Miller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] ART 19
•17 October 2024
Miller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 19 (17 October 2024)
Applicant/s: Joseph Miller
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2021/1720
Tribunal:Deputy President K Millar
Place:Adelaide
Date:17 October 2024
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not satisfy character test – whether another reason for the cancellation decision to be revoked – Direction no. 110 – lengthy history of family violence – cumulative effect of repeat offending – conduct whilst in immigration detention – high likelihood of reoffending – applicant has strong and extensive ties to his immediate family and lesser ties to the community – best interests of the children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)CASES
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
Mr Miller is a citizen of Fiji who first arrived in Australia in 1991 when he was 10 years old, and most of his family live in Australia.
Mr Miller was granted a Resident Return (Subclass 155) visa in 1994. This visa was cancelled on 4 March 2020 under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) because he was convicted of offences that resulted in a sentence to a term of imprisonment of 12 months. Mr Miller sought revocation of the decision to cancel his visa, and on 15 March 2021, a delegate of the Minister for Immigration refused to revoke the cancellation. Mr Miller applied for a review of the decision not to revoke the cancellation of his visa.
Mr Miller has had a lengthy path in seeking review of the decision not to revoke the cancellation of his visa. This Tribunal (differently constituted) affirmed the decision not to revoke the cancellation. This decision was quashed by the Federal Court, which found the Tribunal did not have jurisdiction to review the decision because Mr Miller’s application for review did not include a reason he applied for review. This decision was affirmed by the Full Federal Court. The effect of this decision was that Mr Miller’s visa remained cancelled and he could not seek review of the decision not to revoke the cancellation of his visa.
Following a decision of the Full Federal Court[1] that a single aggregate sentence imposed for more than one offence, such as the sentence imposed on Mr Miller, did not trigger the automatic cancellation provisions, Mr Miller’s visa was reinstated and he was released from immigration detention on 24 December 2022.
[1] Pearson v Minister for Home Affairs [2022] FCAFC 203.
On 17 February 2023, the Act was amended to include aggregate sentences, and to retrospectively validate decisions affected by the Federal Court decision.[2] As result, the cancellation of Mr Miller’s visa was retrospectively validated, and he again became an unlawful non-citizen. On 1 April 2023, Mr Miller was re-detained, and he appealed the decision that the Tribunal did not have jurisdiction to consider the cancellations of his visa to the High Court.
[2] Migration Amendment (Aggregate Sentences) Act 2023(Cth).
On 17 April 2024, the High Court held that Mr Miller’s failure to fill in the reasons he sought review did not invalidate his application, and remitted the matter to the Tribunal for reconsideration.[3]
[3] Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13.
In reconsidering this matter, I must decide if Mr Miller passes the character test; and, if he does not, whether there is another reason the cancellation of his visa should be revoked.
BACKGROUND
Mr Miller is the eldest of seven children. His parents live in NSW, and his siblings are all in Australia. His mother’s siblings in Fiji are now deceased, and his father has three brothers and a sister who live in Fiji. He has numerous cousins in Fiji who are considerably younger than him.
Mr Miller has a daughter from a relationship when he was 17 years old, however he had little contact with her while she was growing up. He estimates she is now 24 or 25 years old and has a son who is approximately one year old. He has not had any contact with her son but has seen photographs.
Mr Miller was in a relationship with Ms X from early 2000, and they lived together in regional NSW. Ms X had a child from another relationship when they met, and there are three children of Mr Miller and Ms X’s relationship; Ms A, who is now 20 years old, Ms B who is who is 17 years old and Mstr C who is 13 years old. Mr Miller and Ms X separated in 2018.
A parenting plan dated in 2019 allows Mr Miller to contact the children on their own telephone number and have contact with them at any time with two hours’ notice and on alternate Christmas and Easter. He undertakes not to contact Ms X other than for pick up or drop off arrangements or in an extreme emergency. He also undertakes not to consume alcohol within 12 hours of having access to the children or in the presence of the children. Ms A has a child who is now approximately one year old.
After this relationship broke down in 2018, Mr Miller lived with friends and then on his own for six months. He said that there was an attempt at reconciliation, and he moved back in with Ms X and the children for 3 - 4 months after which he again stayed with friends.
Mr Miller was in a relationship with Miss Y for approximately two years, and lived with her for approximately six months before he went to prison. Miss Y has five children, and originally supported Mr Miller’s application to have his visa reinstated; supplying statements and items from her children in support of Mr Miller. This relationship ended in approximately 2021 and Mr Miller now has no contact with Miss Y or her children.
On his release from immigration detention on 24 December 2022 Mr Miller lived with a friend in town N. He was re-detained on 1 April 2023, having been in the community for approximately 12 weeks. A relationship with Ms Z commenced after this time, however this ended 5 – 6 months ago, and he now describes Ms Z as a good friend.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:
(a)the person does not pass the character test because of a substantial criminal record; and
(b)the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
A person has a substantial criminal record in the circumstances set out in s 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). This applies no differently for a sentence imposed for two or more offences (s 5AB of the Act).
On 29 November 2019, Mr Miller was sentenced to an aggregate sentence of two years for contravening an apprehended violence order (‘AVO’), common assault (domestic violence), and stalk or intimidate with intent to cause harm. This sentence was reduced on appeal to an aggregate sentence of 12 months. It is conceded he has a substantial criminal record and does not pass the character test.
A person whose visa has been cancelled under s 501(3A) can seek revocation of that cancellation under 501CA(4) of the Act. 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.
