King and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4391
•25 November 2021
King and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4391 (25 November 2021)
Division:GENERAL DIVISION
File Number: 2021/6320
Re:Robert King
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:25 November 2021
Place:Perth
The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 2 September 2021, not to revoke the cancellation of the Applicant’s Special Category (Class TY, Subclass 444) visa is affirmed.
.............[Sgd]...........................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – offences of unlawfully assaulting another and thereby doing bodily harm in circumstances of aggravation – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 40-year-old man who arrived in Australia as a 27 year old – extent of impediments if returned to New Zealand – Non-Revocation Decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 5CB, 5G, 5G(2), 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501, 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Misuse of Drugs Act 1981 (WA)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs(No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Umi v Minister for Home Affairs [2019] FCA 2148
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) – paras 4(1), 4(1)(a), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 8, 8(1), 8.1(1) 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(3), 8.3(4), 8.3(4)(a), 8.3(4)(ah), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(g), 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1, 9.1(1), 9.2, 9.3, 9.4.1, 9.4.2
Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Member S Burford
25 November 2021
INTRODUCTION
1. The Applicant is a 40-year-old citizen of New Zealand. He first arrived in Australia on 24 July 2008 as the holder of a Special Category (Temporary) (Class TY) (Subclass 444) visa, when he was 27 years old.[1] He departed Australia on 3 September 2009 and returned on 8 September 2009 when he was granted a further Special Category (Temporary) (Class TY) (Subclass 444) visa (the Applicant’s visa).[2]
[1] R1, G14, page 94; R4 para 2.
[2] R1, G14, page 94; R1, G16, page 96.
2. On 5 November 2020, the Applicant was convicted in the Kalgoorlie Registry of the Magistrates Court of Western Australia of:[3]
·One count of breaching a police order;
·One count of breaching protective bail conditions;
·Two counts of unlawful assault causing bodily harm in circumstances of aggravation; and
·Three counts of breaching a community-based order.
[3] R1, G6, pages 29-30; R1, G8, pages 32-37.
The Applicant was sentenced to a total effective sentence of 18 months’ imprisonment for those offences.[4] He was made eligible for parole but parole was not supported, and he completed his full sentence on 27 October 2021.[5] The Parole Board Report was not before the Tribunal. The Applicant is currently in immigration detention at Yongah Hill Immigration Detention Centre.
[4] R1, G6, pages 29-30; R1, G8, pages 32-37; R1, G13, pages 92-93.
[5] R3, FS1, page 2; FS6, pages 15-19.
3. On 30 November 2020, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[6] The Applicant requested revocation of the Cancellation Decision on 8 December 2020.[7]
[6] Migration Act ss 501(6)(a) and 501(7)(c); R1, G16, page 96-101.
[7] R1, G9. The request was dated 7 December 2020 however the facsimile date reads 8 December 2020.
4. On 2 September 2021, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[8] The Applicant was notified of the decision by hand at Eastern Goldfields Regional Prison by letter dated 2 September 2021.[9] No signed copy of the acknowledgement receipt was before the Tribunal.
[8] R1, G4, G5 (reasons).
[9] R1, G3.
5. The Applicant lodged his application for review of the Non-Revocation Decision by way of an undated statement, received by the Tribunal on 7 September 2021.[10] The application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act, and that the Tribunal has jurisdiction to review the Non-Revocation Decision.
[10] R1, G1.
6. The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[11] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.[12]
[11] Migration Act s 501CA(4)(b)(i).
[12] Migration Act s 501CA(4)(b)(ii).
7. For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the Non-Revocation Decision.
BACKGROUND
8. As noted above, the Applicant came to Australia in 2008 when he was 27 years old. He travelled to Australia with this then de facto partner, Ms Paekau and their three children, who are now adults. Ms Paekau and the three children live in Australia. No supporting documentation regarding their migration status was provided to the Tribunal, however, the Tribunal accepts they reside in Australia on a permanent basis.
9. The Applicant entered into a relationship with his current partner, Ms Jones in 2016.[13] They have two children together who are currently 2 and 3 years old.[14] The two children’s nationality is described in the request for revocation as ‘Maori/Aboriginal Australian’.[15] At the hearing before the Tribunal, Ms Jones identified herself as an Indigenous Australian and a member of the Wongi and Ardyaloon communities.[16] Her family originated from the Cape Leveque area of the Kimberley region and moved to the Kalgoorlie area when she was young. Her extended family also live in the Kalgoorlie area.[17] No supporting documentation regarding the birth or citizenship details of the children was before the Tribunal. However, the information in the request for revocation and information submitted by the Applicant was consistent with Ms Jones’ evidence and the Tribunal accepts the children are Australian citizens of Indigenous Australian and Maori heritage.
[13] R2, S13, page 40.
[14] R1, G26, page 184.
[15] R1, G9, page 49.
[16] Transcript page 39.
[17] Transcript, page 39.
10. As noted above, on 5 November 2020, the Applicant was convicted in the Kalgoorlie Magistrates Court of Western Australia of several offences and was sentenced a total effective term of 18 months’ imprisonment.[18]
[18] R1, G6, G8.
11. The Cancellation Decision was made on 30 November 2020.[19] The Applicant was notified of the decision by hand at Eastern Goldfields Regional Prison, and was advised that he could make representations to seek revocation of the Cancellation Decision.[20] He signed acknowledging receipt of the notification on the same day.[21] Representations seeking revocation of the decision were made on 8 December 2020.[22] Further documents were provided on 12 August 2021 and 16 August 2021 in response to follow-up correspondence from the Department (detailed below).[23]
[19] R1, G16.
[20] R1, G16.
[21] R1, G18.
[22] R1, G5, G9, G10, G12.
[23] R1, G26, G27, G28, G30, G31.
12. On 21 April 2021, the Department wrote to the Applicant noting that on 15 April 2021, Direction No 90 had replaced Direction No 79, and summarised some of the matters referenced in Direction No 90, including the ‘new standalone primary consideration, making particular reference to behaviour defined as family violence’.[24] The letter also referred to ‘other forms of unacceptable behaviours against vulnerable members of the community’, in addition to those in Direction No 79. The Applicant was invited to comment on Direction No 90, however, the letter noted that information already provided would be considered under the new Direction No 90. The Applicant was also invited to comment on further information relevant to the decision of whether or not to revoke the Cancellation Decision.[25]
[24] R1, G20; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs: Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79), Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) (Direction No 90).
[25] R1, G20.
13. On 2 September 2021, the delegate decided not to revoke the Cancellation Decision.[26]
[26] R1, G5.
14. Pursuant to s 500(6L) of the Migration Act, the 84-day timeframe for the Tribunal to make a decision on the application for review ends on 25 November 2021.
THE HEARING
15. The hearing was held on 9 November 2021 at the Tribunal Registry in Perth. The Applicant appeared by videoconference from Yongah Hill Immigration Detention Centre and was self-represented. The Respondent was represented by Mr Shinnick of Minter Ellison, who appeared in person.
16. At the hearing, the Applicant made submissions, gave evidence, and was cross-examined. The Tribunal also took evidence from the Applicant’s de facto partner, Ms Jones, who appeared by telephone. She was cross-examined and also answered several questions put to her by the Tribunal. The Applicant declined to ask Ms Jones any questions in oral evidence.
17. The following documents were admitted into evidence:
·Applicant’s undated submission filed on 7 September 2021 (Exhibit A1);
·Letter from Ms Alice Paekau, filed on 3 November 2021 (Exhibit A2);
·Email dated 28 October 2021 from Ms Jaimee Jones, filed with the Tribunal on 3 November 2021 (Exhibit A3);
·Email dated 28 October 2021 from Mr Steven Walter, filed with the Tribunal on 4 November 2021 (Exhibit A4);
·Centrecare Support Plan/Review by Natalie Thacker dated 7 May 2021(Exhibit A5);
·Section 501 G-Documents, labelled G1-G31, consisting of 210 pages (Exhibit R1);
·Supplementary documents, labelled S1-S31, consisting of 79 pages (Exhibit R2);
·Further supplementary documents, labelled FS1-FS7, consisting of 24 pages (Exhibit R3); and
·Respondent’s Statement of Facts, Issues and Contentions, dated 8 October 2021 (Exhibit R4) and
·Respondent’s reply dated 8 November 2021 (Exhibit R5).
18. The Tribunal notes that due to the late filing of the Applicant’s evidence, the Respondent’s reply was not filed and provided to the Applicant until the day prior to the hearing. At the commencement of the hearing the Tribunal asked the Applicant if he had received and read the document (which was three and half pages long). Initially the Applicant indicated he had not received it, but then confirmed that he had been provided with a copy but had not had an opportunity to read it. In order to allow the Applicant an opportunity to read the Respondent’s reply document, the Tribunal adjourned the hearing for a short period. When the hearing resumed, the Applicant confirmed he had read the document.
19. The Applicant did not indicate prior to the hearing that he wished to call witnesses in support of his application. The Respondent indicated that it may wish to ask the Applicant’s partner questions arising out of her letter and the material before the Tribunal.
20. Following the Applicant’s evidence, it was agreed Ms Jones be called to answer questions, particularly relating to several primary considerations which the Tribunal was bound to consider in deciding whether the Cancellation Decision should be revoked. As noted above, Ms Jones was asked several questions by the Tribunal and was briefly cross-examined by the Respondent. No other witnesses were called, however, several statements offered in support of the application were admitted into evidence, including as contained in the G-Documents.[27]
LEGISLATIVE FRAMEWORK
[27] A1-A4; R1, G30, G31.
Migration Act
21. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
22. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
23. The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
24. A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
25. Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
26. Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
27. If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[28] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[29]
[28] Migration Act s 501CA(3).
[29] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 90
28. The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[30] By reason of s 499(2A) of the Migration Act, in doing so it must comply with written directions about the performance of its functions or the exercise of those power which are given by the Minister pursuant to s 499(1) of the Migration Act. With respect to the exercise of power under s 501 and 501CA the current written direction given by the Minister is Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) which was made on 8 March 2021.[31]
[30] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
[31] Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA which was revoked on the same date: Direction No 90 paras 2-3.
29. The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[32] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 90 where relevant to the decision.[33]
[32] Direction No 90 para 5.1(4).
[33] Direction No 90 para 6.
30. Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Non-Revocation Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
31. Paragraph 5.2 of Direction No 90 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 measureable [sic] risk of causing physical harm to the Australian community.
32. Informed by the principles set out in para 5.2 of Direction No 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[34]
[34] Direction No 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 90, which includes the Tribunal.
33. In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[35]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[35] Direction No 90 para 8.
34. The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[36]
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[36] Direction No 90 para 9.
35.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S OFFENCES
36. The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 25 November 2020,[37] and the Western Australia Police Force History for Court,[38] compiled 24 September 2021. A detailed list of the Applicant’s offences is provided in the annexure to this decision.
