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

[2022] AATA 1747

Manuel and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 1747 (15 June 2022)

Division:GENERAL DIVISION

File Number:          2022/2677

Re:Brett Manuel

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris 

Date:15 June 2022

Date of written reasons:        17 June 2022

Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

.......................................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – applicant held class TY subclass 444 special category (temporary) visa – visa mandatorily cancelled as delegate satisfied applicant had substantial criminal record – applicant sentenced to term of imprisonment of 12 months or more – sentence subsequently reduced on appeal to nine months’ imprisonment – delegate accepted original basis of cancellation no longer applied – delegate decided on other grounds that applicant failed character test – delegate decided discretion not enlivened under s 501CA to revoke mandatory cancellation – applicant seeks review by Tribunal – ministerial Direction No. 90 – primary considerations – acts of family violence – whether assault of person in developing relationship constitutes family violence – other considerations – decision under review is affirmed – written reasons provided

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

Cases

BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24
Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668
Deng vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
FYBR v Minister for Home Affairs [2019] FCAFC 185
Maxwell v The Queen (1996) 184 CLR 501

Thompson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re: [2021] AATA 4206

Secondary Materials

Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 15 April 2021)

REASONS FOR DECISION

Senior Member D. J. Morris

17 June 2022

BACKGROUND

1. The Applicant, Mr Brett Manuel, was born in New Zealand in 1977 and is a citizen of that country. He migrated to Australia with his family when he was three years old. He has departed Australia on three occasions, for two short visits to New Zealand and one to Indonesia. He has otherwise resided continuously in Australia since 1981. 

2. Mr Manuel held a Class TY Subclass 444 Special Category (Temporary) visa. This special visa is granted to New Zealand citizens to live and work in Australia without a time limit, but the visa does not confer permanent residency. 

3. In March 2021, Mr Manuel was convicted, on a plea of guilty, by the Magistrates’ Court of Victoria, of the offence of Recklessly cause injury. He was sentenced to 15 months’ gaol.

4. On 26 May 2021, Mr Manuel’s visa was cancelled under section 501(3A) of the Migration Act 1958 (‘the Act’) by a delegate of the Minister. This cancellation was mandatory because the delegate decided that Mr Manuel did not pass the character test in the Act because he had a “substantial criminal record” under section 501(3A)(a)(i) by being sentenced to a term of imprisonment of 12 months or more (section 501(7)(c) of the Act).

5. Mr Manuel appealed against the sentence – but not the conviction – to the County Court of Victoria. 

6. In June 2021, the County Court re-sentenced the Applicant to a period of nine months’ imprisonment followed by a Community Corrections Order (‘CCO’) for nine months.

7. Officers of the Minister’s Department invited Mr Manuel to make representations as to whether there was another reason, under section 501CA(4)(b)(ii) of the Act, to revoke the mandatory cancellation of his visa. He did so. On 22 March 2022, a different delegate of the Minister decided not to revoke the mandatory cancellation. The Applicant was notified of that decision on 23 March 2022. It is this decision to refuse to revoke the cancellation that is the subject of this review.

8. Under section 500(6L) of the Act, the Tribunal must make a decision in relation to this matter in an 84-day period commencing the day after the non-citizen is notified. Otherwise, the original decision is taken to have been affirmed by the Tribunal. That period ends on 15 June 2022.

9. On 15 June 2022, the Tribunal decided to affirm the decision under review. These are the reasons for that decision.

   HEARING

10. A hearing was held on 2 and 3 June 2022. The Applicant was represented by Ms Michelle Yu of counsel, instructed by Mr Erskine Rodan, OAM, and Mr Sidar Cetin of Erskine Rodan and Associates. Ms Laura Mills of counsel appeared for the Minister, instructed by Ms Natasha Bosnjak of Mills Oakley Lawyers. Mr Manuel gave evidence and was cross-examined. The Applicant’s daughter, Ms AD, gave evidence, as did Ms Gina Cidoni, psychologist, as an expert witness. Ms Carmel Nielsen, a psychotherapist, gave evidence by telephone by leave of the Tribunal under section 33A of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’).

11. The Tribunal made an order under section 35 of the AAT Act prohibiting the publication of the names of certain complainants in matters before the Courts involving the Applicant, as well as the names of Mr Manuel’s children and grandchildren. They will be referred to in these reasons by anonyms.

12. The Tribunal took into evidence the documents listed in the Annexe to these reasons. The Tribunal also took into account Statements of Facts, Issues and Contentions lodged by the Respondent (‘RSFIC’) and the Applicant (‘ASFIC’).

    CONSIDERATION

    QUESTIONS BEFORE THE TRIBUNAL

13. In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act, the Tribunal is not reviewing the delegate’s decision. It is making a fresh decision based on the law and the information before it. Parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.

14. The Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, the Federal Court said, at [38]:

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.

15. Therefore, there are two questions for decision. First, whether the Applicant fails the “character test” in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that the Applicant does fail the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for “another reason”.

    The mandatory cancellation of the visa – ground no longer applies

16. The Applicant’s legal representatives initially raised the point that the original grounds for the mandatory cancellation of Mr Manuel’s visa (i.e., that he has been sentenced to more than 12 months’ imprisonment) had been taken away because of the re-sentencing by the County Court. The Minister’s second delegate acknowledged that this original ground no longer applied, but nonetheless decided that they were required by section 501CA(4)(b)(i) of the Act, in considering whether the non-citizen passes the character test, to consider the whole of the character test set out in section 501(6) of the Act, not just the limb which formed the basis of the mandatory cancellation under section 501(3A) of the Act.

17. A situation analogous to Mr Manuel’s arose in a case considered by the Federal Court of Australia in BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24. In that case, a higher court had reduced the non-citizen’s prison sentence below the 12-month threshold, on appeal, after the visa had been cancelled but before the Tribunal’s consideration of the matter. The Applicant sought that the Federal Court find the Tribunal had no jurisdiction. In that case, Rangiah J relevantly said, at [71]-[73]:

    The language and context of s 501(3A) does not indicate that a decision of the Minister under s 501(3A) may be retrospectively vitiated by subsequent events. The Minister’s obligation is to cancel a visa upon satisfaction that the holder: does not pass the character test because of s 501(6)(a) taken with 501(7)(c) (substantive criminal record) (, or 501(6)(e) (sexually based offences involving a child); and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a relevant law.  When that state of satisfaction is lawfully reached, the Minister’s obligation to cancel the visa is absolute.

