King and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2907
•2 August 2022
King and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2907 (2 August 2022)
Division:General Division
File Number(s): 2022/3837
Re: Godfrey King
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:
The Hon. Dennis Cowdroy AO QC, Deputy PresidentDate:2 August 2022
Place:Sydney
The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.
..................................[SGD]......................................
The Hon. Dennis Cowdroy AO QC, Deputy President
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – impact on victims – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 501, 501CA
Cases
Falzon v Minister for Immigration and Border Protection [2013] HCA 2
Folau vMinister for Immigration and Border Protection [2016] FCA 1149
FYBR v Minister for Home Affairs [2019] FCAFC 185
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Re Yates; Ex parte Walsh (1925) 37 CLR 36
Viane v The Minister for Immigration and Border Protection (2018) FCAFC 116
Weti-Safwan and Minister for Immigration and Border Protection [2016] AATA 797YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
2 August 2022
The Applicant, who was formerly known as Godfrey King or as Junior King but now prefers to be addressed as Ms Gigi King, seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 24 August 2020 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, on 27 February 2020, to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa.
A delegate of the Minister was satisfied that the Applicant did not pass the character test referred to in section 501 of the Act on the basis that he had a “substantial criminal record”: section 501(6)(a). Such findings were made following the Applicant being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
The Applicant requested a revocation of the mandatory visa cancellation on 10 March 2020. On 12 May 2021, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held by video on 11 and 12 July 2022 on Microsoft Teams.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act, which 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.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
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. However, Australia may 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.
5Decision-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 type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
Facts
The Applicant, who is almost 25 years of age, was born in South Africa, but emigrated with his parents to New Zealand as an infant. The Applicant is a citizen of New Zealand.
evidence
Statements
The Tribunal has had regard to the various character references and statements before it. Such statements have been provided by the Applicant (8 June 2022); Ms Mavis King (8 June 2022); the Applicant’s sister (8 June 2022); Lizza Faga (3 July 2022). Several school reports were provided concerning the Applicant’s attendance at a public school in 2007 and 2009.
Oral evidence
The Tribunal heard oral evidence from the Applicant; the Applicant’s mother, Ms Mavis King; the Applicant’s friend Ms Lizza Faga; and from each of the medical experts referred to hereunder, except Ms Watts.
Health reports
Reports have been provided by those engaged in the health profession as follows:
(a)Report of Cait Watts, psychologist, of Headspace, National Youth Mental Health Foundation, dated 2 June 2022;
(b)Report of Dr Emily Kwok, psychologist dated 27 June 2022;
(c)Letter of Dr Melissa Kelly dated 5 July 2022; and
(d)Letter of Merryn Johanna Kellie dated 1 July 2022.
Witnesses Evidence
The Applicant
The Applicant came to Australia when she was nearly 6 years old and has not returned to New Zealand since migrating to Australia. The Applicant attended schools in the western suburbs of Sydney for her primary and secondary education. The Applicant did not complete her secondary education because of the need to work and support the family financially. The Applicant has been in employment since the age of 16 years in a variety of jobs and worked until she was incarcerated.
The family household was unhappy due to the violent behaviour of the Applicant’s father. The Applicant’s father and mother separated approximately 15 years ago. The Applicant has no continuing contact with her father. In oral evidence, the Applicant said that her father was trying to control her.
As discussed hereunder, the Applicant has consumed drugs and continues to do so. The Applicant has an extensive history of offending. Of particular relevance, as is discussed in more detail hereunder, is the fact that the Applicant attempted to mislead the police by providing a false medical certificate as a reason for not reporting in accordance with her bail conditions.
It is submitted for the Applicant that the Applicant has shown signs of rehabilitation since she was released from prison in March 2020. There is no evidence of any further offending since that date. However, the Applicant has misled Dr Kwok, psychologist, concerning her engagement with Headspace; has continued to consume illicit drugs; and has engaged in conduct which shows defiance of the Australian law by being found, on 10 occasions, on a train without payment of the train fare.
It is also submitted that because the Applicant has not been confined in detention, it can be assumed that she is not regarded as a risk to the community. This submission is dealt with later in this decision.
Further detail concerning the Applicant is contained later in this decision.
Ms Mavis King
Ms King provided her statement dated 8 June 2022 in which she referred to the difficulties experienced by the Applicant. Ms King asserts that the Applicant “now has a deep insight into her past offending, and she understands her personal faults. She has a strong desire to improve through counselling”. If the Applicant were deported, Ms King considers that she would be heartbroken and worried that the Applicant might commit suicide. Ms King stated in her oral evidence that she has no extended family in New Zealand. Ms King also stated that the Applicant, from approximately 2018 or 2019, preferred to dress in women’s clothing. She stated that whilst she has not herself experienced vilification from her local church because of the Applicant’s sexual orientation, she believed that members of the congregation were making adverse comments concerning the Applicant and her family. She also indicated that her younger son G was detained in a detention centre. Ms King also said that she had been divorced for approximately 15 years and that the relationship with her former husband was violent. She stated that her former husband, who is the father of the Applicant, has played virtually no role in their lives. When asked whether she would relocate to New Zealand if the Applicant were returned there, she stated that she had not made up her mind.