[37] R1, G6.
[38] R2, S1.
37. The Applicant has been convicted of a number of offences including (dates indicate offence ‑dates):
(a)Aggravated Assault offences: Unlawfully assault and thereby did bodily harm with circumstances of aggravation (29 April 2020); Unlawfully assault and thereby did bodily harm in circumstances of aggravation (31 January 2020);
(b)Property offences: Possession of stolen or unlawfully obtained property (three counts) (2 May 2019);
(c)Driving, traffic and drug offences: Driving with a prescribed illicit drug (10 October 2018); No authority to drive (fines suspended) (10 October 2018); Used an unlicenced vehicle (12 January 2018); Drove or permitted vehicle with false plate to be driven (11 January 2018); No authority to drive (fines suspended) (12 January 2018); Used an unlicenced vehicle (11 January 2018); No authority to drive (fines suspended) (11 January 2018); Possess a prohibited drug (Methylamphetamine) (6 October 2017); and
(d)Offences involving public officers and police orders: Breach of protective bail conditions (29 April 2020); Breach of police order (13 March 2020); Breach of a community-based order (three counts) (31 January 2020).
38. Prior to his conviction and sentencing for the offences on 5 November 2020, the Applicant had received fines and community-based orders for his offences.
39. The details of the Applicant’s offending are considered further below.
Aggravated Assault offences
40. As noted above, two of the offences for which the Applicant was sentenced to terms of imprisonment involved unlawful assault in circumstances of aggravation. In both instances the victim was the Applicant’s partner, Ms Jones, which was the circumstance of aggravation in each.[39] In one case, the offence was also aggravated by the fact that the couple’s two children were present.[40] The Applicant was convicted and sentenced with respect to both offences on 5 November 2020.
[39] R2, S24, page 64; S25, page 66.
[40] R1, G8, page 33.
41. The first of these offences occurred between 31 January 2020 and 2 February 2020.[41] In this incident, the victim was out and returned home around 7:30 pm. She was met by the Applicant and an argument ensued. According to the sentencing remarks and Statement of Material Facts, the Applicant grabbed Ms Jones by the back of the neck causing her to fall to the floor. The Applicant punched and kicked her to the head and ribs. She got up and fled and called a friend for assistance. She came back the next morning and another argument ensued. Again, the Applicant grabbed her, threw her against the door, grabbed her right breast and pushed her towards the doorframe. She fell and while she was on the ground the Applicant kicked her to the arms and legs, grabbed her hair and threw her on the couch and stood over her. She suffered ‘bruising to numerous areas of her body’. The assault was reported to police on 2 February 2020 and the Applicant was arrested on 3 March 2020. Protective bail conditions were made with respect to the victim.
[41] R1, G8; R2, S5. The Tribunal notes sentencing remarks refer to ‘New Year’s Eve and 2 February 2020’, however considering the dates in the Statement of Material Facts (R2, S5) that appears to be an error. In any event, nothing turns on this detail.
42. On 12 March 2020, a 72-hour police restraining order was issued and served on the Applicant for the protection of Ms Jones.[42] On 13 March 2020, the Applicant breached the order by returning to the couple’s address where he was arrested in the driveway.
[42] R2, S20.
43. The second assault offence occurred on 29 April 2020 between 1am and 3 am when the Applicant and Ms Jones had an argument at their home.[43] The Applicant slapped Ms Jones in the face, causing her to hit her head. Her head started to bleed, and she cleaned up the blood with a towel the Applicant gave her. Later that morning Ms Jones put the children in the car and the Applicant got in the car with her in the passenger seat. A verbal argument occurred. While Ms Jones was driving, with the two children in the backseat, the Applicant punched her to the face, again causing her ear to bleed. She continued to drive until she stopped short of her intended destination (which was her brother’s home), exited the car, and ran into a nearby hotel to seek assistance. The two children were left in the vehicle and the Applicant moved to the driver’s seat and drove away.
[43] R2, S3.
44. The Applicant plead guilty to these offences,[44] and was sentenced at the same time in November 2020, receiving a sentence of 12 months’ imprisonment for the January 2020 offence and six months’ imprisonment for the April 2020 offence, with the two sentences to be served cumulatively.
[44] R2, S24, S27.
Property offences
45. The Applicant was convicted for three counts of ‘Possession of stolen or unlawfully obtained property’ in December 2019.
46. According to the Statement of Material Facts, in December 2018, unknown offenders stole three motorcycles from a business in Kalgoorlie.[45] Descriptions and VIN numbers for the vehicles were provided. Two of these vehicles were later recovered in circumstances, the details of which, are not contained in the material before the Tribunal, and which Tribunal infers were not connected to the Applicant.
[45] R2, S6, page 19.
47. In June 2018, unknown offenders stole an off-road motorcycle from a property in Kalgoorlie. A description and VIN number for the vehicle was provided.[46]
[46] R2, S6, page 20.
48. In October 2018, unknown offenders committed a burglary at a property in Kalgoorlie and stole an off-road motorcycle.[47] A description of the vehicle was provided.
[47] R2, S6, page 21.
49. On 2 May 2019, the police executed a search warrant under the Misuse of Drugs Act at the Applicant’s home address and located a stripped down motorcycle with mechanical tools spread on the floor around it. The VIN number had attempted to be removed. The motorcycle was identified as one of the vehicles missing from the December 2018 burglary. The vehicle was worth around $6000.[48] Another vehicle was found at the property with a VIN number identified as being the vehicle stolen in June 2018. The value of that vehicle was not recorded.[49] A third vehicle was found which fit the description of the vehicle stolen in the October 2018 burglary, though it had been painted to alter its colour.[50]
[48] R2, S6, page 19.
[49] R2, S6, page 20.
[50] R2, S6, page 21.
50. The Applicant plead guilty to those offences and was sentenced initially on 27 May 2019, to nine-month Community Based Orders (CBOs), to be served concurrently for all three offences. On 3 December 2019, the matter was reheard, the CBOs were cancelled following the Applicant’s inability to complete the CBOs due to his hospitalisation and treatment for heart failure in Perth.[51] The Applicant was resentenced to a six-month CBO to be served concurrently for all three offences.[52] As noted below, those CBOs were breached when the Applicant offended against Ms Jones, and he was resentenced to a fine of $800 (global) with respect to all three offences on 5 November 2020.[53]
[51] R3, FS6, page 16.
[52] R2, S1.
[53] R2, S28, S29, S30.
Offences involving public officers and police orders
51. As noted above, the Applicant has been the subject of a number of police orders, protective bail conditions and CBOs, which have been breached or not complied with.
52. The CBOs issued with respect to the possession of stolen or unlawfully obtained property offences were resentenced on two occasions, once when the Applicant was given a further six-month order with respect to each offence, and then when he was convicted of the offences on 5 November 2020 and found to be in breach of the 3 December 2019 orders and fined.
53. The Sentencing Magistrate’s remarks note that the Applicant breached a police order on
13 March 2020, by returning to the address he shared with Ms Jones.[54] That order had been issued for the protection of Ms Jones,[55] following a complaint from Ms Jones regarding incidents occurring between her and the Applicant on that day.[56] He was sentenced to two months’ imprisonment for that offence (to be served concurrently).[54] R1, G8, page 33.
[55] R2, S20.
[56] R2, S12, S13
54. The Applicant further breached a protective bail order which had been entered into on
16 March 2020, when he assaulted Ms Jones on 29 April 2020. The bail order included an undertaking that the Applicant ‘could not act in an intimidatory, offensive or emotionally abusive manner’ towards Ms Jones.[57] He plead guilty to that offence,[58] and was also sentenced to two months’ imprisonment for that offence (to be served concurrently).[57] R2, S3, page 10.
[58] R2, S25.
Driving, traffic and drug offences
55. The Applicant has eight driving and drug related convictions recorded.
56. His earliest offence is for possession of a prohibited drug (methylamphetamine). That offence occurred on 6 October 2017, and according to the Statement of Material Facts,[59] arose when the Applicant was a passenger in a vehicle which was stopped and searched by police in Perth. The Applicant was found to be in possession of a clip seal bag containing less than one gram of crystals, believed to be methylamphetamine. He was served with an ‘Other Drug Intervention Requirement’, but failed to meet the requirement as he did not attend the three required treatment sessions, and was subsequently summoned and convicted.[60] He was fined $500 for this offence.
[59] R2, S11.
[60] R2, S11.
57. On 11 January 2018, the Applicant was driving and was stopped by police. It was ascertained he was not authorised to drive from 12 April 2017, due to non-payment of fines, was driving a vehicle owned by him that was not currently licenced and was driving with forged, replica or false registration plates. He had been notified of his driving suspension on 15 June 2017.[61] He was fined a total of $950 for these offences.
[61] R2, S9.
58. On 12 January 2018, the Applicant was stopped by police, driving a vehicle without registration plates. The vehicle had never been registered in Western Australia. It was not clear from the material if this was the same vehicle he had been driving the day prior. It was ascertained he was not licenced to drive from 12 April 2017 for non-payment of fines.[62] He was aware of the fine suspensions having been personally warned. He fined a total of $450 for these offences.
[62] 2, S10.
59. On 10 October 2018, the Applicant was stopped while driving in Kalgoorlie and required to submit to an oral fluid test. The resulting test was positive for methylamphetamine. He was fined $250 for this offence.[63] On the same occasion, it was ascertained the Applicant was not authorised to drive from 12 April 2017 for non-payment of fines. He had been personally advised of the fines suspension on 11 January 2018. He was fined $500 for this offence.[64]
[63] R2, S7.
[64] R2, S8.
DOES THE APPLICANT PASS THE CHARACTER TEST?
60.
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[65]
[65] Migration Act s 501(7)(c).
61. The Tribunal finds that the Applicant was sentenced to a term of imprisonment of 12 months for the first Aggravated Assault offence and, as a result, has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a) of the Migration Act.
62. Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[66]
[66] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
63. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.
64. The Applicant did not prepare a Statement of Facts, Issues and Contentions however, he submitted a statement with his application for review which addressed his responses to the Non-Revocation Decision and outlined his central contentions as to the other reasons why the cancellation decision should be revoked.[67] He also addressed his submissions on the primary and other considerations in his request for revocation and in evidence and oral submissions before the Tribunal.
[67] A1.
65. The Applicant’s primary contention was that the interest of his family members in Australia, and in particular the best interests of his two minor children with Ms Jones constitutes another reason why the Cancellation Decision should be revoked and that the relevant principles and considerations weigh in favour of revoking the Cancellation Decision.[68]
[68] A1; Transcript, page 55.
66. With respect to the primary and relevant other considerations, the Applicant submitted, in summary, that:[69]
[69] A1; R1, G10.