    The legislative scheme recognises, in s 501(10), that an appeal or a pardon may affect the basis of a cancellation under s 501(3A), but does not require the Minister to await the determination of any appeal or any application for a pardon.

    …

    Sections 501(3A) and 501CA must be considered together. Section 501CA(4) provides some amelioration of the harshness of mandatory cancellation under s 501(3A).  If a person is successful in an appeal against a conviction or sentence, or an application for a pardon, the provision may operate to permit the Minister to revoke the cancellation decision.  The Minister may be satisfied that a person passes the character test for the purposes of s 501CA(4)(b)(i) in consequence of a successful appeal that sets aside a conviction (see s 501(10)) or reduces a sentence of imprisonment to below the 12-month threshold; or in consequence of the grant of a pardon. The Minister may also be satisfied that such a reduction of sentence contributes to the establishment of “another reason” for revocation within s 501CA(4)(b)(ii).

18. The Tribunal finds that, owing to a reduction in the sentence, the visa would not have been mandatorily cancelled; and that this is a factor that is relevant to the question of whether Mr Manuel’s visa should be restored.

    Does Mr Manuel nonetheless fail the character test?

19. Under section 501(6)(a) of the Act, a person does not pass the character test under section 501(6)(a) of the Act (‘substantial criminal record’) if under section 501(7)(d) the person has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more.

20. Before the Tribunal (GD, p 37) was an Australian Criminal Intelligence Commission national criminal history check (‘ACIC report’). The ACIC report records that in April 1996, before the Kalgoorlie Court of Petty Sessions, Mr Manuel was sentenced to a three-month prison sentence (suspended) for the offence of No Motor Drivers Licence – Under suspension. In August 2005, before the (renamed) Kalgoorlie Magistrates’ Court, Mr Manuel was convicted of two counts of the offence of No Motor Drivers Licence – Under suspension. For each count, he was sentenced to six months and one-day imprisonment (suspended for six months), to be served concurrently.

21. Counsel for the Applicant invited the Tribunal, in the ASFIC, not to accept this record as proof that Mr Manuel had been sentenced to terms of imprisonment where there were no other records of the Court proceedings available. The Tribunal is satisfied that the ACIC report is a reliable and accurate record compiled by an independent body, based on information provided by state and territory courts and law enforcement bodies. While the report’s contents are rebuttable, in the absence of material evidence of error, the Tribunal accepts the ACIC report entries. In addition, the summonsed documents from the Western Australia Courts (Exhibit R2, pp 86-87 and 90-91) have subsequently provided further verification of these proceedings.

22. Section 501(7A) of the Act provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently, the whole of each sentence is to be counted in working out the total of the term. It is relevant to notice that it is the imposition of a prison sentence on a non-citizen that is relevant under this subsection, not whether the prison sentence may have been suspended. The authority for this can be found in the judgment of Nicholas J (Moore and Rares JJ agreeing) in Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668 at [114], where His Honour found:

    For these reasons, it should be accepted that the appellant was sentenced to a term of imprisonment of 12 months or more within the meaning of section 501(7)(c) in spite of the fact that the execution of her sentences was suspended.

23. It is also relevant to note that, unlike the proviso in section 501(3A), the non-citizen is not required to be serving a custodial sentence.

24. Therefore, taking into account the April 1996 and August 2005 prison sentences, in terms of considering whether the Applicant has a “substantial criminal record” under section 501(7)(d), the Tribunal finds that Mr Manuel has been sentenced to a term of imprisonment totalling fifteen months and two days.

    Finding in relation to the character test

25. The Tribunal is satisfied that the Applicant has a substantial criminal record under section 501(7)(d) of the Act and thereby fails the character test.

    THE MINISTERIAL DIRECTION – DIRECTION NO. 90

26. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under section 499(2) of the Act.

27. On 8 March 2021, the then Minister made a direction under section 499, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factor in the circumstances of the particular case.

28. The Tribunal considered the primary and other considerations in the Direction, as relevant to Mr Manuel’s personal circumstances, his offending history, and the country of reference.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community (paragraph 8.1)

29. The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct (paragraph 8.1.1)

30. The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.

    2006 conviction

31. On 28 July 2006, Mr Manuel was convicted of the offence of Aggravated Assault Occasioning Bodily Harm, for which he was fined $600.  On the same day, he was convicted of the offence of Unlawful damage and fined a further $100.

32. The circumstances of the offending relate to an assault on a woman who will be called Ms FV.

33. The Statement of Material Facts (Exhibit R3, p 50) relevantly states:

    The complainant and the accused have been in a relationship for about 2 and a half months whereby they lived at separate addresses, but the accused would stay over at the complainant’s home about 3-4 nights a week.

    On [date redacted] December 2005, the complainant and the accused were drinking at the [name of hotel redacted] until about 11.00pm when the complainant left and returned to her home…

    About half an hour later the accused has left the tavern and attended at the complainant’s address where he has knocked at the front door before opening a vertical sliding window (adjacent to the front door) and calling out.

    The complainant has attended at the front door and observed the accused attempting to climb through the open window so she opened the front door and let the accused into the hallway.

    The complainant and the accused have then began [sic] to argue about an incident that had occurred at the tavern earlier that evening and other personal issues about their relationship.

    During the argument the accused has pushed the complainant against a wall in the bedroom and threatened to headbut[t] her before he has thrown the complainant against another wall and caused to fall onto her bed.

    The accused placed his hands around the neck of the complainant and picked her up so she was in front of him and they were facing each other. He has then head butted her several times causing a laceration to her lower lip that bled slightly and bruising to the area around her left eye.

    The accused forced the complainant to the floor and stood over her calling her a ‘sook’ and told her to stop crying.

    …

    The accused then stood over the complainant and told her he was going to gaol, before he took hold of her head and forced it several times onto the ground causing minor abrasions and bruising to her scalp and soreness to her back.