The Applicant’s Sister
The Applicant’s sister, S, did not provide oral testimony. In a written statement she refers to the assistance provided to her by the Applicant, and the fact that the Applicant makes her happy and has provided her with many skills. She has a strong relationship with the Applicant in view of the negligible relationship with her father.
Ms Lizza Faga
Ms Faga has been a very close friend of the Applicant since 2001 and is always available to the Applicant to discuss matters with her. She is a single mother of a five-year-old child. She states she has a rewarding friendship with the Applicant and that the Applicant is very regretful of her criminal offending. She states that the Applicant has “good self-control and can regulate her behaviour in the face of temptations and impulses”. The witness knows the Applicant as being included in a group of four or five friends. She said that sometimes the Applicant would disengage for a period of approximately a week, and she assumed the Applicant’s silence resulted from consumption of drugs. She states that she plays an important role in supporting the Applicant in maintaining good health. She and the Applicant are “constantly on video call and messages”. She seeks that the Applicant is not removed from Australia. This witness has now relocated to New Zealand and is residing there permanently with her five-year-old daughter. The witness is undertaking studies in New Zealand.
Ms Faga said that she believed the family support provided by the Applicant’s family was important, especially having the benefit of her own bedroom and her mother’s support with the provision of food. Ms Faga said that she would support the Applicant if the Applicant was returned to New Zealand.
Dr Melissa Kelly
Dr Kelly is a medical practitioner who has met the Applicant on approximately 6 to 8 occasions over the past 18 months. She had not seen the Applicant for at least a month prior to giving her evidence. The interviews took place at The Albion Centre, a publicly funded health clinic which provides assistance to those seeking gender advice and care, especially in relation to gender transition. The Centre has provided care to the Applicant since 2021. She states that her interviews have been “with a more medical bent” rather than psychological. Each of the visits have been approximately 20 to 30 minutes. On other occasions the Applicant has consulted nurses. Some of the consultations are face-to-face and others are by telephone. She described the holistic support provided by the centre for those with gender dysphoria. She stated that the focus of the work of the clinic is medical as opposed to rehabilitative. She was not aware of the extent of the Applicant’s involvement with the justice system but stated that clients who come from an unhappy background often experience transphobia and require support. She was not aware of any substance abuse issues involving the Applicant. She said that a peer worker would be Applicant’s case manager to provide her with counselling.
Dr Kelly understood that the Applicant “was linked up with Headspace Parramatta and certainly, and I don’t know if this has changed recently but [name redacted] was her case manager”. In her letter dated 5 July 2022 states, inter alia:
I would be very concerned that is [sic – if] Ms King were to be deported and be placed in a situation without a current support structure, it is highly likely her physical and mental health would deteriorate.
Ms Merryn Johanna Kellie
Ms Kellie is a nurse engaged at The Albion Centre who has met the Applicant twice in nursing consultations. She states that the Applicant attends appointments, which may be by telephone, and the Applicant visits other clinicians. The Applicant’s visits are usually bi-monthly, sometimes three times a month. The Applicant did not attend two appointments. She understood that the Applicant was receiving mental health support from Headspace.
Ms Kellie was aware of the criminal history of the Applicant and understood that the Applicant had left such conduct behind. She was not aware of any substance abuse issues involving the Applicant. She indicated that counselling was provided for gender affirmation, followed by blood tests. Gender-affirming counselling was then provided, but there is no need for a psychiatrist to be involved to confirm the choice made by the person seeking a gender transition. She indicated the Applicant would come three-monthly, then extended to 6 and 12 monthly for her proposed future transition.
In her letter dated 1 July 2022, Ms Kellie said:
Based on my interactions with Ms King, I believe her to be of good character and I would like to see the Tribunal extend compassion and understanding regarding her stressors and family support in Australia, and offer her another chance.
Ms Cait Watts
Ms Cait Watts is a Case Manager and social worker, Continuing Care Team at Headspace Parramatta. Ms Watts has provided a report dated 2 June 2022. The report attaches a care plan undergone by the Applicant of gender transition. The report is incomplete and provides little assistance to the Tribunal, except to highlight the fact that the Applicant did not follow through with the courses. The Applicant attended Headspace in late 2020 after being released from Blacktown Hospital, Bungarribee House, where the Applicant was admitted for unspecified treatment for first-episode psychosis soon after her release from prison. The last care plan was prepared in July 2021 and the Applicant was required to undertake care plans on a three-monthly basis. It appears that the Applicant has not followed through with the proposed care plan. Records of Headspace concerning the Applicant commenced in September 2021 but Ms Watts states that the Applicant has only attended 50% of medical reviews and clinical appointments in September 2021. Ms Watts letter continues: “Care plan should also be completed every three months and this again has not been completed due to disengagement”.