·Having regard to the protection of the Australian community:
(i)He regrets his actions and recognises they were wrong, but his offences were out of character and he has learnt from his mistakes;
(ii)He has taken steps to change his behaviour going forward, including completing or planning to complete courses to address underlying causes of his offending and improve his communication and conflict resolution skills to minimise the risk of harm to the community;
(iii)He has acknowledged the negative environment he was operating in at the time of his offending, including his own drug use and lack of skills to enable him to communicate in a prosocial way;
(iv)He has abstained from drugs and will continue to do so in the future;
(v)He has a close relationship with his partner and children, which is a protective factor against reoffending;
(vi)He has a strong level of empathy for his daughters and the impact his offending has had on them is a strong motivating factor for changing his behaviour and not reoffending; and
(vii)He has a positive work ethic and intends to work and provide a positive future for his daughters.
Accordingly, the Applicant contends his risk of reoffending is ‘low to nil’ and should not outweigh other primary and other factors which favour revocation, in particular his children’s best interests.
·With respect to the family violence consideration:
(i)The Applicant’s offending was out of character;
(ii)He has empathy for his daughters and realises the impact his offending has had on his family;
(iii)He has taken steps including voluntary courses to improve his coping and conflict skills; and
(iv)Substance use is no longer an issue which reduces the risk of these issues arising in the future.
·The best interests of his Australian citizen minor children weigh heavily in favour of revocation:
(i)He has a close relationship with his daughters, including seeing them every week while in prison and detention;
(ii)If he is removed his daughters will be deprived of having a meaningful relationship with him;
(iii)His children are very young, and it is difficult to communicate with them meaningfully without in-person contact;
(iv)He provided his daughters with a connection to their Maori culture which would be impacted if he were not in Australia;
(v)He is taking steps and undertaking voluntary courses to improve his parenting and communication skills; and
(vi)His children and partner would not relocate with him to New Zealand and will not have the financial means to visit him.
The Applicant contends that this consideration weighs in strongly in favour of revocation and should outweigh other primary considerations.
·With respect to the impediments to his removal, the Applicant would have a lack of social support given the amount of time he has lived outside New Zealand and the life he has established in Australia. The Applicant has concerns regarding ‘unemployment, homelessness, isolation, negative peers and unhealthy boundaries or environments’ on return to New Zealand. He has a serious heart condition which requires treatment, separation from his family would cause him mental distress and increase his risk of reoffending, and he has no financial backing, assets, or support networks in New Zealand. The Applicant contends that this weighs in favour of revocation.
·Having been here for more than 14 years, the Applicant has strong family and social ties to Australia including:
(i)His offending occurred more than nine years after he arrived. He has spent time positively contributing to the community through employment and mentoring Indigenous youth;
(ii)He would be disconnected from cultural events if removed; and
(iii)Non-revocation would have a harsh financial and emotional impact on his partner and children who are Australian citizens.
67. The Respondent submitted, in summary, that the protection of the Australian community, family violence consideration and the expectations of the Australian community weigh heavily against the Applicant and outweigh the best interests of the Applicant’s minor children, his ties to Australia and any impediments to his removal. The Respondent contended non-refoulement issues did not arise with respect to the Applicant’s circumstances.[70]
[70] R4 paras [40]-[43].
68. In summary the Respondent submitted:
(i)Having regard to the very serious nature of the offences and risk to the community should the Applicant reoffend, the protection of the Australian community weighed strongly against revocation;
(ii)The offending is a particularly serious example of family violence involving the Applicant’s children as secondary victims of the offending. The Applicant has not undertaken a program designed to specifically address family violence. Accordingly, it is submitted that this consideration weighs significantly against revocation;
(iii)The best interests of the Applicant’s children should be given less weight in favour of revocation where their needs are being met by their mother and extended family, the Applicant’s rehabilitation has not been demonstrated and the children were exposed to the Applicant’s family violence offending;
(iv)The expectation of the Australian community weighs heavily against revocation having regard to the nature and circumstances of the Applicant’s offending; and
(v)The Applicant does not face any cultural or linguistic barriers in New Zealand and has training and experience to enable him to gain employment there. He would have access to the same social medial and economic services as other New Zealanders. While he may suffer some short-term difficulties, the consideration should only attract minimal, if any, weight in favour of revocation.
Protection of the Australian Community
69. The first primary consideration focuses on the protection of the Australian community. Paragraph 8.1(1) of Direction No 90 provides that:[71]
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
[71] See also Direction No 90 para 8(1).
70. Paragraph 8.1(2) of Direction No 90 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
71. As noted above, the Applicant submitted that, if the Cancellation Decision was revoked, his risk of reoffending would be low and the protection of the Australian community would not require that his visa remained cancelled.
72. The Respondent contended that the protection of the Australian community weighed heavily against revocation of the Cancellation Decision.
Nature and seriousness of the conduct
73. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 90 provides that the Tribunal must have regard to:[72]
[72] See also Direction No 90 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
74. The Applicant’s offences are detailed above. In addition to the offences, the Respondent drew the Tribunal’s attention to police records with respect to incidents of alleged family violence by the Applicant. These are considered further below.
75. The Tribunal notes it is required, pursuant to Direction No 90, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[73] Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered very serious.[74]
[73] Direction No 90 para 8.1.1(1)(a) and (b).
[74] Direction No 90 para 8.1.1(1)(a).
76. The Applicant engaged in two violent assaults against his de facto partner. Applying Direction No 90, those offences are properly characterised as ‘violent crimes’ and ‘crimes of a violent nature against women’ and are to be viewed very seriously. As dealt with in further detail in the discussion of the second primary consideration, they are also properly characterised as ‘acts of family violence’ and are also to be viewed very seriously on that basis. In any event, the serious nature of the Applicant’s conduct in committing the offences is demonstrated by the circumstances of the offences and is reflected in the comments of the Sentencing Magistrate who observed that:[75]
… plainly, on any interpretation, this is a very, very serious assault – set of assaults. The first one of itself, even without the existence of the second, would warrant a term of immediate imprisonment on its own. And, really, in combination with the second assault, to have assaulted your partner while she was driving a vehicle, with the two children in the backseat is aggravated by the fact that the children were present.
[75] R1, G8, page 34.
77. The Sentencing Magistrate went on to note the need for general deterrence:[76]
… noting that people in domestic relationships need to be protected from violence from their partners, but also children within domestic situations need to be protected from witnessing violence of that nature.
Now, you may well rationalise it to yourself on the basis that the children are only young and they may not understand what they had seen, or, that the incident was only fleeting; the two children being two years and one year of age. But they do absorb violent conduct like that. They absorb yelling and screaming and carrying on, and particularly, to have both their parents engaging in this kind of behaviour. For their father to assault their mother in this instance, and have their mother abandon the vehicle to flee somewhere else for her own protection.
It’s a serious set of circumstances that needs to receive an appropriate penalty…
[76] R1, G8, page 34.
Her Honour went on to describe the first assault as a ‘sustained’ assault which was ‘very very serious’.[77]
[77] R1, G8, page 36.
78. Further, relevant to the application of Direction No 90[78] and the assessment of the nature and seriousness of the Applicant’s offending, the Sentencing Magistrate noted that:[79]
… you are accompanied by the breach of police order, and the breach of protective bail conditions, which is the flouting of court orders that were designed to keep you away from the victim.
[78] Direction No 90 para 8.1.1(1)(d).
[79] R1, G8, page 34.
79. In determining the seriousness of the Applicant’s offending, the Tribunal must also consider whether the offences fall into other categories of serious offending, including: causing a person to enter into, or be a party to, a forced marriage;[80] crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties.[81] In the Tribunal’s view, none of the Applicant’s offending falls within these categories and as such they also do not contribute to an assessment of the Applicant’s offending as serious. The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing any prior criminal offending,[82] or whether the Applicant has committed any crimes while in immigration detention.[83] There is no evidence before the Tribunal that the Applicant has done either.
[80] Direction No 90 para 8.1.1(1)(b)(i).
[81] Direction No 90 para 8.1.1(1)(b)(ii).
[82] Direction No 90 para 8.1.1(1)(f).
[83] Direction No 90 para 8.1.1(1)(b)(iv).
80. Paragraph 8.1.1(1)(c) of Direction No 90 requires the Tribunal to have regard to the sentences imposed by the Courts. Notwithstanding the fact the Applicant’s violent offending against a woman must viewed very seriously regardless of the sentence imposed, the Tribunal considers that the custodial sentences imposed by the Court with respect to the Aggravated Assault offences reflects the seriousness of those offences, particularly as these were the Applicant’s first convictions for violent offences and having regard to the established principle that sentences of imprisonment are a last resort in the sentencing hierarchy. In the Tribunal’s view, the sentence imposed for the Applicant’s offending reflects the very serious nature of the offending. While the sentence was well short of the maximum available, it was nonetheless a significant sentence, particularly having regard to the Applicant’s lack of convictions for violent offending.[84] The Tribunal therefore considers that in the Applicant’s case, the sentence imposed by the Court is an indication of the very serious nature of his offending.
[84] R1, G8, page 33.
81. The Tribunal notes the Applicant’s prior offences included possession of stolen property, traffic and drug offences. The Tribunal notes the circumstances of those offences and the fact the Applicant received fines and CBOs for those offences. In the Tribunal’s view, while those offences individually were at the lower end of the spectrum of offending, they indicate a decline in the Applicant’s conduct from 2018 and in the period leading up to the Aggravated Assault offences. The Tribunal considers that those offences contribute to the overall assessment of the Applicant’s offending and conduct as serious, though not significantly so on their own.
82. The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness.[85] On the evidence before the Tribunal, the Applicant’s offending during the relatively brief period from late 2017 to 2020 could be described as frequent, and given the very serious nature of the Aggravated Assault offences, reflect an escalation in his offending behaviour across this period, particularly in 2020. The Tribunal considers that the trend of increasing seriousness adds to the overall assessment of the serious of the Applicant’s conduct and offending, particularly in the sense that he repeatedly acted in a manner which suggested a disregard for the law and to the authority of the police and courts which had reprimanded him or put in place orders to protect others from his conduct. In this regard, the Tribunal notes the Applicant’s refusal to comply with police orders, breach of court-imposed bail orders and failure to comply with CBOs and repeated violent offences. However, the Tribunal also acknowledges the Applicant spent a significant time in the community (around nine years) without offending prior to late 2017, demonstrating a capacity to live in a prosocial and law abiding way in the community. His lack of serious offending prior to late 2017 weighs in his favour.
[85] Direction No 90 para 8.1.1(1)(d).
83. Further, with respect to the cumulative effect of repeated offending,[86] the Tribunal considers that this factor contributes less to the overall assessment of the seriousness of the Applicant’s offending, given the Applicant’s offending related to a relatively brief time period from late 2017 through 2020, and his serious offending occurred in two incidents within a less than six-month period.
