Mamatta and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1
•3 January 2022
Mamatta and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1 (3 January 2022)
Division:GENERAL DIVISION
File Number:2021/7424
Re:Mr Ila Junior Mamatta
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Brisbane
Date:3 January 2022
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 22 July 2021, not to revoke the mandatory cancellation of the Applicant’s Class TU Subclass 500 Student visa.
...............[SGD]............................
Senior Member B. Pola
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class TU Subclass 500 Student visa – where Applicant does not pass the character test – sentence of imprisonment exceeding twelve months – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 90 – numerous domestic violence convictions, common assault, and drug related offending – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895
DLJ18 v Minister for Home Affairs [2019] FCAFC 236
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
HZCP v Minister for Immigration and Border Protection [2019] FCA 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CADirection No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
3 January 2022
INTRODUCTION AND BACKGROUND
The Applicant, Mr Ila Junior Mamatta, is a 24-year-old male citizen of Papua New Guinea. He has predominately resided in Australia on a Class TU Subclass 500 Student visa (herein referred to as ‘the Applicant’s visa’) from the age of ten years, when he first came to Australia with his mother in June 2007[1].
[1] Exhibit R1, Section 501 G Documents, G23, page 111.
The Applicant has a criminal history that spans from September 2019 to February 2021[2]. His convictions consist of numerous domestic violence related offences, including: ‘choking suffocation strangulation domestic relationship – domestic violence offence’, numerous counts of ‘assaults occasioning bodily harm – domestic violence offence’, ‘common assault – domestic violence offence’ and multiple ‘contravention of domestic violence order’. Additionally, the Applicant has been convicted of ‘common assault’, drug-related offences, ‘wilful damage’, and ‘breach of bail condition’.
[2] Ibid, G4, pages 33 to 34.
On 2 November 2020, before the Brisbane District Court, the Applicant was convicted of ‘choking suffocation strangulation domestic relationship – domestic violence offence’ and was sentenced to a term of imprisonment of two years and six months, to be suspended for three years after having served six months. The Tribunal observes that at this sentencing episode the Applicant was also convicted of four counts of ‘assaults occasioning bodily harm – domestic violence offence’ and received a term of imprisonment of eighteen months for each count, to be suspended for three years after having served six months, with all four convictions to be served concurrently[3].
[3] Ibid.
Whilst the Applicant was serving his term of imprisonment for the above offence, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as the ‘Minister’, or ‘Respondent’), mandatorily cancelled the Applicant’s visa (herein referred to as the ‘Visa Cancellation Decision’) on 19 November 2020, pursuant to section 501(3A) of the Migration Act 1958 (Cth) (herein referred to as the ‘Migration Act’). This was done on the basis that the Applicant did not pass the character test, pursuant to section 501(6)(a) and (e) of the Migration Act[4].
[4] Ibid, G27, pages 120 to 141.
The Tribunal notes the Applicant’s student visa expired on 25 June 2021[5].
[5] Exhibit A3(aa).
Following the Visa Cancellation Decision, the Applicant made representations to the Respondent to revoke the mandatory cancellation[6].
[6] Exhibit R1, Section 501G Documents, G8 to G22, pages 54 to 108.
On 22 July 2021, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to section 501CA(4) of the Migration Act[7].
[7] Ibid, G3, pages 9 to 32.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 12 October 2021 seeking a review of the abovementioned decision not to revoke the cancellation of his visa, within the required time frame[8].
[8] Ibid, G2, pages 3 to 8. For the Tribunal to have jurisdiction to review the decision, the Applicant
must have lodged the application for review with the Tribunal within nine days after the day on which he or
she received notification of the decision. See Migration Act 1958 (Cth), section 500(6B).
The application was heard in Brisbane on 7 and 8 December 2021, with the Applicant represented by Mr Lorenzo Boccabella (Counsel), instructed by Mr Nilesh Nandan (of MyVisa Immigration Law Advisory). The Respondent was represented by Ms Elle Tattersall of Sparke Helmore, instructed by Ms Cody Allen. Mr Nandan appeared via video link, with the Tribunal hearing oral submissions from the Applicant, the Applicant and Respondent’s representatives in-person, as well as oral evidence from the witnesses listed below. Additionally, the Tribunal has considered submitted evidence, as outlined in the Exhibit Register, in Annexure 1 of these reasons.
The Tribunal observes the Applicant initially made available seventeen witnesses to give evidence, however ultimately only five (including the Applicant) were called[9]. The Tribunal heard evidence from the following witnesses:
(a)Dr Sam Minge, Clinical psychologist (who appeared before the Tribunal by telephone), and who provided a report following an assessment of the Applicant[10];
(b)Ms LD, the Applicant’s fiancé and an Australian citizen (who appeared before the Tribunal in person)[11];
(c)Mrs Cathy Mamatta, the Applicant’s mother, Papua New Guinea national and temporary Australian visa holder (who appeared before the Tribunal in person)[12]; and
(d)Mr John Kewa, a Chaplain and Australian Citizen (who appeared before the Tribunal by telephone)[13].
[9] Exhibit A5.
[10] Exhibit A3(b).
[11] Exhibit A2, Applicant Witness Statements, pages 16 to 20; pages 21 to 22; Exhibit R1, Section 501 G Documents, G13, pages 87 to 89; Exhibit A3(e); (f); (g).
[12] Ibid, pages 3 to 6.
[13] Ibid, pages 14 to 15; Exhibit R1, Section 501 G Documents, G17, page 94.
At the conclusion of the hearing on the second day, the Tribunal issued a direction which timetabled written closing submissions, with the Applicant to provide a copy by close of business on 9 December 2021, the Respondent by close of business on 10 December 2021, and the Applicant in reply by 9:00AM on 12 December 2021[14].
[14] Exhibit T1.
Contentions raised by the Applicant with respect to the decision under review
Legislation regarding the revocation of the mandatory cancellation of visa’s is found in section 501CA(4) of the Migration Act, which relevantly provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
In considering whether to exercise the discretion in accordance with section 501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by section 499(2A) of the Migration Act to consider directions made by the Minister under the Migration Act. The Tribunal relevantly transposes section 499 of the Migration Act:
499 Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
(4) Subsection (1) does not limit subsection 496(1A).
Section 499(1) of the Migration Act stipulates that the Minister may issue written directions to a person or body which has functions or powers under the Migration Act, with respect to a direction issued in relation to the performance and function of that body or the exercise of those powers.
Section 499(2) of the Migration Act stipulates that those Directions must not be inconsistent with the Migration Act, nor should any regulations which may be issued. Section 499(3) of the Migration Act requires the Minister to table these regulations before each house of Parliament, within fifteen days after the direction was given.
Section 499(2A) of the Migration Act provides that a person or body must comply with a direction pursuant to section 499(1) of the Migration Act, and that of course applies to the Tribunal.
On 15 April 2021, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the ‘Direction’) came into effect[15]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with section 501CA of the Migration Act.
[15] On 15 April 2021, the former applicable direction, Direction No 79 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by
Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a
visa under s501CA.
In written submissions to the Tribunal, the Applicant has contended that[16]:
…For all practical purposes, the only remedy the applicant seeks from the tribunal in this application for review, is the right to apply for some further visa at some in the future.
Ordinarily the decision of the AAT, if favourable to an applicant in character cases leads to the applicant being released from detention into the community on the basis that the visa cancellation is revoked and the applicant’s visa is restored.
This is not the case here. The applicant will remain in immigration detention, even on the basis of a successful review by the AAT, as he is, will be and remain an unlawful non-citizen…
[sic]
[16] Exhibit A3(a), page 1, paragraphs 5 to 7.
In detailed closing written submissions to the Tribunal, the Applicant has further contended that[17]:
[17] Exhibit A7, Applicant Closing Submissions, page 3, paragraphs 19 to 21.
…The first restriction applying to Mr Mamatta is s501E which states:
Section 501E Refusal or cancellation of visa - prohibition on applying for other visas
(1) A person is not allowed to make an application for a visa, or have an application for a visa made on the person's behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:
(a) at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and
(b) the decision was neither set aside nor revoked before the application time.
Mr Mamatta does not meet any criteria for a protection visa hence cannot apply for such a visa in any practical sense. The bridging visa R referred to in s501E(2)(b) and Reg 2.20A, is a very short-term bridging visa, in effect, requiring a person to leave Australia with 7 days.
For all practical purposes, Mr Mamatta cannot apply for any visa while present in Australia unless this tribunal finds, under s501CA(4), “that there is another reason why the original decision should be revoked…
[Bolding in original]
The Applicant’s closing submissions then go into a great level of detail regarding the consequences which flow from an adverse decision taken with respect to section 501CA(4) of the Migration Act, and the various restrictions on the Applicant in applying for a future visa, particularly with respect to clauses 4001 and 5001 of the Migration Regulations 1994 (Cth) (herein referred to as the ‘Regulations’).
The Tribunal is of the view that the Applicant’s ability to apply for another visa at some point in the future is not a relevant consideration for the Tribunal in the discharge of its statutory duty in reviewing the decision of the delegate of the Minister, who, on 22 July 2021, decided not to revoke the mandatory Visa Cancellation Decision, pursuant to section 501CA(4) of the Migration Act[18].
[18] Exhibit R1, Section 501 G Documents, G2, pages 7 to 33.
The Tribunal refers to authority in the Full Federal Court decision in DLJ18 v Minister for Home Affairs[19] (herein referred to as ‘DJL18’), where Justice Snaden found the following with respect to the exercise of power pursuant to section 501CA(4) of the Migration Act:
… There is nothing about the subject matter, scope and purpose of the Act that requires, by implication, that the valid exercise of power under s 501CA(4) be conditioned upon consideration of the legal consequences that arise remotely, theoretically or contingently therefrom (assuming that such consequences might fairly be described as “consequences” at all). Indeed, a case might be made for the proposition that there is nothing about the subject matter, scope and purpose of the statutory framework within and by which that power is conferred that mandates consideration of any of the legal consequences that attach to its exercise:see, in that vein, the discussion concerning clemency and the royal prerogative of mercy in Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158, [22] (Steward J); cf Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29, 52-53 [133] (Kenny and Perry JJ, with whom North J agreed in the result). That is not a proposition upon which further speculation is here required…
[Tribunal bold for emphasis]
[19] [2019] FCAFC 236 at [86].