On 31 March 2020 Mr Miller made the representations required by subs 501CA(4)(a) when he sought revocation of the mandatory cancellation of the visa.
As Mr Miller does not meet the character test the remaining issue is whether there is another reason the decision to cancel his visa should be revoked.
THE DIRECTION
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Appeals Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.
At the time Mr Miller’s visa was cancelled and a decision was made not to revoke this cancellation, an earlier version of this Direction applied. This decision must be made under Direction 110, and Mr Miller has had the opportunity to seek advice and make submissions on Direction 110.
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[4]
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’)
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[5]
[5] Ibid cl 7.
MR MILLER’S REQUEST FOR REVOCATION OF THE CANCELLATION OF HIS VISA
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
In his request for revocation, Mr Miller states that he wants to hold his children and watch them grow. He wants to stay with his aging parents and enjoy and help them through their later years. He states that he wants to marry his beautiful partner and move forward in life with their new family. He says that he escaped the breakdown of his relationship of 16 years in 2018 by drinking and that he would become out of control and angry when he was drinking. At one stage he says he tried to end his life. He states that he is not proud of his actions, and it breaks his heart knowing he may have affected his children.[6]
[6] Ex R8, RB1, 68 – 70.
Since his arrest he claims that he has not breached the AVO or any bail conditions and has tried to change and become a better man and father for his children and family. He said that he has not had a drink in eight months, and has been seeing a drug and alcohol counsellor and a doctor to get help for his mental health, and left behind friends he drank with regularly. He states that his dream for the future is to remain in Australia with his three children, six stepchildren, parents, siblings, aunts, uncles, nieces and nephews and to return to his job so he can provide for his children. He states he wants to show his children and the Australian Government that he is a good man with a good heart and a hard worker who has made some bad decisions and questionable actions during a bad time in his life.[7]
[7] Ibid.
THE PRIMARY CONSIDIERATIONS
The Direction contains five primary considerations, which 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;
(5) expectations of the Australian community.[8]
[8] The Direction, cl 8.
I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.
The protection of the Australian community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[9]
[9] Ibid cl 8.1(1).
The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[10]
[10] Ibid.
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[11]
[11] Ibid cl 8.1(2).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[12]
[12] Ibid cl 8.1.1(1)(a).)
In this matter, both Mr Miller’s criminal offending and other conduct is relevant to this assessment.
Criminal offending
Mr Miller’s criminal record commences with convictions in 2000 for failure to appear and assault occasioning actual bodily harm. In 1999, when he as 18 years old, Mr Miller was charged with these offences after he punched a bus driver.
In 2001, he was charged with offences relating to an attempt to steal a person’s bike and assault and was convicted of demanding property with menaces with intent to steal and assault in 2002.
Between 2002 and 2009 he was convicted of using offensive language in or near a public place or school on three separate occasions, driving with middle range PCA, driving while unlicensed on two occasions and shoplifting.
His history of family violence commences in 2004, with the most recent conviction on 20 July 2023. The police facts for a charge of common assault in 2004 records that Mr Miller slapped Ms X on the right side of her head. When she called 000 and asked for police, he ran towards her and attempted to take her phone, causing her to fall to the ground. He grabbed her hair and pulled at her hair while attempting to take the phone. He was convicted of assault. Mr Miller acknowledges he has slapped Ms X but could not recall if he pulled her hair. I accept this occurred as recorded in the police facts as they were recorded closer in time to the events.
In the period 2018 to 2023, Mr Miller was convicted on 24 occasions of contravening a prohibition or restriction in an AVO, on eight occasions of stalking or intimidating with an intent to cause physical fear (domestic), and once for using a carriage service to menace, harass or offend.
The convictions that resulted in the cancellation of Mr Miller’s visa are common assault, stalk/intimidate with intent to cause fear of physical harm, and two breaches of an AVO. This series of offences is described in the remarks by the sentencing magistrate. At the time of the offending, the victim, Ms X, was the subject of an order for her protection. On 25 May 2019 she attended a function organised by her workplace as a fundraiser for a domestic violence shelter. There was a confrontation between Mr Miller and Ms X, and he was excluded from the premises shortly after due to his intoxication.
After midnight that evening, he arrived at her house and was let into the home by his daughter, who was 15 years old at the time, because of the noise he was making at the front door; yelling that he was going to kill Ms X. He then passed out due to his intoxication and defecated on the chair on which he was sitting. Ms X returned home, and Mr Miller said to her that because she was talking to another a male he would cut the male’s throat. The sentencing magistrate went on to state:
Some [after] hours calls were made in contravention of the apprehended violence order suggesting there was some kind of sexual relationship between the victim and the other male and he said “When I catch you I’ll cut ya throat”.
There was [sic] also further allegations later concerning another male and further threats to her and them ‘cut their throats’. Said to the victim “Wait till I catch you I’ll cut ya throat and his throat too.” And although the victim is seasoned to the threats made so regularly she is almost more scared when he is not making overt threats. That just demonstrates the depth of fear into which the victim has descended over the years of living with Mr Miller.[13]
[13] Ex R8, RB1, 54.
The sentencing magistrate went on to describe incidents on 15 July 2019:
On 15 July the victim was with the accused and he was pointing out how well he looked after her and how much he cared for her and she needs to sort herself out and come back and live with him. Unsurprisingly the victim found this experience rather unnerving. Later at night there was [sic] some arguments or discussions and she said that he needed to find somewhere else to live.[14]
[14] Ibid.