Report of Dr Emily Kwok
Dr Kwok, psychologist, has provided a report dated 27 June 2022. She refers to an interview by video of one hour duration on 15 June 2022 and a second 30-minute video interview on 21 June 2022. The report refers to the family history and of a positive relationship which the Applicant has with her mother.
In respect of her schooling, the Applicant informed Dr Kwok that other pupils were questioning the Applicant’s sexual orientation and that the Applicant was suspended for fighting at school because of retaliation. Records produced to the Tribunal record that the Applicant was prohibited from attending school because of her aggressive conduct.
The report records that the Applicant was introduced to marijuana after leaving school, then methamphetamine and cocaine. The Applicant attended Odyssey House for drug and alcohol group therapy in 2017, but no records are available from that institution. Whilst in prison the Applicant was unco-operative. The Applicant attended drug and alcohol counselling.
With respect to the Headspace Early Psychosis program, the Applicant told Dr Kwok that she had been seeing a counsellor every two weeks for more than a year since enrolling in the program in January 2021 in the First Episode Psychosis counselling sessions.
Dr Kwok was provided with a report of the criminal offending of the Applicant, and states at [52] of her report:
Due to the combination of childhood traumas and gender dysphoria, Ms King suffers from psychiatric co-morbidities including anxiety, depression, substance abuse, and she has antisocial personality traits. She was also diagnosed with first-episode psychosis. Ms King presents as an individual who is impulsive and habitually engage in behaviours that violate social norms and expectations in order to satisfy her immediate desires. Her problematic behaviours are mostly driven by emotional dysregulation, irrational thinking and loss of self-control. This pattern of behaviour is usually present since childhood or adolescence, which is the case for Ms King whose criminal history began as a juvenile. Although Ms King reported some attempts to address the substance abuse in 2017, she was not responsive to treatment and relapsed.
Dr Kwok considered that “a multifaceted approach” was required for the Applicant. She considered that family therapy and individual psychological intervention was required. She also considered that the Applicant would benefit from understanding the benefits and risks of gender transition.
Dr Kwok continued at [57] of her report:
I accept that Ms King also has a few protective factors. Based on my interactions with Ms King it appears she has developed some insight into the seriousness of her problematic behaviours and their Impact on victims. She currently has the support of her mother and siblings. She also has a counsellor at Headspace, and she expressed a willingness to continue with this intervention. However, given Ms King’s previous lack of engagement at Headspace and her non-compliance with the medication regimen, I suggest that her general practitioner monitor her adherence to treatment more closely.
In her conclusion Dr Kwok states at [59] of her report:
Due to the combination of childhood traumas and gender dysphoria, Ms King suffers from psychiatric co-morbidities including anxiety, depression, substance abuse and she has antisocial personality traits. She was also diagnosed with first-episode psychosis. Her mental health conditions have not been adequately treated and this has contributed to her problematic behaviours.
Dr Kwok concluded at [61] of her report:
Ms King presents with a moderate risk of re-offending, and this can significantly reduce if she engages in, and responds to, treatment that targets the criminogenic needs as identified in this report.
Applicant’s Criminal history
The Applicant has an extensive criminal history. Several of the Applicant’s convictions were committed whilst she was a minor. The Applicant’s juvenile offending has been redacted in accordance with section 15A of the Children (Criminal Proceedings) Act 1987 (NSW). In regard to the Applicant’s offending as an adult, a schedule is set out hereunder which records the dates of the convictions, the offences for which the Applicant was convicted, and the penalties imposed.