    At that point the behaviour of the accused changed and he allowed the complainant to get up off the ground, he told her he was sorry and that he loved her.

    The complainant informed the accused that she had called the police and they were on their way, so the accused has walked from the yard and got into a small white coupe before driving off.

34. Ms Mills questioned Mr Manuel about this 2006 conviction. Mr Manuel denied that he was in a domestic relationship with Ms FV. He agreed he had pleaded guilty to assaulting Ms FV during an argument. He agreed that he pushed her against a wall and that she fell onto a bed but did not agree that he placed his hands around her neck or that he headbutted her. He said he was unsure if the assaults caused lacerations to Ms FV’s lips and eye.

35. Mr Manuel agreed it was serious offending and accepted that it had an impact on Ms FV.

    2014 conviction

36. On 22 May 2014, Mr Manuel was convicted at Macksville Local Court in New South Wales of the offence of Assault occasioning actual bodily harm (DV) and the offence of Common assault (DV). The victim in this matter will be called Ms SV.

37. The circumstances of the offending were set out in a New South Wales Police facts sheet (R3, p 19).  It relevantly stated:

    The Accused, Brett MANUEL, and the Victim, [Ms SV], have been in an intimate relationship for about 7 years.  As a result of the relationship they share 2 children aged 2 and 4. Along with this, the Victim has twin thirteen year old sons from a previous relationship…

    On [date redacted] 2014, the Accused and Victim were in the rear yard of the above mentioned address. The[ir] thirteen year old twins [were] swimming at the river nearby and the two youngest children in the household.

    Around lunchtime the Victim was hanging washing on the clothes line, the Accused walking around the yard yelling at the Victim. The Accused has informed the Victim he was going to lock the shed to which the Victim replied “I don’t care lock it”. At this stage the Accused was about 5 metres from the Victim. He has turned to face her, he had an opened bottle of beer in his hand.

    The Accused has thrown the glass bottle at the Victim missing her and began running towards her at speed. Upon reaching her the Accused immediately punched the Victim in the right side of the face with a closed fist. This was done with such force, the Victim fell to the ground. The Victim has put her right hand up over her face trying to protect herself and the Accused stood over the victim and continued punching her to the right side of the head. The Victim cannot remember how many times she was punched, however stated it was a lot. The Victim was on the ground screaming in pain and yelling out for help…

    The Victim noticed one of her eldest sons running up from the river where he was swimming towards the house, the Accused also noticed the boy and immediately ceased punching her. The boy did not see the Accused punching the Victim.

    The Victim has left and walked about 5kms to [name of hotel redacted] and then to a friends house where she boarded with for the evening. She returned home the following day after the Accused left the location.

    As a result of the assault the Victim has substantial bruising and swelling to the right eye, swelling and soreness to the right side of her head and jaw. The Victim has bruises on both shoulders. She has genuine fears for her safety.

1. The fact sheet goes on to record that Ms SV presented herself at the local police station, made a statement and her injuries were photographed.

2. Under cross-examination, Mr Manuel accepted that he had been in a relationship with Ms SV for around seven years and that there were two incidents, one in late December 2014 and one in early January 2015. He agreed that he lunged at Ms SV and pushed her, and that she fell to the ground. He agreed that he followed her and grabbed her by the arms. He did not accept that he threw a bottle at Ms SV and missed her. Mr Manuel agreed that he punched Ms SV with a closed fist, that she fell to the ground, and that he continued punching her multiple times. He agreed that Ms SV screamed for help. When asked whether one of Ms SV’s sons ran up from where he had been swimming, Mr Manuel said that was not the case. He agreed that Ms SV had bruising and swelling to the eye and to one shoulder, and that the assault had a serious impact upon her.

   2021 conviction

3. On 11 June 2021, as set out above, the County Court of Victoria sentenced Mr Manuel to nine months’ imprisonment for the offence of Recklessly cause injury. The Court also imposed a nine-month CCO. The victim in this matter will be called Ms TV.

4. The circumstances of the offending were set out in the remarks of the Judge in the County Court (GD, p 57):

   The appellant in this matter appeals against a sentence of 15 months’ imprisonment with a non-parole period of nine months, after pleading guilty to one count of recklessly causing injury. The circumstances of the offending were set out in the informant’s statement. In brief outline, the appellant had been in a relationship with the complainant for around three months and had been living with her and her children for a shorter period.

   In the early hours of the morning of [date redacted] 2021, in the bedroom, he asked [Ms TV] whether the relationship was over. She advised him that it was. She repeated that. At that point, he proceeded to punch [Ms TV] a number of times in the head, causing injury to the face, jaw and nose. She ended up on the floor from the assault, and the appellant then used his hands and placed them around her neck and started to choke her. She struggled for breath and kicked her legs out in desperation. After a short time, he stopped choking the victim.

   The victim attempted to escape from the bedroom, but the appellant was blocking the door, and she escaped through a window. She called the police and was transported to …Hospital where CT scans revealed a nasal fracture and bruising to her face. The appellant fled the premises and began making threats of suicide.

5. The Judge went on to refer to the Applicant being arrested and interviewed, and that he “admitted choking the victim by placing her in a headlock, but stated he didn’t remember hutting her as he had blacked out. He admitted that he must have punched her, as he had a sore hand and wrist.” (GD, p 58).

6. Under cross-examination about this incident, Mr Manuel agreed he pleaded guilty. When Ms Mills said that Ms TV wanted to end the relationship, Mr Manuel said, “No”. He agreed with Ms Mills that he struck Ms TV, fracturing her nose. He denied placing his hands around Ms TV’s neck.

7. When asked directly by the Tribunal what had led to the altercation, the Applicant said: “I was in bed, asleep. I woke up with [her] blood on [me].”

8. The Tribunal pressed Mr Manuel on whether he recalled the conduct and he said, “No”.  The Tribunal then asked whether it was possible that he did, in fact, choke Ms TV, and the Applicant responded “Possible” and accepted that he might have, in fact, choked her for a period.

9. Mr Manuel recalled that Ms TV climbed out of the window. When asked directly by the Tribunal whether he prevented her from leaving the room, Mr Manuel said he did not. When asked why then, did Ms TV climb out the window, he responded, “It was easier for her. I was just standing there.”