On 16 July 2019 he again attended the house in contravention of the orders. Ms X sent him a text saying she could not have him around, that he needed to get out, and to please get out of her house. He sent her messages back apologising and asking her not to involve the police. There were further messages on 18 July 2019.
The sentencing magistrate remarks:
The pattern of behaviour by Mr Miller directed towards his partner is absolutely appalling. The extensive repetitious intimidating behaviour over a period of time is appalling. All this while he is on conditional liberty …[15]
[15] Ibid 55.
The sentencing magistrate disagreed with the assessment of the risk of reoffending provided at the time of sentencing, considering Mr Miller’s risk of reoffending was medium or medium to high. Mr Miller was sentenced to a term of imprisonment of two years.
Mr Miller successfully appealed this sentence. In the sentencing appeal, Judge Turnbull noted belated attempts by Mr Miller to address his alcohol problem, having not had alcohol from July 2019 until the hearing on 21 February 2021. Judge Turnbull accepted that Mr Miller had been doing his best to address cravings and turn his back on other associates but had not until recent weeks sought full-time assistance. Judge Turnbull notes that Mr Miller assaulted his wife at the hotel on 26 May 2019, and did not accept Mr Miller’s explanation that he tripped on his shoelace. He notes that Mr Miller attended the house at 3am and his 15 year old daughter relented and let him into the house where he began to yell and scream and say he was going to kill the victim.
Judge Turnbull refers to constant threats going back to 2004. On 9 July 2018, after seeing a homicide of children by their father on the news, Mr Miller said to Ms X ‘I’ll end up like one of those crazy cunts you know like the one that just killed his kids on the news’.[16] His course of conduct is described as consistently breaching orders and a ‘litany of breaches here involving phone calls, threats, attendances and indeed moving in. I have seen the appellant, he is a big man.’[17]
[16] Ibid 45.
[17] Ibid.
Judge Turnbull reduced the term of the sentence from two years to 12 months as an aggregate sentence. With time in custody Mr Miller was eligible for release on parole on 8 August 2020, with his full term expiring on 9 February 2021.
In the period between the cancellation of his visa and this hearing Mr Miller has continued his offending against a new partner, Miss Y, with whom he was in a relationship for approximately two years. The offences occurred while he was in in Villawood Immigration Detention Centre and involved repeatedly calling Miss Y after this relationship broke down in September 2021. On being asked why this relationship had ended, Mr Miller said Miss Y ended the relationship ‘because she thought I was too controlling from in here [immigration detention] where she had all the control … there was no excuses for me’. He also later said that she did not think he was controlling because ‘she was not a person you could tell what to do, so he did not know how he was in control.’
According to the police facts, on 26 March 2022 Mr Miller called Miss Y on 147 occasions between 10pm one night and early the next morning. He again attempted to contact her on 29 March 2022 despite her telling him to ‘fuck off’. On being asked why he kept calling her, he told the Tribunal this was because he heard she was taking another person home, and he kept calling because he was jealous at the time and was trying to stop that from happening.[18]
[18] Ex R7, T2, 2 – 3.
Mr Miller was convicted of stalk/intimidate with intent to cause fear of physical harm on 21 April 2022. He was convicted of 10 counts of contravention of an AVO on 18 August 2022, one count of contravening an AVO on 20 October 2022, and one further count on 20 July 2023.[19]
Other conduct
[19] Ex R7, 1 – 5.
The Direction specifies at cl 4(2) that serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
The Minister states that Mr Miller has engaged in other serious conduct while he has been in immigration detention. Mr Miller submitted that this conduct should not be considered as he has not been convicted of any offences in relation to the conduct.
This is an administrative process, and I am not determining criminal guilt or innocence. As stated by the High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd, an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step to take disciplinary or other action.[20] The Minister relied on Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22 at [27) and [29], which reiterates this principle. The submissions of Mr Miller that this case does not apply as it was matter that involved the personal powers of the Minister overlooks the underlying principle of this case and is rejected.
[20] [2015] HCA 7, [33].
In considering Mr Miller’s conduct, is not whether his conduct is a criminal offence that is being considered, it is the nature of this conduct and whether it is of concern. It goes without saying that this is a Tribunal and not a Court and cannot find that a person has committed a criminal offence. This does not prevent the Tribunal considering the information before it and making findings of fact relevant to an issue it is required to consider. Where it is possible that questions may tend to show a person has committed a criminal offence or would be liable to a civil penalty, an unrepresented person must be warned that they are not obliged to answer any questions.[21]
[21] Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [57] – [62].
The Minister submitted a CCTV recording showing an interaction between Mr Miller and another person in immigration detention.[22] Mr Miller was warned that he was not required to answer any questions that would tend to show he has committed a criminal offence or that would subject him to a civil penalty. He was granted an adjournment to confer with his representative about the privilege against self-incrimination.
[22] Ex R9. This is also recorded at R8, T4, 97 – 100.
Mr Miller chose to answer questions about the CCTV footage. He acknowledged that the person in the CCTV footage was him. It shows him approaching another detainee who is moving away from him, pulling the other detainee’s top to the extent that the other detainee is dragged to the ground. On getting up, the other detainee is followed by Mr Miller who is shown swinging his arm at him while the other detainee is slightly off camera.