With respect to the Applicant’s submissions regarding the consequential impact on his future application for a visa and the clauses within the Regulations previously referred to (noting the Applicant’s submissions with respect to difficulties in discerning the ratio decidendi in DLJ18[20]), the Tribunal refers to Justice Flick in his reasons in DLJ18[21], where he stated:
… First, to employ the language used in NBMZ, the “statutory (that is, the legal) consequences” ([2014] FCAFC 38 at [7], (2014) 220 FCR at 4 per Allsop CJ and Katzmann J) that were mandatory relevant considerations in the present proceeding are most probably confined to those “consequences” expressly or implicitly imposed by the Migration Act itself; the “consequences” imposed by the Migration Regulations would most probably fall outside of those matters which must necessarily be taken into account. Any future decision to be made pursuant to cl 5001(c) of Sch 5 to the Migration Regulations could well be characterised as dependent upon a “speculative” future application and as a decision extraneous to those “consequences” imposed by the Migration Act. Expressed differently, and to employ the language of Jessup J in Tanielu, a decision made pursuant to cl 5001(c) of Sch 5 to the Migration Regulations would lack “legal proximity” to those decisions made under the Migration Act. To this extent, concurrence can be expressed with the approach more generally expressed by Jessup J. As observed by Perram J, it “will rarely be possible to discern from the subject matter, purpose and scope of the relevant statute that matters of speculation are mandatorily to be taken into account”: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 at [18]…
[20] [2019] FCAFC 236; Exhibit A7, Applicant Closing Submissions, page 5, paragraph 35.
[21] Ibid, at [15].
The Applicant further contended in closing submissions that, “… [The Applicant’s Class TU Subclass 500 Student visa] visa expired on 25 June 2021. It no longer exists. Direction No 90 was NOT designed or written around situations like that in the present case, it does not address situations where the relevant visa has expired…”[22]. The Tribunal rejects this contention of the Applicant and refers to Annex A, section 1, paragraph 3, ‘Mandatory visa cancellation’, within the Direction which states:
… The purpose of mandatory cancellation of the visas of certain visa holders who are in prison is to ensure that persons who pose a risk to the safety of the Australian community remain either in criminal or immigration detention until that risk has been assessed. In this context, there are some circumstances in which it may not be appropriate for a decision-maker to consider whether a person does not pass the character test (and is therefore liable for the cancellation of his or her visa). These circumstances include where a non-citizen is serving a sentence of imprisonment but will not have a visa which is in effect at the end of that sentence…
[Tribunal bold for emphasis]
[22] Exhibit A7, Applicant Closing Submissions, page 1, paragraph 8.
The Tribunal observes that the circumstances in which it may not be appropriate to assess whether a person does not pass the character test, listed within Annex A, section 1, paragraph 3 (a) and (b) of ‘Mandatory visa cancellation’, do not apply to the factual circumstances of the Applicant as he has not been granted a Bridging E visa, nor a Criminal Justice visa.
The Tribunal has considered the Applicant’s remaining submissions with respect to the application of the Direction and is of the view that where these submissions are relevant, they have been considered within the reasons which follow in this decision[23]. Further, the Tribunal is cognisant of the principles which their Honour Brennan J stated in the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2), that[24]:
… If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the Presidential Members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.
These considerations warrant the Tribunal's adoption of a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of Ministerial policy would work an injustice in a particular case, a cogent reason would be I shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny…
[23] See Exhibit A8, Applicant Closing Submissions in Reply, pages 5 to 6, paragraph 38.
[24] (1979) 2 ALD 634 at 644 to 645.
The Tribunal notes that with respect to the duration and purpose of the non-citizen’s stay in Australia, this consideration is relevant when considering whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, pursuant to sub-paragraph 8.1(2)(c) of Primary Consideration 1 of the Direction. The Tribunal will address this consideration in the later reasons of this decision.
ISSUES
The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa should be exercised.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[25]:
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[26]
[Tribunal underline for emphasis]
[25] [2018] FCAFC 151.
[26] Ibid at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337 at [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548 at [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
The Tribunal must assess and evaluate the factors for and against revoking the visa cancellation decision[27]. If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa be revoked[28].
[27] Ibid.
[28] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Migration Act. A person will not pass the character test if they have a, “substantial criminal record”, pursuant to subsection 501(6)(a) of the Migration Act. Relevantly, section 501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have, “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal is of the view the Applicant does not pass the character test as he was convicted of ‘choking suffocation strangulation domestic violence relationship – domestic violence offence’ and was sentenced to a head custodial sentence of imprisonment of two years and six months when he appeared before the Brisbane District Court on 2 November 2020. The Tribunal observes that at this same sentencing episode, the Applicant was also convicted of four counts of ‘assaults occasioning bodily harm – domestic violence offence’, for which he received an additional head custodial sentence of eighteen months for each count (to be served concurrently)[29].
[29] Exhibit R1, Section 501 G Documents, page 34.
The Tribunal is of the view that the Applicant is therefore unable to rely on section 501CA(4)(b)(i) of the Migration Act to have his mandatory visa cancellation revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion provided for in section 501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by section 499(2A) of the Migration Act to comply with directions made by the Minister under the Migration Act, as noted in earlier reasons of this decision.
The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with section 501CA of the Migration Act. Paragraph 6 of the Direction 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 & 9, where relevant to the decision.
[Tribunal underline for emphasis]
Paragraph 7 of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case and that when applying the Primary and Other Considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Sub-paragraph 7(2) of the Direction provides that, “primary considerations should generally be given greater weight than the other considerations”. Additionally, sub-paragraph 7(3) of the Direction provides that, “one or more primary considerations may outweigh other primary considerations”.
The relevant Primary Considerations in the context of a revocation decision appear in Paragraph 8 of the Direction:
(1)Protection of the Australian community from criminal or other serious conduct (herein referred to as ‘Primary Consideration 1’);
(2)Whether the conduct engaged in constituted family violence (herein referred to as ‘Primary Consideration 2’);
(3)The best interests of minor children in Australia (herein referred to as ‘Primary Consideration 3’); and
(4)Expectations of the Australian community (herein referred to as ‘Primary Consideration 4’).
The Other Considerations to be considered by decision makers are listed in paragraph 9(1) of the Direction. These are:
International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Several principles are set out in paragraph 5.2 of the Direction, which provide a framework for decision-makers to consider when exercising their discretion. The Tribunal has relevantly transposed these principles here:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(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 other 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 measurable risk of causing physical harm to the Australian community.
Prior to addressing the four Primary Considerations, the Tribunal will provide an overview of the Applicant’s criminal history and evidence from the witnesses called by the Applicant.
Overview of Applicant’s criminal and other offending history
The Applicant’s criminal offending history can be gleaned from the section 501 G‑Documents[30], in addition to documents produced under summons[31] comprising:
[30] Exhibit R1, Section 501 G Documents.
[31] Exhibit R2, Respondent’s Summonsed Documents.
(i)The Applicant’s criminal history in Australia, which appears in a document entitled, ‘Nationally Coordinated History Check Results’, dated 16 April 2021[32];
(ii)Sentencing remarks of Judge Dearden in the District Court of Queensland in Brisbane, dated 2 November 2020[33];
(iii)Department of Home Affairs file note, dated 21 April 2021[34];
(iv)International movement records of the Applicant from the Department of Home Affairs, dated 13 November 2020[35];
(v)Verdict and Judgement Record from the District Court of Queensland Registry in Brisbane, dated 2 November 2020[36];
(vi)Queensland Corrective Services sentence details report, dated 6 November 2020[37];
(vii)Material of various dates produced under summons from the Director of Public Prosecutions[38];
(viii)Material produced under summons from the Department of Transport and Main Roads, dated 27 October 2021[39]; and
(ix)Material of various dates produced under summons from the Queensland Police Service[40].
[32] Exhibit R1, Section 501 G Documents, G4, pages 33 to 34.
[33] Ibid, G5, pages 35 to 40.
[34] Ibid, G6, pages 41 to 43.
[35] Ibid, G23, pages 109 to 111.
[36] Ibid, G24, pages 112 to 113.
[37] Ibid, G25, pages 114 to 115.
[38] Exhibit R2, Respondent’s Summonsed Documents, R1, pages 1 to 20.
[39] Ibid, R2, pages 21 to 23.
[40] Ibid, R3, pages 24 to 63.
Applicant’s criminal and other offending history
February 2017 - Reported incident involving the Applicant which did not lead to a criminal conviction
During the hearing, the Applicant was taken to a reported incident in the summons material produced by Queensland Police which detailed an offending episode in early February 2017. This involved the Applicant and his former partner, whom the Tribunal will refer to throughout these reasons as ‘Ms X’. The Tribunal acknowledges that this incident did not lead to a conviction.
Queensland Police summons records note that witnesses observed a physical altercation at an address where the Applicant resided. They stated that a male and female person were arguing in a bedroom at the property and were heard yelling, though they were not sure what was said[41]. The witnesses were reported as stating to police that they observed the male shove the female across the room, and a short time later the female left the address; and they observed a guitar being thrown from the balcony by an unknown person onto the street below.
[41] Ibid, pages 25 to 26.
When Queensland Police attended the address, they intercepted the Applicant, who informed police that Ms X had started an argument with him over him being unfaithful. The Applicant told police he had friends over for drinks and his phone was smashed during the night, and that Ms X was angry at him as he wasn’t answering her calls. The Applicant told police that Ms X had come to the address to collect her property, at which time the previously described argument ensued. He went on to state that he had grabbed her around her body to calm her down. The report notes that during this argument, the family of the Applicant were outside in the living room, and the Applicant’s brother entered the room where the argument was taking place as it was getting loud and asked the Applicant to leave. The report states that a short time later, Ms X also left the address.
It was reported that the Applicant further told police that he threw the guitar after Ms X had left out of frustration. When Queensland Police had telephoned Ms X, she stated that she had attended the property and that an argument started in relation to her ending their relationship. Ms X told Queensland Police that the altercation was verbal and that the only time the Applicant had touched her was to calm her down. She further stated that she did not have any injuries and was unaware a guitar had been thrown from the balcony of the property. Ms X further told Queensland Police she was not fearful of the Applicant.