10. Mr Manuel agreed with Ms Mills that this was serious offending and that it had an impact on Ms TV. 

11. He agreed that his first Court appearance was in 1995 and that his offending has included driving and drug offences; but he did not accept that his offending had increased in severity over time.

12. Mr Manuel agreed that he had been using methamphetamine before the 2021 offending, and that he had been awake for around four or five days before the incident. 

13. When asked by Ms Mills whether he accepted that he had committed family violence on three partners, he responded “One wasn’t my partner”. He conceded that he had committed family violence against three women. When pressed on whether he was in a relationship with each woman, Mr Manuel responded, “I suppose.”

14. Mr Manuel agreed that he was using ‘ice’ daily in 2021, as well as heavily using alcohol.  He agreed that he had become paranoid. He agreed that he had an historical diagnosis of Attention Deficit Hyperactivity Disorder (‘ADHD’) and a diagnosis of depression. He said he had seen a psychiatrist six years ago but not since. He denied using cannabis.

15. While in custody, Mr Manuel said he had seen Ms Neilsen, who is a psychotherapist. He said he had undertaken drug and alcohol counselling in gaol and seen other counsellors and Ms Cidoni while in prison. He agreed that he first saw Ms Cidoni in 2021, for a psychological assessment.

16. In answer to direct questions from the Tribunal, Mr Manuel said that he had undertaken individual drug and alcohol counselling in gaol, which he estimated was once a fortnight. He believed he had had four or five sessions with Ms Neilsen and that he had an on-going arrangement to see her on his release.

17. Taking into account that the County Court reduced the original sentence imposed in 2021 by the learned Magistrate from 15 months to nine months, the Tribunal notes that the conviction itself was not appealed by Mr Manuel (which would have been quixotic, given that he pleaded guilty), only the sentence. The learned Judge made clear that the arguments before him centred on the migration effect on Mr Manuel’s visa. Therefore, following the principles laid down by the High Court in Maxwell v The Queen (1996) 184 CLR 501, Mr Manuel’s guilty plea is an acceptance, by him, of all the elements of the offence of Recklessly cause injury to Ms TV.

    Other offending

18. The ACIC report records around 50 other offences of Mr Manuel. As mentioned, his first Court appearance was at the end of 1995. He has been convicted of several driving offences, wilfully misleading police, disorderly conduct, drug possession and paraphernalia offences, breaching bail, hindering police, and assaulting a public officer (which, in response to a direct question from the Tribunal, Mr Manuel stated was a police officer), and two drink driving offences.

19. There are some gaps in offending, but it has occurred across three different States, and spans the period from 1995 to 2021.

20. The Direction at paragraph 8.1.1(1)(a)(i) provides that violent and/or sexual crimes are to be viewed very seriously. The three incidents of family violence offending outlined above fall into this category. There is no evidence of any sexual crimes.

21. Paragraph 8.1.1(1)(a)(ii) directs decision-makers to view very seriously crimes of a violent nature against women or children. There is no evidence of any crimes against children, but as set out above and admitted by the Applicant, he has committed crimes of a violent nature against three women.

22. Paragraph 8.1.1(1)(b)(iv) directs decision-makers to consider crimes in immigration detention. There was no evidence of any improper conduct by Mr Manuel in immigration detention.  There is mention of a minor incident where the Applicant was one of a group of detainees who declined to accept meals for a short period, but the Tribunal does not regard this as significant.

23. Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of offending and whether there has been any trend of increasing seriousness. The criminal history of the Applicant, as outlined above, does show relatively frequent adult offending, albeit there have been long gaps. Despite Mr Manuel’s evidence, the Tribunal finds that there has been some increase in seriousness, culminating in the 2021 convictions, which led to a custodial sentence, which is the last resort in the sentencing hierarchy for a Court.  Previous prison sentences he had received had been wholly suspended. On appeal, while the period of the gaol term was shortened, the learned Judge on re-consideration was of the same view as the Magistrate at first instance, that the admitted conduct was serious enough to warrant a custodial term.

24. Paragraph 8.1.1(1)(g) of the Direction refers to whether the non-citizen has re-offended since being formally warned or otherwise made aware in writing about the consequences of further offending on his or her migration status. There is no evidence before the Tribunal that Mr Manuel had received a previous warning from the Minister’s Department.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

25. The next part of this primary consideration requires the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal must consider the nature of the harm to individuals or to the Australian community should the Applicant re-offend or engage in other serious conduct, and any information and evidence on the risk of re-offending.

26. Mr Manuel, in his oral evidence, said that he had periods when he was not taking drugs, especially when his sons were born. When asked whether he thought there was a risk of him taking drugs again, he responded: “No, I’m very confident of counselling. I have got work. I know I’ve got one chance.”

27. Mr Manuel agreed that he had been regularly employed over the last 20 years and so having a job was not a preventative factor in offending in the past.  He agreed that he had previously had chances to stop abusing alcohol and taking illicit drugs but had continued to do so. 

28. In response to a direct question from the Tribunal that, if he relapsed into taking ‘ice’, would he re-offend. Mr Manuel said he would not. When pressed by Ms Mills about a risk of re-offending, he said: “I suppose there is a risk, I can’t tell into the future.”

29. Ms Neilsen gave evidence that Mr Manuel had participated in four counselling sessions with her over the telephone. Ms Neilsen said that he had been referred to her by Ms Cidoni, and she had undertaken four sessions over four weeks, the last on 31 May 2022. When asked whether she had booked further sessions with Mr Manuel, she said: “I don’t, but he has expressed the intention to continue more than once.”

30. Ms Neilsen said the focus of the referral was around emotional regulation and building a “toolbox” of strategies for the Applicant to use out in the real world. Ms Neilsen said she had the opinion that Mr Manuel has grown in self-awareness: “He realizes there are things he can do to manage his thoughts. We need many more than four sessions to understand behaviours. He has a complex history. He has made some progress and is aware that he needs to continue progress.”

31. Ms Neilsen said she was not assisting Mr Manuel to combat drugs and alcohol as he said to her that this was being covered by Caraniche. She said she had briefly spoken to Mr Manuel about violence with intimate partners and he had mentioned that he was substance affected at the time, and that “drugs had ruined his life.”