Mr Miller acknowledged that the CCTV footage showed him being physically violent towards another detainee, and that he pulled the other detainee’s shirt off. There is no sound on the CCTV footage, and Mr Miller said the other detainee was swearing at him and telling him to come outside where the cameras were. Mr Miller said that he was trying to stop the other detainee who was ‘launching’ at him. He said he had been woken up by the other detainee and was in a ‘foul mood’. He denied trying to hurt the other detainee, but acknowledged that the other detainee is smaller than him.
I am satisfied the CCTV footage shows Mr Miller grabbing the shirt of another detainee and dragging the other man to the ground. On getting up the other man was walking away, and Mr Miller followed him and threw a punch at him. I am not satisfied that the other man was ‘launching’ at Mr Miller but rather was trying to get away from him. I consider pulling at the other detainee’s shirt, throwing him to the ground and attempting to punch the other detainee to be serious conduct.
While it was argued that a person’s conduct in immigration detention is not an indication of how the person will act in the community, and I accept that immigration detention is an environment where there are heightened emotions and which places detainees under stressors that are not present in the community, Mr Miller’s inability to control his behaviour on being woken up and ‘in a foul mood’ shows there is a risk of other serious conduct involving physical aggression towards others in similar circumstances in the community.
Other conduct referred to by the Minister included a description in the records from immigration detention that on 4 June 2024, Mr Miller had said to catering staff ‘I’ll fucking get you, I’m watching you’ on being refused more cake.[23] Mr Miller said he did say something like that, but had just woken up and was hungry, and that it was a heated exchange over a cake. A second incident is recorded on the same day where Mr Miller is reported as saying to catering staff that he will ‘smash this pizza into your face’.[24] Mr Miller acknowledged that he did say something like that out of anger and in the heat of the moment.
[23] Ex R7, T4, 94.
[24] Ibid.
On 28 May 2024, Mr Miller is reported as saying to catering staff ‘I’m going to come inside and bash you if you don’t give me the cake’.[25] Mr Miller acknowledged this did occur.
[25] Ex R7, T4, 95.
A further series of incidents were reported where it is recorded that he threated to kill another detainee. The records of this event state that Mr Miller said to another detainee ‘I want my money back, I will get you’ or words to that effect, and ‘I can get you if I want’. Both Mr Miller and the other detainee acknowledged a sum of $600 had been transferred by Mr Miller to the other detainee but did not elaborate. Mr Miller denied he had threatened to kill the other detainee, and I accept he did not make this express threat given the words recorded in the report.[26]
[26] Ex R7, T4, 102.
He also denied that he had punched another detainee in the ribs and admitted to this at the time, stating the other detainee owed him $600.[27] Mr Miller said he tapped the other detainee on the back and asked for his money but did not punch him. I do not accept Mr Miller’s account and prefer the contemporaneous record of the officer that the other detainee was punched and that at the time Mr Miller admitted to punching the other detainee in the ribs on the right side, stating that the other detainee owed him $600.
[27] Ex R7, T4, 103 and 105.
I consider this conduct is serious conduct as contemplated by the Direction and shows Mr Miller poses a risk of physical aggression or of making threats of physical aggression towards others when woken or when frustrated about not obtaining what he wants, in this case food or the repayment of money. It shows a willingness to use threats of physical force or actual force to resolve disputes with others. It is a pattern across his conduct and in his interactions with others that he acts ‘in the heat of the moment’, which I consider shows that he has difficulty controlling his behaviour when he feels provoked.
Having identified the criminal and other serious conduct by Mr Miller, in considering the nature and seriousness of the conduct, the Direction specifies at cl 8.1.1(1)(a) that the type of conduct the Australian Government and the Australian community views as very serious include violent and/or sexual crimes, crimes of a violent or sexual nature against women and children, regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed.
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[28] In doing so, cl 8.1.1(1) of the Direction provides that the Tribunal must have regard to specific types of crimes or conduct which are viewed very seriously by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are serious. While the Direction expressly provides categories of conduct to be very serious or serious, it does not limit the range of conduct that may be regarded in this way.[29]
[28] The Direction, cl 8.1(1).
[29] The Direction, cl 8.1.1(1)(a).
The term ‘family violence’ is defined at cl 4 of the Direction and means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Examples of family violence include assault, stalking and repeated derogatory taunts.
A member of the person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person. This includes Mr Miller’s previous partners Ms X and Miss Y, with whom he lived before he was imprisoned.
I consider family violence includes behaviour of Mr Miller of threats to kill Ms X, their children or other people, and breaches of orders made to prevent him contacting people protected by the order by repeatedly contacting them or attending their property. I consider his repeated attempts to contact Miss Y in breach of the AVO, in circumstances where he acknowledges that she found his behaviour controlling, to be family violence.
As Mr Miller’s conduct includes acts of family violence, his offending is viewed as very serious in accordance with cl 8.1.1(1)(a)(iii) of the Direction.
Mr Miller’s first offence involving violence was assault occasioning actual bodily harm for which he was convicted in 2000. He has twice been convicted of common assault in circumstances of family violence. This offending is also very serious as contemplated by cl 8.1.1(a)(ii) of the Direction.
His lengthy and extensive history of family violence commenced in 2004 and has not abated, with continuing offending including breaching an AVO while in immigration detention. He has numerous convictions for stalk/intimidate with intent to cause fear of physical harm in a domestic context. While it does not result in any higher assessment as his conduct is regarded as very serious, that he offended while in immigration detention is a consideration in cl 8.1.1 (b)(iv) to which I have regard.