When the events of this reported incident were put to the Applicant during the hearing, he confirmed the incident related to Ms X. The Applicant admitted to throwing the guitar and claimed that he did not shove Ms X across the room, as the report states. The Applicant agreed that the offences were extremely serious[42].
Offence in December 2018, convicted in September 2019
[42] Transcript (7 December 2021), page 37, lines 43 to 47; page 38, lines 1 to 13.
A Queensland Police report details an offending episode of the Applicant involving him and his former partner, Ms X. The incident, which occurred in December 2018, involved a verbal argument between the Applicant and Ms X after they had returned from the shops[43]. The Queensland Police report states that the Applicant had left the vehicle and had gone to his apartment, and that Ms X had driven away from the location. The Applicant stated that he left his wallet in the vehicle, which contained approximately $2,000 in cash. The Applicant called Ms X and accused her of driving away with his wallet. Ms X returned to Applicant’s address and the Applicant was reported to have thrown items from the third-floor balcony on the roadway towards Ms X’s car.
[43] Exhibit R2, Respondent’s Summonsed Documents, R3, pages 27 to 28.
The report goes on to state that police later discovered a large amount of ceramic on the roadway. The report states the Applicant has screamed, “give me back my fucking money” and it is reported that Ms X thew the Applicant’s wallet out of the car window (without leaving the vehicle), with some of the cash spilling and blowing around on the road. The report states that the Applicant went down to collect the cash and abused passers-by and members of the public that were trying to collect the cash for him.
The report then states that the Applicant has called Ms X and accused her of keeping some of the cash. When Ms X again returned to the property in her car to show she had not stolen the cash, the Applicant is reported to have thrown a wheelie bin onto his former partner’s car, causing a large dent to the rear right quarter. Following this, Ms X fled the scene. The report states that police intercepted Ms X, crying, shaking, and appearing to be scared, and she subsequently reported the matter to police. Ms X told police that she wanted to end the relationship and approved a domestic violence order being sought to protect her from the Applicant.
The report states that police went to the Applicant’s apartment when they went to question him and observed a ceramic candle on the coffee table which matched the fragments on the road. The report also states that the Applicant admitted to consuming alcohol. When the Applicant was questioned as to whether he had thrown anything on Ms X’s car, the police report states that he was evasive in his replies and did not admit to throwing anything, only admitting to yelling and swearing at her from his balcony. The report states that both parties advised police that the relationship was ending after the incident, however police were of the view that a Domestic Violence Protection order should be made in light of the items having been thrown from balcony and the damage to Ms X’s car, which, “could have resulted in serious injury to the aggrieved”.
When the Applicant was questioned as to the reported details of this offending episode, he did not agree that all of what was reported was accurate. However, he did ultimately accept that he plead guilty to the offence and admitted to also consuming cannabis at the time[44]. The Tribunal notes that a temporary protection order was granted, with a further permanent protection order granted in February 2019[45].
[44] Transcript (7 December 2021), page 38, lines 43 to 46; page 39, lines 1 to 30.
[45] Exhibit R2, Respondent’s Summonsed Documents, R3, page 29.
The Tribunal observes that one of the conditions of this permanent protection order (which expires in February 2024) was that the Applicant was required to, “attend and satisfactorily participate in an approved Mens Behavioural Change Program by 13/02/2020”. The Tribunal questioned the Applicant as to whether he complied with this requirement and he confirmed that he had not. The Applicant submitted that he was told by the Court that he would hear from them and stated that as this did not occur, he never participated. As an alternative, the Applicant stated he reached out to a Men’s Helpline program (for which there is no corroborative documentary evidence before the Tribunal). The Applicant confirmed that he did not follow up this condition of the protection order of his own accord[46].
[46] Transcript (7 December 2021), page 39; page 40, lines 1 to 11.
The Applicant’s criminal history confirms that he appeared before the Brisbane Magistrates Court in September 2019 and was convicted of ‘wilful damage’. No conviction was recorded, he was fined $200 and ordered to pay recognisance of $450, in addition to being issued with a good behaviour bond for a period of nine months[47].
Offence in September 2019, convicted in February 2021
[47] Exhibit R1, Section 501 G Documents, G4, page 34.
A Queensland Police report details a road rage incident involving the Applicant (who as driving), whilst travelling in a vehicle with his former partner, Ms X. The victim of the road rage incident was stopped at a set of traffic lights. The report states that the victim began to take off after the traffic lights turned green, however the car behind the victim (driven by the Applicant) beeped its horn loudly. The Applicant then overtook the victim’s car aggressively, with the victim giving the Applicant a rude gesture due to the manner of his driving[48].
[48] Exhibit R2, Respondent’s Summonsed Documents, R3, page 51.
The report goes on to state that the victim then crossed over the Brisbane Go-Between bridge and stopped behind the Applicant’s car at a red light, at the intersection of Coronation Drive and Cribb Street. The report states that the Applicant exited his car, walked to the victim’s car where they were seated inside and told the victim, “Don’t give me the finger”. The Applicant is reported to have punched the victim in the face with a closed fist, returned to his vehicle and driven off. The report states the victim did not suffer any injuries from the punch but felt pain at being hit and reported the matter to police the following day.
When the Applicant was questioned as to this reported offence during the hearing, he accepted that the facts reported by Queensland Police were accurate and confirmed that he had plead guilty[49].
[49] Transcript (7 December 2021), page 41, lines 26 to 33.
The Applicant’s criminal history confirms he appeared before the Brisbane Magistrates Court in February 2021 and was convicted of ‘common assault’ and was sentenced to a term of imprisonment of four months, to be suspended for nine months[50].
Offences in September 2019, convicted in November 2020
[50] Exhibit R1, Section 501 G Documents, G4, page 33.
The Applicant was taken to the Statement of Facts, obtained under summons from the Director of Public Prosecutions, of an offending episode which occurred over several days in late September 2019. The Applicant confirmed during cross-examination that this was an accurate record of events[51].
[51] Exhibit R2, Respondent’s Summonsed Documents, R1, pages 1 to 3; Transcript (7 December 2021), page 42, lines 29 to 30.
The Tribunal observes that despite this confirmation, numerous submissions have been made to the Tribunal with respect to statements from his fiancé, Ms LD, and key facts related to this offending conduct involving his former partner, Ms X. Specifically these submissions were in relation to the portion of the Statement of Facts which states that on 24 September 2019, the Applicant’s former partner had driven the Applicant to a boxing gym and that the Applicant had become angry with the way Ms X was driving and, “… [had] locked her in his car until he had finished his session…”[52].
[52] Ibid, page 1, paragraph 5.
The Applicant and his partner, Ms LD, have sought to deny this aspect of the agreed Statement of Facts (observing the Applicant later plead guilty to these related convictions[53]), making written and oral submissions to the effect that it was impossible for a person to be locked in the relevant car[54].
[53] Exhibit R1, Section 501 G Documents, G24, pages 112 to 113.
[54] Exhibit A3(g); Transcript (7 December 2021), page 7, lines 30 to 44.
With respect to whether the Tribunal is permitted to challenge the underlying facts of prior convictions of the Applicant, the Tribunal observes that this issue has been previously considered in the Full Federal Court, and recently affirmed by the High Court[55].
[55] Special leave application heard by the High Court on 15 October 2021. Application refused with costs.
The Tribunal refers to the decision of HZCP v Minister for Immigration and Border Protection[56] (herein referred to as ‘HZCP’), where His Honour McKerracher J stated:
As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
[56] [2019] FCA 202 at [77].
The Tribunal further refers to the reasons of their Honour Colvin J in HZCP with respect to administrative tribunal’s views on facts underlying criminal convictions[57]:
… The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts...
[57] Ibid at [189].
The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against him. The Tribunal therefore gives significant weight to the Court’s consideration of the facts of the offences and to the seriousness with which their Honours have regarded the Applicant’s offending conduct.
With respect to the events of this criminal offending episode, the Tribunal refers to the sentencing remarks of their Honour Judge Deardon in the District Court of Queensland, who succinctly summarised the Applicant’s offending[58]:
[58] Exhibit R1, Section 501 G Documents, G5, pages 36 to 37.
… You plead guilty today to one count of choking, suffocation or strangulation in a domestic setting, that’s count one; four counts of assault occasioning bodily harm, counts two, four, five and six; and one count of common assault, count three. The circumstances of the offending and I’ll summarise briefly, are these. You were in a romantic relationship and I quote, “with [name redacted – Ms X]”, since 2017. I put it in quotes because there is nothing romantic about brutally assaulting your partner.
During the course of that relationship you were physically and emotionally abusive, but no formal complaints were made. However, there was a temporary protection order made on 13 December 2018 after an argument and you threw beer bottles and a wheelie bin at her car, which I’m told belonged to her father. Damage was caused, the wilful damage on your criminal history with a good behaviour bond was a result of that action and it was during the nine month good behaviour period in respect of that penalty that you committed the current offences. You were also, of course, subject to not only the temporary protection order but there was a permanent formal order made on 13 February 2019 which required you to be of good behaviour and not commit domestic violence against the complainant.
On 24 September 2019, [name redacted – Ms X] drove you to a boxing gym at Milton. You became angry at the way she was driving. You locked her in your car until you’d finished. There are no charges from that although the conduct itself, in my very strong view, is appalling and despicable. When you got home, you grabbed her by the throat and started to choke her with your left hand against the wall, causing her difficulty breathing and dizziness. That’s count one, choking. You told her she deserved to die and she should be like her mother, and you were well aware of how deeply that must have cut because [name redacted – Ms X] had lost her mother some years previously. She suffered bruising to the right side of her neck and that’s obvious from the photographs I’ve seen, which are exhibit 6 and 7 including that one there.
While she was on the ground gasping for air, you poured a large bottle of water over her face, kicked her in the back several times causing bruising and then left for a
cigarette. That was count two. The same day you called her father at least 53 times and left two voicemails. Then two days later, you and she slept through an alarm to get up at seven for a tenancy inspection. Then at eight-30 you have gotten angry about that. You and she got into your car to go to Bunnings. You told her that you were sick of her and you were going to drop her at university. She said she didn’t want to go. While driving, you punched her right elbow with your left fist, causing her to cry and her elbow to go numb. You told her to shut up. You started punching her in the head, including twice on her right temple with your left fist causing her to feel dizzy. That’s count three, which is the common assault.