Court date
Offence date
Offence
Court result
References
27 October 2015
22 September 2015
Shoplifting value <=$2000-T2
Fine: $400
G-Documents (“GD”) 34, Respondent’s Tender Bundle (“RTB”) 6-7, Respondent’s Supplementary Tender Bundle (“RSTB”) 52
21 January 2016
26 October 2015
Shoplifting value <=$2000-T2
Fine: $700
GD 33, RTB 7, RSTB 42-43
26 October 2016
2 October 2016
Assault occasioning actual bodily harm (DV)-T2
Fine: $1,200
GD 33, RTB 7, RSTB 29-30
2 October 2016
Contravene prohibition/restriction in AVO (Domestic)
Fine: $500
GD 33, RTB 8
19 October 2016
Fail to appear in accordance with bail acknowledgement
Fine: $300
GD 33, RTB 7
7 July 2017
10 May 2017
Stealing
Outstanding charge; failed to appear – wanted on warrant
GD 33, RTB 20, 33
10 May 2017
Stealing
GD 33, RTB 20, 33
10 May 2017
Stealing
GD 33, RTB 20, 33-34
10 May 2017
Possess tainted property
GD 33, RTB 21, 23, 34
11 October 2017
18 February 2017
Common assault (DV)-T2
Bond s9: 12 months
GD 33, 42-47, RTB 9, 97-98, 110-115, RSTB 23-25
18 February 2017
Common assault (DV)-T2
Bond s9: 12 months
GD 33, 42-47, RTB 10, 97-98, 110-115, RSTB 23-25
1 March 2017
Fail to appear in accordance with bail acknowledgement
Fine: $200
GD 33, 42-47, RTB 9, 97-98
18 February 2017
Stalk/intimidate intend fear physical etc harm (domestic)-T2
Imprisonment: 4 months
GD 33, 42-47, RTB 9, 97-98, 110-115, RSTB 23-25
18 February 2017
Contravene prohibition/restriction in AVO (Domestic)
Imprisonment: 4 months
GD 33, 42-47, RTB 9, 97-98, 110-115, RSTB 23-25
18 February 2017
Contravene prohibition/restriction in AVO (Domestic)
Bond s9: 12 months
GD 33, 42-47, RTB 9, 97-98, 110-115, RSTB 23-25
18 February 2017
Destroy or damage property <=$2000-T2
Fine: $200
GD 32, 42-47, RTB 9, 97-98, 110-115, RSTB 23-25
18 July 2019
11 May 2019
Excluded person fail to leave premises when required
Fine: $500
GD 32, RTB 10, RSTB 13-14
11 February 2020
1 to 6 July 2019
Intentionally distribute intimate image w/o consent etc-T2
Imprisonment (aggregate): 12 months
GD 32, 35-41, RTB 13, 101-109, 121-123, RSTB 10-11
22 August 2019
Failure to appear in accordance with bail acknowledgement
S10A conviction with no other penalty
GD 32, RTB 12, 101-109, RSTB 10
24 September 2019
Use false document to influence exercise of public duty-T1
Imprisonment (aggregate): 12 months
GD 32, 35-41, RTB 14-15, 101-109, 125-127, RSTB 8-9
18 July 2019
Fail to appear in accordance with bail acknowledgement
S10A conviction with no other penalty
GD 31, RTB 13, 101-109, RSTB 10
11 May 2019
Assault police officer in execution of duty w/o abh-T2
Imprisonment (aggregate): 12 months
GD 32, 35-41, RTB 12, 101-109, 118-120, RSTB 13-14
11 May 2019
Resist or hinder police officer in the execution of duty
Imprisonment (aggregate): 12 months
GD 32, 35-41, RTB 12, 101-109, 118-120, RSTB 13-14
22 August 2019
Fail to appear in accordance with bail acknowledgement
S10A conviction with no other penalty
GD 32, RTB 11, 101-109
Local Court Blacktown
The Applicant appeared in the Local Court, Blacktown, on 11 October 2017 in response to charges brought against her, namely: failing to appear in accordance with the bail acknowledgement; destroy or damage property value of less than $2000; contravene prohibition/restriction in AVO (domestic); stalk/intimidate intend fear physical/mental harm (domestic); and common assault.
An Apprehended Domestic Violence Order (“ADVO”) was issued on 27 January 2016 against the Applicant for the protection of the Applicant’s younger brother.
A second final ADVO was issued on 19 October 2016 recording the Applicant’s mother and sister as the protected persons in such order, restraining the Applicant from residing with her mother, sister and brother in a home unit rented by the Applicant’s mother (“the family home”). The complainants were the Applicant’s mother, the Applicant’s sister (then aged 11 years), and her brother (then aged 15 years).
On 18 February 2017, the Applicant attended the family home in breach of the ADVO and during her visit the Applicant slapped her sister on the face and an altercation ensued. The Applicant was apprehended for breach of the ADVO.
At the hearing, the legal representative of the Applicant stated that the Applicant had been in Parklea prison, which was her first experience in a correctional centre, and the Applicant was using drugs heavily at that time, particularly methamphetamine. The legal representative informed the court that the Applicant had ceased using drugs.
His Honour Magistrate Hiatt stated in his sentencing remarks:
Mr King [sic], you stand before the Court for sentence in regard to a series of offences which relate to two counts of common assault, two counts of contravene prohibition restriction apprehended violence order, a further offence of stalk intimidate, a further offence of destroy or damage property, and a fail to appear, being offences on 18 February 2017, and only so far as the matters are concerned, that you were convicted in your absence on 1 March 2017. Those particular convictions are not challenged, and that there was a plea of guilty in relation to the fail to appear.