The sentence imposed is a consideration under cl 8.1.1(c) of the Direction, with the exception of offences involving family violence or offences committed while in detention. As his offending included family violence, some of which was committed while in immigration detention, the sentence imposed is not a consideration under this provision, and does not need to be considered further.
The impact of the offending on any victims of the offending and their family where this information is available and where Mr Miller has been afforded procedural fairness is a consideration under cl 8.1.1(1)(d) of the Direction. Mr Miller’s daughter gave oral evidence and two of his children provided statements, however this material does not describe the impact of his offending on them. Ms X provided a statement in 2020, however this also does not describe the impact of Mr Miller’s offending, and instead describes the effect on the children if Mr Miller is removed from Australia and they are unable to see their father. This is considered further below. There is no information on the impact of Mr Miller’s offending on Miss Y while he was in immigration detention.
The Tribunal can consider the frequency of offending and where there is any trend in increasing seriousness under cl 8.1.1(1)(e) of the Direction. I consider Mr Miller’s offending to be very frequent and undeterred by consequences such as community corrections orders, bonds or even the cancellation of his visa. While I do not consider there is a trend of increasing seriousness, there is a cumulative effect of repeat offending for the purposes of cl 8.1.1(1)(f), with repeated offences against both Ms X and Miss Y.
Mr Miller has not previously been warned or been made aware in writing of the consequences of further offending. I do not accept that a reference in the police facts in 2018 to Mr Miller being aware that he may be deported amounts to a warning or being made aware in writing of the consequences of his offending.
Having considered evidence about the offending, I find Mr Miller’s offending is very serious and weighs heavily against revoking the cancellation of his visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[30]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[30] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[31] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[32] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[33]
Nature of the harm
[31] The Direction, cl 8.1.2(2)(a).
[32] Ibid cl 8.1.2(2)(b).
[33] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[34]
[34] The Direction, cl 8.1.2(2)(a).
Mr Miller has committed a great many family violence offences against two different partners. Some of the harm involved physical injuries, however the greater proportion were threats of a severe nature; to kill or cut the throats of the victim and others. More recently these offences involve continuous unwelcome contact.
The harm caused by family violence is detailed in reports provided by the Minister as including health impacts on victims including injuries and the ongoing effect on the victim’s mental health, adverse effects on children, and the financial security of the victim.[35]
[35] Ex R7, T6 and T7.
Should Mr Miller again engage in conduct towards others in the community of threats of physical harm or of physical harm to a domestic partner this can affect the physical and mental wellbeing of people in the community and is an impost on community health, policing, and social services.
Likelihood of the non-citizen engaging in further criminal or serious conduct
To determine the risk to the Australian community should Mr Miller commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of Mr Miller reoffending if he is permitted to remain in the Australian community.[36] I consider the type of offending committed, and the other serious conduct of Mr Miller in the past is an indicator of behaviour he may display in the future. This includes acts of family violence as well as threats to others and psychical violence.
(i) Information and evidence on the risk of the noncitizen re-offending
[36] The Direction, cl 8.1.2(2)(b).
Mr Miller acknowledged that alcohol has played a part in his offending, and led to the end of his relationship with Ms X. As alcohol played a part in his past offending, his future use of alcohol is a factor in assessing the risk of reoffending. In his statement of December 2020, Mr Miller states that he will never drink again.[37] At this hearing, Mr Miller said he no longer has a problem with alcohol as he has been abstinent while in immigration detention.
[37] Ex R8, RB1, G40, 138.
In the period he was released from immigration detention Mr Miller said he did drink, but infrequently and consumed less alcohol on each occasion than he had in the past. In an interview with a drug and alcohol counsellor, he said that his last drink was April 2023.[38] As he was re-detained on 1 April 2023, I infer his last drink was the last day he was in the community, and that despite his intention to never drink again he is likely to resume drinking in the community, although to a lesser amount than in the past. As his past offending is acknowledged to have occurred in the context of alcohol use, I consider the likelihood of him resuming use of alcohol in the community increases the risk of reoffending.
[38] Ex R7, T5, 107.
During the hearing, Mr Miller was taken to records in immigration detention of his interviews with a psychiatrist and drug and alcohol counsellors that report his drug use while in immigration detention. Mr Miller was warned that he did not have to answer questions that would tend to show he had committed a criminal offence, or that would make him liable for a civil penalty, before being asked questions on these topics.
On 31 January 2024, a psychiatrist recorded that Mr Miller reported use of both ICE (methamphetamine) and marijuana and said he was struggling with drug use.[39] A drug and alcohol counsellor note of 15 January 2024[40] records that he reported using one gram of ICE every three days roughly, with his last use being 12 January 2024. His marijuana use was reported as one gram daily, with his last use the day before the January 2024 interview.
[39] Ex R7, T5, 106.
[40] Ex R7, T5, 107.
Mr Miller said that he experimented with ICE and ‘that’s as far as I went with it.’ He acknowledged he was using ICE every three days, but said it was less than one gram. He denied having an addiction to ICE and said he has not used it for a month. There are no recent records of counselling with a drug and alcohol counsellor before me, and in existing records from January 2024 Mr Miller reports he had an addiction to ICE and marijuana.[41] I consider this to be more than experimenting.
[41] Ex R7, T5, 109.
Mr Miller said he was aware of the effect of ICE on losing control and committing offences. I consider his use of ICE increases his risk of reoffending in the community.