Although it’s only a common assault, it’s clearly deeply concerning because the right temple is a particularly vulnerable part of the head.
You stopped at the university, told her to get out but she refused. Then you continue driving with her through [location redacted], you got angry at another driver and again, despite your anger at another driver, [name redacted – Ms X] paid the price and you hit her right leg hard with a hammer fist motion which caused bruising and the loss of feeling in her leg. That’s count four, assault occasioning bodily harm. She screamed and tried to pull her leg away. You told her to shut up, you stopped near the [location redacted] pool, told her to get out, she refused to leave. You then arrived at [location redacted] Bunnings. She stays in the car, you come back 10 minutes later. Driving along [name redacted] Road, you yell that you didn’t want to be with her anymore, she was a waste of space. She cried and you hit her right thigh repeatedly again with your fist causing bruising, which was count five.
Then the car stopped, you walked around and undid her seatbelt. You grabbed her by the hair and threw her into the gutter causing abrasions to her left wrist and forearm, which is count six, again assault occasioning bodily harm. She couldn’t stand up because of the loss of feeling in her right leg. She lay in the gutter crying. A passer-by stopped, a woman, and you yelled at [name redacted – Ms X], “Why are you causing this massive scene? You are just doing this for attention.” I must say, in all of the facts, that’s probably one of the most despicable parts of it. That you could yell at someone who you are physically abusing in that way and blame her for what you’d done.
You then turned to the passer-by and said, “I don’t know what’s wrong with her, I don’t know why she’s crying, leave us alone.” Which is again, of course, a despicable lie. You knew exactly why she was crying. You were brutally assaulting a woman that you are supposedly in a “romantic relationship” with. When – you then got her back in the car, drove back to your unit, told her – she told you she couldn’t walk. She waited five minutes in the car, you told her to hurry up and go upstairs. She was limping by then. Back in the unit, you tried to call her father, but he wouldn’t answer. You did, to your credit, at least at that stage, bring some ice for leg which was swollen and bruised.
The next day on 27 September 2019, there was another argument, you left the unit. As soon as you did, [name redacted – Ms X] went to her father’s house at [location redacted], blocked your phone number and social media accounts. You then arrived at his house, asking where she was. She hid, her father told you to leave. She then went and made a formal complaint…
[Tribunal redactions]
The Tribunal observes that there is extensive documentary evidence containing numerous photographs of the injuries sustained by the victim of the Applicant’s offending (Ms X)[59]. Additionally, there is a victim impact statement submitted by Ms X to the Court[60].
[59] Exhibit R2, Respondent’s Summonsed Documents, R1, pages 4 to 18.
[60] Ibid, pages 19 to 20.
When the Applicant was questioned as to the facts of this offending episode, he stated that it was anger and immaturity which caused him to choke Ms X. The Applicant sought to give context to the arguments between him and Ms X, which included claims that Ms X had accused the Applicant of cheating, and that he was angry that Ms X had lied to her family about his wilful damage conviction. The Applicant claimed that Ms X was physically abusive to him in the relationship (that she had split his lip), and that it was because she had approached him aggressively that he had choked her[61].
[61] Transcript (7 December 2021), page 42, lines 32 to 46, page 43; page 44, lines 1 to 28.
The Tribunal observes that following this offending episode, the Applicant was taken into custody for a short period at the end of September 2019 and was granted bail in November of that year. A condition of the Applicant’s bail undertaking was that he, “… must not contact the aggrieved personally or ask someone else to contact the aggrieved, including by any social media platform…”[62].
[62] Exhibit R2, Respondent’s Summonsed Documents, R3, pages 30 to 31.
The Applicant confirmed when questioned that he had attempted to contact Ms X following his release on bail, both by social media and telephone, respectively. The Applicant accepted that he was aware of his bail undertakings and that he had breached this condition the same day he was released[63].
[63] Transcript (7 December 2021), page 45, lines 14 to 45.
With respect to the Applicant’s breaches of his bail undertaking and consequent breaches of protection orders which were in place, he appeared before the[64]:
(a)Brisbane Magistrates Court on 31 August 2020 and was convicted of one count of ‘breach of bail condition’, and one count of ‘contravention of domestic violence order’. For both offences, he received no conviction recorded, was ordered to pay recognisance of $100 and was placed on a good behaviour bond for a twelve-month period[65]; and
(b)Brisbane Magistrates Court on 23 February 2021 and was convicted of two counts of ‘contravention of domestic violence order’, and one count of ‘breach of bail condition’. A conviction was recorded but the Applicant was not further punished.
[64] Exhibit R1, Section 501 G Documents, G4, page 34.
[65] Ibid.
With respect to the main offences relating to this offending episode, the Applicant’s criminal history confirms he appeared before the Brisbane District Court in November 2020, and was convicted of[66]:
(a)one count of ‘choking suffocation strangulation domestic relationship – domestic violence offence’. The Applicant was sentenced to a term of imprisonment of two years and six months, and was required to serve six months concurrently, with the sentence to be suspended for three years;
(b)four counts of ‘assaults occasioning bodily harm – domestic violence offence’. The Applicant was sentenced to a term of imprisonment eighteen months for each count, and was required to serve six months concurrently, with the sentence to be suspended for three years; and
(c)one count of ‘common assault – domestic violence offence’, to which the Applicant was sentenced to six months imprisonment, concurrently.
[66] Ibid.
The Tribunal further observes that the Applicant was convicted of ‘possess utensils or pipes etc that had been used’, and ‘possessing dangerous drugs’. Convictions were recorded but the Applicant was not further punished when he appeared before the Brisbane Magistrates Court, on 23 February 2021[67]. The Tribunal observes these convictions resulted from a police search of the Applicant’s apartment, where cannabis was located, in addition to a home-made smoking implement[68].
Applicants traffic record
[67] Ibid.
[68] Exhibit R2, Respondent’s Summonsed Documents, R3, page 44.
Before the Tribunal are records from the Queensland Department of Transport and Main Roads which record that the Applicant has received numerous speeding offences for travelling at more than 20 kilometres per hour above the speed limit, and on one occasion travelling at more than 30 kilometres per hour above the speed limit. Additionally, the records indicate the Applicant was fined $600 and immediately disqualified from driving for a cumulative period of eight months for mid-range drink driving in December 2018, where he registered a blood alcohol concentration (BAC) of 0.138[69].
[69] Ibid, R2, pages 21 to 23.
The Applicant accepted his drink driving record when it was put to him at the hearing and accepted that he was well over the acceptable BAC limit of 0.05 when he was caught[70].
[70] Transcript (7 December 2021), page 48, lines 6 to 20.
Evidence from witnesses who appeared before the Tribunal
Dr Sam Minge, Clinical psychologist
The Tribunal heard evidence from Dr Minge via telephone. He provided a report, dated 30 November 2021, following an assessment of the Applicant on 22 and 25 November 2021, respectively[71]. Whilst the Tribunal will explore the findings of Dr Minge’s reports more fulsomely in the later reasons of this decision, the Tribunal observes the following oral evidence[72]:
(a)Dr Minge stated that his understanding of the counselling courses the Applicant has undertaken in immigration detention was that they were something the Applicant had done on a weekly basis, in addition to undertaking some self-development courses privately. Dr Minge stated he was not aware of these courses, nor their content. Additionally, Dr Minge stated that he understood that the Applicant had undertaken couple’s counselling with his now fiancé, Ms LD. However, Dr Minge was not aware that the Applicant was undertaking phone counselling once a week, for 45 minutes to an hour, from February 2019, for a period of six to seven months. He also confirmed to the Tribunal that an absence of such knowledge would be of a concern to him in circumstances where the Applicant had received such counselling and still engaged in domestic abuse[73].
(b)With respect to the Applicant’s ‘common assault’ conviction in February 2021, Dr Minge confirmed he did not have the supporting police documentation and relied on the Applicant’s self-reporting of this offending[74].
(c)With respect to the SARA (Spousal Assault Risk Assessment) score of the Applicant, Dr Minge stated that in his view, the Applicant did not have an extensive history of violence or anti-sociality, with the offending occurring in the course of one domestic relationship, during a specified time in the Applicant’s life. In Dr Minge’s view, the Applicant did not display an attitude that was supportive of domestic violence; that he had expressed remorse for his offending, and found his time in criminal custody punishing, and that the Applicant seemed very motivated not to repeat this offending. For these reasons, Dr Minge stated that, “… I formed the view that he was probably a low risk. Definitely a low risk of violence and a low risk of repeat domestic violence… The relative risk rating rather than absolute risk rating…”[75].
(d)Dr Minge stated that his assessment of the Applicant being a low risk (with respect to the SARA rating) is in fact a qualified assessment, in that this rating is in comparison to other persons who have engaged in domestic violence; observing that the Applicant’s risk would be higher if compared to a person in the general community. The Tribunal refers to Dr Minge’s evidence that, “… the risk ratings that you come out with are risk ratings relative to other people who have been convicted of that kind of offending. So, they're not absolute risk ratings, they are relative to other people who have engaged in domestic violence. And so, his risk would be higher than a, you know, even a person of low risk would be higher than a person in the general community”[76]. [Tribunal underline for emphasis]
(e)Dr Minge confirmed that he did not have enough evidence to diagnose the Applicant with a personality disorder but, after the Applicant had completed a relevant screening questionnaire, formed the view that the Applicant did exhibit some traits. Dr Minge confirmed that if there was such a diagnosis, it wouldn’t have altered his overall assessment of the Applicant[77].
(f)Dr Minge stated that it was important for the Applicant to continue with counselling and explore his personality traits to allow him to better manage his relationships more generally, including intimate relationships and any conflict which may arise within them. Dr Minge stated, “… I didn't find him to be especially high in self-awareness and I don't think he's skilled at communicating his feelings when he's upset about things and I think he would do well to improve in that regard…”[78].
Ms LD (Applicant’s fiancé and Australian citizen)
[71] Exhibit A3(b).
[72] Transcript (7 December 2021), page 58 to 66.
