McCombie and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1884 (29 June 2023)
Division:GENERAL DIVISION
File Number: 2023/0130
Re:Phillip James McCombie
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:29 June 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 3 January 2023 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s visa
...................................[SGD]................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulation 1994 (Cth)
Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301.Walker v Minister of Home Affairs [2020] FCA 909.
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
29 June 2023
INTRODUCTION
Mr Phillip James McCombie (‘the Applicant’) is a 46-year-old man, born in New Zealand in April 1977. He has departed Australia on a number of occasions but it suffices to say that he has regarded Australia as his country of residence since about the time of his arrival here in April 2005. Since that time, while he has moved in and out of Australia, there is little to cavil with the proposition that the overwhelming majority of his time has been spent in Australia. Following his most recent arrival in Australia in September 2019,[1] he was granted was a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’).[2]
[1] G1, p 220.
[2] Ibid, p 223.
On 21 July 2021, while the Applicant was serving a fulltime custodial term of imprisonment, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[3] The Respondent made this decision because the Applicant did not pass the character test as he was serving a full-time custodial term of imprisonment of over 12-months.[4] On 5 August 2021, the Respondent received the Applicant’s representations requesting the mandatory cancellation of his Visa be revoked.[5] On 24 November 2022, the Applicant voluntarily returned to New Zealand.
[3] Ibid.
[4] Ibid.
[5] Ibid, p 40.
On 3 January 2023, a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation decision pursuant to s 501CA(4) of the Act.[6] This decision was communicated to the Applicant’s authorised recipient on the same day. On 10 January 2023, the Applicant lodged the instant application in this Tribunal seeking review of the non-revocation decision.[7] I am satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
[6] Ibid, p 11.
[7] G1, pp 4-9.
The hearing of this application proceeded before me on 4 and 5 April 2023. Oral evidence was received from:
·the Applicant; and
·the Applicant’s wife, Ms Kahlia McCombie.
The Hearing also received written evidence and the totality of that material was consolidated into an agreed Exhibit List,[8] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
[8] Transcript, p 2, lines 44-47; p 3, lines 1-6.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The parties agree that the Applicant does not pass the character test[9], because this Applicant has a ‘substantial criminal record’[10] due to him being sentenced in June 2021 to a term of imprisonment of 4 years (suspended for 4 years after serving 16 months) upon a conviction for Grievous Bodily Harm. Accordingly, I find the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[9] See R1, p 5, [20]; A1, p 3, [15].
[10] As defined by s 500(7)(c) of the Act.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the power in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[11]
[11] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
I make specific reference to Principle 5.2(3) of the Direction which contains the following words: ‘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.’[12] I will therefore look at the Applicant’s offending both in Australia and anywhere else. As best as I have understood the material, apart from Australia, the only other country where the Applicant has an offending history is New Zealand where his offending is recorded thus:
[12] Paragraph 5.2(3) of the Direction.
Court Result Date Offence Sentence NZ District Court April 1998 Fighting in public place Fine: $200 April 1998 Possession Cannabis Fine: $100 August 1996 Minor found supervised area Fine: $75
His offending history in Australia is of similar brevity to that of New Zealand. In Australia he has committed the following offences:
Court Date Offence Sentence QLD District Court June 2021 Grievous bodily harm 4 years imprisonment
Suspended for 4 years after serving 16 months
QLD Magistrates Court December 2010 Assault or obstruct police officer Fined: $750 Assault or obstruct police officer Fined $300 Contravene direction or requirement Fined: $250
I carefully searched the material and located the following very brief and mostly insignificant traffic history:
Date of offence Description Details of penalty Result date October 2014 Exceed speed limit in speed zone by less than 13 km/h 1 demerit point
Fined: $151
November 2014 November 2013 Exceed speed limit in speed zone by less than 13 km/h 1 demerit point
Fined: $146
November 2013
Stated in summary then, the Applicant’s offending history in New Zealand is 25-27 years old. It involved the commission of three relatively unremarkable offences and was punished by a cumulative total of fines in the sum of $375. He has committed four offences in Australia. Three of them were committed some 12-13 years ago and involve convictions for three relatively unremarkable offences involving petulance towards, and disregard of, directions given to him by police officers lawfully authorised to do so. Those three offences were punished by a cumulative total fines amounting to $1300.
His index offence[13] is clearly his conviction on one count of Grievous bodily harm pursuant to s 320 of the Criminal Code Act 1899 (Qld). The Applicant was sentenced to a head custodial term of imprisonment for four years to be suspended after he served a period in actual custody of 16 months. The operative period of the suspension was ordered to be four years.
[13] That is, the offending for which he was sentenced by Judge Dearden in June 2021.
The sentencing remarks of the learned sentencing judicial officer, His Honour Judge Cash DCJ KC, appear in the material.[14] His Honour noted the Applicant entered his own plea of guilty to this index offence and that this plea was an early plea entered upon presentation of the indictment.[15] His Honour then recounted the material facts of the offending in these terms:
‘What you did is summarised in exhibit 2 the statement of facts. You lived next door to the complainant, who was a 54 year old man, who you did not really know beyond him just being your neighbour. On the evening of the offence, which was the 27th and the 28th of March last year, he had been on his patio with some others, drinking and listening to music. Obviously, that was loud. By 1 am, you went next door to tell them that they were being too noisy.
The complainant, instead of responding like a decent person might, acted belligerently and told you to go and call the police. Regrettably, for him, for you, and for your family, your response, though, was inexcusable, and constitutes the offending behaviour. First, you grabbed him and threw him to the ground, whereupon you punched him several times in the ribs. There were brief stops over the next couple of minutes, but in the next few minutes, or perhaps two, you retuned and kicked and punched him, and that included stomping on his chest. The violence, as I have mentioned, spanned perhaps a couple of minutes. You did stop. The police attended. The complainant, who I am guessing must have been substantially affected by alcohol, did not want medical treatment, but the next morning he collapsed and it turned out his spleen had been lacerated by the blows.’[16]
[14] G1, pp 28-30.
[15] G1, p 29, lines 1-7.
[16] Ibid, lines 7-24.
In terms of the victim’s experiences after commission of the offence, the learned sentencing Judge noted the following:
‘He was gravely unwell and ended up having surgery which removed his spleen. There were some other complications, as well, but they do not constitute the grievous bodily harm, and it is, really, the damage to the spleen for which you are to be sentenced. He does suffer some ongoing issues which require medication because he has no spleen.’[17]
[17] Ibid, lines 26-30.
His Honour also took notice of the Applicant’s then-age (44 years) and that he was 42 at the time of committing the offence. Specific reference was also made to the Applicant’s earlier three convictions from 2010 which His Honour thought did not demonstrate any propensity within this Applicant for drunken violence.
‘You were convicted of some offences back in 2010. They were assaulting or obstructing police, which relate to you being drunk at Surfers Paradise, getting in an altercation with police, and that involved you gouging at one of the police officer’s eyes. It is not entirely irrelevant but it does not suggest that you have got some long history of drunken violence or anything of that sort.’[18]
[My emphasis]
[18] Ibid, lines 32-36.
In terms of personal antecedents, His Honour found the Applicant to be a working man, a family man and a person held in high regard by his peers. His Honour thought the offending was out of character and that the Applicant was ‘properly remorseful’ for commission of this index offence:
‘You are a man who has worked. You qualified as a linesman in your early 20s. Unfortunately, at around the time of these events, you had lost some work and were struggling financially. You had two infant children, and your wife was pregnant with what is now your third child. I have had regard to your letter of apology to the complainant, and I think that plainly indicates that you are properly remorseful for what it is that you did, recognising not just the harm that you caused to him, but the ongoing harm that you have caused to your own family, as well. I have had regard to the letters from colleagues and other friends of yours, and that allows me to conclude that what you did on this night is out of character. You are otherwise a good person who has worked hard, and is supportive of, and has the support of, your family.’[19]
[My emphasis]
[19] G1, p 29, lines 38-47.
In terms of counselling and rehabilitative support undertaken by the Applicant, His Honour noted the following: ‘since the events that constitute the offence, you have had some psychological counselling and you have recognised the error of what you did on this evening.’[20] Later in these Reasons I will address the question of the Applicant’s recidivist risk by reference to a couple of independent assessments conducted by (1) Queensland Corrective Services; and (2) the consultant forensic and clinical psychologist Professor James Freeman.
[20] Ibid, p 30, lines 4-6.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations
Paragraph 8.1.1(1)(a): this paragraph of the Direction points out that conduct falling within the auspices of any or all of its sub-paragraphs (a)(i)-(iii) is conduct that is ‘viewed very seriously’ by the Australian Government and the Australian community. The Applicant has no convictions for crimes of violence against women or children.[21] Neither does he have convictions for acts of family violence and there is no reference in the material to acts of family violence that did not result in any conviction.[22]
[21] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[22] Paragraph 8.1.1(1)(a)(iii) of the Direction.
His above-described index offending is without doubt a crime of violence. It falls squarely within the auspices of 8.1.1(1)(a)(i) of the Direction. That offending must therefore be found to be ‘very serious’. I so find.
