Luckman and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 456

Luckman and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 456 (24 January 2024)

Division:GENERAL DIVISION

File Number:          2023/8275

Re:Alexander Luckman

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member McLean-Williams

Date of decision:               24 January 2024

Date of written reasons:        18 March 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review made by the Delegate of the Respondent dated 1 November 2023 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 visa.

.................[SGD]...................

Member McLean-Williams  

CATCHWORDS

Catchwords

MIGRATION – Mandatory cancellation of visa – substantial criminal record – failure to pass character test - whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 99 applied – Class TY Subclass 444 Special Category visa – citizen of New Zealand – protection of the Australian community – seriousness of offence – risk of reoffending – domestic violence – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – decision affirmed.

LEGISLATION

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Khalil v Minister for Home Affairs [2019] FCAFC 151

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member McLean-Williams

18 March 2024y 2024

1. On 24 January 2024 the Tribunal affirmed the decision not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 visa, pursuant to the review power in section 500(1)(ba) of the Migration Act 1958 (Cth) (‘the Act’).

2. In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the written reasons for that decision. In Khalil, the Full Federal Court had said:

   The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84-day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.

   …

   What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…

   [emphasis by the Tribunal]

3. On 3 June 2023, a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) under section 501(3A) of the Act on the basis that the Applicant did not pass the character test,[1] by reason of his substantial criminal record, and because he was serving a term of imprisonment of more than 12 months on a full-time basis in a custodial institution for an offence against a law of a State within the Commonwealth.

   [1] G154.

4. On 5 May 2023 a Delegate of the Respondent notified the Applicant that his visa had been cancelled (‘cancellation decision’).

5. On 10 May 2023 the Applicant made representations to the Minister, requesting revocation of the cancellation decision.[2]

   [2] G Documents, G9.

6. On 1 November 2023 a Delegate of the Minister decided, under section 501CA(4) of the Act, not to revoke the visa cancellation decision.[3]

   [3] G Documents, G3.

7. On 7 November 2023 the Applicant applied to the Administrative Appeals Tribunal for review of the section 501CA(4) decision (‘the decision under review’).[4] The Tribunal has jurisdiction to review the decision under review pursuant to subparagraph 500(1)(ba) of the Act.

   [4] G Documents, G2.

8. The Tribunal heard this application for review on 11 and 12 January, 2024. Oral evidence was received from the Applicant and from the Applicant’s de-facto partner; the Applicant’s partner’s mother; and from a friend of the Applicant. Written submissions were tendered by both parties as detailed in the attached Exhibit Register to these Reasons for Decision, now marked as Annexure A.

   BACKGROUND

9. The Applicant is a 39-year-old citizen of New Zealand (born on 28 October 1984), who first visited Australia in 2002.

10. The Applicant moved to Australia more permanently on 1 December 2007, when aged 23 years.[5] The Applicant was most recently granted a Class TY Subclass 444 Special Category (Temporary) visa on 7 March 2020.

    [5] G Documents, G19.

11. On 8 June 2022 the Applicant was convicted in the Southport Magistrates Court for a number of offences including unlawful use of motor vehicles and common assault for which he received head sentences of 18 months imprisonment and 12 months, respectively – to be served concurrently.  As at 8 June 2022, 82 days had already been spent by the Applicant in pre-sentence custody.  This was counted as ‘time served’, and the Applicant was immediately released on parole.

12. On 1 February 2023 the parole order made by the court on 8 June 2022 was revoked after the Applicant failed to comply with his parole conditions. He was returned to custody on 17 February 2023.[6]  Upon his release from custody the Applicant was immediately taken into immigration detention.

    [6] G Documents, G8.