32. Ms Cidoni gave evidence that she had provided three reports on the Applicant (GD, p 108, p 115 and Exhibits A4 and A5). Ms Cidoni referred to Mr Manuel experiencing trauma as a young child with a father who was a drug user and extremely violent. She said he had Post Traumatic Stress Disorder (‘PTSD’), which was caused by family violence experienced as a young boy and a lack of treatment for that condition since his childhood. Ms Cidoni said both ADHD and PTSD have impulsive conduct as a symptom, but substance abuse attenuates those symptoms.

33. Ms Cidoni said that psychostimulants would have a soporific effect, but they are not allowed in custodial settings because they are trafficable commodities. Her opinion was that Mr Manuel would need to consult a general practitioner and obtain a referral to a psychiatrist to be prescribed the appropriate medication, and she was aware there is a three- or four-week waiting time before he would be able to see a psychiatrist privately. Ms Cidoni said that her view was that Mr Manuel remains vulnerable to anger and her recommendation was that he undergoes a course of treatment of between 12 or 18 months, “at least 12 months.”

34. Ms Cidoni said during her consultation, she had spoken directly to Ms TV, who presented as someone well supported and had told her that the Applicant’s offending against her was “unexpected and out of the blue.”

35. Ms Cidoni noted that the CCO to which Mr Manuel remains subject (GD, p 128) includes a requirement that the Applicant must undergo drug-testing. She said that enables a corrections officer to direct random testing and then employ critical treatment if the person relapses. 

36. Ms Cidoni referred to the incidents involving Ms SV and Ms TV in her reports, but when asked about the earlier offending involving Ms FV, she said she did not know about that. She agreed that Mr Manuel had a good employment history and that it had not prevented his drug use.

37. The Tribunal notes that Mr Max Andrews wrote an email dated 28 April 2022 in which he recorded that he had employed Mr Manuel as a heavy diesel mechanic and interstate truck driver and considered him honest and reliable and with an aptitude for his work. Mr Andrews said he would give Mr Manuel full-time employment if he were released into the community.

38. The Tribunal notes that Mr Manuel completed a ‘Know the Score’ course on substance misuse on 31 August 2021 (GD, p 143), and a one-day workshop conducted by Relationships Australia on 30 November 2021. 

39. The Tribunal considers there is a risk of re-offending by Mr Manuel, and it is, on balance, a moderate risk. Although he has good intentions of not relapsing into drug and alcohol use, the Tribunal considers that there is a tangible possibility of further acts of domestic violence if he was in a future intimate relationship. The Tribunal notes that Mr Manuel agreed that drugs and alcohol were not a factor in his offending against Ms FV.

40. The Tribunal accepts Ms Neilsen’s evidence that Mr Manuel wants to continue to have sessions with her, but the treatment she is providing is targeted toward tackling his anxiety and introducing strategies for, in her word, “calming”. She was not dealing with strategies to ameliorate potential circumstances with domestic partners. The Tribunal accepts that Mr Manuel has undergone drug and alcohol counselling conducted by Caraniche, but also notes that this was a requirement of his CCO, and not something he did of his own volition. It is, however, creditable that he has participated in it and, on the evidence of the statement of the course providers dated 20 April 2020, had been diligent in his attendance at sessions.

41. What was troubling was that Mr Manuel sought in his evidence at the hearing to deny certain facts that underpinned the convictions. Matters such as whether one of Ms SV’s sons was in the vicinity when he was assaulting his mother are reasonably contestable by him, because there was no corroboration, and the police fact sheet itself said that the son did not see any assault. However, his denying choking his intimate partner displays to the Tribunal an attempt to minimise the seriousness of his offending. It is also at odds with his admissions to the Tribunal that his memory of this incident is not clear, because he was heavily affected by methamphetamine at the time.

42. The Tribunal finds, because of the large volume of general offending and the lack of appreciation of his domestic violence offending, this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

    Family violence committed by the non-citizen (paragraph 8.2)

43. Paragraph 8.2 states:

    (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…

    (2) This consideration is relevant in circumstances where:

    (a) A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

44. The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:

    ·The extent to which the person accepts responsibility for their family violence related conduct;

    ·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and

    ·Efforts to address factors which contributed to their conduct (paragraph 8.2(3)(iii)).

45. The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence; noting that the absence of a warning should not be considered to be in the person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence. There was no evidence before the Tribunal of formal warnings of this nature to Mr Manuel by the Minister’s Department.

46. It was not in dispute that the 2014 offending by Mr Manuel against Ms SV, and the 2021 conviction relating to offending by Mr Manuel against Ms TV, fall within the compass of this primary consideration. What is less clear is whether the 2006 conviction against Ms FV does.

47. The Tribunal considers that Mr Manuel’s evidence at the hearing about his relationship with Ms FV was not candid. His evidence was that she was the neighbour of his friend. He then said that on the evening of the incident, they had been at the pub together, and an argument of some sort occurred outside her house. He did not give a convincing response to the fact that his assault of Ms FV occurred when he was with her in her bedroom. 

48. The Tribunal notes that the Statement of Material Facts relating to the 2006 convictions states

    The complainant and the accused have been in a relationship for about 2 and [a] half months whereby they lived at separate addresses, but the accused would stay over at the complainant’s home about 3-4 nights a week.

49. The Tribunal also notes that the offences of which he was convicted against Ms FV were not specifically designated as domestic violence offences. However, in considering this part of the Direction, the Tribunal takes the view that the nature of the relationship between the non-citizen and the victim can be telling in assessing whether the offending was an act of family violence. 