Mr Miller said that he has learned empathy and has an improved ability to see things from another person’s point of view. However, despite being asked in a variety of ways, Mr Miller could not identify with any conviction the effect his offending had on his former wife or how his conduct made her frightened. After some prompting, he acknowledged that swearing and using a loud voice for things said ‘in the heat of the moment’ where ‘words slipped out’ and which he regretted later may have frightened her. Given his threats to cut her throat, cut the throat of other people, and that he would ‘end up one of the crazy cunts who kills his children like in the news’, this shows a lack of understanding of his conduct, and is contrary to his claim that he has learned empathy. I do not accept his claim that a change to his perspective has reduced his risk of reoffending.
Mr Miller was assessed by psychologist Dr Emily Kwok on 13 August 2024, and she provided a report dated 26 August 2024.[42] Following a further National Police Clearance for Mr Miller which disclosed additional convictions for family violence offences, Dr Kwok provided an updated report with an unchanged date of 26 August 2024.[43] When Dr Kwok assessed him on 13 August 2024, she was not aware of this further offending, and said Mr Miller did not disclose this offending at the interview.
[42] Ex A5.
[43] Ex A6, 116.
Dr Kwok acknowledged that in preparing her updated report, she did not know his most recent offending was against a new domestic partner, rather than his previous domestic partner however said neither that, nor the reports of his conduct towards others while in immigration detention, affected her assessment of the risk of reoffending.
Dr Kwok was also unaware of Mr Miller’s use of drugs while in immigration detention. Dr Kwok said this drug use would affect her treatment recommendations for Mr Miller but did not affect her assessment of his level of risk of reoffending.
In relation to the risk of domestic assault, Dr Kwok said that recent reoffending did not affect the assessment of risk because the Ontario Domestic Assault Risk Assessment placed him in risk category 7, which is the second to highest rating. This places him in a category where approximately 74% of people commit another assault against their partner that comes to the attention of police within an average of approximately five years. Items that contributed to this score include prior domestic incidents, a prior custodial sentence of 30 days or more, breach of conditions, threat to harm or kill, more than one child of the relationship and substance abuse during the period around the offence. This assessment does not take into account dynamic factors such as the engagement in treatment, current substance use, current confinement and the current quality of his relationship with his wife.
Dr Kwok assesses Mr Miller has a high risk of further domestic violence.
Separately to his risk of committing further acts of family violence, Dr Kwok assessed Mr Miller of being a moderate risk of violent offending that is not domestic.
Since entering immigration detention. Mr Miller has commenced using ICE and cannabis. The effect of using these substances on his risk of offending is unknown. However, given that his previous offending occurred in the context of alcohol abuse, using other substances that may reduce his control over his behaviour does not provide confidence that the risks associated with substance use have abated. I consider this is a moderate to high risk due to his inability to manage his behaviour while in immigration detention and his more recent drug use.
Mr Miller has committed offences against more than one domestic partner, and he has continued to offend after his visa was cancelled and while he is in immigration detention. Mr Miller described a lengthy relationship history, with two relationships following the breakdown of his relationship with Ms X. I consider it likely he will re-partner if he returns to the community, and I consider his risk of offending against a future domestic partner to be high.
I consider there is a moderate to high risk of him engaging in conduct that involves threats to others or physical violence.
(a)Rehabilitation
The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence.
Mr Miller was in the community for the period 24 December 2022 to 1 April 2023. In this time he was not convicted of any offences, and there are no police reports of behaviour of concern in this time. However, after being returned to immigration detention he continued to offend, and he has not spent time in the community since his most recent offence.
Mr Miller said that has had completed online courses but did not have certificates to show he had attended these courses because he had not gone back through his email to retrieve the certificates. He said these courses were in anger management, alcoholics anonymous, better parenting, and on being a better person.
He attended an online anger management course once a week for a period of three months and had completed the course approximately six months ago. He said he learned to control his emotions instead of reacting straight away, and to understand the problem first and try to see if another way.
He said he attended online alcoholics anonymous classes which were ongoing, but he hasn’t been for a while. At these classes he talked about his alcohol use and relapse, and learned he does not need alcohol, that he can walk away and still have a life without alcohol. He said he would use his current situation as a springboard as he does not want to be in the same situation, and this would help him stay away from alcohol. Mr Miller considers his abstinence from alcohol as meaning his alcohol rehabilitation is complete. Dr Kwok considers he requires further intervention to address his alcohol use.
The parenting course was completed approximately 16 months ago and said he had a better understanding of seeing things from his children’s point of view.
The course on being a better person was also online and held once a week as a group. He completed this course approximately six months ago and says he learned how to adapt to everyday situations, how to walk away from things and deal with situations.
Dr Kwok considered Mr Miller requires treatment that includes intervention for domestic violence, emotional regulations, depression and anxiety and drug and alcohol use. She said this would involve:
· One to one counselling for drug and alcohol use
· Attending the Smart Recovery program
· Psychological treatment, in addition to the drug and alcohol treatment, for depression and anxiety relating to the fire at the detention centre.
· Intervention about anger management
· Relationships Australia specific intervention on relationships.
Dr Kwok considered this intervention would require weekly counselling, the Smart Recovery program fortnightly, and the development of a treatment plan with a psychologist with regular treatment for 12 months.
Dr Kwok said Mr Miller had engaged in the Smart Recovery program and has seen a psychologist but is limited in what he can access in detention. She considers he has a significant way to go in his rehabilitation.