    Criminal Offending History

13. The Applicant’s criminal conviction history in Australia is comprised as follows:

Court	Date	Offence(s)	Court Outcome
Southport Magistrates Court	March 2023	Driving of motor vehicle without a Driver Licence (January 2023) Driving while relevant drug is present in saliva - unlicenced (January 2023)	Disqualified from holding/obtaining a driver’s licence for a period of 1 month.
Southport Magistrates Court	8 June 2022 14.	Common assault (16 April 2021)	Conviction recorded Sentenced imprisonment: 12 months Released on parole on 8 June 2022
		Unlawful use of motor vehicles (18 July 2021) x 4 Driving without a licence (20 October 2021)	Convicted recorded on all charges Sentenced imprisonment: 18 months Released on parole on 8 June 2022 Fined $350
		Contravention of Domestic Violence order (6 November 2020) Common Assault – Domestic Violence Offence (6 November 2020) Wilful Damage (16 April 2021)	Convicted recorded on all charges Sentenced imprisonment: 6 months Released on parole on 08 June 2022 Ordered to pay restitution: $1000
		Contravention of Domestic Violence order (23 March 2020) x 5 Contravention of Domestic Violence Order (Aggravated offence) Wilful damage (17 January 2021) Commit Public Nuisance (17 January 2021) Using a carriage service to menace, harass or cause offence (14 February 2020) Breach of bail condition (6 April 2021) x7 ) ) Dangerous Drug (18 July 2021_ Possess utensils or pipes (18 July 2021) Possession of weapons category A, B or M (20 October 2021).	Conviction recorded on all charges Sentenced imprisonment 1 month Released on parole on 08 June 2022
		Failure to appear in accordance with undertaking (12 October 2020)	Conviction recorded
Byron Bay Local Court 15.	20 October 2021 16.	Assault occasioning actual bodily harm Contravene prohibition/restriction in AVO	Convicted on all charges S25(2): warrant to issue 17.
		Contravene prohibition/restriction in AVO
		Possess or sue weapon without a permit
		Possess prohibited drug
Tweed Heads Local Court	25 July 2019	Possess/attempt to, prescribed restricted substance	Conditional release order without conviction – 2 years
Southport Magistrates Court	25 August 2016	Drunk or disorderly in licensed premises (9 July 2016) Wilful damage to property without consent caused a loss of $250 or less (9 July 2016)	No conviction recorded, Fined $900 Ordered to pay restitution $250

ISSUES BEFORE THE TRIBUBAL

1. On the hearing and determination of this Application for Review, the issues for the Tribunal are:

   (a)whether the Applicant meets the requirements of the character test as defined in section 501 of the Act (subparagraph 501CA(4)(b)(i));and if not

   (b)whether there is ‘another reason’ why the cancellation decision should be revoked (subparagraph 501CA(4)(b)(ii)).

   LEGISLATIVE FRAMEWORK

   Does the Applicant pass the character test?

2. On 8 June 2022 the Applicant was sentenced before the Magistrates Court of Queensland to a term of imprisonment of 18 months for the offences of ‘unlawful use of motor vehicles, aircraft or vessels – use’ and 12 months for ‘common assault’. In light of those convictions, the Tribunal can only find that the Applicant has a ‘substantial criminal record’ and that he cannot pass the character test pursuant to section 501(7). The Applicant acknowledges[7] that he cannot pass the character test, because of his possessing a substantial criminal record.

   [7] Applicant’s SFIC, paragraph [13].

   Is there ‘another reason’ why the cancellation decision should be revoked?

3. In light of the Applicant failing the character test, the task for the Tribunal reduces to an exercise of discretion under subparagraph 501CA(4)(b)(ii), to consider whether there is now ‘another reason’ why the visa cancellation decision of 7 November 2023 should be revoked.

4. In considering whether to exercise the discretion, the Tribunal must comply with any Directions made under the Act by virtue of section 499(2A). In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable.

5. The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in section 501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:

   6. Exercising discretion

   Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

6. The principles contained within 5.2 of the Ministerial Direction are as follows:

   1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

7. Paragraph 8 of the Ministerial Direction sets out the five Primary Considerations that the Tribunal must take into account, these being:

   (1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);

   (2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);

   (3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);

   (4)the best interests of minor children in Australia (‘Primary Consideration 4’); and

   (5)expectations of the Australian community (‘Primary Consideration 5’).

8. The Ministerial Direction then specifies a number of ‘Other Considerations’ which must also be taken into consideration:

   (a)legal consequences of the decision;

   (b)extent of impediments if removed;

   (c)impact on victims; and

   (d)impact on Australian business interests.

9. Notably, these considerations are to be regarded as ‘other’ as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

   ...Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

   PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

10. Paragraph 8.1 of the Ministerial Direction requires that the Tribunal keep in mind that the Australian government is committed to protecting the Australian community from harm in consequence of criminal activity or other serious conduct by non-citizens. Decision-makers are required to have particular regard for 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 the Australian community. This requires consideration of the nature and seriousness of the non-citizen’s conduct to date, as well as the risk to the Australian community in the event that the non-citizen were to commit further offences, or engage in other serious forms of conduct if allowed to remain in Australia.

    The nature and seriousness of the Applicant’s conduct to date:

11. The Respondent Minister contends that the Applicant’s offending - as reflected in his criminal history - should now be viewed by the Tribunal as being ‘very serious’.