Insofar as those particular matters are concerned, putting to one side the fail to appear, there is no relevant discount to be applied insofar as penalty is concerned. In regard to the facts of each of the matters before the Court, Mr King, noting the domestic violence related offences and noting the common assault matters relate to two separate victims, and there is two counts of contravene prohibition restriction apprehended violence order, and a stalk intimidate matter, which I consider, based on the facts of the matter and your particular actions, to be an objectively serious matter and one in which the threshold in regard to s 5 has been crossed.
His Honour continued:
Ultimately, Mr King, in relation to the matters before the Court, there needs to be a penalty imposed in relation to the matters that not only adequately punish you in respect to your offending behaviour, but ones that send a clear message of general deterrent to others in the community who would commit a similar offence. As I have earlier indicated, Mr King, I am satisfied in relation to the offence of stalk intimidate, and the second count of contravene prohibition restriction apprehended violence order. The threshold in regard to s 5 is crossed, but there is no other penalty appropriate other than one by way of a custodial sentence.
The penalties imposed are set out in the schedule for the offences.
Local Court Burwood
The Applicant appeared before the Local Court, Burwood (NSW), on 11 February 2020 to answer charges of assault police officer in the execution of duties; resist police officer in the execution of duties; distributing an intimate image without consent; and using false document to influence the exercise of public duty.
The circumstances of the more serious charges related to the fact that the Applicant had filmed two young females showering together then uploaded the image on the Internet on a site known as Pornhub, without the consent of the young women. The video was of 10 seconds duration and it was later removed from the site.
Separately, the Applicant had failed to report as was required under an existing order and then produced a false medical certificate.
The assault consisted of the Applicant pushing against the chest of a police officer, for which Her Honour, Magistrate Stapleton, noted that the maximum penalty was five years in custody; for resisting police, the maximum penalty was 12 months custody; for intentionally distributing an intimate image without consent, three years in custody; and to use a false document to influence the exercise of a public duty, 10 years in custody. Having noted such maximum penalties, Her Honour stated in her sentencing remarks in respect of the assault charge against the police:
It is immediately clear that the most serious of the matters in terms of what the Parliament thinks is the ten years for use a false document to influence the exercise of public duty because, of course, the rule of law requires, effectively, a system of trust, so that between police and persons who are on bail, the Court exercising trust or an authorised officer exercising trust, releases an individual to their liberty in the community pending determination of some other matter and to produce a false document to influence the question of whether a person will be dealt with for a breach of bail for a failure to report is a serious undermining of that trust.
As a matter of general deterrence it must be regarded as a serious matter and in this case on a scale of serious, very serious and most serious, I regard it as very serious. Especially when I know, as I do, that Mr King [sic] is a person who has a long criminal history, including matters in the Children's Court which, not considering the nature of those matters, but that experience, he recognised, it seems to me, the whole of the system, how it works. He knew he would be in trouble for failing to report. It was only one day, yet even in that circumstance he decided he would produce a false doctor's certificate. It is a very serious matter.
The next matter for consideration which I will speak about is the intentionally distribute an intimate image without consent. He was at a party, there was a girl in a shower, there was another girl in the shower. I think it was a girl, it appears to be from the facts I read. He took a video of that. He is not charged with that because apparently she consented, but he then posted it to the internet. There is an exercise in humiliation of her. He was probably big noting himself as well. Three years for the worst case.
Her Honour continued:
That is a humiliation of her of an enormous and potentially permanently damaging kind. The next matter is a matter of violence to police in the context of him being intoxicated in public licensed premises. He was asked to leave. He pushed an officer in the chest, the officer having done a check drill to give himself some space, and later had a short struggle with police. For assault officer, five years, for resist police 12 months. In relation to the assault officer it was a push to the chest, it is a matter of not great moment.
In relation to all of these matters I certainly think, as Ms Fowler has correctly stated, the false document matter and the intentionally distribute an intimate image without consent, are the more serious matters, although, of course, it is no part of the duty of police to have to put up with physical violence. I consider, it seems to me, the following matters in relation to Mr King.
Penalties were imposed as set out in the schedule above.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because she has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
primary considerations
primary consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, 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 also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The offences for which the Applicant was convicted before the Local Court at Burwood were regarded by Her Honour as serious, and the production of a false medical certificate as an excuse for her failing to report to the authorities was regarded as a very serious matter.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the imposition of bail conditions comprises part of the system of justice. Where those conditions are breached, the system of justice is undermined;
(b)the assault on a police officer comprising a push to the chest of the officer and later a short struggle, represents a refusal by the Applicant to acknowledge the authority of law enforcement officials; and
(c)the publication, without consent, on a website, of intimate images of young women resulted in humiliation to those persons, although it was stated that the Applicant was not charged with filming a video of an intimate situation without consent but rather the charge related to placing the video on the Internet.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. It notes the oral evidence of Dr Kwok in cross examination when she was informed that the Applicant was continuing to use drugs. Dr Kwok then revised her previous assessment of the risk of reoffending to “at the high end of medium”. The Applicant has demonstrated that should she engage in further serious conduct, there is a risk to the Australian community, and the Tribunal refers to the matters hereunder.