Paragraph 8.1.1(1)(b): this sub-paragraph refers to conduct that is ‘…considered by the Australian Government and the Australian community to be serious.’ Sub-paragraph 8.1.1(1)(b)(i) is not relevant to the instant facts. As best as I have understood the material the Applicant has committed no crime while in immigration detention. This renders sub-paragraph 8.1.1(1)(b)(iv) irrelevant. The Applicant has not been responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion. [23]
[23] Paragraph 8.1.1(1)(b)(iii) of the Direction.
However, the Applicant has two convictions for assault or obstruct police officer and one conviction for contravene direction or requirement. While these offences were committed and convicted in 2010, they are nevertheless offences that squarely fall within the auspices of sub-paragraph 8.1.1(1)(b)(ii) because they are offences against government representatives or officials in the performance of their duties. As such, this conduct must be found to be at least serious. I so find.
Paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(1)any violent offending he may have committed against women;[24]
(2)acts of family violence;[25] and
(3)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[26]
[24] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[25] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[26] Paragraph 8.1.1(1)(b)(i) of the Direction.
However, this sub-paragraph does not preclude me from taking into account the sentence imposed on the Applicant for his index offending. As mentioned, Judge Cash DCJ KC imposed a four year custodial term to be suspended for an operative period of four years after the Applicant had served 16 months in actual custody. The imposition of a custodial term is the last resort in the sentencing hierarchy. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[27]
I am satisfied that the sentencing regime imposed by Judge Cash DCJ KC most certainly speaks to the level of seriousness of the Applicant’s index offence. That conduct squarely engages the auspices of this particular paragraph and thereby facilitates a finding that the totality of his offending must be found to be very serious.
Paragraph 8.1.1(1)(d): this Applicant committed three relatively insignificant offences in New Zealand some 25-27 years ago that were dealt with at three separate sentencing episodes. He has committed four offences in Australia, three of which were committed 13 years ago plus the index offence which was committed over three years ago. The commission of three offences in New Zealand over an approximate two year period is not frequent offending. The commission of four offences in Australia across a ten year period is not frequent offending.
Put another way, the Applicant lived in New Zealand from approximately mid 1977 to mid 2005 and committed only three offences during that approximate 30 year period. He has lived in Australia during the period mid-2005 to the end of 2022[28] and committed four offences across that 15-17 year period. On either analysis, it can be safely found that the Applicant is not a frequent offender.
[28] When he voluntarily returned to New Zealand.
Is there a trend of increasing seriousness to his offending? It is safe to find there is no such discernible trend in his New Zealand history. It is a different story in terms of his Australian offending. On any reasonable view, his index offending committed in March 2020 is of an exponentially greater level of seriousness compared to his largely petulant offending involving assault police/contravene direction committed in 2010. It can be safely found that there is a discernible trend of increasing seriousness in the Applicant’s history of offending in Australia.
The Applicant’s traffic history in Australia is not frequent comprising, as it does, two relatively minor speeding infringements committed almost a decade ago which resulted in the imposition of one demerit driving point for each offence. There is no discernible trend of increasing seriousness in his traffic history. His traffic history does not speak to either the overall frequency of his offending here or whether there is any trend of increasing seriousness in his offending in this country.
I therefore conclude that the Applicant’s offending, both in Australia and New Zealand, has not been of a frequent nature. I further conclude that his offending in Australia does betray a trend of increasing seriousness. This sub-paragraph 8.1.1(1)(d) militates in favour of a finding that the totality of his offending must be found to be very serious.
Paragraph 8.1.1(1)(e): the totality of his offending in New Zealand does not yield any cumulative effect. Likewise his first three convictions in Australia. However, his index offence had a very serious impact on its victim. It is not a stretch of the evidence to say (and find) that the sheer extent of the Applicant’s administration of violence upon the victim of the index offending threatened the life and wellbeing of that victim. There is likewise no denying the circumstances of the index offending caused the Applicant ongoing physical (and probable mental health) issues as well.
The point to be made – which impacts the weight allocable to this paragraph 8.1.1(1)(e) – is that this Applicant has not committed repeated offending in the realm of his index offence. As Judge Cash observed what the Applicant ‘…did on this night is out of character…’ and that ‘…it does not suggest that you have got some long history of drunken violence or anything of the sort.’ Therefore, and at best, this sub-paragraph 8.1.1(1)(e) only moderately militates in favour of a finding that the Applicant’s conduct has been of a very serious nature.
Paragraph 8.1.1(1)(f): the Applicant’s evidence in relation to providing false or misleading information to the Respondent Department is both unique and interesting. It is so because in the majority of these types of character-based visa cases, an Applicant has consistently ticked the ‘No’ answer appearing in an incoming passenger card in response to the specific question of whether he or she have any criminal conviction(s). That is not the case with this Applicant. He contends that he initially completed his incoming passenger cards by ticking the ‘Yes’ answer but only commenced ticking the ‘No’ answer when he apparently received advice from Customs or Border Force employees at the airport to do so. During his oral evidence given in cross-examination, he said the following:
‘MS TATTERSALL: And so in one of your statements - and I’m referring to your passenger cards - in one of the statements you said every time you came back to Australia you declared your criminal history on your passenger card and then stopped declaring it after having spoken to someone at Border Force. So when do you say that you spoke to someone at the - the Border Force officer about that matter?
THE APPLICANT: So back in 2000, it would’ve been somewhere around then, I - I declared “Yes” on my passenger cards previous to declaring “No” and he questioned me about my criminal convictions and then I - he said - questioned whether I’d served gaol time, I said, “No, I only got fines - they were only fines” and he said that, “It’s not - you don’t - not a requirement to declare those.”
MS TATTERSALL: So I just want to make sure that I understand your evidence, so you’re saying you’d previously - you declared “Yes” previously and then you declared “No”?
THE APPLICANT: Yes.
MS TATTERSAL: And that’s when you spoke to the agent - the officer about it?
THE APPLICANT: That’s correct.’[29]
[29] Transcript, p 23, lines 36-46; p 24, lines 1-6.
This version was mostly essentially repeated during the Applicant’s re-examination:
‘MS LENTON: Okay. My next question relates to what you say you were told from an officer of Border Force in relation to criminal convictions and you not having to declare them on your incoming passenger card. I just want to get the sequence right here. Because you had this discussion with the Border Force person, in your comings and goings from Australia, had you previously put down or recorded a yes answer to having previous convictions?
THE APPLICANT: Yes.
MS LENTON: All right. And what brought about the discussion with the Australian Border Force member that led you to change that?
THE APPLICANT: Because he stopped me and he quizzed me on what the convictions were, wanting to know if I’d done gaol time or anything. And when I explained to him that I’d done no gaol time, what my convictions were, and that I received fines, he said, “You’re not to tick yes again”.
…
MS LENTON: Okay. So you presented your incoming passenger card to an airport Border Force person and that’s when you had the discussion with that person?
THE APPLICANT: That’s correct.
MS LENTON: All right. Now, as a result of that discussion, you were led to believe by that person that you didn’t have to tick the yes box next to the question about convictions unless those convictions had resulted in actual gaol time, is that your evidence?
THE APPLICANT: Yes, that’s correct.’[30]
[30] Transcript, p 39, lines 12-24; lines 33-39.
Of course, the definitive way to resolve this question is for the Tribunal to receive evidence from a suitably experienced airport operative. Such an operative could verify the Applicant’s evidence about the advice he says he received about only have to tick the ‘Yes’ box on an incoming passenger card if that particular conviction did not result in him spending time in actual custody. But be that as it may, this is an Applicant who has, on several other occasions, correctly completed the relevant card. The opaqueness of the evidence around this particular sub-paragraph leads me to find that is only slightly militates in favour of a finding about the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(g): I have searched the material before me and cannot locate any formal warning in writing directed to the Applicant about the consequences of further offending in this country in terms of his visa status to remain here. Paragraph 8.1.1(1)(g) can therefore be put to one side.
Paragraph 8.1.1(1)(h): as mentioned earlier some of the indicia of the Applicant’s offending was committed in New Zealand some 23-25 years ago. It is unremarkable offending and does not speak to the offences he has committed in Australia which were committed some 15 and 23 years after his New Zealand offences. Paragraph 8.1.1(1)(h) can therefore be put to one side.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction. I am satisfied that the paragraphs applicable to the evidence before me do safely lead me to the conclusion (and finding) that the totality of the Applicant’s unlawful conduct in this country (plus taking into account his New Zealand offences) can be found to be very serious. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
(a) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
At the risk of repeating myself the Applicant’s three convicted offences in New Zealand are unremarkable having regard to the nature and circumstances surrounding the commission of those offences. It is surely an unreasonable stretch of the evidence to suggest or find that untoward or unacceptable harm would befall individuals or the Australian community were those New Zealand offences to be recommitted here.
A similar finding can be made in relation to the Applicant’s first three convicted offences in Australia which comprise, in essence, a failure to follow lawful authority. At most, any recommission of those offences could be said to unnecessarily engage police/law enforcement resources. But little or no other harm would befall either individuals or the Australian community in the event the Applicant recommitted those petulant offences. For completeness I record (and find) that no harm would be occasioned to individuals or the Australian community if the Applicant re-committed any of his two traffic offences of almost a decade ago.