12. On 8 June 2022 the Applicant appeared in the Southport Magistrates Court and was sentenced on 29 offences for which the court imposed five separate sentences. The Applicant was convicted of common assault in circumstances in which the Applicant had spat on his victim, and for which he was sentenced to 12 months imprisonment. The Applicant was also sentenced to 18 months imprisonment in consequence of four offences of unlawful use of motor vehicles aircraft or vessels. On that same date the Applicant was also convicted of contravention of domestic violence order and common assault – domestic violence offence - for which he received six months imprisonment, and was also ordered to pay restitution of $1,000. An additional one month of imprisonment was also imposed for 20 other offences (G4/29) with the court describing these other offences dealt with at that time as “very serious”.

13. In the period between February 2020 and October 2021 the Applicant committed several domestic violence offences against his then de-facto partner, NW. According to the police particulars presented to the court at the time of sentencing, the Applicant’s domestic violence conduct towards NW included the Applicant harassing NW over the telephone by his declaring “I’m going to blow your fucking car up. I’m going to blow your house up on Chevron Island, and I fucking will cunt… You know what else I’m going to do? I’m going to fuck your best friend in the arse you fucking little slut”. The court was informed that these threats made NW feel ‘immediately fearful of the Applicant’ (TB1/60-61).

14. On another occasion, the Applicant and NW had been staying in a hotel on the Gold Coast.  When NW had attempted to escape the hotel room, the Applicant had “used a single hand to hold her still by grasping around her throat [the Applicant] made the victim give her phone over and prove that there were no recordings on it” (TB1/61). Throughout this period the Applicant had continued to contravene domestic violence orders that required him to not contact or approach NW, and he breached domestic violence orders made for the protection of NW on six occasions.

15. In relation to the Applicant’s unlawful use motor vehicle offences, the court viewed the Applicant’s conduct “very seriously” (G5/33). The first such offence occurred in April 2021 when the Applicant had rented a car from a car rental company. The Applicant exceeded the contract rental period, and he had been contacted by the police about this.  The Applicant agreed with the police that he would return the vehicle by a specified date, yet then failed to comply with that promise (TB1/68).  Subsequently, the Applicant lied to both the vehicle owner and to the police, stating that the car had ‘already been returned’. Later, the vehicle was located by police at an address which was confirmed to be the Applicant’s address (TB1/71).

1. Another incident involved the Applicant being found in possession of a stolen BMW, bearing two different and incorrect number-plates. The Applicant claimed to police that the car had been ‘recently purchased’ by him, however it was later confirmed to have been a stolen vehicle (TB1/74)

2. On 28 June 2021 and 20 October 2021, the Applicant had been required to appear in the Byron Bay Local Court regarding four offences. Yet, on both court dates the Applicant failed to appear as required, such that he was convicted in absentia and warrants for his arrest were issued. The first court appearance in Byron Bay (28 June 2021) related to the Applicant having violently assaulted his former partner by hitting her in the face and also placing her in a headlock, before continuing to assault her whilst holding her in that headlock. In the process, the victim lost an earring, and sustained an injury under her left earlobe (TB2/195).  This assault had been committed in contravention of an extant domestic violence order (‘DVO’). The second Byron Bay court appearance (20 October 2021) was in relation to the Applicant having been found by police in possession of knuckle dusters and the illicit drug MDMA (TB2/214).

3. In 2016, and in 2019, the Applicant had been sentenced to three minor offences.  The courts imposed a combination of fines, restitution and conditional release orders without recording convictions for these offences.

4. The Applicant also has a lengthy and serious traffic history. The Applicant’s traffic history identifies that he has committed 32 driving offences between 2016 and 2023, has driven was disqualified in 2020; driven under the influence of drugs in 2018; and driven whilst unlicensed on five (5) occasions that were detected by the police (TB6/636-644). The Respondent Minister now contends that these driving offences - which have the potential to injure and possibly kill innocent road users - must be regarded by the Tribunal as ‘serious’.[8]

   [8] Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43].

5. Regard must also be had for the fact that the Applicant has been sentenced to terms of imprisonment for his offending (Ministerial Direction paragraph 8.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the criminal sentencing hierarchy.[9] Where the courts have sentenced an offender to a term of custodial imprisonment, this should therefore be viewed as a reflection of the objective seriousness of the offences involved.

   [9] PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

6. Regard must also be had for the frequency and cumulative effect of the Applicant’s offending (paragraph 8.1.1(1)(d) and (e) the Ministerial Direction).

7. The Applicant’s offending is now assessed by the Tribunal as having been ‘frequent’ and as having involved offences of a ‘serious’ nature.