There are questions about Mr Miller’s ability to engage in rehabilitation. In 2019, he was assessed as not suitable for the Magistrates Early Referral Into Treatment Program (‘MERIT’) because he did not identify he had a current treatable drug or alcohol issue.[44] Material provided by Mr Miller includes a reference to a diagnosis on 4 August 2022 of ADHD and that this contributed to his non-compliance with medication. With treatment for ADHD, his compliance was reported to improve.[45]
[44] Ex R8, RB2, 263.
[45] Ex A6, 102.
There is a gap in the health information provided by the Minister in this period, including the period where Mr Miller was diagnosed with ADHD. On the records before me treatment he received for ADHD is reported to have improved his compliance with medication at that time and if he continued to comply with this treatment this could assist in managing his risk of reoffending.[46] On the information before me, it is difficult to see whether Mr Miller’s past non-compliance has improved over a sustained period of time with treatment for ADHD. However, in the absence of a complete medical history I find that his compliance has improved.
[46] Ibid.
Mr Miller has a supportive family and his parents and two of his sisters gave evidence that they would support him in returning to the community and in his rehabilitation. His adult daughter Ms A would also support him. This support will assist him to desist from future offending.
Mr Miller has a substantial work history in Australia, and in 2020 his previous employer expressed a willingness to re-employ him.[47] This is also a protective factor.
[47] Ex R8, RB1, G23, 106.
Mr Miller has a ‘reintegration plan’[48] which states that he will live with his parents, however at the hearing he said in the longer term he wanted to move closer to his children. In this plan he lists his family support as his siblings and parents, and describes programs he can attend in the community. His reintegration plan states that he has family, financial and other support, he has prospects of immediate employment, there are welfare services in the community, a mental health team and a psychologist; and that he plans to attend Smart Recovery, obtain psychological counselling and see his general practitioners. He lists parents, siblings, aunts and uncles as mentors in the community.
[48] Ex A6, 63 – 65.
In oral evidence, he was less certain about this plan and the providers he would consult, however I accept these are resources available to him which, if utilised, will reduce his risk for reoffending, however I am not satisfied these resources reduce this risk significantly given his entrenched patterns of behaviour over many years.
I consider Mr Miller’s rehabilitation is in its infancy, and that he would require extensive further rehabilitation before this resulted in a reduction in the risk to the Australian community.
I find that there is a high likelihood Mr Miller will reoffend, and that risk to the community is in the moderate range.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Mr Miller’s offending and conduct, and to the risk to the Australian community should Mr Miller commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs heavily against revoking the cancellation of the visa.
Family violence committed by the non-citizen
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[49]
[49] The Direction, cl 8.2(1).
This applies to Mr Miller as he has been convicted of offences that involve family violence.
His conduct was frequent, and his offending did not cease even after his visa was cancelled and he was in immigration detention. He has had limited rehabilitation on family violence, and Dr Kwok recommends further treatment.
Mr Miller did not dispute the facts found by the sentencing magistrate and appeal judge, other than to say that his description of tripping rather than barging into Ms X at the hotel was not true and he tripped over his shoelace.
The cumulative effect of his behaviour is described aptly by the sentencing magistrate who said ‘the victim is so seasoned to threats made so regularly she is almost more scared when he is not making overt threats.’[50] On being asked to comment on this passage, and whether he repeatedly said he would harm Ms X, Mr Miller said:
It was just verbal. There wasn’t any harm in it, but yes, there was something along that line, yes.
…
It was just a heat of the moment thing, something that was said that I regretted later. Like, it was just said out of – it was just said from anger, I wasn’t like – there was nothing meant by it. Like you know, it was something that was said, like you know, it was just a reaction. Those words – it sounds very bad and I apologise for, you know, for even those words coming out. It was just said like in the heat of the moment thing. There was no harm meant by it.
[50] Ex R8, RB1, G9, 54.
I consider this shows that Mr Miller does not have a real understanding of the effect of his offending and the harm that is caused by his offending. His offending history shows that he was undeterred by bonds, fines, community corrections orders or even imprisonment, the cancellation of his visa and his subsequent detention.
There is little information on the effect on his children, however as the sentencing remarks state, his then 15 year old daughter let him into the house because he was yelling and threatening to kill her mother, before he passed out and defecated on a chair. I infer there would be an effect on his children in witnessing family violence.[51] In the initial period of his AVO, the children were also named as protected persons.
[51] See Ex R7, T6, 114 – 115.
Mr Miller acknowledges that alcohol contributed to his behaviour and the breakdown of his relationship. He states that he no longer drinks alcohol, however he acknowledges that he drank during his release from immigration detention but to a lesser extent. He now uses ICE and marijuana and acknowledges that ICE can contribute to loss of control. The effect of these substances on his ability to control his behaviour in the community is unknown but does not lead to confidence that he will be able to refrain from further acts of family violence in the future towards his previous partners or any new partner.
Mr Miller has not been formally warned or otherwise been made aware by a Court, law enforcement or other authority about the consequences of family violence.
I consider this factor weighs heavily in favour of not revoking the cancellation of Mr Miller’s visa.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Immediate family
Mr Miller’s immediate family members who are Australian citizens, Australian permanent residents or people who have a right to remain Australia indefinitely are his parents, his six siblings and their children, his stepdaughter, his four children and his two grandchildren.
(i) Parents and siblings
His parents, both in their statements and in their oral evidence, attest to their support for Mr Miller and their willingness to assist him. Their statements include that they want his assistance, they are close, and they will worry about him if he returns to Fiji. Mr Miller adds that he seeks the compassion of the Minister to stay in Australia and care for them. I accept that if Mr Miller’s visa remains cancelled it will cause his parents distress and worry.