The situation totally changes with reference to the Applicant’s index offending. Judge Cash DCJ KC did (with respect), more than adequately particularise the very serious harm administered upon the victim of that offending during its commission. That harm was not momentary or situational, the victim required subsequent surgical intervention involving removal of his spleen. We are told in the sentencing remarks that the victim ‘…does suffer some ongoing issues which require medication because he has no spleen.’ It is clear and straightforward to find that re-commission of such a violent offence against another victim would result in very serious harm to that victim. It would also harm the interests of the Australian community whose law enforcement, public health and judicial sentencing resources would be expended in dealing with the outcomes of such conduct.
Were the Applicant to re-commit his index offending there is little to cavil with the proposition (and finding) that very serious physical, psychological – and potentially catastrophic harm – would be suffered by its victim. I have no difficulty in concluding that offending of the type comprising the index offending, and the harm that would be caused, were such conduct to be repeated, is so serious that any risk of its re-commission would be unacceptable to the Australian community. I so find.
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
I have sought to identify specific elements in the evidence indicative of the Applicant’s risk and also indicative of the extent to which he has achieved some level of rehabilitation as at the time of this decision.[31] I will address each of those elements in turn.
[31] As required by paragraph 8.1.2(2)(b)(i) and (ii) of the Direction.
Applicant’s written evidence: the Applicant provided an expansive written statement that was utilised as part of the representations he made to the Respondent Department in an effort to revoke the initial mandatory cancellation decision. This expansive statement appears in the material.[32] There is a specific section of this statement bearing the sub-heading ‘My risk of re-offending’, under which the Applicant says the following:
‘I believe the chances of me re-offending are zero. It is path I will never follow again.
After being incarcerated, and doing counselling, I’ve learned a lot of patience, and learned to avoid situations which are confrontational. I’ve learned that prison is not a place you ever want to come back.
I have been classified low-risk by the prison system. They assessed my risk of reoffending score to be low enough to be transferred. I was transferred from Brisbane Correctional Centre, to Borallon Correctional Centre, and now Palen Creek Correction Centre, due to my low risk classification.
Missing out on looking after my kids and being with my wife has really guided me. I don’t ever want to do this again. I believe that my strong relationship and connection with my family will help me move my life in a positive direction. Kahlia is someone who can keep an eye on me and make sure that I’m not in any situations which can turn bad quickly.’[33]
[32] G1, pp 105-111.
[33] Ibid, p 109, [51]-[54].
Applicant’s oral evidence: while not strictly speaking evidence of the Applicant himself, the Applicant’s representative did, in my respectful opinion, correctly describe the Applicant’s recidivist risk profile. In particular, she correctly noted the absence of any substance abuse history or any other psychological or psychiatric conditions that may have previously predisposed him to offending. The oral submission of the Applicant’s representative was put thus:
‘It’s abundantly clear that there is a very low risk of recidivism in this case. That’s confirmed by the psychological report of Dr James Freeman. Dr Freeman notes that the applicant accepts responsibility. He demonstrates remorse and guilt. He notes that the applicant doesn’t have a history of drug or alcohol abuse and has no history of psychological or psychiatric conditions that might predispose him to reoffending. I have noted that the respondent’s SFIC mentions that he hasn’t undergone any treatment in relation to alcohol. That’s not in question here. That has not contributed to the offending in this case and that is clear from the sentencing remarks where that is mentioned. Dr Freeman described the applicant as a prosocial individual who’s expressed clear remorse. He has no risk factors.’[34]
[34] Transcript, p 6, lines 4-14.
During cross-examination, the Applicant was questioned about the level of his alcohol use. To whatever extent this line of questioning may have sought to establish some kind of pre-disposition towards over-consumption of alcohol and that such over-consumption was somehow causative of his past offending conduct (especially his index offending) that line of questioning went nowhere. A similar finding can be made about questions put to the Applicant regarding his past use of cannabis. This is how the question/answer sequence transpired between the Respondent’s representative and the Applicant:
‘MS TATTERSALL: And your evidence was that you weren’t drinking at the time of that offence, is that right?
THE APPLICANT: That’s correct.
MS TATTERSALL: So earlier you said you drank approximately every fortnight, is that right?
THE APPLICANT: Yes.
MS TATTERSALL: So would you have a drink after work, or is that on weekends, or when usually do you drink?
THE APPLICANT: Normally on a weekend.
MS TATTERSALL: And when you drink on a weekend, how much would you usually drink?
THE APPLICANT: I don’t know, probably over a four hour of [sic] period for a game of footy, probably have about six to eight beers.
MS TATTERSALL: And is it beers that you’d usually drink, or you drink some various things?
THE APPLICANT: No, I only drink beer.
MS TATTERSALL: And previously in your evidence-in-chief, I understand you said that you’d never had a problem with alcohol?
THE APPLICANT: That’s correct.
MS TATTERSALL: But you were assessed in prison as having substance abuse as one of your rehabilitation needs?
THE APPLICANT: I was unaware of that.
MS TATTERSALL: If you could show on the screen, please, exhibit G1, page 38. And if you could just expand the third paragraph at the top of that page commencing, “I considered the rehabilitation needs”. So, Mr McCombie, you can see on the screen there, that’s a printout from a Queensland Corrective Services report. And I’ll just give you a moment to read that?
THE APPLICANT: Yes, I’ve read that
MS TATTERSALL: So that seems to say that although you denied any problematic substance use, that substance abuse was considered to be a need for you?
THE APPLICANT: Well, that could have been based on my earlier childhood minor convictions with the cannabis and found on an unlicensed area.
MS TATTERSALL: So, as I understand it, you accept that you’ve used cannabis before?
THE APPLICANT: I tried it, yes, when I was a minor.
MS TATTERSALL: So do I take that to mean that you’ve only tried it on a few occasions, or how many occasions have you tried it on?
THE APPLICANT: Yes, probably only a couple of occasions.
MS TATTERSALL: And in one of your statements, you refer to experimenting with cannabis but learning your lesson after you got in trouble for it. Can you let me know what you mean by learning your lesson there?
THE APPLICANT: Well, I got caught with a cannabis cigarette, so I didn’t touch that again since.
MS TATTERSALL: So was the cannabis cigarette that you were caught with yours?
THE APPLICANT: Yes’[35]
[35] Transcript, p 35, lines 19-45; p 36, lines 1-18.
Queensland Corrective Services risk assessment: the Applicant was taken into custody in June 2021. It will be recalled that he had to serve 16 months in actual custody. On or about the 10th month of that 16 month period, Queensland Corrective Services did, as part of its ‘Notice of Placement Decision’ perform a Security Classification assessment of the Applicant. These are the saliant parts of that assessment:
‘You are classified a low security classification;’
…
Borallon Training and Correctional Centre and Prison Health Services have indicated you are able to be managed in low security;’[36]
[36] G1, p 35.
…
‘I have decided to classify you, Phillip MCCOMBIE [redacted identification number] a LOW security classification.’[37]
[37] Ibid, p 37.
…
‘I determined you require the level of structured supervision afforded to prisoners managed as a low security for the following reasons:
(a) The nature of the offence for which the prisoner has been charged or convicted:…
Although I note the serious nature of your conviction, I am of the view that your risk is able to be appropriately managed in accordance with a low security classification;’
…
(b) …I do not consider you pose an elevated risk of escaping or attempting to escape lawful custody.
…
(c) The risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community:
You have been assessed as having a Risk of Reoffending - Prison Version (RoR-PV) score of 4, which indicates you fall into the category of prisoners who pose a low risk of further general reoffending.
…
(d) The risk the prisoner poses to himself or herself, and other prisoners, staff members and the security of the corrective services facility:
I note you do not have a recorded self-harm history and there is no evidence before me that suggests you currently pose a risk to yourself.
…’[38]
[My emphasis]
[38] G1, pp 37-38.
The evidence of Professor James Freeman: Professor Freeman is a significantly qualified and experienced consultant forensic and clinical psychologist. He conducted a 1.5 hour video link assessment on the Applicant on 17 August 2022. The purpose of this examination and resulting report was ‘…for the purpose of a forensic psychological assessment in regards to appealing a visa revocation.’[39] Dr Freeman’s resulting report appears in the material.[40]
[39] Ibid, p 187.
[40] Ibid, pp 187-198.
Dr Freeman provided an accurate summary of the index offence.[41] He was satisfied that the Applicant expressed remorse/regret for his behaviour not just in the primary sense of the harm his offending occasioned upon its victim. Further to that, Professor Freeman noted ‘Mr McCombie was also able to articulate the impact of his offending upon the secondary victims (e.g, his family) as the family home was sold and his wife and children now reside in rental accommodation.’[42]
[41] Ibid, pp 187-188, [3].
[42] G1, p 188, [4.4].
Professor Freeman made a careful and detailed summary of the balance of the Applicant’s offending both in New Zealand during the late 1990s and in Australia in 2010.[43] In the course of conducting his psychosocial examination on the Applicant, Dr Freeman noted ‘Mr McCombie has consistently demonstrated a strong work ethic. He commenced part-time employment during adolescence (e.g delivering newspapers) and worked as a plumber’s assistant after completing school (6 mths) and carpet laying (6 mths).’[44] Professor Freeman also noted that the Applicant also worked in the cleaning industry for four years ‘before completing a “linesmen” apprenticeship (four years) in New Zealand. He has remained employed in this industry.’[45]
[43] Ibid, p 189, [5].
[44] Ibid, pp 189-190, [6.3].
[45] Ibid, p 190, [6.3].