8. The Applicant has also provided false or misleading information to the Department, by reason of his having not disclosed the fact of criminal offending in New Zealand, prior to his arrival in Australia (paragraph 8.1.1(1)(f) of the Ministerial Direction). In this regard, on each of 13 March 2018 and 22 November 2015, the Applicant had provided incoming passenger cards which failed to declare the fact of any criminal offending in New Zealand. Yet, the Applicant’s New Zealand criminal history reveals that the Applicant had been convicted and sentenced on several occasions between 2003 and 2006, having been convicted of 12 offences in New Zealand prior to his arrival in Australia. This New Zealand offending includes the Applicant having assaulted police officers during the execution of their duties such that this specific New Zealand offending should also be viewed very seriously.

9. Overall, the Tribunal concludes that the Applicants prior offending must be assessed as ‘very serious’. During the giving of his evidence before the Tribunal the Applicant endeavoured to minimise - and on several occasions positively denied - the particulars of matters contained in the version of events presented to the courts in relation to his domestic violence offending. The Tribunal does not accept the Applicant’s evidence in that regard, and notes that orders were made by the courts on the basis of the facts presented to the courts at the time.

   Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

10. When assessing the risk of harm to the Australian community that may now be posed by the Applicant, a decision-maker must have regard to the cumulative criteria specified under paragraph 8.1.2(2) of the Ministerial Direction, which relevantly include:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)     information and evidence on the risk of the non-citizen reoffending; 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).

11. The Applicant concedes[10] that, in the event that he were to be released back into the Australian community and he were to re-offend in a similar manner in the future, then the harm that might be caused to the Australian community could then be ‘very serious’. 

    [10] Applicant’s SFIC, paragraph [23]

12. The Applicant also submits[11] that the likelihood of his engaging in further criminal conduct if released back into the Australian community now presents as an ‘unacceptable’ risk; yet submits[12] that the Tribunal should have regard for the fact that the Applicant has now taken some proactive steps towards making positive changes, via his participation in rehabilitative courses whilst in immigration detention; as well as for the fact of the Applicant having on-going treatment for his drug issues and mental health issues; and that the risk of future deportation will now act as a significant deterrent against the Applicant re-offending in the future. 

    [11] Applicant’s SFIC paragraph [24].

    [12] Applicant’s SFIC paragraphs [25] – [27].

13. The Tribunal acknowledges that the Applicant has participated in some rehabilitation programs, yet notes that the evidence that has been presented to the Tribunal in relation to the Applicant’s rehabilitation and treatment is exceedingly limited, such that the Tribunal considers that the extent of this rehabilitation is presently insufficient to give rise to any confidence that the risk of the Applicant re-offending has now been reduced in consequence of his having participated in either rehabilitation and/or treatment.  On the basis of the available evidence, the Tribunal also expresses little confidence that the future risk of deportation will now act as sufficient deterrence to reduce the risk of the Applicant re-offending down to a level that might now be considered as an acceptable risk for the Australian community.   

14. In the event that the Applicant were to re-offend, then a significant range of harms would be caused to the Australian community. The Tribunal notes, in particular, that the Applicant has been convicted of a number of domestic violence offences, as well as having been convicted of other offences of violence.  In light of the limited evidence of rehabilitation, and inadequate evidence of treatment for the Applicant’s mental health issues, the Tribunal assesses the Applicant as still presenting as a significant further risk of engaging in violent conduct if released back into the Australian community. To this end there is simply insufficient evidence before the Tribunal to support a conclusion that the Applicant is in any way rehabilitated, and the Tribunal notes that during the giving of his oral evidence before the Tribunal the Applicant displayed what is assessed as being only very limited insight or remorse for any of his past conduct. At this juncture the Tribunal notes that the Queensland Corrective Services (QCS) conducted a risk of reoffending assessment on 1 March 2023 which had assessed the Applicant as still being an overall ‘moderate’ risk of reoffending (TB5/602).  The Tribunal also notes that a risk assessment prepared as part of the Applicant’s intake for a men’s domestic violence intervention and education program (‘MDVEIP’) in September 2022 had assessed the Applicant as being a ‘high’ risk of further domestic violence offending (TB5/528). The QCS assessment also noted the Applicant as having ‘high’ interventional requirements for mental health, domestic violence (victim and perpetrator) and substance abuse problems; and the Tribunal also notes findings by the Queensland Parole Board indicating that the Applicant had failed to report for parole on numerous occasions, and had provided doctor’s certificates that were unable to be substantiated (TB1/602); and that general practitioners had observed that the Applicant had engaged in ‘drug seeking behaviours’ by his making consistent repeat requests for various addictive medications and steroids (which were generally refused) during his medical presentations  (TB5/435, 438). The QCS report also noted a number of instances of non-compliance by the Applicant with his parole conditions: including positive urine analysis tests for methamphetamines and amphetamines; failure to commence the MDVEIP program; failure to notify the proper authorities in relation to changes of address and in relation to the names of treating practitioners for various medical conditions; and his not providing additional information in relation to his undergoing hormone replacement therapy, as had been directed by the parole authorities.