Nature of Offending
Blacktown Local Court Offences
When analysed, each of the offences referred to – namely: destroy or damage property; contravene prohibition or restriction in an ADVO; stalk/intimidate with intend fear physical or mental harm; and common assault – all result from family issues which appear to have been outbreaks of violence. There is no evidence that any family member has suffered permanent damage. The Applicant asserted she was using drugs heavily at the time, particularly methamphetamine, and that had she not been under the influence of drugs, she would have behaved better towards her sister and her mother.
The other offence for which the Applicant was charged was her failure to appear in accordance with the bail acknowledgement. A fine of $300 was imposed. The quantum of the penalty indicates that such breach was not regarded as a serious matter.
Beenleigh Magistrates Court
In 2017 the Applicant was charged with four counts of theft. The items were stolen from a retail outlet. The proceedings have not been determined as the Applicant failed to attend a hearing. In consequence, a warrant has been issued for the arrest of the Applicant and the warrant remains unsatisfied.
Local Court, Burwood
Prima facie, assaulting a police officer in the execution of his duty and resisting arrest in the execution of a police officer’s duty constitute serious offences. However, the circumstances, when analysed from the police records, show that the assault consisted of the Applicant pushing the police officer in the chest, following which there was a short scuffle. There is no suggestion that the officer involved was injured. This offence resulted in an aggregate sentence of 12 months with a non-parole period of six months.
The other charges relate to the Applicant uploading the intimate video of the young females showering. Whilst humiliation resulted to the persons involved, there is no suggestion of any violence nor long-term damage to the victims. This offence resulted in a 12-month sentence including a non-parole period of six months.
In respect of the Applicant’s failure to appear in accordance with the bail acknowledgement, no other penalty was imposed.
Conduct during the incarceration
The records of the NSW Department of Corrective Services record that on numerous occasions whilst in prison in 2019 the Applicant was “combative and appeared agitated”. The records record that the Applicant had been aggressive and that she had constantly raised her voice, swore and was abusive.
A psychologist interviewed the Applicant on 23 December 2019 and recorded:
No symptoms of psychosis were observed or reported. Inmate stated that he [sic] is not on any medication and denied any previous diagnosis. Inmate stated that he is not currently experiencing any problems with other inmates. Inmate reported some limited support from his mum. Inmate reported in the three months prior to coming to jail he used cocaine and would binge drink on the weekend; he reported using marijuana daily.
On 28 December 2019 the records state:
Mr King [sic] was admitted to MHSU on 27 December 2019. He was transferred from LBH and has a history of violent and abusive behaviour. He was in a segregation order in LBH after assaulting a correctional officer and justice health nurse unprovoked.
Pre-sentence reports are before the Tribunal. A report dated 11 October 2017 record that the Applicant was assessed to be unsuitable for a community service order due to unresolved methamphetamine use issues and unresolved mental health issues.
A sentencing assessment report dated 6 December 2019 records:
It should also be noted that Mr King [sic] has continually exhibited aggressive and oppositional behaviour within John Moroney Correctional Complex, incurring institutional misconduct charges.
A further sentencing assessment report dated 10 February 2020 records that the Applicant stated that “he consumed alcohol, MDMA and cocaine with his friends on a recreational basis”.
During the period of incarceration, the Applicant has demonstrated violent conduct towards Correction staff. For example, a record made on 26 November 2019 records that the Applicant, having refused to comply with a direction, became aggressive and used bad language.
On 3 December 2019, the Applicant told an officer “shut the fuck up you mad bitch” followed by “don’t fucking speak to me”. The Applicant then approached the officer in an aggressive manner before another officer intervened. Other records show that the Applicant has repeatedly told staff to “fuck off.” The records show that the Applicant was restrained and was placed in isolation during incarceration.
There are numerous other entries relating to the Applicant’s aggressive and erratic behaviour including threats to “bash” her cellmate, as contained in the record dated 4 December 2019. Further, the records record that the Applicant displayed poor insight into his incidents “in harm to others”. The Applicant refused medication from the medical officer, as recorded in the notes of 27 December 2019. The Applicant denied all psychotic phenomena and/or perceptual disturbances, denied having a history of mental illness, and remained non-compliant with treatment.