Professor Freeman made a note of the Applicant’s relationship history together with the extent of his drug and alcohol use. He noted the Applicant ‘…does not have a childhood or pre-apprehension psychological/psychiatric treatment history.’[46] Professor Freeman further noted that at the time he examined the Applicant ‘…he engaged in approximately 8 counselling sessions…’ and that ‘He has never been prescribed anti-depressant or anti-psychotic medication.’[47]
[46] Ibid, [9.1].
[47] Ibid, [9.2]-[9.3].
Professor Freeman also conducted a clinical assessment. That assessment yielded the following results: in terms of a mental status examination, Professor Freeman observed ‘There were no observable abnormalities in the seven factors of the MSE: general appearance, psychomotor behaviour, mood and affect, speech, cognition, thought patterns and level of consciousness.’[48]
[48] Ibid, p 191, [10.1].
In terms of a clinical assessment, Professor Freeman made the following findings:
‘– no formal diagnosis
Mr. McCombie does not appear to be experiencing any type of psychological disorder.
…
While the assessment approach precluded comprehensive psychometric testing, he presented with functional levels of intelligence with no evidence of impairment.
…
In regards to his presenting personality features, there was no evidence to indicate that Mr. McCombie met the criteria for any form of Personality Disorder.
…
There is not a large body of evidence to indicate he consistently engages in erratic or impulsive behaviours.
There were no observable abnormalities on other key criteria reflective of personality disorders…’[49]
[49] G1, p 191, [10.2]-[10.7].
Professor Freeman then conducted an actuarial risk assessment on this Applicant. He did so via three assessment tools. I will summarise Professor Freeman’s findings with reference to each of those tools. First, Professor Freeman applied the Hare Psychopathy Check List (PCL-R). He considers that the PCL-R ‘It is widely considered one of the most effective predictors of reoffending, particularly scores above 20 (with scores of 30 being considered indicative of psychopathy).’[50] Professor Freeman opined that:
‘Mr. McCombie received a total raw score of 1 that equates to a percentile rank (PR) of 0.3…Therefore, Mr. McCombie’s score is well below the average prisoner’s ranking, and also falls below the cut off raw score of 30 in order to be classified as suffering from psychopathy.’[51]
[50] Ibid, p 192, [12.1].
[51] Ibid, [12.2].
Second, Professor Freeman applied the HCR-20[52] testing methodology on the Applicant. This is a checklist designed to assess the risk for future violent behaviour in criminal and psychiatric populations. Professor Freeman reached the following opinion:
‘A review of Mr. McCombie’s psychosocial history indicates that he can be considered in the “low” risk category for committing future acts of violence with a score of 3 out of 40 (low risk scoring is between 0 and 20).’[53]
[52] Historical, Clinical and risk Management Violence Assessment Scheme.
[53] G1, p 193, [12.4].
Third, Professor Freeman applied the VRAG[54] testing tool which is a rating scale utilised as a means of predicting an individual’s probability of violent recidivism. Professor Freeman formed the following opinion:
‘Mr. McCombie’s score on the VRAG indicates that he can again be considered in the “low” range for future acts of violence. He scored -13 and the “low” range is from -24 to -7.’[55]
[54] Violent Risk Appraisal Guide.
[55] G1, p 194, [12.5].
In terms of a concluded clinical summary and risk assessment analysis, Professor Freeman made the following observations and findings:
‘He was quick to enter the workforce, obtained formal trade qualifications and has since demonstrated a strong work ethic. The applicant has generally experience good mental health, has not aligned himself with a negative peer support group nor demonstrated significant criminal versatility. Additionally, he has remained in a stable long-term relationship and focused on parental duties.
…
Given the lack of clear deviant ideation or outstanding criminogenic treatment needs, it is difficult to identify with a high level of psychological certainty the origins of the uncharacteristic offence. At best, he appears to have reacted excessively to a perceived emotional stressor (perhaps when fatigued) and he utilised reactive violence in order to resolve the interpersonal dispute (when agitated due to exposure to offensive threats towards his family). Mr. McCombie’s assertion that he did not seek to substantial harm the complainant appears genuine and is consistent with a lack of clear violent offending in his past.
Importantly, he continues to accept culpability for the events and demonstrates remorse and victim empathy. He also has an appropriate level of insight into the origins of the event.
Utilisation of the current actuarial tools (e.g., PCL-R, HRC-20 and VRAG) indicates Mr. McCombie can be considered in the “low risk” category for recidivism, which is also consistent with his progression to a low security correctional facility.
…
In summary, it is the writer’s Structure Professional Judgement (STP6) that Mr. McCombie presents as a pro-social individual who continues to be extremely remorseful for engaging in the uncharacteristic behaviour. As such, there do not appear to be any clear criminogenic treatment needs or outstanding risks (to the community), but rather, his goals are prosocial and achievable.
…’[56]
[My emphasis and underlining, internal citations omitted]
[56] Ibid, pp 194-195, [13.1]-[13.5].
Sentencing remarks of Judge Cash DCJ KC: His Honour noted that the Applicant is ‘a man who has worked’. Having regard to the letter of apology that the Applicant wrote to the victim,[57] His Honour concluded (consistently with Professor Freeman): ‘…I think that plainly indicates that you are properly remorseful for what it is that you did, recognising not just the harm you caused to him, but the ongoing harm you have caused to your own family as well.’ Further paralleling the findings of Professor Freeman, Judge Cash concluded that the Applicant is ‘…otherwise a good person who has worked hard, and is supportive of and has the support of, your family.’ To my mind, the confluence between the sentencing remarks of Judge Cash (presumably not a clinician) with the observations and findings of Professor Freeman – whose clinical findings were made 14 months later – is both significant and important. This is so because a very experienced criminal sentencing judge and suitably experienced clinician effectively reached very similar conclusions about this Applicant some 14 months apart.
[57] G1, p 70.
Applicant’s position stated in his Statement of Facts, Issues and Contentions (‘SFIC’): the Applicant’s SFIC canvases the virtual totality of the above-described elements speaking to the Applicant’s recidivist risk. It goes on to relevantly and validly say that the Applicant has been gainfully employed in Australia for 15 years and that his employer would readily re-employ him upon a return to this country. The Applicant’s SFIC notes that:
‘…while we accept that the Applicant conduct will be considered as ‘very serious’ under the Direction No. 99, it is mitigated by the fact that the conduct in this case is out of character, and does not represent a pattern of conduct. It relates to a serious lapse of judgement for a few minutes of time in the context of an ongoing neighbourhood dispute. It is clear from the circumstances of this case that the Applicant is of very low risk of re-offending, which means that there is little risk of future harm to the Australian community.’[58]
[58] A1, p 13, [59].
Findings about, and assessment of, recidivist risk
I make the following findings about the Applicant’s recidivist risk:
·the views and findings of Queensland Corrective Services are significant in terms of assessing this Applicant’s level of recidivist risk. Those prison authorities are charged with the significant responsibility of maintaining peace and good order in the often volatile atmosphere of a custodial institution. Those authorities do not lightly make assessments about a prisoner’s recidivist risk level, especially in circumstances where they are contemplating moving an Applicant from one custodial facility to another. Their assessment of the Applicant as representing a low recidivist risk is both current and contemporaneous with this matter. It is compelling evidence of his recidivist risk and should be accepted by this Tribunal;
·the evidence of Professor Freeman is expert and otherwise unchallenged. True it may be that he was not produced for cross-examination, but so clear and strong are his findings that it is difficulty to comprehend what, if any, inroads could have been made into his findings during cross-examination. His report leaves the reader in no doubt that the Applicant is a well-adjusted individual with absolutely no psychopathological symptoms or pre-dispositions that could now raise any discernible element of recidivist risk. Professor Freeman’s findings about the Applicant’s level of insight into both the origins of the index offending and its primary (on the victim) effect as well as its secondary (on the Applicant’s family) effect is clinically sound and incapable of challenge. Professor Freeman’s finding of a low recidivist risk is likewise clinically sound, beyond challenge and worthy of acceptance by this Tribunal;
·the Applicant’s own written evidence is demonstrative of a person who has been assessed to have clear and obviously high levels of remorse and regret for his index offending. It would be unsafe to doubt the Applicant’s evidence when he talks about ‘I believe the chances of me re-offending are zero. It is a path I will never follow again.’ The Applicant’s oral evidence given in cross-examination completely dispelled any suggestion of past or present pre-dispositions towards an abuse of alcohol and/or cannabis or any of other illicit substance;
·well over a year before Professor Freeman reached his views, Judge Cash made the same findings about (1) the Applicant’s strong work ethic; (2) the obvious and significant levels of his remorse and regret; (3) the impact of his index offending on both the victim and the Applicant’s own family; (4) the extent to which the Applicant is held in high regard by his peers; and (5) the extent of the support he has derived, and continues to derive, from his family.
Therefore, the position appearing in the Applicant’s SFIC is valid and should be adopted by this Tribunal. Specifically, while the nature of his index offending has been very serious, it is mitigated by a reality (and finding by this Tribunal) that his conduct (in committing the index offence) was out of character and does not otherwise represent a pattern of violent conduct deriving from any history of alcohol or illicit substance abuse.[59] I accept the Applicant’s submission in his SFIC that he represents a very low risk of re-offending.
[59] A1, p 13, [59].