15. The Applicant’s mental health has been specified by himself - and has been recognised by the courts - is a contributing factor towards his offending. (G11/65; G5/33). Although the Applicant has claimed to have undertaken counselling and to have been prescribed medication for anxiety, depression, bipolar and schizophrenia, and to have attended both Narcotics Anonymous (‘NA’) and Alcoholics Anonymous (‘AA’) meetings, there is exceedingly limited evidence now before the Tribunal to support any of these treatment claims. On other occasions, the Tribunal notes that the Applicant had refused counselling and psychologist referrals when these were offerred to him whilst in custody (TB5/395).

16. Although the Applicant claims that he is now only a ‘low risk’ of reoffending because he has been “clean from drugs for 18 months”, Tribunal has difficulty accepting that claim in light of evidence of positive urinalysis test results whilst the Applicant was in custody, thus indicating that the Applicant was still using methamphetamine and amphetamines, and suboxone whilst in prison.

17. The Applicant has a lengthy criminal history in Australia. Prior non-custodial sentences imposed by the courts did not deter the Applicant from further offending and nor did these prevent an escalation in the seriousness of the Applicant’s subsequent offending. The Applicant also has a poor history of compliance with parole conditions designed to assist with his rehabilitation. On 1 February 2023 (TB5/590) the Queensland Parole Board decided to ‘indefinitely suspend’ the parole order previously made by the Court, because of the Applicant’s failure to comply with five conditions of parole. On 13 July 2023 (TB5/583) that parole order was altogether cancelled because:

    -The Applicant had been involved in further violent incidents whilst in custody;

    -The Applicant had failed to engage in the men’s domestic violence education intervention program (MDVEIP);

    -A review of the recordings of prisoner telephone calls had revealed that the Applicant’s telephone calls between March and July 2023 to his domestic partner revealed that the Applicant was still engaging in regular verbal abuse, emotional/psychological control, sexual jealousy and the making of threats of physical harm towards his domestic partner during telephone contacts.

18. The Applicant concedes[13] that Primary Consideration One now weighs against revocation of the visa cancellation decision.

    [13] Applicant’s SFIC paragraph [29].

19. Overall, the Tribunal considers that Primary Consideration One now weighs ‘very heavily’ against revocation of the visa cancellation decision.

    PRIMARY CONSIDERATION TWO – FAMILY VIOLENCE

20. The Applicant has engaged in conduct that meets the definition of family violence for the purposes of the Ministerial Direction, having engaged in domestic violence against three successive domestic partners, LK, NW, as well as against his current partner, Ms Leah Martin.

21. The Applicant has been subject to several domestic violence orders (DVOs) since 2016, and still remains subject to two DVOs. The totality of the summonsed material produced before the Tribunal reveals the Applicant’s history of domestic violence as having been frequent and as having escalated in seriousness, and that similar patterns of aggression and violence towards partners has repeated in each of the Applicants successive domestic relationships. Although the Applicant has expressed some sentiments of remorse and insight into his domestic violence conduct during the giving of his oral testimony before the Tribunal, the Tribunal approaches these expressions of remorse and insight with considerable caution. The Tribunal considers these to have been made by the Applicant predominantly for the purposes of these Tribunal proceedings, and to not be genuine statements of remorse. On the available evidence the Applicant’s efforts to address factors that have contributed to his family violence conduct have been very limited. Although the Applicant has asserted that he has engaged in counselling, only very limited evidence of that has been produced before the Tribunal, and the Tribunal notes that when previously required - as part of the conditions of his parole - to engage with domestic violence intervention programs, the Applicant failed to comply.

22. The Applicant concedes[14] that he has committed acts of family violence and that family violence offending is very serious, yet seeks to submit[15] that there were ‘mitigating and extenuating’ circumstances (yet without identifying what these might have been), and the Applicant has now completed rehabilitation courses sufficient for the Applicant to have developed insight regarding the impact of his behaviour on this previous partners and he has accepted full responsibility for his family violence related conduct, such that Primary Consideration Two should now be assessed by the Tribunal as only weighing ‘moderately’ against revocation of the visa cancellation decision.

    [14] Applicant’s SFIC paragraph [30].

    [15] Applicant’s SFIC paragraphs [31] – [35].