False Medical Certificate
One of the charges of which the Applicant was convicted related to her provision of a false medical certificate in justification for failing to attend in compliance with bail conditions which were imposed on 11 October 2017. The Applicant produced a medical certificate purportedly signed by a medical practitioner. When the practitioner was contacted by police, the practitioner stated that he did not issue the certificate and was not on duty on the day on which it was signed.
The Tribunal has considered the evidence of Mavis King, the Applicant’s mother. Whilst much of the statement she has provided refers to the Applicant’s sexual orientation and gender identity, the Tribunal notes that, according to the Applicant’s mother, the Applicant’s sexual orientation was not an issue so far as she was aware until 2017 or 2018. Accordingly, if this is correct, there appears to be nothing to link the issue of the Applicant’s gender identity with the offending which commenced many years earlier, as evidenced by the schedule of offending. There is a reference to the fact that the Applicant was admitted to Blacktown Hospital in 2020 (Bungarribee House), but no further details are provided. There is also reference to the fact that the Applicant has been in contact with Headspace, which reported that the Applicant was suffering from “first episode psychosis”. No details are available whether any psychiatrist or psychologist made such diagnosis. No treatment details are available.
In her evidence Dr Kwok said: “… and I understand that her therapist at Headspace is addressing this with her or continuing to address this with her”. Dr Kwok understood that the Applicant was receiving assistance from Headspace. However, the Applicant did not inform Dr Kwok of any such assistance until the Applicant’s second interview with Dr Kwok and did not tell her that she had not engaged Headspace since mid-2021. The Applicant claimed that she made a telephone call approximately two weeks ago to a counsellor at Headspace. There is no evidence of such call nor is there any evidence of any appointment or follow-up. However, again there is no details of any treatment provided, nor of any ongoing mental or physical disability suffered by the Applicant. Significantly, no psychiatric evidence has been provided of the Applicant’s condition. Dr Kwok noted that there was a reference to the Applicant’s suicidal ideation. The Applicant told Dr Kwok that she had self-harming behaviour when she was 14 and 21. There is no current evidence of any suicidal tendencies. Dr Kwok says in her report at [22]-[25]:
Mental health history. Ms King reported that she used to be ‘anorexic’ as a child, but she ‘became severely overweight’ when she was in Africa for six months when she was seven years old. She stated that she became ‘very ill’ during that time. She further reported that she experienced ‘anger issues’ after her parents divorced and she gained more weight after this.
Ms King stated that she was ‘unhappy’ and ‘confused’ when she was growing up due to gender dysphoria. She explained that she did not initially understand her ‘femininity’ because the African culture does not speak about homosexuality. She also said that she was ‘beaten up’ for trying her mother’s high heels when she was a child. Ms King reported that she began self-harming by cutting herself when she was fourteen years old, because she wanted to ‘ease the pain’ and ‘find acceptance.’ She reportedly did not tell anyone about her self-harming behaviours until she told a juvenile justice officer when she around seventeen years old.
Ms King stated that she contemplated suicide when she was around seventeen years old. More specifically, she said that she stood on top of a cliff and held a knife against herself because she ‘was struggling with everything from childhood.’ When asked to elaborate, she said that she struggled with her family being ‘broken’ and being in financial hardship. She further expressed disappointment in herself for not completing high school. She also indicated that she struggled with gender dysphoria, because this was unacceptable in the African culture. I note that Ms Mavis King (Ms King’s mother) wrote in her statement dated 8 June 2022 that “many [family and friends] gossiped [about Ms King] and would refer [to] her as a weirdo. She was also ostracised and judged by our African community and church…Gigi’s father does not want anything to do with her because she is trans.” Ms King stated that her mother has come to accept her sexual orientation over the past two years, but ‘she is still not happy with it.’
Ms King reported that she ‘stood over a bridge’ and contemplated suicide when she was twenty-one years old. She reportedly walked away from the bridge and ‘started to make a big change in myself.’ Regarding this ‘big change,’ Ms King said that she made the decision to transition into a female. She stated that, at the time, she was attracted to a man (note, this was not a romantic relationship) and this ‘gave me confidence to start transitioning.’ Ms King stated that she ‘wanted to get with somebody and experience the whole aspect of love.’
The conduct of the Applicant has demonstrated that she has not been law-abiding, nor does she respect important institutions. Her display of defiance to the police and the prison authorities is clear. Further, her attempt to deceive the justice system by providing the false medical report (sub-paragraph 8.1.1(1)(f) of the Direction) and continuing to consume methamphetamine shows a disregard for the legal system. There is a risk that the Applicant will engage in potentially violent conduct in the future and place the public, and its law enforcement officers at risk.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
Primary consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful”.