[86] Direction No 90 para 8.1.1(1)(e).
84. The Tribunal notes that the Applicant has now acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
85. Overall, and having regard to para 8.1.1(1) of Direction No 90, the Tribunal finds the nature and seriousness of the Applicant’s offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
86. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 90 states, in part:[87]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[87] See also Direction No 90 para 8.1(2)(b).
87. The Tribunal is required to assess the risk of harm the Applicant presents to the Australian community. This requires, in part, an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[88] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[89]
[88] Direction No 90 para 8.1.2(2)(a).
[89] Direction No 90 para 8.1.2(2)(b); see also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
88. The Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 389 [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 444–5 [94]–[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at 124–5 [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
89. There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[90] While these cases were considering character ground visa cancellations in the context of precursors to Direction No 90, the same considerations and principles are relevant to the current Ministerial Direction.
[90] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
Nature of the harm
90. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[91]
[91] Direction No 90 para 8.1.2(2)(a).
91. The Applicant has been convicted of very serious violent offences. The Sentencing Magistrate’s remarks above reflected on the seriousness of the circumstances of the Applicant’s particular offences and more generally the seriousness with which such offending is regarded, and the impacts such offending may have on the community.
92. The Tribunal is satisfied that the harm which would be caused to the community were the Applicant to offend in a similar manner, through violent assault against a member of his family, be it Ms Jones or a future partner, would cause physical and psychological harm. Further, having regard to the circumstances of the Applicant’s prior offending and noting the comments of the Sentencing Magistrate detailed earlier, should the Applicant commit violent offences against a domestic partner in the presence of his children, they would suffer serious psychological and emotional harm. Such harm presents a serious risk to those children who are properly regarded as vulnerable members of our community.
93. The Tribunal notes the Applicant also has convictions for property offences and a number of driving, traffic and drug related offences. The Tribunal is also concerned that the Applicant has numerous convictions for driving offences, including driving without authority, driving unregistered vehicles and driving under the influence of methylamphetamine. The Tribunal accepts those traffic offences were at the less serious end of the spectrum of offending, resulting in fines rather than custodial sentences. However, this does not reduce the serious consequences which can result from such offending. The Tribunal also takes offences involving driving seriously, and notes the serious harm, in terms of injury or death, that road users can suffer as a result of such offences. The Tribunal notes in particular that driving unlicensed vehicles also exposes road users to the risk of injury in a context where they are not covered by third party insurance raising the potential for financial harm.
94. Further, if the Applicant were to engage in the possession of stolen or unlawfully obtained property offences, this would cause harm in the form of financial or property loss to members of the community.
95. Overall, the Tribunal considers the nature of the harm to individuals or the Australian community should the Applicant reoffend, to be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
96. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[92]
[92] Direction No 90 para 8.1.2(2)(b).
97. The Applicant submitted that there were a number of reasons why the risk to the community of him reoffending is low and should weigh in favour of revocation. He told the Tribunal he regrets his offending and is aware of the impact his lifestyle has had on his health, partner and children. He said he will not reoffend. He acknowledged the ‘negative environment’ he was in at the time of his offending, which he said was due to drug use problems.[93] He submitted that he has attempted to re-educate and rehabilitate himself, completing programs in prison to help him communicate and regulate his emotions. He also noted he had been placed on waitlist for a family violence program in prison but had not been able to undertake it due to the length of his sentence.
[93] Transcript, page 28.
98. He said he would have a prosocial environment and supports on release, living with Ms Jones and the children and working as a scaffolder in Kalgoorlie. He submitted that he has abstained from drugs and will continue to do so. In his written statement he stated:[94]
Here I have work, a family, Supportive friends, Community agencies whom I would have the opportunity to work with …
I apologise for my poor Decision Making skills which led me to making a Horrible mistake in committing my current offences. I know my actions were wrong, but I believe they are also very out of character I believe myself to be a Hardworking, loving father & partner. But also human.Im asking for the chance to prove that I have learnt the skills necessary in change. These offences were not me and I have changed my life & reassessed my priorities in life and Right at the top are My 2 little girls, my health, getting back to work to support myself & my family. I cannot change my actions of them nights but I can demonstrate & show change.
(Original spelling.)
[94] A1.
99. The Respondent submitted that the likelihood the Applicant would reoffend is more than ‘minimal or remote’ noting that:[95]
·the Applicant’s commitment to abstinence from drugs is untested in the community;
·he has not completed the foreshadowed family violence programs;
·he has demonstrated a lack of respect for Australian laws and law enforcement through breaching police orders and bail conditions;
·he and minimises both his offending and his blameworthiness; and
·he lacks insight into the factors and circumstances of his offending, including his home environment.
[95] R4, para [18].
100. Having regard to these factors, the Respondent noted the principle expressed in Direction No 90 that the nature of the harm that would be caused if the conduct were repeated ‘may be so serious that even strong countervailing considerations may be insufficient to justify … revoking a mandatory cancellation decision’[96] The Respondent contended the consideration weighted heavily against revocation in the Applicant’s case.
[96] Direction No 90, para 5.2(5).
101. In his request for revocation, the Applicant stated:[97]
Due to poor decision making skills a lack of consequential thinking, I have committed offences that I sincerely regret. I accept full accountability of my actions & know that I am responsible for my behaviour and the examples I set. I have no excuse for the poor choices I have made & which have led to my offending. I ensure during my time in prison I have reflected on my behaviour & worked hard on self development skills & gained a better understanding of the choices I make and the impact this has on my family and community.
[97] R1, G9, page 53.
102. Mr Keene’s statement which was submitted by the Applicant to the delegate also makes reference to the Applicant’s regret and his belief he will not reoffend.[98] The Applicant’s partner, Ms Jones and his former partner, Ms Paekau also provided statements noting their belief the Applicant will not reoffend if given a chance to remain in the Australian community with his family.[99]
[98] R1, G30.
[99] A2, A3; Transcript, page 40.
103. In support of his claim to have taken steps toward rehabilitation, the Applicant provided evidence that he had completed the following programs in prison:
·The Good Way Road to Recovery Relapse Program – which is run by Hope Community Services and which the Applicant completed on 15 March 2021. The program involved five one and half hour sessions ‘to slow or stop alcohol and other drug misuse, grow physical, emotional, mental health and well-being, and promote connection with self, family, community and culture’.[100]
·Inside Out Dad – which is run by Centrecare and which the Applicant completed on 17 June 2021. This program focussed on pro-fathering attitudes, knowledge and skills, improving relationships with children and their mother’s and developing plans to successfully renter their lives on release.[101]
[100] R1, G27.
[101] R1, G28; G31.
104. While the Road to Recovery program makes reference to slowing and stopping alcohol and other drug use, it did not appear that this was a drug rehabilitation program as such. This was also indicated by the fact the Applicant was assessed after completion of that program to have a need for a drug rehabilitation program (such as the Pathways program). The Applicant confirmed before the Tribunal that he had not undertaken any substance abuse programs.[102]
[102] Transcript, page 29.
105. At the hearing before the Tribunal, he also claimed to have commenced classes for anger management at the detention centre.[103] He said he had only taken one class at that point and was unable to recall any details of the course, including the name of the course. Ms Jones also made reference to the Applicant taking an ‘anger management’ course at the detention centre, however, she was also unaware of the details.[104] She also made reference to the couple undertaking a ‘positive lifestyle choices’ course with the Salvation Army, prior to the Applicant going to prison.[105] She couldn’t recall exactly when it was, however, she said they had not completed the course when the Applicant was incarcerated. No other details of this course were before the Tribunal. Given there is very little detail before the Tribunal of the nature or purpose of these courses, the Tribunal is unable to place much weight on the Applicant’s claimed participation in them.
[103] Transcript, page 26.
[104] Transcript, page 39.
[105] Transcript, page 39.
106. There is limited expert evidence before the Tribunal as to the reasons for the Applicant’s offending and the risk factors associated with his reoffending. The Tribunal notes it has no medical or psychological evidence addressing the risk of the Applicant reoffending. However, there was material which discussed or assessed the risks of reoffending and the Applicant’s plans on release into the community, including with respect to reducing his risk of reoffending. These included:
·the Parole Assessment prepared on 18 December 2020 and undertaken as part of assessing the Applicant’s eligibility for parole;[106]
·the Parole Review Report authorised on 2 December 2020 also undertaken as part of assessing the Applicant’s eligibility for parole and not recommending parole be approved;[107] and
·The Centrecare ‘Support Plan/Review’ dated 7 May 2021 and prepared by Ms Thacker, a Centrecare Reintegration Support Worker who is working with the Applicant.[108]
[106] R3, FS6.
[107] R3, FS5.
[108] A5, R1, G31.
107. Ms Thacker’s letter notes the Applicant had agreed to continue to engage with the Reintegration Program post-release and that the service is attended voluntarily. She notes that the Applicant ‘has been provided with support to address issues that have contributed towards his criminal behaviour, reconnected with community and supported to identify strategies for transition and re-settlement’.[109] The Applicant’s plan with Centrecare is detailed in the Support Plan/Review document.[110] The plan notes the Applicant ‘has an awareness of his criminal behaviours and is able to understand and identify ways to prevent recidivism’. It notes that the Applicant is to attend family violence support (the Men Choosing Respect program is mentioned) and relapse prevention ‘if he feels at risk of relapse’. The plan refers to the Applicant seeking accommodation and visiting and maintaining contact with his children on release. As such, the report appears to assume the Applicant would be living separately from Ms Jones and the children if released.[111] This is not consistent with the information provided in evidence to the Tribunal in which it was maintained the relationship was ongoing and the Applicant would be living with Ms Jones and the children in a domestic relationship on release.[112] With respect to substance use, the plan notes that the Applicant has not used substances since his heart attack in 2019 and that he will ‘need to identify potential triggers and stressors and ways to deal with those to prevent relapse’.[113]
[109] R1, G31.
[110] A5.
[111] A5.
[112] Transcript, page 18 (Applicant); pages 38-39 (Ms Jones).
[113] A5.
108. The Tribunal accepts that the Support Plan indicated a degree of commitment by the Applicant to ensuring he has a plan in place to reduce his risk of reoffending. The Support Plan also indicated the Applicant has engaged with services who have commenced a support program for him and have provided him with a pathway for ongoing support in the community should he chose to engage with or seek support. The Tribunal considers this evidence weighs in the Applicant’s favour.