(c) Type of visa sought by Applicant
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious’;
(b)I have found that if this Applicant were to re-commit any of his index offending, there would follow very serious physical, psychological and, quite conceivably, catastrophic harm to a victim(s). Any re-commission of the Applicant’s index offending and the harm that it would cause would be, to my mind, so serious that any risk that it may be repeated would be unacceptable; and
(c)in terms of recidivist risk, I adopt the findings that this Applicant represents a very low risk of re-committing his index offences. I extend that findings to the Applicant’s risk of committing other general offences of the type he has committed both here and in New Zealand.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a certain, but not determinative, level of weight against this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
The parties are in agreement that this Primary Consideration 2 does not apply to the instant determination.[60] I agree and allocate neutral weight to it.
[60] See A1, p 13, [61]-[62]; see R1, p 8, [36].
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this Paragraph 8.3. I will address each in turn.
The material – specifically the Applicant’s SFIC – contains a helpful summary of the Applicant’s family composition including the locations of where those family members reside:
‘Family composition
The Applicant’s immediate family comprises his wife and three minor children, all of whom are Australian citizens:
(a)Wife – Kahlia Jade McCombie – date of birth [November 1989], currently aged 33;
(b)[Male] Child – [Child LJM] – date of birth [born July 2015], currently aged 7;
(c)[Female] Child – [Child MRM] – date of [born January 2018], currently aged 5; and
(d)[Female] Child – [Child TVM] – date of [Born July 2020], currently aged 2
The Applicant’s marriage certificate, and the birth certificates for his children can be found at [internal citation omitted]. Evidence of the home owned together with his wife Kahlia is at [internal citation omitted].
The Applicant has the following other family members:
(a)Parents: William McCombie and Mary McCombie. Both parents are citizens and residents of New Zealand;
(b)Siblings: Phillip has 5 siblings, including 1 older sister (Leonie [M]), 2 older brothers (Bernard McCombie and David McCombie), and 2 younger brothers (Matthew McCombie and Christopher McCombie). All siblings are citizens of New Zealand and, aside from Christopher McCombie, reside in New Zealand. Christopher McCombie resides in Sydney, New South Wales.
The Applicant also maintains strong connections with his extended family (his wife’s mother and siblings), all of whom are Australian citizens residing in Australia:
(a)Mother-in-law: [Ms RD] (date of birth [March 1961]), aged 62;
(b)Brother-in-law: Brendan Browne; and
(c)Sister-in-law: Natasha Browne.’[61]
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[61] A1, pp 4-5, [22]-[25].
The first exercise is to identify the Applicant’s immediate family in Australia who are citizens, permanent residents or people who have a right to remain in Australia indefinitely. The material presents the Tribunal with a conundrum in relation to whether the Applicant’s wife, Ms Khalia Jade McCombie (an Australian citizen)[62], falls within the auspices of this paragraph 8.3(1). The conundrum arises because Ms McCombie relocated to New Zealand with the Applicant in December 2022 barely a couple of weeks after he went there on 24 November 2022. This is how she explains the relocation of herself and the three children in her statutory declaration appearing in the material:
‘Reasons to move to New Zealand
My husband Phillip McCombie was released from prison on the 17 October 2022, and he he [sic] entered immigration detention on that day.
As a family, we decided that we did not want to be separated for any further amount of time, and we decided that Phillip would request voluntary removal to New Zealand, so that he could be released from immigration detention, and that we could be together as a family again.
The main motivating factor was the distress our kids were experiencing due to their continued separation from their father. They were asking for him all the time when daddy was coming home. Given that we had the option of travelling to New Zealand to stay while the Administrative Appeals Tribunal application progress, we decided that would be the best choice for our family and in the best interests of our children.’[63]
[62] See Transcript, p 74, line 45.
[63] A3, p 7, [3]-[5].
I raised this conundrum with both representatives at the hearing. The upshot of that particular discussion is that it is open to this Tribunal to, as it were, create a separate Primary Consideration within which the Applicant’s ties to his wife, as his immediate family member, can be considered. This is so for reasons recently found by the Full Court in,
‘…with reference to the power, found in s 501CA(4) of the Act, to revoke the cancellation of a visa, in relation to which considerations specified in a direction made under s 499 of the Act are also relevant, the Full Court observed of such considerations that they are “not an exhaustive universe”. In the face of an ability to revoke cancellation as open-ended as if satisfied “that there is another reason why the original decision should be revoked”, that, with respect, must follow.’[64]
[64] Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94, per Logan , Derrington, Anderson JJ at [42].
If I were to entirely ignore the interests of Ms McCombie on the basis that she (1) is an Australian citizen; but (2) not ‘in Australia’ at the time of my decision I would be unfairly ignoring her interests by adopting an overly ‘…formulaic approach, straightjacketing [myself] by the parameters fixed by the Minister in [Direction 99]…to the exclusion of considering key elements or key “integers” of the case presented by [the Applicant]…’[65] For the purposes of these Reasons, I find that the extent of the Applicant’s ties to his wife does constitute a key element or integer of this case. On that basis, I will consider those specific ties under a separate Primary Consideration 3(A) but not under the auspices of this Primary Consideration 3.
[65] Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94, per Logan , Derrington, Anderson JJ at [18].
Having regard to the abovementioned family composition list helpfully provided in the Applicant’s SFIC, the only other remaining immediate family members of the Applicant in Australia comprise his abovementioned mother-in-law (Ms DR), brother-in-law (Mr Brendon Browne); sister-in-law (Ms Natasha Browne); and his brother, Christopher McCombie. I will deal with the Applicant’s ties with each of these family members in turn.
Ms DR: Ms DR is not a well woman. There is a histopathology report in the material dated 17 March 2023.[66] In lay terms, it can be safely stated (and found) that Ms DR has been diagnosed with having a malignant invasive ductal carcinoma (breast cancer). The Applicant’s representative originally intended to call Ms DR to provide oral evidence to the instant hearing. But Ms DR was precluded from appearing because of the abovementioned diagnosis.[67] It is a reasonable presumption to conclude that Ms DR was most likely precluded from preparing and providing to the Tribunal a statement contemporaneous with the instant hearing.
[66] Exhibit A3, pp 1-2.
[67] See Transcript, p 3, lines 34-40.
However, there is a statement from her and it dates from 25 September 2021. As such, it pre-dates her abovementioned diagnosis. The statement appears to have been prepared as part of the Applicant’s representations to have the initial mandatory cancellation decision revoked. The statement is in the material.[68] It refers to the Applicant in these terms:
‘Phillip has been in the same job with [Company V] as a [specialised linesman] for 14.5 years He has been a reliable and consistent employee. Phillip and my daughter Kahlia were married 8 years ago next month. Phillip has been an excellent provider and role model for his family. I have always found him to be extremely kind and helpful to myself As a husband to Kahlia and father to his 3 children he has always been patient, loving, caring and generous. Phillip and Kahlia have a solid marriage and I have never heard a harsh word between them. I lived with them for 8 months last year. I never saw any violence from Phillip to my daughter or his children.
…
It will be a miscarriage of justice to send Phillip back to New Zealand. It doesn't seem right when he can return to his job at [Company V] as a [specialised linesman] upon his release from prison and continue to support his family. Phillip has an important job that can’t be completed by just anyone and requires many years of training. Throughout his career in Australia he has travelled to disaster areas such as Cyclone Yasi and the Brisbane floods where he would restore the electricity to the communities that went without power for weeks. Instead, my daughter will be a single parent of 3 children on Government Support for the next 18 years.’[69]
[68] G1, pp 160-161.
[69] G1, pp 160-161.
In her statement, the Applicant’s wife discusses her mother’s diagnosis and it is reasonable to surmise from that statement that, were she in Australia, the Applicant’s wife would be supporting her mother:
‘Mother’s diagnosis of cancer
My mum [Ms DR] has just been diagnosed with an aggressive form of breast cancer (malignant invasive ductal carcinoma). She was formally diagnosed on [in March 2023].
She found a lump in her breast 6 weeks prior, and had a scan. She had a biopsy, and the biopsy has come back confirming that she has cancer.
She has an appointment with her treating oncologist at the [name of hospital redacted] this Friday 31 March 2023. In that appointment they will discuss her prognosis and the plan for treatment.
When she had the scan and the biopsy, they discussed some of the options, which will likely include a mastectomy and chemotherapy.
My mum is definitely scared and distressed by this diagnosis. She is on her own in Australia. I am her main support person, and I am not there to help her. I feel pretty helpless over here.
My sister lives about 2 hours away, she’s pregnant, has two children, and her partner has just had surgery on his arm, so he is not able to drive at the moment. So she is pretty limited in what kind of supports she can provide our mum, although she will do what she can.
My brother lives about an hour away. His wife has said that she will do what she can as well. They have three kids so they are limited too.
When we lived in Australia we lived 7 minutes away from my mum. If we were able to return to Australia, we are intending to return to the same area, close to my mum so that I can help her through all this.
I feel really devastated and helpless to be in New Zealand, and not to be able to be living in Australia and helping my mum.
My mum is really missing the children in particular as well. She spent a lot of time with my youngest because she looked after her for two years. When she facetimes the kids, she cries because she misses them so much. The separation is more difficult because of her diagnosis.’[70]
[70] A3, pp 7-8, [11]-[20].