50. Justice Halley considered the question of who constitutes a ‘family member’ in Deng vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (‘Deng’). His Honour decided that the definition of “members of a person’s family” in section 5G of the Act was relevant in determining how to interpret this part of the Direction, because the authority to make the direction stems from another part of the same Act. His Honour said, at [156]:

    Given the absence of any explicit definition of the expression in Direction 90, the seriousness with which “family violence” is treated in Direction 90 and the inclusive definition of “members of a person’s family” in s 5G(2) of the Act, I am satisfied that the expression “member of the person’s family” in Direction 90 should not be narrowly construed and should not be limited to close relatives and de facto partners of the non-citizen. Rather, in my view the expression is apt to also capture persons that might be living together in a household, providing companionship and emotional support to each other, sharing expenses or otherwise being financially dependent upon each other and in a relationship of mutual affection and obligation. It could, by way of example, extend to a child living with an uncle or an aunt for an extended period or to persons who are in an intimate relationship that are living together but do not satisfy all of the criteria of a de facto relationship for the purposes of s 5CB of the Act and reg 1.09 of the Regulations. Such persons would be particularly vulnerable to coercion or control by the non-citizen or fearful of behaviour of the non-citizen.

1. Here, Mr Manuel disputes that his assault of Ms FV was an act of domestic violence. However, he admits that he assaulted her and, in response to Ms Mills’ question in cross-examination, agreed that he had assaulted “three women” with whom he had been in relationships. The Statement of Material Facts states that Mr Manuel maintained a separate address, although he stayed at Ms FV’s house three or four nights a week. In Deng, in contrast, the applicant had been in a relationship with the victim for some years and she had moved in to live with him.

2. There is no evidence before the Tribunal that Mr Manuel was sharing expenses with Ms FV.  Indeed, it appears that the relationship between the two was nascent. The Tribunal considered whether a particular act fulfilled the requirement of family violence in Re: Thompson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4206. In that case (decided before the judgment in Deng), the Tribunal was considering actions where the evidence of Mr Thompson and his former de facto partner was that they no longer lived together. They had a young daughter together, and Mr Thompson’s former partner was pregnant with their second child. He had gone to her house to have a shower. An argument ensued, and he forced her to put their daughter into a car and he drove off. The Tribunal did not consider that the fact that they were no longer permanently living together was fatal to whether the actions constituted family violence in terms of this primary consideration.  However, the facts here are different. Mr Manuel had been seeing Ms FV for around ten weeks. They maintained separate addresses. He stayed over at her house three or four times a week. There was no evidence that they had pooled living expenses. There were no children of the relationship. The evidence supports the conclusion he did not have a key to the victim’s house because he knocked and then called out to see if she was there. Were the Applicant and Ms FV ‘living together’ in the sense that a somewhat rubbery phrase is understood in common parlance? The Tribunal concludes on the evidence that they were not.  This is because Mr Manuel (a) still maintained his own residence and (b) was staying overnight with Ms FV sometimes, but not universally. They were not, therefore, in Halley J’s words in Deng, “living together in the same household” at the time of the assault.

3. The Tribunal finds that the 2006 convictions against Ms FV do not fall within the ambit of this primary consideration. The Tribunal considers that to draw a conclusion that Ms FV was a “family member” of Mr Manuel, in terms of paragraph 4 of the Direction, is stretching the definition too far. 

4. However, on the admission of the Applicant, two other women he assaulted, Ms SV and Ms TV, fall squarely into this primary consideration and within the terms of paragraph 4(1)(a), of violent behaviour which causes a family member to be fearful. The facts of that offending are summarised earlier in these reasons.

5. In the hearing, Ms Mills asked Mr Manuel if he recalled Ms TV climbing out of the window.  Mr Manuel said he did. The following exchange then ensued:

   Senior Member: Did you prevent her leaving?

   Applicant: No.

   Senior Member: Why did she go out the window?

   Applicant: It was easier for her.  I was just standing there.

6. In his sentencing remarks on 18 March 2021, the learned Magistrate said:

   Fifteen years later we’re dealing with again a new relationship and again extreme violence, ten punches to the face, fractures to the nose and then the continued choking after the punches to the nose. The victim said she felt she was going to die and had to climb through a window to escape ongoing assault.

7. In the light of the Magistrate’s remarks, which were not contested by the Applicant’s lawyers at the hearing, the Tribunal finds that Mr Manuel’s evidence about Ms TV climbing out the window to escape him completely implausible, and it contributes to a conclusion that Ms TV was, in fact, fearful. The Tribunal also concludes that, having faced the Court in relating to the offending against Ms SV, the Applicant was fully aware of the consequences of committing any further acts of family violence. In terms of paragraph 8.2(3)(c)(i) of the Direction, the Tribunal finds that Mr Manuel’s equivocation over the facts relating to his assaults on Ms SV and Ms TV means that he has not fully accepted responsibility for his actions against them.

8. The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.

   Best interests of minor children in Australia affected by the decision (paragraph 8.3)

9. The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.

10. The Tribunal must take into account various factors set out in paragraph 8.4(4) of the Direction, where relevant. These include whether Mr Manuel has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.

11. The Tribunal is satisfied to determine that four children are in the category that mandates consideration of their best interests in this part of the Direction. These four may be further divided into two categories. The two young sons of the Applicant, CN and CB, who are respectively aged 12 and 10, are in one category. The Applicant’s grandchildren, GJ and GG, are in the other category. GJ is aged seven and GG is about to turn six.

    The Applicant’s minor children

12. Mr Manuel agreed in his oral evidence that CN and CB live with their mother, Ms SV, and that she provides for their daily needs. He said he did not intend to live with them if released into the community but desired to spend nights with them on occasion. He told the Tribunal that they lived with their mother in a country town in New South Wales, which is about 14 hours’ drive from where he planned to live if allowed to stay in Australia.

13. Mr Manuel agreed that he had told Ms Cidoni that Ms SV had stopped him seeing CN and CB in 2021; but that he had maintained contact with them in immigration detention by letters and a telephone call once a fortnight. Mr Manuel explained that telephone access was much more difficult in prison, and for one period, he had been locked in his cell for over a month because of the pandemic restrictions. When asked whether CN and CB knew of his offending against their mother, he said they were not aware of the detail but “knew something happened”. He said he had told them he was in the wrong and that what he did “was the wrong thing to do”. Mr Manuel did not accept that he would be a poor role model for his sons.

14. Paragraph 8.3(4)(f) of the Direction requires the Tribunal to take into account any known views of the child, with those views being given due weight in accordance with the age and maturity of the child). Before the Tribunal was a hand-written letter from CN (Exhibit A10), in which he wrote:

    [CB] has been really sad. He can’t right [sic] you a letter because he keeps crying.  He has to sleep with mum because he is having nightmares about you not coming home. Mum is trying to get him another councilor [sic]….We miss you so much.  Why won’t they let you come home to us….I really miss you dad and I hope you don’t go.