109. However, the Tribunal was concerned that the detail in the plan was not reflected in the Applicant or Ms Jones’ evidence regarding what would happen once the Applicant was in the community and what his rehabilitation needs were.[114] In this regard, the Tribunal notes when asked if he had a plan in place for drug and alcohol rehabilitation, the Applicant said that he did not ‘officially’ but ‘it’s definitely going to happen’.[115] When Ms Jones was asked about their plan for when the Applicant was released, she said the Applicant would live with her and mentioned his plan to go back to work in scaffolding. She said, ‘I think he wants to so some courses in that sort of, like, that workforce sort of thing’. She said she would support him until he was working.[116]
[114] Transcript, page 28, 40.
[115] Transcript, page 28.
[116] Transcript, page 40.
110. Further, there were inconsistencies in the Support Plan with the evidence of the Applicant, importantly with respect to the length of time he has abstained from illicit substance use. The lack of clarity around the Applicant’s drug use is demonstrated in the exchange below:[117]
[117] Transcript, pages 19-20.
RESPONDENT: I'll move onto a different topic which is related to your methamphetamine use. Do you accept in the past, Mr King, that you have had a problem with illicit substance use, in particular methamphetamine?
APPLICANT: I have used methamphetamine in the past, yes.
RESPONDENT: But you don't think that it was a problem?
APPLICANT: At times it was, yes.
RESPONDENT: Are you able to tell the Tribunal when you ceased using methamphetamines?
APPLICANT: Apart from - yes, I couldn't give you an exact date.
……..
Respondent: Are you able to give the Tribunal an estimate of the date or maybe to relate it to a time in your life?
APPLICANT: Yes, when I was, yes, had unfortunate enough to have two heart attacks.
RESPONDENT: That was in around June 2019, is that correct?
APPLICANT: A bit before that, yes.
RESPONDENT: It was sometime in early 2019?
APPLICANT: Yes.
RESPONDENT: So at the time of your offending against your partner in 2020 you were not under the influence of methamphetamine, is that right?
APPLICANT: Yes, I wasn't using it. Yes, I wasn't using it fulltime.
RESPONDENT: What do you mean by not using it fulltime?
APPLICANT: Occasionally I would when I was stressed out or something like that.
RESPONDENT: At the times when your partner was assaulted, were they times where you were stressed out?
APPLICANT: Yes, definitely.
111. It was put to the Applicant that his account of the timing of when he ceased to use drugs was not consistent with information in the Treatment Assessment Report (discussed further below) and the Support plan. He responded, ‘I’ve never said that I was not addicted’ he said he had gone from using ‘every day to when I was stressed only’.[118] The difficulty with this evidence, in the Tribunal’s view, is that it demonstrates an attempt by the Applicant to minimise his drug use, particularly in assessment settings, and suggests a lack of insight into his drug use, particularly as it may represent a risk of future offending. If the Applicant considers that use of drugs ‘only when stressed’ amounts to not using drugs, this suggests he lacks insight into his substance abuse issues. Given the Support Plan relies on the Applicant seeing intervention support ‘where he feels at risk of relapsing’ presents a significant risk of ongoing drug use and the offending which has been associated with the Applicant’s past drug use, particularly the offences which he says occurred when he was under stress. This includes the family violence offending.
[118] Transcript page 22.
112. The Tribunal had before it two reports prepared in the context of the Applicant’s request for parole at the end of 2020. The Tribunal notes parole was not granted, however, the Parole Board Report was not before the Tribunal. The Parole Review Report which was signed off on 2 December 2020, notes the Applicant had returned negative substance tests on two occasions in prions, supporting the Applicant’s claim to have abstained from substance use in prison. The report notes the Applicant had not, at that stage, participated in any voluntary or short courses during his sentence and was not to be the subject of any treatment assessments due to the backdating of his sentence. His prison behaviour was reported to be positive. The report notes that ‘Mr King has advised the writer that he does not believe he has a substance use issue and would not consider applying for placement at a rehabilitation facility’.[119] The report indicated that parole was ‘not recommended’ having regard to:
·the lack of protective factors such as a stable address and confirmed employment;
·the fact hiss substance use issues remained unaddressed and his victim, Ms Jones, remained living in Kalgoorlie, which presented a ‘high risk of re-offending’; and
·previous breaches of CBO demonstrating an inability to conform with community order.
[119] R3, FS5, page 13.
The report recommended that if the Applicant were released he be subject to special conditions, including random uranalysis and attendance at programs to deal with unmet treatment needs.
113. The Parole Assessment was prepared in December 2020.[120] The assessment noted that the Applicant accepted the facts in relation to his violent offending but noted:[121]
Throughout the interview it appeared evident that King lacked victim empathy and limited insight into his offending behaviour and the harm suffered by his victim.
[120] R3, FS6.
[121] R3, FS6, page 15.
The Parole Assessment notes the Applicant presents as requiring relapse prevention counselling for methylamphetamine use. The assessment also notes the Applicant could benefit from anger management counselling and a domestic violence change program. The assessment notes Ms Jones had indicated the Applicant could live with her and the children if he could not secure accommodation elsewhere on the basis that he be employed, have counselling for trauma and anger management, and that he engage in relapse prevention. Ultimately, the Parole Assessment did not support parole due to outstanding criminogenic needs.
114. As noted above, the Tribunal also had a copy of a Treatment Assessment Report undertaken in the prison context on 13 August 2021, towards the end of the Applicant’s prison term.[122] The Tribunal notes that this assessment was done following the Applicant completing the two voluntary courses in prison with Hope Community Services and Centrecare. Those programs were engaged in after the parole assessments were undertaken and appear to be directed to some of the need areas identified in the Parole Assessment and Parole Review Report. The Treatment Assessment Report notes that the Applicant had been assessed to be at moderate risk of general offending (according to the Risk of Reoffending – Prison Version (RoR-PV) assessment screening tool) and a low risk of violent offending (according to the Violence Risk Scale (VRS-SV/VRS) assessment screening tool). A Level of Service/Risk, Need, Responsivity (LS/RNR) was also administered. With respect to the Applicant’s substance issues, the Report notes that:
While Mr King’s risk for alcohol/drug problem is rated low, it is noted that his recommencement of methamphetamine use coincides with his offending behaviour.
[122] R3, FS7.
The report recommends that the Applicant complete a Stopping Family Violence Program and a Pathways program to address substance abuse. Due to the time left on his sentence he has not completed either.
115. While the Tribunal considers that the Treatment Assessment Report provides a useful analysis of the Applicant’s criminogenic treatment needs, there are several features of the assessment which cause some concern in terms of its usefulness in assessing the Applicant’s risk of reoffending in this context, particularly with respect to the domestic violence offences. In this regard, the Tribunal notes the report states that the Applicant reported he was no longer in a relationship with Ms Jones. This was not consistent with the situation as it stood at the time of hearing. It is not clear whether this would impact his risk of reoffending assessment with respect to violence, however, the Tribunal considers that this presents a significant change in his circumstances with respect to his risk factors on release. Further, as noted earlier, the Applicant has previously minimised his substance use in assessment contexts. It is not clear from the Treatment Assessment Report the degree to which the assessment is based on Mr King reporting to have ceased using drugs in 2019, as he reported elsewhere.
116. The Tribunal notes that the Treatment Assessment Report arose at the request of the Applicant who wanted his treatment needs assessed even though he understood he would be unlikely to be eligible for the programs. The Tribunal considers this weighs in his favour as demonstrating an attempt to access relevant rehabilitation programs. However, the Tribunal also notes that having been assessed as having specific treatment needs, including with respect to domestic violence issues, the Applicant did not demonstrate any plan to undertake such a program if released into the community. Indeed, the Applicant’s partner, Ms Jones, indicated they had previously undertaken counselling for family violence issues, prior to the Aggravated Assault offences. This suggested earlier attempts at counselling in the community had not been successful in dealing with the issues which gave rise to the serious violent attacks on Ms Jones.
117. The Tribunal also notes the Applicant’s efforts to put in place some plans for his release, including an offer of employment, accommodation with Ms Jones and a plan with Centrecare. These offer a degree of prosocial support and may act as protective factors against reoffending and weigh in the Applicant’s favour.
118. However, while the Tribunal accepts that the Applicant is remorseful for the consequences of his offending, particularly for the impact it has had separating him from his children, and has taken some steps to plan for his release into the community, it has concerns regarding his insight into his substance use and offending, and his plan for reducing his risk of reoffending in the community. As noted earlier, both he and Ms Jones were unable to speak to the detail of any plan in place for his release casting doubt on the Applicant’s commitment to the voluntary plan outlined in the Centrecare document. The Tribunal is also concerned that the Applicant’s plan involves returning to a social environment which appears largely the same as the environment he was in when he committed the offences. This is not accounted for in the plan with Centrecare and presents its own issues with respect to the protective factors against reoffending, particularly for the risk of family violence being repeated.
119. In the Tribunal’s view, the Applicant has no clear commitment to seek the sorts of treatment and assistance identified as criminogenic needs in his treatment assessment if released and regards himself as having recovered from substance abuse issues. While he claims he now realises he does have substance issues, his evidence was inconsistent in this regard. He continued to minimise his drug use, giving inconsistent answers with respect to when he ceased taking drugs. He also referred to there being ‘no substance abuse’ which would give rise to a risk of family violence.[123] This was confirmed by Ms Jones’ comments at the hearing. When she was asked about her own drug use and treatment, she said she had a previous history of drug use but had been clean for six months.[124] She did not engage in any treatment programs, but she moved to Kambalda and ‘stayed away from everybody’ until she was comfortable to come back to Kalgoorlie. She said she was a strong believer that ‘if you can’t do it on your own, you can’t do it’.
[123] Transcript, page 29
[124] Transcript page 39.
120. A lack of a fixed plan or support for formal substance abuse programs and a return to the same home environment which proved a stressor with relation to his previous offending, in particular the violent offending, puts at risk the Applicant’s capacity to maintain a drug-free lifestyle in the community. In this regard, while the Tribunal considered Ms Jones and the Applicant’s desire to remain drug-free to be genuine, neither demonstrated an appreciation of the risks which the relapse of one may present to the sobriety of the other or of the impact relationship stressors which have been significant in the past may contribute to a relapse in substance use. Further, there was no demonstrated plan to ensure the creation and maintenance of a prosocial environment moving forward, which would reduce the risk of reoffending. The Applicant referred to his strong prosocial network in Australia, however, that network and environment had proved insufficient to prevent or deter him offending in the past. This caused the Tribunal to question how the same environment could be considered risk free or even low risk in terms of the Applicant’s future risk of offending.