At the hearing, the Applicant’s wife confirmed that her mother currently resides at the Sunshine Coast, in regional South East Queensland. She was specifically asked about her mother’s abovementioned diagnosis and she responded in these terms:
‘MS LENTON: Okay. I understand that your mother was recently diagnosed with cancer; is that correct?
MS MCCOMBIE: Yes.
MS LENTON: Okay. Are you able to tell us what happened? When did she start experiencing symptoms?
MC MCCOMBIE: It’s probably about 10 weeks ago she found a lump in her breast. She got a scan done. They said she needed to go back for a biopsy. The biopsy come back and they said she has breast cancer. She just had an appointment last Friday but she needs to get - carry out another blood test just to determine if it’s hereditary or if it’s another - some more details they need to find out about it and then she’ll start chemo.
MS LENTON: Has the doctors discussed with your mother what is the plan for treatment?
MS MCCOMBIE: Yes. So, she’ll do six months of chemo first. They want to see what they can - kill off the cancer and then she will either get - is it a double mastectomy, is that the correct word? She’ll have to get both breasts removed or she’ll have to get one of them removed with a scar. So they’re just not quite sure yet and it just all turns on how the chemo is - attacks it but surgery will come second. If they open it up now, it will probably spread to the rest of her body.
MS LENTON: Have they given her any indication of prognosis or likely survival rates of the type of cancer that she has?
MS MCCOMBIE: I guess they said that it’s going to a five year battle that she’ll be out of the hospital for. They said everybody takes chemo differently and reacts different to it. So, yes, I think once they get the next blood results back, they sit around a table and they discuss everything and then they’ll be able to give her more of an exact plan of how they’re going to treat the - that type of breast cancer.’[71]
[71] Transcript, p 52, lines 17-43.
The Applicant’s wife was then asked about (1) what type of support she would be able to offer her mother through the course of her mother’s illness; and (2) the extent to which her siblings would be able to assist her in caring with their unwell mother:
‘MS LENTON: Have the doctors talked to your mother, or your family, about what her support needs will be when she’s going through chemotherapy?
MS MCCOMBIE: Yes, definitely. She was given a support worker and she has the network of support at the hospital that will be able to help her.
MS LENTON: And what about emotional and physical support outside that system? What about family support? Have they talked about what families can do to support someone who’s suffering breast cancer?
MS MCCOMBIE: I’m not as - not that I know of just yet but I guess it’s just going to be my sister, my brother helping her, take her to appointments. They did say that the first week of chemo is pretty good but then the second week is when people start to - you know, not able to look after themselves, so ‑ ‑ ‑
MS LENTON: Okay. Your sister, is she married?
MS MCCOMBIE: No, she’s not. She has a partner.
MS LENTON: And does she work?
MS MCCOMBIE: She works full-time at the moment as a school teacher.
MS LENTON: Does she have any children?
MS MCCOMBIE: She does. She has a son, [Child A], a daughter, [Child CC], and she is pregnant at the moment with her third child.
MS LENTON: So she’s currently pregnant?
MS MCCOMBIE: Yes.
MS LENTON: And how far away from your mother does she currently live?
MS MCCOMBIE: It’s about an hour 45.
MS LENTON: Okay. And your brother is the other person in Australia?
MS MCCOMBIE: That’s correct, yes.
MS LENTON: Is he married?
MS MCCOMBIE: He is married, yes.
MS LENTON: Does he work full-time?
MS MCCOMBIE: He does work full-time, yes.
MS LENTON: Does he have any children?
MS MCCOMBIE: He does. He has a daughter [Child G], a son [Child N] and another four month old, [Child C].
MS LENTON: And how far away does he live?
MS MCCOMBIE: He’s about 40 minutes.
MS LENTON: If you were living in Australia, what kind of supports would you be giving your mum?
MS MCCOMBIE: I guess I’d be there every day to assist her. I would take her to appointments. I’d be able to care for her in one of the toughest times of her life.
MS LENTON: Do you currently work fulltime?
MS MCCOMBIE: No, I don’t. I just work part time, casual.
MS LENTON: How many hours per week?
MS MCCOMBIE: I work about five to 10, so it just varies depending on the workload.
MS LENTON: So you would have capacity to assist and support your mum?
MS MCCOMBIE: Yes, I would.’[72]
[My emphasis]
[72] Transcript, p 52, lines 45-46; p 53, lines 1-47.
In his written statement[73] the Applicant refers to Ms DR’s diagnosis and the consequent requirement for his wife to provide assistance and care for her in these terms:
‘We recently found out that Kahlia’s mother has been diagnosed with aggressive breast cancer. She has had some very emotional times since she found that out and has been quite stressed.
It is so important for us to return to Australia to support Kahlia’s mum during this time. Kahlia and the kids are Australia citizens, Australia is their home. They will stay here with me in New Zealand if we have to, but that isn’t fair to them.’[74]
[73] A3, pp 5-6.
[74] Ibid, p 6, [11]-[12].
In his oral evidence, the Applicant spoke of himself and/or his three infant children and/or his wife seeing the mother-in-law ‘nearly every day.’[75] The diagnosis of Ms DR was put to the Applicant during his evidence-in-chief and the resulting requirement for care arrangements to be put in place for her. He mentioned the following in his oral evidence:
[75] Transcript, p 15, lines 8-9.
‘MS LENTON: So your mother-in-law has been diagnosed with cancer, is that correct?
THE APPLICANT: That’s correct.
MS LENTON: When did that happen?
THE APPLICANT: Just recently, in the last couple of weeks. It’s a ‑ ‑ ‑
MS LENTON: How is Kahlia coping with that?
THE APPLICANT: She - she’s very stressed at the moment. She’s getting a bit emotional about not being there for her. It’s like - she’s doing it - yeah, rather tough.
MS LENTON: Okay. If you were - if you were to move back to Australia, what would that look like? Where would you live, for instance?
THE APPLICANT: We would aim to be as close as practical to her mother to provide her support - somewhere in Brisbane.
MS LENTON: Sorry, go ahead?
THE APPLICANT: Depending - I don’t know what the housing market is like, or any rentals so, you know, we would be as close as we could, to help her out.’[76]
[76] Transcript, p 20, lines 14-30.
With particular reference to Ms DR, I am satisfied that the Applicant’s ties to her are strong and palpable. This is so for a couple of reasons: (1) it seems clear that the Applicant has been a good, loyal and loving son-in-law to Ms DR. So there is the predictably resulting emotional connection between him and her; (2) those ties are now augmented by the agency of his wife. Specifically, the Applicant’s wife must return to Australia to assist in the care of her mother in the dire circumstances of her very serious diagnosis. I consider it a particular integer or key element of the case that the Applicant’s ties to Ms DR not only apply between him and her, but that they also apply or arise (and merit considerable weight in his favour) via the reality that the Applicant’s wife is urgently required to care for her mother and that the mother cannot otherwise relocate to New Zealand. In both a personal sense – that is, in terms of the strong relationship she has with the Applicant – and in a logistical sense – that is, in terms of the support she would not receive from both the Applicant and his wife in the circumstances of Ms DR’s illness – I am satisfied that Ms DR would more certainly be adversely impacted by the Applicant’s permanent exclusion form her life.
Ms Natasha Browne: is the Applicant’s sister-in-law. She is the sister of the Applicant’s wife. Although she did not give evidence at the instant hearing there is a statement from her (albeit undated) that appears in the material.[77] She has known the Applicant since she was 18 years old. She says the Applicant ‘…has been a huge part of my life as I am extremely close with my sister and we have a tight knit family.’[78] She adds that:
‘Throughout the 16 years of knowing Phillip I have also lived with them on two separate occasions, and he has supported me through some of my toughest moments.
I would spend weekends with them, we have gone away on holidays together, raised children together, spent the school holidays together and celebrated most events throughout the year such as birthdays, Easter, Christmas and other special family events.’[79]
[77] A2, pp 2-3.
[78] Ibid, p 2.
[79] A2, p 2.
Ms Browne is aware of the Applicant’s offending and was in court on the day of his sentencing to offer support to both him and her sister. She says the Applicant:
‘…is a kind and compassionate person, he has always been there for myself and my family in times of need. Phillip has always been a big advocate for spending quality time with children, both his own and his nieces and nephews. He would always been creating silly games to engage the kids and reading book, after book, after book. He would take the kids out for bike rides, take them to the breach to go boogie boarding, build sandcastle and dig holes. He would take them to the park and push them on the swings until the kids had finally had enough. Phillip loves taking the kids on nature walks in the backyard at dusk to show the kids how the garden comes to life at night time with an array of insects and animals. He would take the kids out in raincoats and with umbrellas when it was raining so they could experience the rain in a playful way. Phillip was always the “fun uncle” and both myself, and my son miss his charismatic and infectious personality. Unfortunately, Phillip was incarcerated by the time m second child was born, and he has never met her. She has never been involved in one of Phillip’s spontaneous dance parties in the living room with all the kids, or heard him singing “Itsy Bitsy Spider” to her (a favourite of his).’[80]
[80] Ibid, pp 2-3.
In terms of how the Applicant’s ties with her have manifested in a practical sense, she says the following:
‘After Phillip was incarcerated, I moved my small family down to the Sunshine Coast to help provide my sister, Kahlia with emotional, physical and financial support for a period of time. I had to move on after the birth of my second child. I still provide emotional support for my sister and I help out as much as possible with her children on the weekends when I see them. Living in two different cities, we see take turns journeying to see each other every fortnight or more.’[81]
[81] Ibid, p 3.