15. The Tribunal is satisfied that CN is of an age where his expressed views can be given some weight. This letter shows that he understands his father is not able to come to see him and his brother and this is something he is distressed and sad about.

16. The Tribunal is satisfied to make a determination that it would be in the best interests of CN and CB for the Applicant to remain in Australia. He stated that he has access by Court order to stay with the children overnight irregularly; and that Ms SV facilitated this when his truck- driving work brought him close to where they live. The Applicant accepts that he does not play a day-to-day role in their lives and that their mother shoulders the lion’s share of parenting duties. The Tribunal accepts that Mr Manuel has maintained contact with them and, if he returned to his previous employment as an interstate truck driver, he would have opportunities to see them in person on a semi-regular basis, despite living quite a distance from them.

    The Applicant’s minor grandchildren

17. Mr Manuel agreed that GJ and GG live with their mother, Ms AD, in Western Australia. He said that Ms AD was planning to move with her sons to Sydney. He said that he had kept in contact with GJ and GG while he has been in prison, about once a month; and once or twice a week since he has been immigration detention. He speaks to them by telephone or video call.

18. Ms AD, in her evidence, confirmed that she lives in Western Australia at present but has plans to move to Sydney, if the father of her children “allows me”. She is a single mother; she said GJ and GG have contact with their father only about once a month.

19. Ms AD agreed that she plans to move to New South Wales regardless of whether the Applicant remains in Australia, but “Dad being there is a huge part.”

20. Ms AD said that before he was imprisoned, she would see Mr Manuel about five or six times a year, sometimes when he travelled to Western Australia for his work as a long-range truck driver. She said that the Applicant also paid for her and her sons to fly over to see their grandfather, especially on special occasions such as Christmas. Ms AD agreed that she has daily responsibility for GJ and GG. She said that her older son, GJ, has been diagnosed with ADHD and is on the waiting list to be tested for autism.

21. The Tribunal is satisfied to make a determination that it would be in the best interests of the Applicant’s grandsons for Mr Manuel to remain in Australia. Although he does not perform a parental role and lives on the other side of the continent, the Tribunal is satisfied that the evidence supports a relationship of regular contact between the Applicant and GJ and GG.

22. Overall, the Tribunal finds that this primary consideration weighs in favour of revoking the mandatory cancellation of the visa.

    Expectations of the Australian community (paragraph 8.4)

23. Paragraphs 8.4(1) and (2) of the Direction state:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

    (3)  …

24. The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The third of these categories are relevant to Mr Manuel’s single offence of assaulting a police officer.

25. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process. 

26. Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.

27. Some of Mr Manuel’s offending, especially his early matters, may be regarded as minor offending, such as failing to display ‘P’ plates. Other offending is mid-range, such as the appreciable number of driving-related offences and one offence for stealing a motor vehicle.  Some of the offending against the person can fairly be said to be at the higher end of mid-range or, in the case of the most recent assault on Ms TV, at a relatively high range, given it attracted a prison sentence. As outlined in the extracts above, there have been offences of violence against three women, on four occasions.

28. The Tribunal finds that the expectation of the community would be that his visa be revoked. This consideration weighs against revoking the mandatory cancellation of the visa, and somewhat heavily so.

    OTHER CONSIDERATIONS

29. Paragraph 9 of the Direction requires the Tribunal to take into account the following matters, where they are relevant, noting this is a non-exhaustive list:

    (a)International non-refoulement obligations;

    (b)Extent of impediments if removed;

    (c)Impact on victims;

    (d)Links to the Australian community, including;

    (i)the strength nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

    International non-refoulement obligations (paragraph 9.1)

30. International non-refoulement obligations relate to a case where a person is in prospect of being returned to a country where they may be at risk of a specific type of harm. In this case, Mr Manuel would be returnable to New Zealand, his country of citizenship.

31. The Tribunal finds that this consideration is not engaged and weighs neutrally.

    Extent of impediments if removed (paragraph 9.2)

32. The Tribunal must consider the extent of impediments Mr Manuel may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers and social, medical, or economic support available to him if repatriated.

33. Mr Manuel confirmed he was in good physical health. The Tribunal accepts that he has a historical diagnosis of ADHD and a more recent diagnosis of PTSD. English is an official language of New Zealand, and the cultural environment of that country is as close to Australia’s as any other. The Tribunal accepts that Mr Manuel came to Australia at a very young age and has returned briefly on only two occasions, for a Christmas visit in 1983-84 and for a short visit in 1988-89, which he said was to attend the funeral of his grandmother.  There was one other trip on Mr Manuel’s movement record (GD, p 176), which the Applicant said was for a family holiday to Bali. Ms Mills, for the Minister, did not contest that evidence.

34. In her evidence, Ms Cidoni said: “If the Applicant went to New Zealand he would have to source and find treatments again. It might be very difficult for him to engage in a new country as well as to find a job and somewhere to live”. Ms Yu submitted that Mr Manuel has virtually no support in New Zealand and has not been back to that country since he was about 10 years old.  She noted that all the Applicant’s family live in Australia.

35. The Tribunal finds that Mr Manuel would have the same access to mental health services and other parts of the social welfare system in Australia as would any other New Zealand citizens. The Tribunal further finds that he would experience more challenges than most because of his anxiety, as discussed in her evidence by Ms Neilsen, and that this might be a factor that would make it harder for him to negotiate the bureaucracy; at the same time as finding a place to live and obtaining employment. The Tribunal also notes that Mr Manuel has a good job track record in Australia and, apart from experience in driving heavy vehicles, some training as a diesel mechanic. Both these skills would be assets in the employment market, especially with good references such as those from Mr Andrews and another former employer, Mr Mavin, which were in the material before the Tribunal. 

36. Because he has lived almost all his life in Australia and has certain vulnerabilities in terms of anxiety and depression, the Tribunal finds that this consideration weighs somewhat in favour of revoking the mandatory cancellation of the visa.