121. Having regard to the Applicant’s current circumstances, the Tribunal finds that that he presents a low to moderate risk of violent reoffending including family violence related offending. The Tribunal notes in this regard the Applicant’s apparent minimisation of his drug use suggesting a lack of insight into his drug use and a lack of demonstrated commitment to drug rehabilitation or family violence counselling, and the fact he intends to return to live with Ms Jones and his children. Further, the Tribunal accepts the assessment that the Applicant presents a moderate risk of general offending and the fact that the likelihood of such offending occurring increases if the Applicant relapses to substance use. Given the Applicant is returning to the same social environment in which his prior offending has occurred and has not completed a treatment program for substance use of the kind identified as a required criminogenic need, the Tribunal does not consider the Applicant provided evidence of any factors which could be considered to have reduced his assessed risk of general offending below the moderate assessment supported by the Treatment Assessment Report.
122. Having considered all evidence of the Applicant’s circumstances, the Tribunal considers the Applicant’s overall likelihood of reoffending to be in the low to moderate range. However, the Tribunal considers that if the Applicant does engage in offending consistent with his previous very serious offences, there is a risk of significant harm to the community.
Conclusion on the protection of the Australian community
123. Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
124. Paragraph 8.2 of Direction No 90 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
125. Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence
126. Paragraph 4(1) of Direction No 90 provides a definition of ‘family violence’ as:[125]
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.
[125] Direction No 90, para 4(1).
The definition cites examples of behaviour that may constitute family violence which, relevantly, includes ‘an assault’.[126] While the term ‘family member’ is not defined in Direction No 90, the Federal Court has recently found that the definitions within the Migration Act provides guidance on the meaning of the expression ‘a member of the person’s family’.[127] Whether a person falls within the expression ‘a member of the person’s family’ for the purposes of the family violence consideration, is a matter of fact to be determined by the Tribunal, informed by the indicia of family violence in paragraph 4.1 of Direction No 90 and the definitions of ‘family members’ and ‘de facto partners’ in ss 5G and 5CB of the Migration Act.[128]
[126] Direction No 90, para.4(1)(a).
[127] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [141].
[128] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [157].
127. Having regard to the indicia of family in paragraph 4.1 of Direction No 90 and the definitions of ‘family members’ and ‘de facto partners’ in ss 5G and 5CB of the Migration Act, the Tribunal finds that Ms Jones was the de facto partner of the Applicant and was a member of his family, as contemplated by Direction No 90. In this regard, the Tribunal notes that on the evidence before it, at the time of the conduct or offending, the Applicant and Ms Jones were living together, were in a genuine and continuing relationship, and had a mutual commitment to a shared life to the exclusion of all others. This is demonstrated in part by the fact they were raising two small children together and were recognised, in the material before the Tribunal, as being a de facto couple.
128. It is clear on the information before the Tribunal with respect to the Applicant’s offences, which are detailed above, that the Applicant committed family violence offences against a member of his family, Ms Jones, on two occasions. There was also evidence before the Tribunal regarding instances where orders were made by police for the protection of the Applicant’s partner, or where incidents which might be characterised as family violence were reported to police.[129]
[129] R2, S12-S23.
129. With respect to the Aggravated Assault offences, the Tribunal has addressed the serious nature of those in its analysis under the first primary consideration (above). The Tribunal applies rather than repeats that analysis, here. In this regard, the Tribunal notes that the Applicant has expressed remorse for his actions, however, it was also assessed that he ‘lacked victim empathy and limited insight into his offending behaviour and the harm suffered by his victim’.[130] The Tribunal also notes while the Applicant has undertaken some voluntary courses in prison, he has not completed a domestic violence program, identified as a criminogenic need. The Tribunal notes the presence of the Applicant’s children during the commission of the second assault against his partner, and the potential significant impact of exposure to such violence on children, as noted in her Honour’s comments in sentencing.
[130] R3, FS6.
130. With respect to warnings,[131] the Tribunal notes the Applicant was served with police orders with respect to his partner, which were breached, and was the subject of protective bail conditions, which were also breached. The Tribunal considers both the police orders, and in particular the protective bail conditions, constituted warnings to the Applicant regarding the dangers inherent in his behaviour and with respect to the bail condition, of the consequences which would follow repeated violent behaviour towards his partner.
[131] Direction No 90, paragraph 8.2(3)(d).
131. The Tribunal accepts the Applicant has undertaken some personal development programs which may enable him to gain a greater insight into this offending against his partner. However, while the Tribunal accepts the Applicant was remorseful for the impact his convictions had on his family, the Tribunal was concerned that he minimised incidents of violence against his partner, saying in response to the question of whether there were other acts of violence against his partner that, ‘yes, well, we’re like everyone else, we have struggles’.[132] The Tribunal was concerned that this demonstrated a lack of insight into the serious impact of family violence on his family and the aberrant nature of such conduct.
[132] Transcript, page 23.
132. The Tribunal was taken to other instances of reported family violence, including police violence restraining orders in December 2017, March 2019 and June 2019.[133] These were in addition to the order which was breached in March 2020, and was the subject of one of the convictions in November 2020. The Applicant was taken to these orders by the Tribunal. He was unable to recall significant detail regarding the instances but indicated he thought they arose in the context of verbal altercations with his partner. The Tribunal’s attention was also drawn to Detected Incidents Reports from December 2017, January 2018, February 2019, June 2019 and March 2020 (which was the context for the issuing of the March 2020 police order, which was subsequently breached).[134] In general terms, the Applicant and Ms Jones denied the contents of those reports were true and rejected the assertion they demonstrated a history of family violence in the relationship. In this regard, the Applicant’s evidence was somewhat equivocal. He admitted there had been prior violence but normalised that behaviour suggesting they ‘we’re like everyone else’. Ms Jones indicated she was unable to recall making the reported comments to police. She indicated she was confident that violence would not reoccur as she and the Applicant ‘both know better on how to handle the situations now than what we did’.[135] When she was asked about the incidents giving rise to the prior police orders she said they were not physical altercations, but just loud arguments.[136] The Tribunal asked why the events in 2020 progressed beyond loud arguments, and she said that circumstances were stressful and things would get out of hand.[137]
[133] R2, S21, S22, S23.
[134] R2, S12-S18.
[135] Transcript, page 40.
[136] Transcript, page 41.
[137] Transcript, page 41.
133. In the Tribunal’s view, while it accepts the police reports may be properly regarded as an ‘independent and authoritative’ source of information regarding conduct by the Applicant, which may be classified as family violence, is difficult to place significant weight on reports which are denied by both the Applicant and Ms Jones. This is because those reports are not able to be tested fully in the Tribunal context and may contain material which is not factually accurate. They are a contemporaneous record of a police officer’s account of the events. While not to be dismissed, the accuracy of those accounts may be impacted by a range of factors which the Tribunal is unable to test beyond allowing the Applicant and other witnesses to comment on the accuracy of such statements. In this regard, the Tribunal notes that elements of the record of the offences contained in the Statement of Material Facts were not reflected in the Sentencing Magistrates comments. It can be inferred that this was because those facts were not agreed, or were not established to her Honour’s satisfaction. In any event, it demonstrates that such records must be approached with caution and must be supported by other evidence to establish the conduct alleged on behalf of the Applicant.
134. In this instance, the Applicant admitted in cross-examination that there had been prior incidents of violence and verbal arguments but denied the details of conduct put to him from the Detected Incident Reports. Ms Jones similarly denied the reports, including statements attributed to her. In light of those denials, the Tribunal places less weight on the reports.
135. The Tribunal does accept that the evidence sufficient to conclude that there was a history of police interactions with the Applicant and his partner concerning domestic altercations which ultimately escalated to the events of 2020, and the Applicant’s convictions. While that history serves to contextualise the circumstances and family environment in which the family violence offences occurred, it does not, in the Tribunal’s assessment, add to the overall assessment of the seriousness of the Applicant’s family violence offending, which was very serious and in the assessment of the Sentencing Magistrate, sustained.
136. This consideration reflects the seriousness with which family violence offences are regarded and the harm they pose to the security and stability of the community. The psychological, emotional, and social impacts of family violence are insidious and serious. Direction No 90 stipulates that the Australian Government, on behalf of the Australian community, has a very low tolerance for this kind of abuse.
137. Accordingly, the Tribunal considers that in the Applicant’s circumstances, this consideration weighs strongly against revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
[159] Considering the corresponding provisions in Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 65).
164. The Tribunal must give effect to the ‘norm’, stipulated in para 8.4(1) of Direction No 90, that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.[160]
[160] Direction No 90 para 8.4(1).
165. The majority in FYBR (FC)[161] agreed that it is not for a decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a primary consideration, but rather a decision-maker is to identify the government’s view regarding community expectations, as articulated in the relevant direction, and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately in determining the exercise of the decision-maker’s discretion, taking into account all relevant primary and other considerations.
[161] Charlesworth and Stewart JJ; Flick J dissenting.
166. Further detail about what the Australian community’s expectations are with respect to certain types of conduct is provided in para 8.4(2) of Direction No 90. That paragraph states that the nature of the character concerns or offences is such that the community would expect that person would not hold a visa. The paragraph directs that, in particular, the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.4(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very serious’ or ‘serious’. Paragraph 8.4(2) directs that where certain conduct is engaged in, the community expects that a visa would be refused or cancelled. Relevantly, the specific conduct listed includes:
(a)acts of family violence; or
(b)…;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, 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; …
167. Paragraph 8.4(3) of Direction No 90 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.4(3) arguably further qualifies the ‘norm’ expressed in para 8.4(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged where serious character concerns are raised through the persons conduct or offending.
168. With respect to the Applicant, the Respondent submitted that the expectations of the Australian community weigh heavily against revocation in circumstances where the Applicant engaged in serious family violence offences.
169. The Tribunal considers that the expectation of the Australian community would be that the Applicant must obey Australian laws whilst he is in Australia. The Applicant committed offences that raise character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a) and (c) having committed offences which the Tribunal has found to be serious offences involving family violence against his female intimate partner. Those characteristics are circumstances of aggravation in the offences themselves, reflecting the seriousness with which they are viewed by the community. Where such conduct has been engaged in, the expectation of the Australian community is that the Applicant’s visa should remain cancelled.[162]
[162] Direction No 90 para 8.4(1).
170. Applying the Direction, the Tribunal considers that the Australian community expects that the Applicant would not continue to hold a visa having committed what is properly construed as very serious offences. In addition, there is an expectation that non-citizens obey Australian laws and that evidence to the contrary must weigh against the revocation of the Cancellation Decision. However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
171. In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction No 90. Paragraph 5.2(2) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.4(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community. Applying the principle in paragraph 5.2(4), the Tribunal considers that there may be a higher tolerance for the Applicant’s criminal conduct, given the length of time he contributed positively to the community without offending. However, the Applicant has not been in Australia for most of his life or from a very young age, having arrived in Australia as an adult and having offended as a mature man. This reduces the level to which this tolerance would be extended to the Applicant.
172. Having considered the above principles, the Tribunal finds that the expectations of the Australian community weigh strongly against revocation of the Cancellation Decision.