[73] Transcript (7 December 2021), page 40, lines 37 to 47; page 41, line 1; page 60, lines 6 to 23.
[74] Ibid, page 59, lines 44 to 46; page 60, lines 1 to 5.
[75] Ibid, page 60, lines 31 to 46; page 61, lines 1 to 2.
[76] Ibid, page 61, lines 4 to 11.
[77] Ibid, lines 26 to 45.
[78] Ibid, page 63, lines 4 to 7.
The Tribunal heard evidence from Ms LD, who appeared in person at the hearing and who also provided several written statements in support of the Applicant[79].
[79] Exhibit A2, Applicant Witness Statements, pages 16 to 22; Exhibit R1, Section 501 G Documents, G13, pages 87 to 89; Exhibit A3(e); (f); (g).
With respect to Ms LD’s evidence, the Tribunal found her recollection and knowledge of the Applicant’s criminal convictions to be limited. The Tribunal is of the view that Ms LD struggled to recall the substance of any of the convictions with precise detail, nor was she aware of the sustained abuse Ms X suffered at the hands of the Applicant (with respect the Applicant’s admissions regarding his physical and verbal abuse of Ms X, from mid-2018 to September 2019, which did not lead to a criminal conviction[80]). The Tribunal observes Ms LD reached out to the victim of the Applicant’s offending (Ms X) on several occasions, so that, in her mind, she had some assurance with respect to the Applicant being around her children[81].
[80] Transcript (7 December 2021), page 35, lines 5 to 46; page 36, lines 1 to 44.
[81] Ibid, page 71, lines 31 to 45.
The evidence of Ms LD is that she is in a committed and loving relationship with the Applicant, with plans to marry him next year if he is permitted to remain in Australia. She confirmed that in circumstances were the Applicant to be deported, she would not be able to raise her children in Papua New Guinea, as the biological father of her two young daughters lives in Australia, and that her children, “deserve” to be in Australia[82].
[82] Ibid, page 67, lines 11 to 25.
Ms LD stated that she and the Applicant met in late-December 2019, or early-January 2020 and commenced their relationship through friendship. Ms LD confirmed that neither she nor the Applicant have ever lived together, and that her young daughters met the Applicant in March 2020. In terms of her contact with the Applicant in their relationship (prior to his incarceration and subsequent detention), Ms LD stated that they would see each other approximately three times per week, and that the Applicant would only see her daughters on a weekend, or every second weekend[83].
[83] Ibid, page 69, lines 41 to 46; page 70, lines 1 to 39.
Ms LD stated that she had a shared custody arrangement with her former partner, who is the biological father of her daughters, and that he has custody of them from Sunday to Wednesday during the week. She stated that her former partner had concerns with respect to the Applicant’s convictions and that they would need to discuss them were the Applicant to be permitted to remain in Australia[84].
[84] Ibid, page 72, lines 38 to 45; page 73, lines 1 to 18.
Ms LD confirmed that she had recently moved home with her daughters, that the Applicant was paying the rent on this property for her to live (from October 2021) and that she and the Applicant had hoped to commence two new businesses[85].
Mrs Cathy Mamatta (Applicant’s mother, Papua New Guinea national and temporary Australian visa holder)
[85] Ibid, lines 19 to 47.
The Tribunal heard oral evidence from Mrs Mamatta, who appeared in person at the hearing and provided a written statement in support of the Applicant[86]. Mrs Mamatta confirmed that she was in fact the adoptive mother of the Applicant, and that it was customary in Papua New Guinea, in circumstances where a female was unable to have children of their own, that a sibling who had “extra” children would give them a child, so that the child can care for them in their old age. Mrs Mamatta revealed the Applicant had suffered abuse as a child, and that his adoption was kept secret until he found out in recent years[87].
[86] Exhibit A2, Applicant Witness Statements, pages 3 to 6; Transcript (7 December 2021), page 75, lines 5 to 47; page 76; Transcript (8 December 2021), page 80, lines 20 to 47; pages 81 to 85.
[87] Transcript (7 December 2021), page 75, lines 20 to 44; page 76, lines 1 to 8.
Mrs Mamatta confirmed that her husband is the Applicant’s father, and that her husband has two other children of his own; a daughter, who is married in Papua New Guinea, and a son (both of whom are considered siblings of the Applicant)[88].
[88] Ibid, page 76, lines 14 to 15.
Mrs Mamatta confirmed she has a house back in Papua New Guinea, in addition to her husband’s business, and that she travels back there during holidays. Mrs Mamatta confirmed the Applicant received an allowance through her husband’s company since he was in school, and subsequently whilst he was pursuing studies, post high school. Ms Mamatta confirmed to the Tribunal that she and her husband had financially supported the Applicant throughout his period of incarceration and subsequent detention with an allowance of approximately $2,000 per fortnight, with the Applicant also receiving pocket money from his father of approximately $500, or $1,000 when the Applicant wanted to purchase something, or when his father came to visit[89].
[89] Transcript (8 December 2021), page 80, lines 29 to 46; page 81, lines 1 to 20.
The Tribunal is of the view that the Applicant’s mother had limited knowledge of the Applicant’s offending (outside that which is reported in his criminal history), the physical and verbal abuse against Ms X (which did not result in a criminal conviction) and the Applicant’s drug use[90].
Mr John Kewa (Chaplain and Australian Citizen)
[90] Ibid, page 81 to 84.
The Tribunal heard evidence from Mr Kewa, who appeared via telephone at the hearing and provided a several written statements in support of the Applicant[91]. Mr Kewa confirmed his knowledge of the Applicant’s criminal conduct was limited to the sentencing remarks of the District Court in November 2020. This knowledge excludes: the Applicant’s ‘common assault’ conviction stemming from a road rage incident; the physical and verbal abuse of the Applicant perpetrated against Ms X (during the period of mid December 2018 to September 2019, which did not lead to a criminal conviction); and the Applicant’s breaches of bail and contraventions of protection orders. The Tribunal observes Mr Kewa also did not seem to be aware of the Applicant’s use of prohibited drugs.
[91] Exhibit A2, Applicant Witness Statements, pages 14 to 15; and Exhibit R1, Section 501 G Documents, G17, page 94; Transcript (8 December 2021), pages 88 to 91.
The Tribunal observes the evidence of Mr Kewa regarding his knowledge of the Applicant’s conduct contrasts with what the Applicant told the Tribunal. The Applicant stated that Mr Kewa was aware of the Applicant’s offending through the facts contained in police records, the Applicant’s drug and alcohol use, as well as the physical and verbal abuse of the Applicant against Ms X (which did not lead to a criminal conviction)[92].
[92] Transcript (7 December 2021), page 50, lines 28 to 33.
It was evident upon listening to the evidence of Mr Kewa that his role was one of spiritual guidance to the Applicant, given he was a family friend of the Applicant’s family and had a strong Catholic background.
With respect to the contact Mr Kewa has had with the Applicant, he stated that he had caught up with the Applicant on three occasions between 2017 and 2019, and that they have been occasionally messaging each other through social media platforms. Mr Kewa confirmed he had not been in touch with the Applicant, “for some time” (since approximately the end of 2019), but that he would receive the occasional call from the Applicant, and that he had maintained, “some” communication with the Applicant. This contrasts with the Applicant’s recollection of his contact with Mr Kewa, which was that they would talk on a fortnightly basis[93].
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
[93] Ibid, page 51, lines 1 to 5.
Paragraph 8.1(1) of the Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It further states that entering or remaining in Australia is a privilege that Australia confers on non-citizens, with 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.
Paragraph 8.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration 1:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Upon a holistic review of the Applicant’s criminal offending record and other conduct, the Tribunal is of the view that the following considerations have application with respect to the nature and seriousness of the Applicant’s conduct, when applying paragraph 8.1.1(1) of the Direction: sub-paragraphs (a)(i); (c); and (e).
The Tribunal has detailed the domestic violence related convictions and conduct of the Applicant, in earlier reasons of this decision. Sub-paragraphs 8.1.1(1)(a)(ii) and (iii) of the Direction, ask decision makers to consider:
… a)
…
(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;…
The Tribunal observes that sub-paragraphs 8.1.1(1)(a)(ii) and (iii) of the Direction, both ask decision makers to consider the Applicant’s criminal and other relevant conduct with respect to these categories, “regardless of the sentence imposed”. The Tribunal is of the view that to consider the Applicant’s domestic violence related conduct where there are convictions, as well as conduct where there is no conviction recorded for the purposes of both sub-paragraphs 8.1.1(1)(a)(ii) and (iii) of the Direction, in addition to paragraph 8.2 (or Primary Consideration 2) of the Direction, could lead to the perception of ‘double counting’. The Tribunal will consider the Applicant’s criminal and other relevant conduct with respect to his domestic violence related offending in detail with respect to Primary Consideration 2, in the latter reasons of this decision.
With respect to this approach, the Tribunal observes that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires decision makers to exclude (relevantly) sub-paragraphs 8.1.1(1)(a)(ii) and (iii) when considering the sentence imposed by the courts for a crime or crimes.
The Tribunal is of the view that the remaining sub-paragraphs in paragraph 8.1.1(1) of the Direction are not relevant to the factual circumstances of the Applicant’s remaining relevant criminal offending and other conduct and are therefore are of no weight and not determinative of any finding.
Sub-paragraph (a)(i) of paragraph 8.1.1(1) of the Direction directs decision makers, in considering a non-citizen’s offending or other conduct, to have regard to (without limiting the range of conduct that may be considered very serious), relevantly, violent and or sexual crimes. The Direction further states that offending or other conduct of this nature is viewed very seriously by the Australian Government and the Australian community.
With respect to the application of sub-paragraph 8.1.1(1)(a)(i), the Tribunal, in its earlier reasons, has outlined an offending episode of the Applicant which led to the conviction of common assault in February 2021, with respect to a road rage incident, where the Applicant punched a victim in the face with a closed fist, and returned to his vehicle and drove off. The Tribunal accepts that whilst the Queensland Police report states the victim did not suffer any injuries from the punch (but felt pain at being hit and reported the matter to police the following day), this conduct of the Applicant demonstrates that his propensity for violence is not limited to a domestic context but has also extended to the community more generally.