    Impact on victims (paragraph 9.3)

37. This part of the Direction requires the Tribunal to consider the impact of the decision on victims and family members of victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. There was no evidence before the Tribunal that this is the case. 

38. The Applicant said in his statement of 5 May 2022 that Ms TV has said she is “willing to give [him] another chance”. This was reiterated in the ASFIC. However, there is no corroborating evidence about the victim’s views, so the Tribunal cannot place weight on this. Even if she did say this, it is also unclear what precisely she meant.

39. The Tribunal finds that this consideration weighs neutrally in this assessment.

    Links to the Australian community (paragraph 9.4)

    Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)

40. The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.

41. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community. As mentioned above, Mr Manuel arrived in Australia aged three (GD, p 58). His father and mother live in Australia. He has one daughter, Ms AD, in Western Australia and another who lives in New South Wales. There was no evidence before the Tribunal about how this second daughter would view her father being returned to New Zealand; Ms AD said she had not had contact with her sister for many years. The Tribunal considers a reasonable conclusion can be drawn, in the absence of any adverse evidence, that a daughter would want her father to remain in the same country as she. The Tribunal has dealt with the best interests of the minor children and grandchildren of Mr Manuel earlier in these reasons but records here that they support a finding of strong ties to Australia.

42. The Applicant stated in the personal circumstances form he provided to the Minister’s Department that his brother resides in Australia and has a de facto partner who is an Australian citizen. Mr Manuel listed a niece and nephew in Australia, who are young adults.  There was not much more about his relationship with this group of relatives, but the Tribunal concludes they would be likely to want the Applicant to stay in Australia.

1. Where a person like the Applicant arrived in Australia at such a young age and, essentially, has only left the country for three very brief periods in the last more than 40 years, it is axiomatic that he has built up strong links and ties with Australia and Australians.  Mr Manuel has been educated here, has worked here, has had relationships and children (who are Australian citizens) here, and has built up a circle of friends. The Applicant listed (GD, p 88) two uncles and three aunts who live in New Zealand but wrote “they do not know me”.

2. Because of these various links, and no evidence of any close links with relatives in New Zealand, this sub-consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.

   Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)

3. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.

4. Mr Manuel has a creditable work history. The importance of interstate truck drivers to the transport chain in Australia, especially during national emergencies such as the pandemic, is obvious. However, the Tribunal cannot find that Mr Manuel’s remaining in Australia would have the effect of ‘significantly compromising’ an important service or major project.  This sub-consideration, therefore, weighs neutrally.

5. However, overall, this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.

   SUMMATION

6. In terms of the considerations the Tribunal is required to address in the Direction, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs heavily against revoking the mandatory cancellation. The primary consideration relating to family violence committed by the Applicant weighs relatively heavily against the Applicant. The primary consideration relating to the best interests of affected minor children in Australia weighs in favour of the Applicant, but not as strongly as it would if he had a day-to-day parental role in the care of his two minor children. The primary consideration relating to the expectations of the Australian community weighs against revoking the visa cancellation.

7. In relation to the other considerations set out in the Direction, Australia’s international non-refoulement obligations are not engaged; nor is the consideration relating to impact on victims. The consideration relating to the extent of impediments if removed weighs somewhat in favour of Mr Manuel. The consideration relating to links to the Australian community weighs relatively heavily in favour of revocation.

8. Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than other considerations. The Tribunal, in considering whether there is “another reason” under section 501CA(4)(b) of the Act, necessarily must take into account the totality of the Direction, and any other relevant factor consistent with the Act. Considering the Direction overall, the Tribunal does not find a case is made out to displace paragraph 7(2) or the fact that, in the calculus, the considerations weigh against revoking the cancellation of the visa.

9. The consequence of this finding is that the Tribunal is satisfied that the discretion available in section 501CA(4)(b)(ii) of the Act is not enlivened.

   DECISION

10. Pursuant to section 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

140.    

141.    I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

..................[sgd]......................................................

Associate

Dated: 17 June 2022

Dates of hearing:	2 and 3 June 2022
Counsel for the Applicant:	Ms Michelle Yu
Solicitors for the Applicant:	Erskine Rodan and Associates
Counsel for the Respondent:	Ms Laura Mills
Solicitors for the Respondent:	Mills Oakley Lawyers

ANNEXE – Schedule of Exhibits

R1      ‘GD’ documents lodged on 12 April 2022

R2      Respondent's Tender Bundle lodged on 17 May 2022

R3      Respondent’s Supplementary Tender Bundle lodged on 24 May 2022

R4      Respondent’s Further Supplementary Tender Bundle lodged on 30 May 2022

A1       Statement of the Applicant dated 5 May 2022

A2Supplementary statement of the Applicant dated 30 May 2022

A3Statement of Ms AD (incorrectly dated 28 May 2022) lodged on 6 May 2022

A4Supplementary Psychological Report from Ms Gina Cidoni dated 5 May 2022

A5Supplementary Psychological Report from Ms Gina Cidoni dated 30 May 2022

A6Statement from Psychotherapist Ms Carmel Nielsen dated 30 May 2022

A7Email from the Applicant’s solicitor to the Department of Home Affairs dated 31 January 2022

A8Email from the Applicant to Immigration Detention dated 24 January 2022

A9Email from the Applicant to Immigration Detention dated 10 January 2022

A10Letter from CN undated (email sent to solicitors on 24 January 2022)

A11Letter from Ms AD (email sent to solicitors on 24 January 2022)

A12Applicant’s Certificate of Completion from LINCS in Families dated 30 November 2021

A13Applicant’s Certificate of Completion from Know the Score dated 31 August 2021

A14Email of employment from Mr Max Andrews dated 28 April 2022

A15Employment reference letter from Mr Dean Mavin dated 6 May 2022

A16Email from Caraniche for Peer Support Groups dated 21 April 2022

A17Letter of attendance from Ms Isabel Duncan and Ms Jade Hadley dated 20 April 2022

A18Overview of LINCS in Families Program lodged 6 May 2022

T1       The letter of instruction to Ms Gina Cidoni dated 1 July 2021

T2Email from the Applicant’s solicitors to Ms Gina Cidoni dated 6 and 10 April 2022 and 3 May 2022.