Other considerations
173. Paragraph 9 of Direction No 90 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
International non-refoulement
174. The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before the Tribunal.[163]
[163] Direction No 90 paras 9(1)(a) and 9.1.
175. A non-refoulement obligation is an obligation ‘not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’.[164] Australia has obligations under the 1951 Convention relating to the Status of Refugees[165] as amended by the 1967 Protocol Relating to the Status of Refugees[166] (together called the Refugees Convention), under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[167] (CAT) and under the International Covenant on Civil and Political Rights[168] and its Second Option Protocol[169] (ICCPR).[170]
[164] Direction No 90 para 9.1(1).
[165] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[166] Opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
[167] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[168] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[169] Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991).
[170] Direction No 90 para 9.1(1).
176. While the Applicant answered ‘yes’ to the question in the request for revocation ‘Personal Circumstances Form’ regarding whether he had any concerns or fears about what will happened to him on return to New Zealand,[171] he did not make any submissions that Australia’s non-refoulement obligations are engaged with respect to his return.[172]
[171] R1, G9, question 13.
[172] Transcript, page 54.
177. The concerns the Applicant raised in the form related to ‘unemployment, homelessness, isolation, negative peers and unhealthy boundaries and environment’. At the hearing, he told the Tribunal he was not concerned he was at risk of harm from anyone in New Zealand but was concerned more generally about the conditions he would face if returned there.[173] These concerns are addressed below under the consideration of impediments to the Applicant’s removal.
[173] Transcript, page 54.
178. The Tribunal is satisfied that no non-refoulment issues arise with respect to the Applicant on the information before it. The Tribunal finds that this consideration is not relevant in the Applicant’s circumstances.
Extent of impediments if removed
179. Direction No 90 requires the Tribunal to consider the extent of any impediments the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). In doing so, the Tribunal must take into account the Applicant’s age and health, any substantial language or cultural barriers and any social, medical and/or economic support available to him in New Zealand.[174]
[174] Direction No 90 para 9.2.
180. As noted above, in the revocation request, the Applicant raised concerns with respect to ‘unemployment, homelessness, isolation, negative peers and unhealthy boundaries and environment’ on return to New Zealand.
181. At the hearing, the Applicant told the Tribunal he was not concerned he was at risk of harm from anyone in New Zealand but was concerned more generally about the conditions he would face if returned there.[175]
[175] Transcript, page 54.
182. The Respondent contented that this consideration should not weigh in the Applicant’s favour having regard to:[176]
·his training and experiencing which would enable him to secure employment and indicate he will not be impeded from maintaining basic living standards in the context of what is generally available to New Zealand citizens;
·while his removal would have an emotional impact on the Applicant, there is no suggestion he would not be entitled to the same social, medical and economic services available to other New Zealand citizens; and
·there is no suggestion he would face any cultural or linguistic barriers in New Zealand.
[176] R4, pages 11-12.
183. The Applicant was born in New Zealand, lived and was educated there until he came to Australia when he was 27 years old. He is now in his early 40s. He is of Maori heritage and while he did not list any family members in New Zealand in his request for revocation, he admitted in cross-examination that he has family in New Zealand, including his parents whom he talks to regularly on the telephone.[177] His mother has visited him in Australia about a half a dozen times.[178] He has travelled home to New Zealand on one occasion in around 2009.[179] His older children have travelled there two or three times. He said it was possible they would visit him in New Zealand, though his younger daughters with Ms Jones would not be able to for financial reasons.
[177] Transcript, page 16.
[178] Transcript, page 30.
[179] Transcript, page 30.
184. While there was no medical evidence before the Tribunal, the Applicant claimed to have suffered serious heart failure in 2019 and the evidence generally supported that contention. The Sentencing Magistrate’s comments make reference to this condition and to the fact it is managed with medication in prison.[180] The Applicant provided evidence of these to the delegate.[181] The Tribunal accepts that the Applicant has a history of heart failure and given his relatively young age, that condition is likely to require ongoing management. However, the condition is currently managed in a custodial context and there is no evidence to suggest the Applicant would not have access to medications and appropriate medical care to manage this condition on return to New Zealand. Further, having regard to the Applicant’s stated employment plans in Australia, including working as a scaffolder, there is no suggestion that the condition would prevent the Applicant working in New Zealand, including in a job requiring physical exertion, such as scaffolding.[182]
[180] R1, G8, page 35.
[181] R1, G26, page 185
[182] Transcript, page 28.
185. The Tribunal considers there is nothing in the information available to it to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in New Zealand, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances including mature age, work experience and qualifications, any lack of language or cultural barriers and family support available to him in New Zealand. The Tribunal accepted this was the case.[183]
[183] Transcript, page 52.
186. While the Applicant indicated his mental health would suffer as a result of his return to New Zealand and separation from his family, there was no medical evidence to suggest he suffers from any mental illness or any condition in relation to which he would not have access to medical or other supports in New Zealand. While the Tribunal accepts he may suffer emotional distress as a result of his removal the Tribunal does not consider this an impediment in the Applicant’s circumstances.
187. The Tribunal accepts that the Applicant is likely to face emotional hardship if he is returned to New Zealand, particular with respect to his separation from his partner and children. The Tribunal accepts the Applicant’s current partner and children are likely to remain in Australia and may have a limited capacity to visit him. The Tribunal also accepts his former partner, adult children and their families would remain in Australia. However, based on their prior history of travel to New Zealand and the Applicant’s evidence, they may visit him there. The Tribunal accepts that the most likely outcome of non-revocation of the Cancellation Decision would result in the separation of the Applicant from his Australian citizen family members.
188. Overall, the Tribunal finds that the Applicant may encounter some difficulty establishing himself if he were to return to New Zealand but, given his personal circumstances and his connections to and familiarity with the country, these difficulties are not insurmountable. The Tribunal also accepts that the Applicant would suffer emotionally as a result of separation from his Australian family members and finds that this would make his resettlement in New Zealand more difficult. The Tribunal does not accept the Applicant’s statement that return to New Zealand would increase his risk of reoffending as a factor which would weigh in his favour.
189. Overall, taking into account all of the evidence, the Tribunal finds that the extent of impediments if removed, weighs only slightly in favour of revocation of the Cancellation Decision.
Impact on victims
190. Paragraph 9.3 of Direction No 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
191. The Tribunal heard directly from a victim of the Applicant’s offending, his partner, regarding the impact of a decision not to revoke the cancellation of the Applicant’s visa on her and her family.
192. The Respondent submitted that this consideration was ‘not really intended to take into account positive factors in Mr King’s favour based on evidence given by somebody who is the victim but also the partner of Mr King’.[184] The Respondent submitted that the information could be taken into account, but that it was more appropriate that it be taken into account under 9.4.1 of the Direction. The Tribunal does not accept this submission. It is clear from the content and structure of the Direction that some factors could, and indeed must be taken into account with respect to more than one consideration. This is clear with respect to primary considerations one and two, for example. Further, there is nothing in the text of paragraph 9.3 which would suggest that the impact of a decision on a victim who is related to the Applicant would, or could, be excluded from this consideration. However, the Tribunal accepts that the fact the victim’s interests may have been considered and weighed under another consider may impact the overall weight the Tribunal applies to the consideration when engaging in the weighing exercise required by the Direction. That is ultimately a matter of discretion for the Tribunal having regard to the particular circumstances of the case.
[184] Transcript, page 56.
193. As noted above, Ms Jones told the Tribunal she wants the Applicant to remain in Australia. She said that if the Cancellation Decision is not revoked it would have a negative impact on her and her children, leaving her without her partner and her daughters without their father. She said:
I hope that you guys consider letting him and, you know, do let him stay, not for me but for my girls, you know, they love their dad, they need their dad, and he is an amazing dad - he's an amazing man, he's a hard-working man, you know, just life - life twisted him into circumstances that, you know, led to what they led to, but he's making changes to stop that from happening, I've made changes to - you know, not to go down those paths again, and yes, I hope that you guys can see that and we can all be a family again, I suppose.
194. The Tribunal places weight on Ms Jones statement and her judgement that it is in her family’s best interests for the Applicant to remain in Australia. As such, the Tribunal accepts Ms Jones’ assessment that non-revocation of Cancellation Decision would impact her and her family negatively. Those impacts would include: a limitation on the prospect of the Applicant providing financial support for her and her children; the emotional support that her children would receive through their relationship with their father; and the emotional support she would receive in dealing with and parenting the children.
195. Having regard to all the evidence, the Tribunal finds that a decision not to revoke the cancellation of the Applicant’s visa would impact negatively on a victim of the Applicant’s offending and her family. Against this, the Tribunal notes its earlier findings that there remains a risk the Applicant will reoffend including with respect to family violence. The Tribunal considers that risk applies to Ms Jones and her family members. Accordingly, the Tribunal regards that this consideration weighs only moderately in favour of the revocation of the decision to cancel the Applicant’s visa with respect to that victim.
196. With respect to any other victims whose circumstances and views are unknown to the Tribunal, the Tribunal finds the consideration is neutral.
Links to the Australian community
197. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of non-revocation of the Visa Cancellation Decision on Australian business interests.
Strength, nature and duration of ties to Australia
198. Paragraph 9.4.1 of Direction No 90 states:
(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)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker 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)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
199. The Applicant submitted that his removal to New Zealand would have a significant impact on his partner and his children. The impact on the minor children has been discussed above in relation to the primary consideration of their best interests. The Applicant contended that his links to Australia weigh strongly in favour of revocation of the Cancellation Decision.[185]
[185] A1.
200. It is evident that the Applicant’s family ties to Australia are very strong. The Applicant’s partner, former partner and his five children reside in Australia. As noted above, this family includes his three adult children and two minor children. One of his adult children is expecting his first grandchild. He has two sisters living in Perth. His parents, brother and other extended family members remain in New Zealand. He maintains contact with his parents, but not with his brother.
201. As discussed above in the section on the best interests of relevant children, the Applicant’s two minor children, who are Australian citizens, are very likely to suffer detriment if he is removed. The children were previously living with the Applicant and their mother. Although the children would continue to live with their mother, they will be deprived of having a father in their lives who may be able to support them financially and emotionally. If the Applicant is returned to the New Zealand, his young children are unlikely to be able to see him for the foreseeable future.
202. The Tribunal also notes the Applicant’s partner is Indigenous Australian and his children are both Maori and Indigenous Australian. The Tribunal considers that his Indigenous family members give him a particularly close connection to Australia, for the reasons outlined earlier.
203. As outlined above, the Applicant has resided in Australia for approximately more than 13 years. He arrived in 2008 at the age of 27 and is now 40 years of age. His first offence was in late 2017, nine years after he arrived in Australia. In the period prior to his offending, the Applicant raised his children and contributed to the community through work.