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
The NSW Police Fact Sheet prepared for the Local Court at Parramatta on 19 February 2017 records that the complainants seeking the ADVO were the Applicant’s mother, sister, and brother. On 27 January 2016, a final ADVO was issued recording the Applicant’s brother as the protected person. On 19 October 2016, the second ADVO was granted recording the Applicant’s mother and sister as protected persons.
On 18 February 2017, the Applicant attended the family home which she was restrained from entering by the ADVO. The Applicant maintains that she returned to the home to collect her belongings as she was homeless as a result of the order. She then spent several months relying upon friends for accommodation.
According to the records, the Applicant then became involved in a verbal argument with her sister when a physical struggle ensued. The Applicant then approached her sister, then aged 11 years, and intentionally slapped her on the face with an open hand. The Applicant attempted to strike her sister in a similar manner again when the Applicant’s mother intervened. The Applicant then forcibly pushed her mother causing her to fall. The Applicant then refused to leave the residence. The Applicant was alleged to have contravened the ADVO by assaulting both her sister and mother.
The records and disclose that the Applicant then became involved in a verbal argument with her brother which escalated to a physical altercation involving exchanging of punches with closed fists. It continued resulting in the overturning of furniture. The Applicant then moved to the kitchen and took possession of a large knife of approximately 30 cm in length and verbally threatened her brother. The mother then intervened.
Whilst there is little evidence of the circumstances surrounding the family violence leading to the issue of the first ADVO, it was sufficiently serious for the police to issue an ADVO for the protection of the Applicant’s brother, then later, the Applicant’s mother and sister. The Tribunal notes the Applicant’s claim that his offences were driven by “drug use, financial difficulty and together with a poor approach to depression and other hard things of life”. However, there is no evidence in the police records that the issue of the ADVO, and indeed its breach, resulted from the Applicant being affected by drugs.
The future risk of family violence is apparent, especially as the evidence establishes that the Applicant consumes methamphetamine.
Finding on Primary Consideration B
The Tribunal finds that this consideration weighs against revocation of the decision under review.
primary consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time when the decision to refuse the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
(a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));
(b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));
(c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
(d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
(e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has no children and there is no evidence of any other children such as nieces, nephews or cousins or close relations who is relevant for the purpose of the consideration under the Direction. The Applicant has a sister (S) who is 16 years of age. In her statement dated 8 June 2020, S states that she is very close to the Applicant; that the Applicant provides her with much encouragement; that they engage in activities such as dancing and watching movies; that the Applicant is overprotective and cares about her well-being because she is the youngest in the family; that there is not a strong relationship between S and her father and that the Applicant has played “both parental and sibling roles in myself”.
The Applicant is not in a parental relationship with S, as was submitted on behalf of the Applicant, since this role is fulfilled by the mother of S. S is almost 17 years of age. However, the Tribunal acknowledges that the Applicant has been a very important figure in her life and has acted as the de facto parent of S. In accordance with cl 13.2 (4) of the Direction, the Tribunal is required to consider each of the matters referred to in subparagraph (a) to (h) where relevant. The Tribunal notes as follows in respect of each of the relevant subparagraphs as if the Applicant and S were in a parental relationship:
(a)the nature and duration of the relationship has been lifelong between the Applicant and S, despite the fact that there has been a period of separation due to incarceration;
(b)based upon the statement of S, the Applicant is likely to play a positive role in the future until S turns 18; however, the criminal conduct of the Applicant and his disregard for the legal system could potentially be a negative factor for S;
(c)the impact of the Applicant’s prior conduct on S, namely the family violence, is unlikely to have a negative impact on S;
(d)the separation of the Applicant from S, taking into account the ability to maintain contact, will be significant; however if the Applicant is returned to New Zealand, contact may be maintained by electronic means;
(e)there is no evidence that the mother of S, Ms Mavis King, does not fulfil the parental role;
(f)the known views of S are that the Applicant be permitted to remain in Australia and to continue the relationship between them. Since S is 16 years of age, she has the maturity to form an opinion. However, the Tribunal notes at S was not called to provide oral evidence in support of the application;
(g)there is no evidence, other than the isolated family violence incident, that the Applicant has abused or neglected S; and
(h)there is no evidence that S has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
Finding on Primary Consideration C
The Tribunal finds that this consideration weighs slightly favour of revocation of the cancellation decision.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(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 they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
For these reasons, the Tribunal is satisfied that there is no other reason why the original decision to cancel the Applicant’s visa should be revoked.
decision
The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.
I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
...................................[SGD].....................................
Associate
Dated: 2 August 2022
Date(s) of hearing: 11 July 2022 and 12 July 2022 Solicitors for the Applicant: Mr Charles Ukaegbu, Spiritus Law Group Solicitors for the Respondent: Ms Chloe Hillary, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Jurisdiction
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Remedies
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