23. The Tribunal does not accept that there are any mitigating or extenuating circumstances that might partly explain any of the Applicant’s domestic violence conduct, and does not accept that the Applicant has engaged in sufficient rehabilitation to develop proper insight regarding his violent behaviours within domestic relationships.

24. The Tribunal considers that Primary Consideration Two now weighs ‘very heavily’ against revocation of the visa cancellation decision.

    PRIMARY CONSIDERATION THREE – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

25. 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 (paragraph 8.3(2) of the Ministerial Direction).

26. Decision-makers must also consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction). Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    (a)the length of time the non-citizen has resided in the Australian community, noting that:

    (i)     considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when the offending commenced and the level of that offending; and

    (ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    (iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia (paragraph 8.3(4) of the Ministerial Direction).

27. The Applicant first arrived in Australia when 23 years of age, and has lived in Australia for more than 16 years. The length of time that the Applicant has spent in Australia is a factor that the Tribunal must bring to account (paragraph 8.3(4)(a) of the Ministerial Direction). Given that the Applicant arrived in Australia as an adult, the Tribunal is however not prepared to find that the Applicant was ordinarily resident in Australia during any of his formative years.[16]

    [16] The Applicant concedes that his formative years were spent in New Zealand: Applicant’s SFIC paragraph [37].

28. The Applicant has made some positive contributions to the Australian community (paragraph 8.3 (4) (a) (ii) of the Ministerial Direction), particularly during those periods when he was gainfully employed as an underground coal miner (G10/62). The Applicant has also outlined some involvement in community programs to assist the homeless, less fortunate persons, and drug addicts (G10/63).

29. The Applicant’s domestic partner Ms Martin is an Australian citizen and resides in Australia and has provided a statement and oral evidence in support of the Applicant. The Applicant and his partner have expressed a strong desire to continue to build their business as self-employed couriers/furniture removalists, and to start a family in Australia.  If the Applicant is to be deported, Ms Martin informed the Tribunal that it is her intention to also relocate to New Zealand, yet expressed that this will create emotional hardship for her, principally by reason of her being physically separated from her own family in Australia.  

30. The Applicant has an 11-year-old daughter who is an Australian citizen, though the available evidence suggests that the Applicant has not seen nor spoken to his daughter for some seven years.

31. The Applicant’s two sisters and a brother also reside in Australia and the Applicant is said to have a large extended family in Australia, including aunts, uncles, and cousins. Yet, none of these family members have provided statements in support of the Applicant, or statements of evidence indicating how the Applicant’s removal from Australia might adversely affect them.

32. The Applicant submits[17] that Primary Consideration Three should be assessed as weighing ‘heavily’ in favour of revocation of the visa cancellation decision.

    [17] Applicant’s SFIC paragraph [42].

33. On the basis of the available evidence the Tribunal concludes that a ‘moderate’ amount of weight in the Applicant’s favour must now attach to this primary consideration, in favour of revocation of the visa cancellation decision.

    PRIMARY CONSIDERATION FOUR – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA.

34. In accordance with paragraph 8.4 of the Ministerial Direction, decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of minor child affected by the decision. Paragraph 8.4 (4) of the Ministerial Direction provides that when having regard to this consideration, a number of factors must be considered:

    (a)the nature and duration of the relationship;

    (b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;

    (c)the impact of the Applicant’s prior conduct, and whether it has or will have a negative impact on the child;

    (d)the likely effect of separation and the ability to maintain contact; and

    (e)whether there are other persons who already fulfil a parental role in relation to the child.

    (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

1. The Applicant has an 11-year-old daughter ‘ANL’, who resides on the central coast of New South Wales with her mother. ANL is unaware of the fact of the Applicant’s imprisonment and subsequent immigration detention, and the available evidence suggests that there has been no contact between the Applicant and ANL for a number of years now. There are notes in the material obtained by the Applicant pursuant to summons that reveal that the Applicant informed counsellors whilst in detention that he has not seen or spoken with his daughter for seven years, although the Applicant now denies this to be the case. (Exhibit 2, p.11)

2. The Applicant submits[18] that Primary Consideration Four should be assessed as weighing ‘significantly’ in favour of revocation of the visa cancellation decision.

   [18] Applicant’s SFIC paragraph [48].

3. The Tribunal considers that the best interests of ANL are best met by way of a decision to revoke the visa cancellation decision. However, any weight that now attaches to this primary consideration is ameliorated by reason of the following:

   -ANL lives with her biological mother in a different state and the Applicant does not fulfil any parental role for ANL;

   -the Applicant’s relationship with ANL has been marked by lengthy absences beginning when he separated from the mother of ANL and continuing up until the present time. The available evidence, despite the Applicant’s denials, suggests to the Tribunal that the Applicant has not seen nor communicated with ANL for more than seven years.

