. She will therefore turn 18 in one year and two months. We consider this to be a relatively short period of time during which the Applicant will play a positive parental role: paragraph 8.4(4)(b).
There is no evidence which indicates that the Applicant’s prior conduct has had a direct negative impact on his stepdaughter or that it is likely to have a negative impact on her in future: paragraph 8.4(4)(c).
There is limited evidence about the communication, if any, that the Applicant currently has with his stepdaughter. We consider that the effect of separation from the Applicant on child MK will be minimal as they have interacted for a brief period (three months) and do not speak the same languages: paragraph 8.4(4)(d)
The Applicant’s stepdaughter currently lives with Ms NM, who fulfills the parental role in relation to child MK. She has only recently assumed that role and says she is getting to know MK herself. AS MK only recently arrived in Australia, others were undertaking a parental role for MK before her arrival: paragraph 8.4(4)(e).
There are no known views of child MK: paragraph 8.4(4)(f).
In relation to the risk of harm or neglect, there is no evidence before us which suggests that child MK has been, or is at risk of being, subject to, or exposed to family violence, abused, or neglected by the Applicant: paragraph 8.4(4)(g).
In relation to trauma, there is no evidence before us which suggests that the child MK has experienced any physical or emotional trauma arising from the Applicant’s conduct: paragraph 8.4(4)(h).
In considering all the relevant factors, including that the relationship with MK is non-parental, that the contact with MK was for a limited period, and that there is a short period of time until MK is 18, we consider that cancellation of the Applicant’s visa will have minimal impact on child MK. However, noting that the Applicant has supported and encouraged child MK, and is likely to play a positive role, albeit for a short period until she turns 18, we consider that child MK’s interest weighs slightly in favour of revoking the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Having regard to all the above, we find that Primary Consideration Four, particularly in respect of the Applicant’s minor biological children, weighs heavily in favour of revoking the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5 – THE 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. We should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that the 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 position 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 (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.[36]
[36] 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.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government on which the decision maker must have regard.
The Applicant in this case has breached the expectations of the community by engaging in serious criminal conduct in Australia. Consequently, the expectation of the Australian community, as stipulated in paragraph 8.5(1), is that cancellation of the Applicant’s visa should not be revoked.
We note that the Applicant’s offending does not fall withing the categories of offences specified in subparagraphs 8.5(2)(a)–(f).
We have found above that the Applicant is a medium-low risk of re-offending. However, notwithstanding this, the expectations of the Australian community, as stipulated, applies regardless of the level of risk the Applicant poses to the Australian community: paragraph 8.5(3).
We have considered the Applicant’s contention that expectations of the Australian community should be given low weight because the Applicant has been residing in Australia for over ten years,[37] however, we note that the Applicant has spent most of that time either in prison or immigration detention. The Applicant arrived in Australia as an adult in February 2011, at the age of 26. He was granted protection in September 2012 and engaged in criminal conduct in April 2014. Given the relatively short period of time the Applicant lived in the community before engaging in criminal conduct, we do not consider this to be a case where the Australian community would afford the Applicant a higher level of tolerance, as provided for in the principle at subparagraph 5.2(5).
[37] Applicant’s Statement of Facts, Issues and Contentions at [80].
In considering, the evidence overall, we find that the primary consideration of the expectations of the Australian community weighs in favour of not revoking the cancellation of the Applicant’s visa, as it is designed to do.
Conclusion on Primary Consideration 5
Primary Consideration 5 weighs in favour of not revoking the revocation of the cancellation of the Applicant’s visa, as it is designed to do.
OTHER CONSIDERATIONS
It is necessary to look at the other considerations listed at paragraph 9 of the Direction.
Legal consequences of the decision
The Direction sets out the legal consequences of the decision at 9.1. In this case, as the visa that has been cancelled is a protection visa the Direction specifies that, except in limited circumstances which do not currently apply to the Applicant, the Act does not require or authorise his removal from Australia to Iran.[38]
[38] Paragraph 9.1.1 of the Direction.
As a result, if his visa remains cancelled the Applicant must remain in immigration detention unless and until he is granted another visa or can be removed to another country.[39] The Applicant will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone unless the Minister determines section 48A does not apply.[40] The Applicant will also be prevented from applying from any other class of visa except a Bridging R (Class WR) visa.[41]
[39] Paragraph 9.1.1(2) of the Direction.
[40] Paragraph 9.1.1(3) of the Direction.
[41] Ibid.