204. There was also evidence from Mr Walter that he had supported Indigenous youth in Kalgoorlie and from Mr Keene that he is a role model for young men in the community.[186] In closing submissions at the hearing, the Applicant told the Tribunal that he said that he had tried to do a lot with Indigenous youth, and he would like to do more of that. The Respondent suggested this was a matter that had not been raised previously and on which the Tribunal should not place much weight,[187] because the Applicant did not himself identify as an Indigenous Australian and had not raised these issues earlier. The Tribunal accepts that the desire to work with Indigenous youth was raised late in the proceeding however the Tribunal notes the issue of the Applicant being a role model for younger men was raised, albeit peripherally, in the statements of Ms Walter and Mr Keene. Having regard to the fact the Applicant was unrepresented, the Tribunal regards that this claim was not fully articulated earlier rather than that it was not raised. In any event, the Tribunal regards that it was not a point made strongly by the Applicant and it was not supported by any evidence that he had, or intended, to be involved with Indigenous youth in some organised way within in the community. As such, the Tribunal places limited weight on the expressed intention as an indication of strong ties to the Australian community.
[186] R1, G30; A4.
[187] Applying the comments of Mortimer J in Umi v Minister for Home Affairs [2019] FCA 2148 at [80]-[81].
205. The Applicant’s other main contributions to the community appear to be through his employment. He testified at the hearing that he had an offer of employment as a scaffolder with his brother-in-law’s company in Kalgoorlie.[188] While there was no evidence to support his claim of an offer of employment, the Tribunal notes his years of prior work and accepts he intends to work again in Kalgoorlie and to a make a contribution to the community and his family through working.
[188] Transcript, page 28.
206. In summary, the Applicant has close ties to the Australian community because his partner, children and other family members reside in the Australian community. Further, the Applicant has been in Australia for an extended period and has made some positive contributions to the Australian community, primarily through his work. The majority of the time he spent in Australia has been law-abiding and positive. Overall, the Tribunal finds that the Applicant’s ties to Australia weigh strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
207. Paragraph 9.4.2 of Direction No 90 states:
(3)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.
208. The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests. The Tribunal considers this consideration is not relevant to the Applicant’s circumstances.
Conclusion on links to the Australian community
209. Taking the strength, nature and duration of ties and impact on Australian business interests cumulatively, the Tribunal considers that the Applicant’s links to Australia weigh strongly in favour of revocation of the Cancellation Decision.
CONCLUSION
210. The Applicant does not pass the character test under s 501 of the Act.
211. The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the relevant primary and relevant other considerations in Direction No 90.
212. In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including the circumstances of his family members in Australia. The Tribunal has considered all the relevant considerations and weighed them according to the guidance provided by Direction No 90.
213. The Tribunal has considered all the primary considerations, including protection of the Australian community. The Tribunal has found that the nature of the Applicant’s offending, in particular the Aggravated Assault offences, was very serious. The Tribunal had concerns about the Applicant’s insight into his offending and his commitment to rehabilitation. The Tribunal has had regard to the serious risk of harm to the community should he reoffend. The Tribunal found that the Applicant presents a moderate risk of general offending and a low to moderate risk of further violent offending, including family violence. Considering these factors, the Tribunal has found that the primary consideration of the protection of the Australian community weighs strongly against the revocation of the Cancellation Decision.
214. Having regard to the consideration relating to family violence engaged in by the Applicant, the Tribunal has found that the Applicant’s offending included very serious family violence offences against his de facto partner. One of these offences was committed in the presence of his young children. The Tribunal had concerns regarding the Applicant’s insight into the impact of his offending, his acceptance of responsibility and his efforts to address the underlying causes of his offending. The Tribunal found this primary consideration weighed strongly against revocation of the Cancellation Decision.
215. The Tribunal has also found that due to the serious nature of the Aggravated Assault offences, the expectations of the Australian community would be that the Applicant’s visa remains cancelled. Having regard to all principles articulated in Direction No 90 and the Applicant’s circumstances, the Tribunal found this primary consideration also weighs strongly against revocation of the Cancellation Decision.
216. The Tribunal has considered carefully the best interests of the Applicant’s two minor children in Australia. The Tribunal accepts the Applicant has a close relationship with his children and desires to remain in Australia to further develop his relationship with his children and to support them as they grow. The children’s mother wants the Applicant to remain in Australia to maintain a close personal relationship with the children and assist with their care and support. The Tribunal accepts the children and their mother will not relocate to New Zealand and their capacity to travel may be limited. The Tribunal accepts that it is in the best interests of the children that the Cancellation Decision be revoked. Having regard to all the circumstances, the Tribunal has found that this primary consideration weighs strongly in favour of revocation of the Cancellation Decision.
217. The Tribunal has had regard to the relevant other considerations, including the Applicant’s links to the Australian community and the impediments to the Applicant’s removal to New Zealand. The Tribunal found that the impediments the Applicant would face if he were to be returned to New Zealand where his parents and extended family members remain, were not insurmountable and weigh only slightly in favour of revocation of the Cancellation Decision. With regard to his links to the community, the Tribunal found that Applicant has very close ties to Australia, principally through his family members here, including his partner and youngest children who are Indigenous Australians. Further, the Applicant has been in Australia for a significant period during which time he has made some positive contributions to the Australian community through employment and involvement in his local community. The Tribunal did not consider the impact on Australian business interests to be relevant in the Applicant’s circumstances. Overall, the Tribunal found that the Applicant’s ties to Australia weigh strongly in favour of the revocation of the Cancellation Decision.
218. The Tribunal had regard to the impact that revocation of the Cancellation Decision would have on the victims of the Applicant’s offending. Having considered the evidence of Ms Jones, who was the victim of the Aggravated Assault offences, the Tribunal has found this consideration weighed moderately in favour of revoking the Cancellation Decision.
219. The Tribunal has also found that the Cancellation Decision did not raise any issues of non-refoulement in the Applicant’s case and that no weight was to be afforded to this consideration as it was not relevant.
220. In weighing these considerations against one another, the Tribunal considers that although there are strong countervailing considerations which favour revocation of the Cancellation Decision, including the best interests of the Applicant’s children, his links to the Australian community and the extent of impediments if removed, the primary considerations of the protection of the Australian community, family violence considerations and the expectations of the Australian community outweigh those considerations in the Applicant’s case.
221. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 90, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the Non-Revocation Decision.
DECISION
222. The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 2 September 2021, not to revoke the cancellation of the Applicant’s Special Category (Class TY, Subclass 444) visa is affirmed.
I certify that the preceding 222 (two hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
........[Sgd]................................................................
Associate
Dated: 25 November 2021
Date of hearing: 9 November 2021 Applicant: Self-represented Solicitors for the Respondent: Mr Shinnick, Minter Ellison ANNEXURE – TABLE OF THE APPLICANT’S OFFENDING
| Conviction Date | Court | Offence | Offence Date(s) | Court Result | |
| 1. | 5 November 2020 | Kalgoorlie Magistrates Court | Breach of Police Order | 13 March 2020 | Two months’ imprisonment – concurrent from 28 April 2020 |
| 2. | 5 November 2020 | Kalgoorlie Magistrates Court | Breach of protective bail conditions | 29 April 2020 | Two months’ imprisonment – concurrent from 28 April 2020 |
| 3. | 5 November 2020 | Kalgoorlie Magistrates Court | Unlawfully assault and thereby did bodily harm with circumstances of aggravation | 29 April 2020 | Six months’ imprisonment – cumulative from 28 April 2020 |
| 4. | 5 November 2020 | Kalgoorlie Magistrates Court | BREACH OF CBO | 31 January 2020 | $800 fine (global) – CBO expired and resentenced |
| 5. | 5 November 2020 | Kalgoorlie Magistrates Court | Unlawfully assault and thereby did bodily harm with circumstances of aggravation | 31 January 2020 | 12 months’ imprisonment – concurrent from 28 April 2020 |
| 6. | 5 November 2020 | Kalgoorlie Magistrates Court | BREACH OF CBO | 31 January 2020 | $800 fine (global) – CBO expired and resentenced |
| 7. | 5 November 2020 | Kalgoorlie Magistrates Court | BREACH OF CBO | 31 January 2020 | $800 fine (global) – CBO expired and resentenced |
| 8. | 3 December 2019 | Kalgoorlie Magistrates Court | Re-hearing of 27 May 2019 Application to amend/cancel order Possession of stolen or unlawfully obtained property | 2 May 2019 | CBO – Six months’ concurrent from 3 December 2019 |
| 9. | 3 December 2019 | Kalgoorlie Magistrates Court | Re-hearing of 27 May 2019 Application to amend/cancel order Possession of stolen or unlawfully obtained property | 2 May 2019 | CBO – Six months’ concurrent from 3 December 2019 |
| 10. | 3 December 2019 | Kalgoorlie Magistrates Court | Re-hearing of 27 May 2019 Application to amend/cancel order Possession of stolen or unlawfully obtained property | 2 May 2019 | CBO – Six months’ concurrent from 3 December 2019 |
| 11. | 27 May 2019 | Kalgoorlie Magistrates Court | Possession of stolen or unlawfully obtained property | 2 May 2019 | CBO – Nine months’ concurrent from 27 May 2019 |
| 12. | 27 May 2019 | Kalgoorlie Magistrates Court | Possession of stolen or unlawfully obtained property | 2 May 2019 | CBO – Nine months’ concurrent from 27 May 2019 |
| 13. | 27 May 2019 | Kalgoorlie Magistrates Court | Possession of stolen or unlawfully obtained property | 2 May 2019 | CBO – Nine months’ concurrent from 27 May 2019 |
| 14. | 3 December 2018 | Kalgoorlie Magistrates Court | Driving with a prescribed illicit drug | 10 October 2018 | $250 fine |
| 15. | 19 November 2018 | Kalgoorlie Magistrates Court | No authority to drive (fines suspended) | 10 October 2018 | $500 fine |
| 16. | 12 February 2018 | Kalgoorlie Magistrates Court | Drove or permitted vehicle with false plate to be driven | 11 January 2018 | $500 fine |
| 17. | 12 February 2018 | Kalgoorlie Magistrates Court | No authority to drive (fines suspended) | 12 January 2018 | $200 fine |
| 18. | 12 February 2018 | Kalgoorlie Magistrates Court | Used an unlicensed vehicle | 12 January 2018 | $250 fine |
| 19. | 12 February 2018 | Kalgoorlie Magistrates Court | Used an unlicensed vehicle | 11 January 2018 | $250 fine |
| 20. | 12 February 2018 | Kalgoorlie Magistrates Court | No authority to drive (fines suspended) | 11 January 2018 | $200 fine |
| 21. | 17 January 2018 | Perth Magistrates Court | Possess a prohibited drug (Methylamphetamine) | 6 October 2017 | $500 fine |
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