During cross-examination, the Applicant accepted that the facts reported by Queensland Police were accurate and confirmed that he had plead guilty[94]. The Tribunal notes the Applicant was sentenced to a term of imprisonment of four months, to be suspended for nine months[95].
[94] Transcript (7 December 2021), page 42, lines 21 to 27.
[95] Exhibit R1, Section 501 G Documents, G4, page 33.
The Tribunal is of view that the Applicant’s conduct, with respect to the application of sub-paragraphs 8.1.1(1)(a)(i) of the Direction, should overall be viewed very seriously (as deemed by the introduction to sub-paragraph 8.1.1(1)(a) of the Direction), but be allocated a moderate weight as the Tribunal accepts the Applicant’s most serious offending is his domestic violence related offending.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the sentence imposed by the Courts for a crime, or crimes, with the exception of the crimes or conduct mentioned in sub-paragraph 8.1.1(1)(a)(ii), (iii) and (b)(i).
The Applicant first arrived in Australia as an almost ten-year-old. He has subsequently returned to Papua New Guinea on some 23 occasions over a ten-year period, where he has spent significant portions of time. The Applicant’s criminal history, outside of his conduct in a domestic context, consists of three convictions in February 2021, namely[96]:
(a) ‘Common assault’, for which he received a sentence of imprisonment of four months, suspended for nine months;
(b)‘Possess utensils or pipes etc that had been used’, for which a conviction was recorded but he was not further punished; and
(c)‘Possessing dangerous drugs’, again for which a conviction was recorded but he was not further punished.
[96] Ibid, pages 33 to 34.
The Tribunal accepts that the Applicant’s drug related convictions are on the lower end of the scale of this category of offending. However, with respect to the common assault conviction, the Tribunal regards the sentence of imprisonment of four months as very serious, and notes that sentences of imprisonment are the last resort in the sentencing hierarchy. The Tribunal’s view of the objective seriousness of this offending conduct is supported by the seemingly unprovoked nature of this violent attack upon an innocent motorist.
There is no doubt the Applicant’s most serious offending was in relation to his domestic violence related offences and other conduct, with respect to his former partner Ms X. The Tribunal therefore does not find that the sentences imposed by the Courts for the Applicant’s other relevant offending, leads to a significant finding with respect to the nature and seriousness of the Applicant’s conduct.
The Tribunal is therefore of the view that a holistic consideration of the custodial sentences imposed on the Applicant’s conduct (as outlined above, excluding his domestic violence related offending), are of a moderate weight in finding that the Applicant’s offending, with respect to the application of sub-paragraph 8.1.1(1)(c) of the Direction, is of a very serious nature.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
The Tribunal regards the offending conduct of the Applicant, as discussed sub-paragraph 8.1.1(1)(c) above, does have a cumulative effect with respect to the resourcing required to hold the Applicant to account for his actions (for example, police resourcing, Court costs, and the impact on victims).
Again, as the Tribunal has stated in earlier reasons, it views the Applicant’s domestic violence related offending to be his most serious offending and therefore finds the cumulative effect of the Applicant’s criminal conduct, pursuant to sub-paragraph 8.1.1(1)(e) of the Direction, is of a moderate weight in terms of assessing the nature and seriousness of the of the Applicant’s offending conduct.
Having regard to all the evidence and submissions made to the Tribunal, as they apply to the relevant sub-paragraphs 8.1.1(1)(a)(i), (c), and (e) of the Direction, noting the Tribunal’s weighting of sub-paragraphs 8.1.1(1)(c) and (e) of the Direction, the Tribunal is of the view that overall, the nature of the Applicant’s criminal and other conduct can be characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Relevant to the present application, paragraph 8.1.2(2) of the Direction requires a decision maker to consider the following factors on a cumulative basis when considering the risk to the Australian community:
(1)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(2)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)Information and evidence on the risk of the non-citizen re-offending; and
(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
With respect to assessing the nature of harm to individuals in the Australian community should the Applicant further engage in criminal or other serious conduct, the Tribunal observes that the Applicant has, in the past, has been both physically and verbally violent. This offending has extended from the domestic context into the general community when the Applicant was convicted of ‘common assault’ resulting from a road rage incident in September 2019.
The Tribunal notes the Applicant stated in his evidence before the Tribunal that he understood the, “catastrophic impact” his offending conduct had on the victim of his domestic violence offending, Ms X, in addition to her family and the Applicant’s own family[97]. The Tribunal observes that their Honour Judge Deardon, before the District Court of Queensland, described the seriousness of the harms stemming from the Applicant’s offending conduct in the domestic setting and the potential outcome such offences may have, with respect to the sentencing regime imposed[98]:
… Choking and strangulation and suffocation are relatively recent offences brought in to our Criminal Code to recognise that they are a step towards catastrophic outcomes where relationships descend to that level of violence and where it involves the most – one of the most vulnerable parts of a human being and for that reason, penalties imposed substantially higher than they might have been when they were just recognised as either common assault or assault occasioning bodily harm…
[Tribunal bold for emphasis]
[97] Transcript (7 December 2021), page 18, lines 24 to 37.
[98] Exhibit R1, Section 501 G Documents, G5, pages 39 to 40.
It is the Tribunal’s view that were the Applicant to further engage in criminal or other serious conduct similar to that which he has in the past, the nature of the harm to potential future victims is likely to be significant and has the potential to cause them very serious physical and/or psychological harm. This importantly, in the Tribunal’s view, does not preclude future intimate partners of the Applicant.
The likelihood of the Applicant engaging in further criminal or other serious conduct
In making an assessment as to the likelihood of the Applicant engaging in further criminal or other serious conduct, as discussed in earlier reasons, the Tribunal has before it a report from Clinical Psychologist, Dr Sam Minge[99]. Dr Minge appeared before the Tribunal, and the Tribunal has, in its earlier reasons, made observations with respect to the assessment of Dr Minge and the information available to him when conducting his clinical assessment of the Applicant. With respect to Dr Minge’s assessment of the Applicant, the Tribunal notes the following key findings:
[99] Exhibit A3(b).
The Paulhus Deception Scales (PDS)
…The PDS is a self-report questionnaire that provides an assessment of Impression Management (IM; deliberate attempts to portray oneself in a favourable, virtuous light) as well as Self-Deceptive Enhancement (SDE; unconscious denial of one’s shortcomings, related to narcissism). It is very widely used in forensic assessment contexts to provide measures of conscious and unconscious bias in a respondent’s self-portrayal…
… Mr Mamatta’s responses placed him in the ‘above average’ range for both IM and SDE. According to the scale’s authors, individuals scoring highly on both IM and SDE tend to be restrained and generally well socialised, but when they do have problems, they lack the insight to deal with them, and appear rigid. They may also appear sanctimonious about others’ problems…
The Depression Anxiety and Stress Scales (DASS)
… Mr Mamatta’s responses placed him in the ‘mild’ range for stress, the ‘moderate’ range for depression, and the ‘extremely severe’ range for anxiety. This is consistent with his statements at interview that he feels sad about his situation and highly anxious about the prospect of being deported…
The International Personality Disorders Evaluation (IPDE) – Screening Questionnaire
… The test is a screening measure only, and high scores are not sufficient for diagnosis but suggest areas that warrant further clinical evaluation…
… Mr Mamatta’s responses revealed some symptoms of personality disorders, particularly in the borderline (5 of 9 symptoms endorsed, including moodiness, impulsivity, feelings of emptiness, and anger outbursts), avoidant (4 of 8 symptoms endorsed, including social awkwardness, fear of being disliked, and fear of making a fool of himself), and obsessive compulsive (4 of 8 symptoms endorsed, including preoccupation with details, perfectionism, and rigid adherence to rules) domains. This is suggestive of some personality problems…
Provisional Diagnosis
… I do not consider him to meet criteria for a mental health diagnosis. He met criteria for cannabis dependence in the past but does not currently. He presents with some acute anxiety, but I consider this to likely be situational; that is, his anxiety is an understandable response to his current predicament and will likely resolve when his legal situation does…
…Mr Mamatta possesses some dysfunctional personality traits but it is not clear whether these are sufficiently strong to warrant diagnosis of a personality disorder. He has some traits of borderline personality disorder (emotional instability, impulsivity, fear of abandonment in relationships), avoidant personality disorder (fear and anticipation of social rejection, avoidance of social situations, fear of embarrassment), and obsessive-compulsive personality disorder (perfectionism, preoccupation with details, rigidity, and stubbornness about ethical or moral issues)…
… Mr Mamatta does not exhibit antisocial personality features such as lack of remorse, deceitfulness, or general callous disregard for the wellbeing of others…
Domestic Violence Risk Assessment
… The Spousal Assault Risk Assessment Guide (SARA) was used to evaluate Mr Mamatta’s risk for future domestic violence. The SARA is a checklist that screens for the presence of risk factors related to spousal or family-related assault. It allows for the coding of summary risk ratings for future domestic violence, and raw scores can be converted to percentile ranks derived from a normative sample of adult male offenders. The SARA has shown some promise in differentiating between male offenders with spousal assault history and those without, and between domestic violence offenders who recidivate (reoffend) and those who do not…
…Mr Mamatta’s total score on the SARA was 14 out of 40. This places him in the ‘moderate or low risk’ group. Compared with a sample of offenders on probation, his score places him in the 62nd percentile (i.e., higher than 62% of the sample)…
Risk Statement
…After considering Mr Mamatta’s domestic violence risk factors along with the results of my assessment, I estimate that he presents a low risk of domestic violence reoffending in future. He committed his offences in the context of a difficult and highly conflictual relationship. Since being remanded and then breaching bail by liking the victim’s Instagram posts, it seems he served the rest of his (approximately one year) bail period without contacting the victim again. He has participated in counselling and completed courses related to domestic violence and anger management. He expresses a willingness to continue undergoing counselling into the future to ensure he does not reoffend. He does not express attitudes supportive of violence nor antisocial attitudes more generally, and he presents as remorseful and ashamed of his behaviour. He is currently in an intimate relationship that both parties describe as supportive and committed…
… His increasingly violent behaviour toward [name redacted, Ms X] was likely shaped by his early experiences of domestic violence being used as means of managing interpersonal conflict….