Finally, she talks about being devastated if the Applicant were removed to New Zealand:
‘I personally would be devastated if Phillip was deported. Flying our family over the NZ in the current economic climate is not achievable. It would be years before we see Phillip again. Which means, more missed birthdays, more missed Christmases and more missed quality family time.’[82]
[82] Ibid.
In an earlier statutory declaration appearing in the material[83] the Applicant refers to both Ms Natasha Browne and his brother-in-law (and brother of his wife) Mr Brendon Browne, in these terms:
‘I also have strong relationships with my brother and sister-in-law (Kahlia’s siblings):
(i) Brother-in-law: Brenden Browne – Kahlia’s brother – has a wife, two children, with another baby on the way. We keep in regular contact. Prior to incarceration, we would meet up so that the cousins (my nieces and nephews) could play.
(ii) Sister-in-law: Natasha Browne – Kahlia’s sister – is also in regularly contact with me and would also visit regularly so that the cousins play together. She has two children (my niece and nephew).’[84]
[83] G1, pp 105-111.
[84] Ibid, p 105.
Mr Brendan Browne: as best as I understood the material, there is no written statement from Mr Browne, nor did he given oral evidence at the instant hearing. During his evidence-in-chief, the Applicant spoke of this brother-in-law in these terms:
‘MS LENTON: Okay. And what about Kahlia’s brother and sister, how far away do they live?
THE APPLICANT: Brendan, he’s living - he’s down in [suburb redacted] now. So, he’s about an hour and her sister, [Natasha], is in Ipswich, so probably an hour and a half away.
MS LENTON: And how often would you see your brother or Kahlia’s siblings?
THE APPLICANT: We would get-together quite regularly. We’d go on camping trips and get - you know, weekends so the kids could play.
MS LENTON: How often on average would you say that that would occur?
THE APPLICANT: At least once a fortnight we’d have a catch-up.
MS LENTON: And how often would you or the children or Kahlia see Denise?
THE APPLICANT: Nearly every day.
MS LENTON: Why was that, why were you seeing her so often?
THE APPLICANT: I’d help her out with things around the house and she would come and visit the grandchildren and…’[85]
[85] Transcript, p 14, lines 43-45; p 15, lines 1-13.
I have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraph (d) by virtue of his commission (in 2010) of acts involving a failure to follow a lawful direction of a police officer.[137] But, I do not include his index offending as an offence captured by the auspices of paragraph 8.5(2)(c) of the Direction. True it is that his offending against the victim of that index offence was unquestionably violent, but that violence was not perpetrated against ‘…women, children or other vulnerable members of the community such as the elderly or disabled…’. Be that as it may, even for his relatively unremarkable and petulant offending in 2010 (in refusing to follow a lawful direction), the commission of even this unremarkable conduct means the Australian community expects that the Australian government can and should refuse to set aside the mandatory cancellation of the Applicant’s visa.
[137] Paragraph 8.5(2)(d) of the Direction.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[138]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[139]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[140] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[138] Paragraph 5.2(4) of the Direction.
[139] Ibid.
[140] Paragraph 5.2(5) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [162], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa since 28 September 2019[141] until it was cancelled on 1 July 2021.[142] This visa permits a citizen of New Zealand to remain in Australia indefinitely.[143] As the visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the visa held by the Applicant cannot be classified as a limited stay visa.[144] Therefore this sub-paragraph (a) is not applicable to the Applicant.
[141] R1, p 2, [3].
[142] Ibid, [5].
[143] Regulation 444.511 of the Migration Regulation 1994 (Cth).
[144] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [162], the Applicant has resided in Australia (on a permanent basis) from April 2005 when he was 28 years old. He is currently aged 46 years. He has a demonstrated a very impressive work history in Australia. He has fathered three biological children in Australia who are respectably aged seven, five and two years old. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Act.
In relation to sub-paragraph (c) of the abovementioned paragraph [162], I repeat that the Applicant resided in Australia from the age of 28. He is currently 46 years of age. He has resided in Australia (on a permanent basis) since April 2005. He has spent approximately 40% percent of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [162] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. I make this finding even though he did not spend his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [162], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his index offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s index offending conduct and the resulting harm from that conduct (thus far) has been of a serious magnitude such as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [162], I have found that the Applicant’s offending in 2010[145] is captured by, specifically, sub-paragraph 8.5(2)(d) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. This is the case even in circumstances where, as I have found, he represents a very low recidivist risk of causing physical harm to the Australian community. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour even where he represents a very low recidivist risk.
[145] That is, his petulant and stupid refusal to follow lawful authority and not his index offending.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [162] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of his very serious index offending, I am of the view that this Primary Consideration 5 compels a finding that the community expects that the Australian government can and should refuse to set aside the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a certain, but not determinative, level of weight in favour of this Tribunal exercising its power to not revoke the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequence of the decision
The parties are in agreement that this Other Consideration (a) is not relevant to the instant determination and that it should be weighed neutrally.[146] I agree.
[146] See Transcript, p 9, lines 1-12; see also R1, p 10, [47].
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
A further nuance of this case is that the Applicant’s decision to voluntarily relocate to New Zealand in November 2022 flies in the face of the orientation of this Other Consideration (b). This is because its language is future looking, that is, one must look to the extent of impediments a non-citizen would confront if removed to their country of origin. Here, the Applicant voluntarily returned to his country of origin in November 2022. At first blush, one could blithely put this Other Consideration to one side. Out of an abundance of caution, I will nevertheless address it.
Paragraph 9.2(1)(a): it can be safely found that the Applicant is in the prime of his life and that there are no age or health-derived impediments confronting him in New Zealand. On the contrary, he swiftly (and impressively) found and secured work in New Zealand of the same type he did in Australia. There is nothing in the evidence referrable to his work in New Zealand being impeded by his age and/or health.
Paragraph 9.2(1)(b): likewise, the evidence has nothing to say about any substantial language or cultural barriers impeding the Applicant’s re-settlement in New Zealand. As previously noted by this Tribunal (differently constituted): ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…].’[147]
[147] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. He does not need medical support because there is nothing to suggest his state of health requires immediate or ongoing attention and/or treatment. He does not need economic support in New Zealand because he has, very impressively, re-established himself in New Zealand to roughly the same income levels he derived while in Australia. He does not need social support[148] in New Zealand. But he has it if he needs it because both of his parents reside there and four of his five siblings reside there. All of them are New Zealand citizens as best as I understood the material.
[148] That is, in the theoretical scenario where Ms McCombie and the children had not relocated to New Zealand in December 2022.
Findings about impediments
I am of the view that this Other Consideration (b) confers a neutral level of weight to the determination of the instant matter.
Other Consideration (c): Impact on victims
The parties are of one mind that this Other Consideration (c) is not relevant to the instant determination and that it should be treated neutrally.[149] I agree.
[149] See Transcript, p 9, lines 1-12; R1, p 11, [52].
Other Consideration (d): Impact Australian business interests
Paragraph 9.4(1) compels an assessment of the impact on Australian business interests as a consequence of the Applicant’s removal. Most usually, parties to proceedings such as this either do not propound the application of this Other Consideration (d) or an Applicant’s line of work does not fall within the auspices of ‘the delivery of a major project; or delivery of an important service in Australia.’ That may very well be the case with this Applicant.
However, before reaching such a conclusion it is necessary to first have a fulsome understanding of exactly what it is that the Applicant does for a living, both here and New Zealand. I do not profess any expertise in technical or trade-based lines of work. I therefore sought to enunciate from the Applicant, in lay terms, precisely what type of work he did. The following transpired between me and him at the hearing:
‘SENIOR MEMBER: All right. Now, I’m not very technically minded, so I’m sorry to ask you this question: are you one of those very important people who get involved in reconnecting high voltage electrical lines when they come down as a result of some kind of traumatic incident like a storm or a big car accident or something like that? Are you the sort of person who comes along and, if there’s a live wire on the road or something and we’re all told not to touch them and go near them, is it people like you that reconnect that and fix that situation?
THE APPLICANT: That is correct.
SENIOR MEMBER: Okay. Well, if that’s so, my query is why would you have been stood down during a pandemic? Of all the essential work that I know of, surely that’s essential work for the community, isn’t it? You were just as important as a surgeon who’s got to conduct emergency surgery on someone. If someone’s got to pick up a live and very dangerous electrical wire off the road, that’s you. Why would you have been stood down?
THE APPLICANT: Because we were contractors to [Company E], and at the time [Company E] had the capabilities of hiring vehicles so that their workers could travel in separate vehicles. And because they are the entity, they were doing all that sort of work required.’[150]
[150] Transcript, p 38, lines 33-47; p 39, lines 1-3.
An independent perspective into the nature and quality of the work performed by the Applicant can be seen in the statement of the abovementioned Mr Nicholas PK who said the following about the Applicant and his work life:
‘Phillip’s professional life also speaks volumes of his character. Given an opportunity by [Company V] when he migrated to Australia seventeen years ago, Phillip commenced work as a linesman in their high voltage transmission and distribution department. Promoted to [leadership position] after only two years and current to this day, [Company V] entrusted not only the safety of the public but also his fellow work colleagues, which taking into consideration the very high risk and volatile environment they operate in, is a major responsibility and one which Phillip accepted and has delivered on loyally for the past fifteen years.’[151]
[151] G1, p 151.