The Minister provided an assessment of international treaty obligations dated 2 June 2022[42] and a protection finding for the purposes of section 197C of the Act.[43] In summary, this concluded that the Applicant could not be involuntarily removed from Australia.
[42] Exhibit TB, 276-280.
[43] Ibid, 280.
Under regulation 2.20A of the Migration Regulations 1994, an application for a Bridging R (Class WR) visa can be validly made if the person is given an invitation in writing by the Minister and the person accepts the invitation within seven days. A criterion for the grant of a Class WR visa is that the person satisfies Public Interest Criterion 4001. This in turn requires the Minister to decide not to refuse to grant this visa despite an applicant not meeting the character test.
The Applicant provided policy documents on the exercise of the Minister’s discretion to permit an application for a further visa or to make a residency determination. The first of these documents specifies that the Minster does not generally wish to consider using a public interest power to determine that section 48A does not apply where the person has held a protection visa which has been cancelled.[44] The second states the Minister does not generally wish to exercise a discretion to grant a visa to a person in detention where the person’s visa has been cancelled under section 501 of the Act.[45] The third states cases are not generally to be referred to the Minister to make a residence determination under section 197AB of the Act where it is believed the person fails the character test.[46] These policy documents support the submission that the Applicant is likely to be indefinitely detained.
[44] Exhibit A2, 34.
[45] Ibid, 46.
[46] Ibid, 52.
The effect of the requirements for the Minister to exercise a discretion following the cancellation of a protection visa under section 501 of the Act is that the Applicant will be subject to prolonged or indefinite detention. It is speculative whether the Minister will exercise a power to grant a visa or allow a further application for a visa. In light of the policy documents provided by the Applicant, while it is possible, this prospect seems remote.
The sentencing judge found that the effect of the Applicant’s mental health is that a sentence of imprisonment will be more onerous for the Applicant.[47] According to his general practitioner and the assessment of Mr Watson-Munro, he continues to suffer anxiety and depression. We find that prolonged detention will also be more onerous for the Applicant.
[47] Exhibit G, G8, 48.
There are indicators that prolonged detention leads to ongoing problems with depression, anxiety, PTSD, low quality of life and further deterioration of mental health.[48]
[48] Guy J Coffey et al, ‘The meaning and mental health consequences of long-term immigration detention for people seeking asylum’ (2010) 70(12) Social Science and Medicine, 100-109; M von Werthern et al, ‘The impact of immigration detention on mental health; a systematic review’ (2018) 18(382) BMC Psychiatry, 110-128.
That the Applicant will be subject to indefinite detention weighs heavily in favour of revoking the cancellation of his visa.
Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country.
As the Applicant cannot be removed from Australia, this consideration does not apply.
Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, where information in this regard is available.
This information is not available to the us, and this consideration does not apply.
Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no information before us that the cancellation of the Applicant’s visa will have an adverse effect on Australian business interests as contemplated by the Direction, and this consideration does not apply.
Findings: Other Considerations
Of the other considerations specified in the Direction, only the legal consequences of the decision apply in this case. As this involves indefinite detention in the context of the Applicant having an existing mental illness, this weighs heavily in favour of revoking the cancellation of the Applicant’s visa.
CONCLUSION
It is necessary to weigh the primary and other considerations and have regard to the requirements in paragraph seven about taking relevant considerations into account.
In this case, the protection of the Australian community weighs moderately against revoking the cancellation of the Applicant’s visa, and the expectations of the Australian community also weigh against revoking the cancellation of his visa.
The strength, nature and duration of ties weighs moderately in favour of revoking the cancellation of the visa, and the bests interests of minor children weigh heavily in favour of revoking. Of the other considerations, only the legal consequences of the decision apply to the circumstances of this case. These weigh heavily in favour of revoking the cancellation of the visa.
In the circumstances of this case, where the Applicant will be indefinitely detained, his partner will have four minor children when their child is born, he has Australian citizen children, and in the context of the low risk of him reoffending, we consider the best interests of the children and the strength nature and duration of ties, together with the legal consequences of the decision, outweigh the protection of the Australian community and the expectations of the Australian community.
As a result, the Tribunal considers that for the purposes of subparagraph 501CA(4)(b)(ii) there is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar and Senior Member R Skaros.
.....................................[SGD]...................................
Associate
Dated: 13 July 2023
Date(s) of hearing: 29 and 30 June 2023 Counsel for the Applicant: Mr G Rohan Solicitors for the Applicant: Ms K Anandasivam, Legal Aid NSW
Counsel for the Respondent: Mr M Cleary Solicitors for the Respondent: Mr F Rush, Sparke Helmore Lawyers
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