The Tribunal is of the view that should the Applicant return to Papua New Guinea, he may face an initial period of adjustment, but any hardships faced would be short-term in nature, given his familiarity with his birth country.
With respect to the Applicant’s claims that it will be difficult for him to adjust if he is returned to Papua New Guinea given the stigma, embarrassment, and shame of being convicted for his offending and having served a custodial sentence, the Tribunal does not afford these contentions any weight[151]. In the Tribunal’s view, the Applicant no doubt will have a period of adjustment should he be returned to Papua New Guinea, but for the reasons outlined, the Tribunal is of the view that given his familiarity with his birth country this will be short lived. As for the stigma the Applicant claims he will face, this is not a credible contention in the Tribunal’s view.
[151] Exhibit R1, Section 501 G Documents, G8, page 67.
In view of the above reasons, the Tribunal finds the Applicant would face limited impediments if returned to Papua New Guinea and is of the view that this Other Consideration in paragraph 9.2 of the Direction is of limited weight in favour of the Applicant.
Impact on victims
Paragraph 9.3 of the Direction requires decision makers to take into account the impact of the decision not to revoke the Applicant’s visa, pursuant to section 501CA of the Migration Act 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 that information is available, and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal has, in the summonsed evidence before it, a copy of a Victim Impact Statement from the victim of the Applicant’s offending, Ms X. In this statement, Ms X expresses her fears which resulted from the Applicant’s offending conduct, which the Tribunal relevantly transposes here[152]:
… I no longer see the world as a safe place, even though I am living in Australia. Knowing I am living in the same city as him makes me still, to this day, very fearful of my life. Despite paying for lots of on-going medical expenses following the violence, I am trying hard to save up enough money to move interstate to hopefully gain some sort of normality. I am truly fearful that he still lives in [location redacted] and in close proximity to my home and also to the university where I am currently studying and likely to be for several years to come…
[Tribunal redaction]
[152] Exhibit R2, Respondent’s Summonsed Documents, R1, pages 19 to 20.
The Respondent has contended that whilst Ms X has not provided evidence for the purposes of the present proceedings, her above transposed comments contained within her Victim Impact Statement prepared for the purpose of criminal proceedings against the Applicant in November 2020, are relevant in the present proceedings. The Respondent has further contended that the revocation of the visa cancellation decision would have an adverse impact on Ms X, and as such, the consideration in paragraph 9.3 of the Direction weighs in favour of non-revocation[153].
[153] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions, page 16, paragraph 55.
Whilst the Tribunal certainly accepts the tenor of Ms X’s comments made on 26 October 2020 are consistent with a view that the consideration in paragraph 9.3 of the Direction would favour non-revocation, the Tribunal does not have before it a contemporaneous opinion from Ms X for the purposes of the present proceedings. The Tribunal is therefore reluctant to afford Ms X’s Victim Impact Statement prepared for the purpose of criminal proceedings against the Applicant in November 2020, any measurable weight[154].
[154] See TBNM and Minister for Home Affairs (Migration) [2019] AATA 850 at [80]; see also Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895 at [87] to [89].
Consequently, the Tribunal finds that this factor does not attract any weight either in favour of, or against, the revocation of the Applicant’s visa, and therefore this consideration is of neutral weight.
Links to the Australian community
Paragraph 9.4 of the Direction states that decision makers must have regard to sub‑paragraphs 9.4.1 and 9.4.2 of the Direction, which considers the strength, nature and duration of ties of the Applicant to Australia and any impact on Australian business interests.
Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Direction requires decision makers to 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.
With respect to the immediate family members of the Applicant in Australia, the Tribunal accepts this would extend to his fiancé, Ms LD and her two daughters, all of whom are Australian citizens. The Tribunal heard evidence from both the Applicant and Ms LD of their plans to marry should the Applicant be permitted to remain in Australia. It is clear they both have significant future plans together. The Tribunal accepts that in circumstances were the Tribunal to affirm the decision under review, Ms LD (and to an extent her daughters), would suffer emotionally.
The Applicant submitted evidence to confirm that he is financially supporting Ms LD and her two daughters[155]. The Tribunal observes with respect to this evidence, that the Applicant has in fact been financially supported by his father and mother during the period in which he has been in criminal custody and immigration detention (November 2020 to present–confirmed by his mother, during cross-examination[156]).
[155] Exhibit A3(k); (r).
[156] Transcript (8 December 2021), page 7, lines 1 to 35.
The Tribunal, in earlier reasons, referred to the timeline of the relationship between Ms LD and the Applicant. Whilst the Tribunal accepts their statements of their strong relationship and future plans together, the Tribunal is somewhat cautious given a closer examination of the evidence before the Tribunal regarding their relationship.
The Applicant and Ms LD first met in approximately December 2019 and January 2020 and have never lived together. Their evidence before the Tribunal was that they both saw each other two to four times a week, occasionally Ms LD stayed at the Applicant’s home, and the Applicant did not meet Ms LD’s children until March 2020. The Applicant was taken into criminal custody in November 2020 and subsequently taken into immigration detention.
When the Applicant was questioned as to when he got engaged to Ms LD, he could not recall the exact detail of their engagement, the Tribunal refers[157]:
[157] Transcript (7 December 2021), page 31, lines 19 to 35; page 32, lines 1 to 2.
Respondent: So would you see each other that much, so two to four times a week, from when your relationship commenced in 2019 until you went ‑ you were held on remand?
Applicant: ‑‑‑No, it was after remand, when I came out from remand so ‑ ‑ ‑
Respondent: Okay, so you commenced your relationship after you came out from remand. Okay. So then, would you see each other two to four times a week until you were sentenced in November 2020?
Applicant: ‑‑‑Yes.
Respondent: Okay. Are you engaged now?
Applicant: ‑‑‑Yes.
Respondent: When did you get engaged?
Applicant: ‑‑‑I would say ‑ I can't really recall the date very well off my head.
Respondent: Well, was it when you were in detention?
Applicant: ‑‑‑No, I was incarcerated.
Respondent: Was it towards the start of your sentence or the end of your sentence?
Applicant: ‑‑‑Roughly in the middle of my sentence.
Respondent: Middle. So how did you become engaged then? Did you ask her, or?
Applicant: ‑‑‑So the ‑ we've talked about it before, before me being sentenced, where we built our connection and things grew throughout the incarceration and things, and I made it very clear to her that, "I still want to be with you and things." So we brought then many things up together.
Respondent: Okay, but I've asked how you became engaged?
Applicant: ‑‑‑Yes, but I asked her.
Respondent: You asked her?
Applicant: ‑‑‑Yes.
Respondent: How did you ask her?
Applicant: ‑‑‑I asked her over the phone, and then, when I came to detention, I saw her in person too, and I restated it.
Ms LD told the Tribunal the Applicant asked her to marry him in mid-2020, prior to the Applicant going into criminal custody. Ms LD stated the Applicant asked her again when he was incarcerated[158]. This contrasts with the Applicant’s evidence that they had discussed getting married, but it wasn’t until he was incarcerated that he asked Ms LD to marry him over the phone.
[158] Transcript (7 December 2021), page 70, lines 27 to 39.
With respect to the financial support the Applicant provides Ms LD, it shows the Applicant having provided Ms LD with some $13,670 in financial support from April 2021 to early November 2021. There is evidence before the Tribunal which demonstrates the Applicant paid Ms LD’s bond and is currently paying her rent in full as of late October 2021[159]. Regarding the rent the Applicant now pays for Ms LD, the Tribunal agrees with the Respondent’s contention that Ms LD, “… chose to take on a lease that on her evidence she cannot afford with full knowledge that the applicant’s ability to remain in Australia was unclear…”[160].
[159] Exhibit A3(r).
[160] Exhibit R4, Respondent Closing Submissions, page 16, paragraph 57.
In circumstances where the Applicant were not be permitted to remain in Australia, evidence before the Tribunal indicates the Applicant would be financially supported by his family, as they had previously financially supported him throughout his schooling to the present day. Additionally, the Tribunal observes the Applicant gave evidence that he has not insignificant personal savings, from which he may also choose to continue to support his fiancé and her daughters[161].
[161] Transcript (7 December 2021), page 32, lines 26 to 42.
The Tribunal observes the mother of Ms LD submitted a statement in support of the Applicant remaining in Australia[162]. The Tribunal accepts she may suffer emotionally should the Applicant not be permitted to remain in Australia (observing that the witness schedule submitted by the Applicant’s representative confirms she is an Australian citizen)[163].
[162] Exhibit A2, Applicant Witness Statements, page 23.
[163] Exhibit A5.
With respect to the Applicant’s mother, although she is currently residing in Australia, the witness schedule submitted by the Applicant’s representative states that she is a Papua New Guinean national and a temporary visa holder[164]. It is not entirely clear to the Tribunal whether the Applicant’s mother is a permanent resident in Australia, despite being a temporary visa holder. Upon reflection of the evidence, given the Applicant’s mother has spent significant portions of time in Australia, the Tribunal has included her with respect to the relevant considerations in sub-paragraph 9.4.1(1) of the Direction.
[164] Ibid.
The Tribunal notes that claims were made by the Applicant’s cousin, or “brother” as he refers to their relationship from his mother’s side, that the Applicant’s mother has health issues[165]. Whilst the Applicant’s mother’s past health concerns were discussed during evidence before the Tribunal, no claims of current health issues were made in submissions, nor did it arise in evidence when the Applicant and his mother appeared as witnesses before the Tribunal.
[165] Exhibit A2, Applicant Witness Statements, pages 7 to 9.
The Tribunal accepts that with respect to the Applicant’s mother, should a decision be taken such that the Applicant is no longer permitted to remain in Australia, she would indeed suffer emotionally, and would not receive support from the Applicant as he has provided to her in the past[166].
[166] Transcript (7 December 2021), page 30, lines 29 to 33.
The Tribunal has considered the impact of the decision regarding deportation of the Applicant with respect to his immediate family members in Australia and is of the view that the application of sub-paragraph 9.4.1(1) of the Direction is of a strong measure of weight in favour of the Applicant.
Sub-paragraph 9.4.1(2) of the Direction requires a decision maker to give consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing 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.