The question thus becomes to what extent can it now be safely found that the instant decision, if adverse to the Applicant, would significantly compromise the delivery of an important service in Australia. Specifically, the question then becomes whether the Applicant’s work comprises the delivery of an important service in this country. In Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[152] (‘Arachchi’), the applicant was a co-proprietor of a pizza shop business. The basic contention of the applicant was put in these terms:
‘My pizza shop will not continue if I was to be removed from Australia as it is already struggling without my help. My business partner recently had twins and already struggling to continue the shop without my help. Covid has already affected the business very badly and me not being there has led my business partner to struggle with spending time with his precious family and carrying on and growing the business. I strongly believe that I should return to my business and help it grow and create more jobs and expand as a great franchise.’[153]
[152] [2022] FCA 1311.
[153] Ibid at [58].
In concluding that the Applicant’s pizza shop business comprised the delivery of an important service in Australia, His Honour Justice Rangiah made the following observations:
‘Paragraph 9.4.2 of Direction 90[154] commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia ...”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.
Paragraph 9.4.2 goes on to state that, “an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. Three observations may be made. First, this qualification applies only where there is a relevant “employment link”. Second, even where there is a relevant “employment link”, decision-makers are not relieved from their obligation to consider any impacts on Australian business interests. Third, while “generally” weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances.
The expression “employment link” must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa. It is unnecessary, in the absence of argument, to consider precisely what is meant by “employment” in this context, or to consider the nature of the link that is envisaged. It is enough to conclude that, in the present case, the applicant’s claim was not confined to any “employment link” but was that he had an ownership interest in a business and that his removal from Australia would affect his partner’s business interests.
The Tribunal was required under s 499(2A) of the Act to comply with Direction 90. That Direction required the Tribunal to consider any impact on Australian business interests if the non-citizen were not permitted to remain in Australia. By misconstruing para 9.4.2 as only applying to an impact upon a “major project” or “important service”, the Tribunal precluded itself from considering the applicant’s claim concerning the impact of his removal upon his partner’s interest in the pizza business. The Tribunal failed to comply with s 499(2A).’[155]
[154] The precursor to the currently applicable 9.4(1) of the Direction.
[155] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [68]-[71].
On the instant facts (and adopting Judge Rangiah’s three step approach at paragraph [69] of Arachchi), the following findings can be made. First, there is a relevant employment link between the Applicant and his employer in Australia. Indeed, he will immediately resume his work duties were he able to return here. Therefore, this employment link can be given weight for present purposes. Second, even though there can be found to be the abovementioned relevant employment link, I am of the view (and I find) that such is the important nature of the Applicant’s work that the business interests of his employer would be impacted if he could never return to that workplace. His principal at [Company V] (Mr Michael PL) has confirmed that [Company V] ‘would have no concerns with re-employing [the Applicant] back into our resource teams…’ and otherwise speaks very highly of the Applicant’s decade long service to that company.[156] Third, I am satisfied that the business interests of [Company V] are ‘business interests in other circumstances’ such that weight can be allocated to them for the purposes of this Other Consideration (d).
[156] See the respective statements of Mr PL dated 26 May 2021 (G1, p 159); and 11 October 2021 (G1, p 75).
Overall, I am satisfied that the Applicant’s line of work and quality of work across an almost decade-long period of service with [Company V] is such to significantly compromise the delivery of an important service in Australia were this Applicant precluded from returning to that work in this country as a result of an adverse decision in this application. I allocate a moderate level of weight to this Other Consideration (d) in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of neutral weight;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of moderate weight in favour of revocation.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction.[157] I find as follows:
·Primary Consideration 1: carries a certain, but not determinative weight in favour of affirming the decision under review;
·Primary Consideration 2: is not relevant and weighs neutrally;
·Primary Consideration 3: is of a very heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 3(A): is of a very heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: is of a very heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 5: carries a certain, but not determinative weight in favour of affirming the decision under review;
[157] Including the additional Primary Consideration 3(A).
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3, 3(A) and 4 together with the weight I have allocated to Other Consideration (d), are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation decision of 21 July 2021.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 3 January 2023 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 191 (one hundred and ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
......................................[SGD].............................
Associate
Dated: 29 June 2023
Dates of hearing: 4 and 5 April 2023 Solicitor for the Applicant: Ms Victoria Lenton (Principal Lawyer) Lenton Migration Solicitor for the Respondent: Ms Elle Tattersall (Special Counsel) Sparke Helmore Lawyers ANNEXURE A
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED G1 Section 501 G-Documents
(G1-G34, paged 1-253)Various 13 Mar 2023 R1 Respondent’s Statement of Facts, Issues and Contentions
(paged 1-12)23 Mar 2023 24 Mar 2023 R2 Respondent’s Tender Bundle
(TB1-TB6, paged 1-62)Various 24 Mar 2023 A1 Applicant’s Statement of Facts, Issues and Contentions
(paged 1-25)13 Mar 2023 13 Mar 2023 A2 Applicant’s Additional Material
(AM1-AM3, paged 1-6)Various 13 Mar 2023 A3 Applicant’s Further Additional Material
(AM4-AM8, paged 1-8)various 30 Mar 2023
- AGLC
- McCombie and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1884
- Case
- [2023] AATA 1884
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation decision, having regard to Ministerial Direction No. 99. This involved assessing the applicant's character concerns, the protection of the Australian community, and other relevant considerations outlined in the Direction.
The Tribunal's reasoning focused on a holistic application of Ministerial Direction No. 99. It found that while the applicant's index offending, a conviction for grievous bodily harm, was serious, it was mitigated by several factors. These included the applicant's low recidivist risk, supported by assessments from Queensland Corrective Services and expert evidence from Professor Freeman, who found the applicant to be well-adjusted with no psychopathological symptoms. The Tribunal also considered the applicant's remorse, his strong work ethic, the impact of his offending on his family, and the support he received from them. Furthermore, the applicant's offending history, both in New Zealand and Australia, was found to be dated and relatively minor, with the exception of the index offence. The Tribunal concluded that these factors, when considered together, constituted another reason to revoke the mandatory cancellation decision.
Consequently, the Tribunal set aside the decision to refuse to revoke the mandatory cancellation and substituted it with a decision to revoke the mandatory cancellation of the applicant's visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:(a)legal consequence of the decision;(b)extent of impediments if removed;(c)impact on victims; and(d)impact on Australian business interests.PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. I make specific reference to Principle 5.2(3) of the Direction which contains the following words: ‘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.’[12] I will therefore look at the Applicant’s offending both in Australia and anywhere else. As best as I have understood the material, apart from Australia, the only other country where the Applicant has an offending history is New Zealand where his offending is recorded thus:[12] Paragraph 5.2(3) of the Direction. His offending history in Australia is of similar brevity to that of New Zealand. In Australia he has committed the following offences: I carefully searched the material and located the following very brief and mostly insignificant traffic history: Stated in summary then, the Applicant’s offending history in New Zealand is 25-27 years old. It involved the commission of three relatively unremarkable offences and was punished by a cumulative total of fines in the sum of $375. He has committed four offences in Australia. Three of them were committed some 12-13 years ago and involve convictions for three relatively unremarkable offences involving petulance towards, and disregard of, directions given to him by police officers lawfully authorised to do so. Those three offences were punished by a cumulative total fines amounting to $1300. His index offence[13] is clearly his conviction on one count of Grievous bodily harm pursuant to s 320 of the Criminal Code Act 1899 (Qld). The Applicant was sentenced to a head custodial term of imprisonment for four years to be suspended after he served a period in actual custody of 16 months. The operative period of the suspension was ordered to be four years. [13] That is, the offending for which he was sentenced by Judge Dearden in June 2021. The sentencing remarks of the learned sentencing judicial officer, His Honour Judge Cash DCJ KC, appear in the material.[14] His Honour noted the Applicant entered his own plea of guilty to this index offence and that this plea was an early plea entered upon presentation of the indictment.[15] His Honour then recounted the material facts of the offending in these terms:‘What you did is summarised in exhibit 2 the statement of facts. You lived next door to the complainant, who was a 54 year old man, who you did not really know beyond him just being your neighbour. On the evening of the offence, which was the 27th and the 28th of March last year, he had been on his patio with some others, drinking and listening to music. Obviously, that was loud. By 1 am, you went next door to tell them that they were being too noisy.The complainant, instead of responding like a decent person might, acted belligerently and told you to go and call the police. Regrettably, for him, for you, and for your family, your response, though, was inexcusable, and constitutes the offending behaviour. First, you grabbed him and threw him to the ground, whereupon you punched him several times in the ribs. There were brief stops over the next couple of minutes, but in the next few minutes, or perhaps two, you retuned and kicked and punched him, and that included stomping on his chest. The violence, as I have mentioned, spanned perhaps a couple of minutes. You did stop. The police attended. The complainant, who I am guessing must have been substantially affected by alcohol, did not want medical treatment, but the next morning he collapsed and it turned out his spleen had been lacerated by the blows.’[16][14] G1, pp 28-30.[15] G1, p 29, lines 1-7.[16] Ibid, lines 7-24.