   -No independent evidence of the impact of any separation between the Applicant and ANL has been presented to the Tribunal. Although the Applicant has submitted that he would not be able to pay child support (G10/59) on behalf of ANL, the available evidence suggests that the Applicant was already substantially in arrears of child support when taken into custody in February 2023.

4. Overall, the Tribunal considers that ‘moderate’ weight now attaches in favour of a decision to revoke the mandatory cancellation of the Applicant’s visa because of Primary Consideration Four.

   PRIMARY CONSIDERATION FIVE – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

5. Paragraph 8.5(1) and (2) of the Ministerial Direction outlines the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia, and that the Australian community expects the government to not allow individuals to remain in Australia where they have engaged in serious conduct in breach of this expectation. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter and remain in Australia (paragraph 8.5(1)).

6. Paragraph 8.5(3) of the Ministerial Direction states that these expectations apply irrespective of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Decision-makers should proceed on the basis of the government’s views, as now expressed in paragraph 8.5 of the Ministerial Direction, and it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant circumstances, or evidence about those expectations. Rather, the Tribunal must regard paragraph 8.5 the Ministerial Direction as if it were a ‘deeming provision’: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104], per Stewart J; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68.

7. The Applicant concedes[19] that the Applicant’s offending is ‘very serious’, and that Primary Consideration Five now weighs in favour of non-revocation of the visa cancellation decision.

   [19] Applicant’s SFIC paragraph 49].

8. The Respondent Minister contends that this primary consideration now weighs ‘heavily’ against revocation of the Visa cancellation decision.

9. The Tribunal considers that the expectations of the Australian Community requires that heavy weight attach in favour of non-revocation of the mandatory visa cancellation decision.

   OTHER CONSIDERATIONS

10. Paragraph 9 of the Ministerial Direction sets forth the ‘Other Considerations’ that must be considered. The Tribunal addresses below each of the four stipulated subparagraphs

    
    

    (a), (b), (c) and (d).

    (a)       Legal consequences of the decision

11. Paragraph 9.1 of the Ministerial Direction requires decision-makers to be mindful of Australia’s non-refoulement obligations. In the current case non-refoulement does not arise as an issue requiring consideration.

12. While not raised by the Applicant as “another reason” why the cancellation decision should be revoked, one clear consequence of the Tribunal now affirming the decision under review is that the Applicant will become liable to removal from Australia as soon as reasonably practicable, and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with section 501E of the Act. Ultimately however, this legal consequence neither weighs for nor against revocation of the visa cancellation decision.[20] 

    [20] RANA v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) 2023 AATA 1327 at 209.

13. In these circumstances this consideration weighs neutrally.

    (b)      Extent of impediments if removed

14. Pursuant to paragraph 9.2 of the Ministerial Direction, decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country when establishing themselves and maintaining basic living standards (in terms of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support that will be available to them.

15. The Applicant is 39 years of age and has declared in the past that he suffers from bipolar disorder, anxiety, depression, and schizophrenia (G10/63). There is however no medical evidence - in the form of any formal diagnosis - that now confirms the Applicant is suffering from any of these conditions. If the Applicant does suffer from this range of conditions, there is no evidence to suggest that the Applicant would not have access to suitable medical treatment and medications suitable for the treatment of same in New Zealand.  The Applicant concedes[21] that he would have access in New Zealand to a healthcare and social services system comparable to that already available to him in Australia.

    [21] Applicant’s SFIC paragraph [51].

16. The Applicant submits[22] that this other consideration should now weigh ‘heavily’ in favour of revocation of the visa cancellation decision because:

    -The Applicant will face emotional hardship if deported by reason that the daughter of his mother would make no effort to maintain ties between ALH and the Applicant;

    -Strain would be placed on the Applicant’s relationship with his current partner Ms Martin by reason that Ms Martin would also relocate to New Zealand, and would leave her mother behind, in Australia.

    [22] Applicant’s SFIC paragraphs [52] – [54].

17. The matters here raised by the Applicant do not arise for consideration under this other consideration – which requires the Tribunal to consider the extent of impediments that the Applicant may face if removed from Australia and returned to New Zealand in terms of the Applicant re-establishing himself and maintaining basic living standards (in terms of what is generally available to other citizens of New Zealand).   