The Applicant first arrived in Australia in 2007 at almost ten years of age, and although the evidence shows he has spent significant portions of time back in Papua New Guinea, the Tribunal accepts that he has lived on and off in Australia for approximately thirteen years, excluding periods of incarceration and time spent in detention.
The Applicant’s first criminal convictions did not occur until many years after his first arrival in Australia, when he was approximately 22 years of age (with his first offence occurring in December 2018; convicted in September 2019). The Tribunal accepts there was a lengthy period of time after having first arrived in Australia and has therefore not limited the weight afforded to the Applicant with respect to the application of sub-paragraph 9.4.1(2)(a)(i) of the Direction.
The Tribunal has reflected upon the Applicant’s positive contribution to the Australian community with respect to the sub-paragraph 9.4.1.(2)(a)(ii) of the Direction. Specifically, through his education endeavours and the fact he has sought to make amends for his violent domestic offending through financially supporting charitable causes helping victims with the negative effects of such offending. The Tribunal also acknowledges the Applicant’s positive contribution to Australia through his financial support for other various charitable causes in Australia[167]. Additionally, the Tribunal accepts that the Applicant has contributed to the Australian community through his employment whilst he has resided here, although the evidence before the Tribunal indicates this has been limited.
[167] Exhibit A3(z).
The Tribunal is of the view that overall, a moderate measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(a) of the Direction, based on the Applicant’s modest positive contribution to the Australian community.
Sub-paragraph 9.4.1(2)(b) of the Direction states that decision makers must have regard to the strength, duration, and nature of any family or social links the non-citizen may have with Australian citizens, Australian permanent residents, or people who have an indefinite right to remain in Australia.
The Tribunal accepts that the Applicant has formed strong ties to Australia, not just through immediate familial links, as discussed in earlier reasons with respect to sub-paragraph 9.1.1(1) of the Direction (the reasons of which are equally applicable to this consideration within the Direction), but also through many of his social structures he has formed since residing in Australia. The Tribunal observes the Applicant has submitted numerous letters of support from friends and family with respect to him being permitted to remain in Australia. This includes submissions from:
(a)several friends of the Applicant and friends of the Applicant’s family including Mr Ian Smith (Australian citizen)[168], Mr James Abernethy (Australian citizen)[169], Mr Robert Abernethy (Australian citizen)[170], Mr Joshua Ban (Papua New Guinean national)[171], Mr Gregory Leahy (Papua New Guinean national)[172], and Mr Peter Vou Abernethy (Australian citizen)[173]; and
(b)the Applicant’s former teacher, Ms Vijay Vekariya (Australian citizen)[174].
[168] Exhibit A2, Applicant Witness Statements, page 10; Exhibit A3(u).
[169] Ibid, pages 11 to 13.
[170] Ibid, page 24.
[171] Ibid, page 27.
[172] Exhibit R1, Section 501 G Documents, G16, page 93.
[173] Exhibit A3(i).
[174] Exhibit R1, Section 501 G Documents, G18, page 95; Exhibit A3(h).
Whilst it is not entirely clear to the Tribunal who of the above listed individuals identified by the Applicant[175] as Papua New Guinean nationals are also permanent residents of Australia, the Tribunal accepts that should the Applicant not be permitted to remain in Australia, his friends and extended family would suffer emotionally.
[175] Exhibit A5.
The Tribunal notes that an offer of employment has also been extended to the Applicant if he is permitted to remain in Australia from his father, through the company which he owns, with the offered position being based in Australia (which points to the Applicant’s future ties)[176].
[176] Exhibit A3(u).
In applying sub-paragraph 9.4.1(2)(b) of the Direction, the Tribunal has had regard to the Applicant’s family and social links and is of the view that this attracts a strong measure of weight in favour of the Applicant being permitted to remain in Australia.
Overall, in applying paragraph 9.4.1 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs strongly in favour of revocation, such that the Applicant be allowed to remain in Australia. However, the Tribunal qualifies this finding by confirming that the weight the Tribunal has applied to this consideration, does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration 2, supported to a lesser extent by the weights attributed to Primary Consideration 4, and Primary Consideration 1, respectively.
Impact on Australian business interests
Paragraph 9.4.2 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has not particularised any specific claim within submissions to the Tribunal, with respect to this consideration within paragraph 9.4.2 of the Direction. The Tribunal observes that the Applicant would have no work rights even in the event a decision was made by the Tribunal in the Applicant’s favour, as his student visa expired in June 2021. The Tribunal notes he would be unable to work until he was granted another visa and released from immigration detention.
The Tribunal also notes the Applicant’s previous work as a soil technician[177], and the business plans, with respect to the prospective future small businesses he and Ms LD seek to establish (should the Applicant be allowed to remain in Australia and be successful in a future visa application[178]), do not, in the Tribunal’s view, meet the relevant standard in paragraph 9.4.2 of the Direction. Further, the Tribunal observes that the prospective future businesses of the Applicant and Ms LD are not currently operational and are therefore, not providing a service at this time.
[177] Exhibit A3(b), paragraph 27.
[178] Exhibit A3(o); (p); (q).
The Tribunal has had regard to the considerations outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant as there is no evidence before the Tribunal that the Applicant is involved in the delivery of a major project, or delivery of an important service in Australia.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations: are not engaged in relation to the Applicant;
(b)Extent of impediments if removed: are of limited weight in favour of the Applicant;
(c)Impact on victims: is of neutral weight; and
(d)Links to the Australian community:
(i)Strength, nature and duration of ties to Australia: a strong measure of weight in favour of the Applicant; and
(ii)Impact on Australian business interests: is of no weight, as this is not relevant to the factual circumstances of the Applicant.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory visa cancellation decision, they are outweighed by the very heavy and determinative weight the Tribunal has afforded Primary Consideration 2, supported to a lesser extent by the weights attributed to Primary Consideration 4, and Primary Consideration 1, respectively.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to section 501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Migration Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and made the following findings:
(i)Primary Consideration 1 weighs moderately in favour of non-revocation;
(ii)Primary Consideration 2 very heavily in favour of non-revocation;
(iii)Primary Consideration 3 weighs moderately in favour of revocation; and
(iv)Primary Consideration 4 weighs heavily in favour of non-revocation.
The Tribunal is of the view that, to the extent that any of the Other Considerations (pursuant to paragraphs 9 to 9.4.2 of the Direction) weigh in favour of revocation of the mandatory visa cancellation decision, even when combined with each other and Primary Consideration 3, they do not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration 2, supported to a lesser extent by the weights attributed to Primary Consideration 4, and Primary Consideration 1, respectively.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion under section 501CA(4) of the Migration Act to revoke the cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 22 July 2021, not to revoke the mandatory cancellation of the Applicant’s Class TU Subclass 500 Student visa.
I certify that the preceding 285 (two-hundred-and-eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
...............[SGD]..................................
Associate
Dated: 3 January 2022
Dates of hearing:
7 and 8 December 2021
Applicant:
Solicitor for the Applicant:
Mr Ila Junior Mamatta
Mr Lorenzo Boccabella (Counsel)
Mr Nilesh Nandan (Instructing solicitor, MyVisa Immigration Law Advisory)
Solicitor for the Respondent:
Ms Elle Tattersall
Sparke Helmore
ANNEXURE 1 – EXHIBIT REGISTER
Exhibit Number Description of Exhibit Party Date of Document Date of Receipt A1 Applicant Statement of Facts, Issues and Contentions (pages 1 to 9) A 15 November 2021 15 November 2021 A2 Applicant Witness Statements (pages 1 to 29) A Various dates 2 September 2021 A3 Applicant Submissions (pages 1 to 184)
a) Applicant Submissions in Reply
b) Psychologist Report – Dr Sam Minge
c) Applicant Apology Letter to Victim
d) Applicant Apology Letter to Victim’s Family
e) Applicant’s Partner Statutory Declaration (15 December 2020)
f) Applicant’s Partner Statement (19 July 2021)
g) Applicant Partner Statement RE Toyota 86 GT 2017 Model
h) Statement – Vijay Vekariaya
i) Statement – Peter Vou Abernethy
j) Applicant and Partner Civil Partnership Certificate
k) Applicant and Partner Bond Lodgement Form
l) Applicant Rent Receipts with Partner (25 October to 25 November 2021)
m) Applicant Rental Receipts – Auchenflower Apartment (December 2020 to present)
n) Applicant and Partner Tax File Number
o) Applicant and Partner Wedding Plans
p) Applicant and Partner Business Plan – Im Amora Designs
q) Applicant and Partner Business Plan – Lily Mae Designs
r) Evidence of Applicant Financially Supporting Partner (April 2021 to present)
s) Photos of Ms LD’s daugters RE Applicant's Relationship with Partner
t) Applicant COE Conditional Letter of Offer from AIBT Global
u) Applicant Employment Letter (Adolf Mamatta and Ian Smith)
v) Letter from Adolf Mamatta Confirming Applicant's Employment at ACEM Geotechniques
w) Applicant Courses Completed in Immigration Detention
x) Applicant Educational and Behavioural Courses Completed in Immigration Detention
y) Anglicare Letter to Applicant – Living Without Violence Program
z) Applicant Donations – Receipts/Certificates (2018 to present)
aa) Applicant Student Visa Grant Letter
bb) VEVO Check
A Various dates 2 December 2021 A4 Applicant Submission (Allsop CJ Speech) – tendered during Day One of the hearing (pages 1 to 21) A 21 October 2021 7 December 2021 A5 Witness Schedule A Undated 6 December 2021 A6 Applicant Closing Submissions (partial), Media Release and Section 195A Statements – tendered during Day Two of the hearing (pages 1 to 19) A Various dates 9 December 2021 A7 Applicant Closing Submissions (pages 1 to 11) A 9 December 2021 9 December 2021 A8 Applicant Closing Submissions in Reply (pages 1 to 8) A 13 December 2021 13 December 2021 R1 Section 501G Documents (pages 1 to 168) R Various dates 22 October 2021 R2 Summonsed Documents (pages 1 to 136) R Various dates 24 November 2021 R3 Respondent Statement of Facts, Issues and Contentions (pages 1 to 18) R 24 November 2021 24 November 2021 R4 Respondent Closing Submissions R 10 December 2021 10 December 2021 T1 Tribunal Direction – SM Pola T 8 December 2021 -
1
18
0