18. Ultimately, the Tribunal considers that whilst the Applicant may face some difficulties in re-establishing himself in New Zealand, the Tribunal’s assessment is that these difficulties are only apt to present as a short-term form of hardship, and are not likely to be crushing.  There are no substantial language or cultural barriers for the Applicant to overcome in New Zealand and, as a citizen of that country, the Applicant will have access to the same social, medical and economic support as do all other New Zealand citizens.[23] The Tribunal further notes that the Applicant has also declared that he has some immediate family members still living in New Zealand, including his parents, and one brother (G10/60). The Applicant has a prior working history in New Zealand, and there is nothing to now suggest that the Applicant could not obtain suitable employment in New Zealand.

    [23] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.

19. The Tribunal considers that this other consideration weighs only marginally in support of a decision to revoke the visa cancellation decision.

    (c)       Impact on victims

20. Under paragraph 9.3 of the Ministerial Direction, decision-makers are required to be mindful of the impact on victims of the Applicant’s offending if he is - or is not - allowed to return to the Australian community.

21. The Applicant submits[24] that his partner Ms Martin, as one victim of the Applicant’s domestic violence would be adversely affected by his removal from Australia by reason that Ms Martin depends on the Applicant financially and emotionally, such that this factor should be now ben assessed by the Tribunal as weighing in favour of revocation of the visa cancellation decision.  Ms Martin has also indicated that she and the Applicant are undertaking IVF treatment in order to be able to commence a family together and frozen embryos held in storage in Australia could not be implanted in the event that the Applicant is deported.  It is however unclear to the Tribunal what may impede Ms Martin returning to Australia in order to undergo embryo implantation, nor as an alternative what might preclude these frozen embryos being instead flown to New Zealand in order for the implantation procedure to be undertaken in New Zealand.

    [24] Applicant’s SFIC paragraph [56].

22. The Tribunal notes that Ms Martin has indicated that, in the event that the Applicant is to be deported, that she will also relocate to New Zealand in order to be with the Applicant.  In light of that evidence, the Tribunal considers that only quite limited weight now attaches to this other consideration in support of revocation of the visa cancellation decision.

    (d)      Impact on Australian business interests

23. Paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on the interests of Australian business if the non-citizen is not allowed remain in Australia.

24. The Applicant submits[25] that in 2021 the Applicant commenced a business registered under the name ‘I help you Move’ and also worked as a sub-contractor to Allied Couriers moving antique furniture, on the Gold Coast.  The Applicant submits that this business was financially viable for more than 12 months, prior to the Applicant’s incarceration such that this other consideration should be assessed as affording weight in favour of revocation of the visa cancellation decision.

    [25] Applicant’s SFIC paragraphs [[59] – [61]

25. Paragraph 9.4(1) of the Ministerial Direction makes clear that this Other Consideration should only generally be given weight where the decision under section 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal considers that the Applicant’s circumstances do not meet this requirement.  Accordingly, the Tribunal finds that this is Other Consideration now weighs neutrally.

    CONCLUSION

26. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.

27. In reaching its conclusion the Tribunal has had regard to the considerations referred to in the Ministerial Direction. As regards the weight to be allocated to each of these Primary and Other Considerations the Tribunal has concluded:

    oPrimary Consideration 1 weighs very heavily in favour of affirming the Decision Under Review;

    oPrimary Consideration 2 weighs very heavily in favour of affirming the Decision Under Review;

    oPrimary Consideration 3 requires that a moderate level of weight now attach in favour of setting aside the Decision Under Review;

    oPrimary Consideration 4 requires that a moderate level of weight now attach in favour of setting aside the Decision Under Review; and

    oPrimary Consideration 5 weighs heavily in favour of affirming the Decision Under Review.

    oOther Consideration (a) weighs neutrally;

    oOther Consideration (b) weighs marginally in support of revocation of the visa cancellation decision;

    oOther Consideration (c) weighs neutrally; and

    oOther Consideration (d) weighs neutrally.

28. In light of the foregoing the Tribunal affirms the decision under review.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

..................[SGD]....................

 Member McLean Williams

Dated: 18 March 2024

Dates of hearing:

11 and 12 January

Solicitor for the Applicant

Ms Wendy Milojkovic

South West Migration

Solicitor for the Respondent: 

Mr Matthew Hawker

Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	FROM	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	R	Section 501 G-Documents, bookmarked G1-G22, pp 1-127	Various	14.11.23
2	R	Respondent’s Tender Bundle, bookmarked TB1-TB6, pp1-636	2.1.24	2.1.24
3	R	Statement of Facts, Issues and Contentions, online reference number N8QF89	Various	5.1.24
4	A	Statement of Facts, Issues and Contentions	3.1.24	3.1.24
5	A	Applicant’s Tender Bundle (Version 2), bookmarked 1-9, pp1-141	Various	8.1.24