Mr Miller’s sister Sera currently lives with her parents and assists with their care. Mr Miller said that he intends to stay with his parents for a period before moving closer to his children and that he plans to return to work as a truck driver. Together with the extensive rehabilitation he requires, this will leave limited time to provide care. He will not be able to provide day to day care if he moves closer to his children as this is a considerable distance from his parents. While I accept that there will be a significantly adverse impact on Mr Miller’s parents, I do not accept that they require his presence in Australia to provide day to day care.
Mr Miller’s sister Ramona provided statements and gave oral evidence. In her statements she says they have a close relationship, and that Mr Miller confides in her. She states that she wants Mr Miller in the community to help with the care of their parents as she has five children and works 50 hours per fortnight. She states that she will be heartbroken and shattered if Mr Miller is deported, and his nieces and nephews will be denied the opportunity to develop a sustainable relationship with their uncle. I accept Mr Miller’s sister Ramona will be distressed if his visa is cancelled, and that her children will lose the opportunity for in person contact with him. However, I am not satisfied this will have a significant adverse effect on his nieces and nephews as he has limited contact with them.
His sister Sera states that it will break her heart and destroy her parents if Mr Miller is required to leave as they cannot afford to travel to Fiji to see him. I accept it will cause Sera distress and that the opportunity for her to visit Mr Miller if he returns to Fiji will be limited because of the cost of travel.
Mr Miller’s other siblings and two of his brothers-in-law will also be affected by the decision. I accept his is a close knit and large family, and that if Mr Miller’s visa is cancelled this will cause all family members distress, with his siblings and parents suffering a greater effect than his brothers-in-law, nieces and nephews.
(ii) Stepdaughter and children
Mr Miller has a daughter with whom he had little contact in her formative years and who now has a child. He has contact with her over social media, and this decision will have a limited effect on his eldest daughter and grandson.
His stepdaughter, the daughter of Ms X, provided a statement. Mr Miller provided a photograph of his stepdaughter with Mr Miller and her siblings in the period he was released from immigration detention. His stepdaughter, who is 22 years old, expresses her concern for her siblings, in particular her younger brother if Mr Miller’s visa remains cancelled. She states that she remains in contact with Mr Miller despite his separation from her mother because she knew him from a young age. I accept that Mr Miller was a parental figure during his stepdaughter’s childhood, although she left the household when she was 15 or 16 years old to live with her biological father. I accept she is concerned for her siblings and that she will miss contact with Mr Miller if his visa remains cancelled.
Mr Miller’s eldest daughter, Ms A states ‘when my father was released in 2022 for that short period he did not touch a drop of alcohol before being taken back into the detention centre’. This is not the case and Ms A’s conviction that he has become a better person may change if she was aware that he was drinking in this period. Ms A wants her father to stay in Australia to spend time with her daughter (his granddaughter). An earlier statement from Ms A in 2020[52] speaks of her father missing birthdays and her graduation, that Miss B is spending more time in her room and Mstr C wants to sleep in her bed and becomes angry easily. In her statements Miss B says she loves her father very much and it will be heartbreaking for her, her brother and older sister if he is deported.
[52] Ex R8, RB1, G14, 94.
I accept that if Mr Miller’s visa remains cancelled l it will have an adverse effect on his children.
(iii) Grandchildren
Mr Miller has a grandson who is approximately four who has he has not met, but he has seen a photograph of his grandson. He has granddaughter and a grandson who are both approximately one year of age and has contact with them through electronic means. I find that if his visa remains cancelled it will have a lesser impact on his grandchildren than his children.
Other ties with to the Australian community
Mr Miller’s previous partner of many years Ms X provided a statement in 2020[53] stating that she is concerned about her children losing their father as she cannot afford to send them overseas to see him. On the AVO being varied so their children could see their father, she said they had regular phone calls with him, and he would spend time with them when he was able, but as he was homeless and working seven days this limited the time he could spend with them. Ms X says she needs financial support from Mr Miller. Ms X says she fears what deporting Mr Miller will do to her children. Mr Miller and his daughter both gave evidence that Ms X has re-partnered, and his daughter gave evidence that Ms X’s new partner is assisting to financially support the family. There is no current information before me on the effect on Ms X of the decision to cancel Mr Miller’s visa at this time of this decision, and while I accept she is concerned for her children if Mr Miller’s visa remains cancelled, I consider this is an indirect impact on her due to the impact it will have on their children. This attracts only slight weight.
[53] Ex R8, RB1, G24, 107 - 109.
Other Australian citizens who provided a statement but did not attend include Miss Y and her children who had previously provided evidence in support of Mr Miller. However, with the breakdown of this relationship and Mr Miller’s subsequent convictions for family violence offences against Miss Y, I do not consider statements in support prior to these convictions can be relied on to show the current effect on Miss Y or her children of this decision. Similarly, Ms Z, who in July 2024 stated she was in a relationship with Mr Miller,[54] did not attend to give evidence. This relationship has now ceased, and the current impact on Ms Z of this decision is unknown.
Other ties to the community
[54] Ex A6, 20.
Mr Miller arrived in Australia when he was 10 years old, and he is now 43. He has spent most of his life in Australia, with some visits to Fiji. His offending commenced when he turned eighteen, eight years after he arrived in Australia.
Mr Miller has contributed to the community and was employed full-time in the 20 years between 2000 and his imprisonment and subsequent detention in 2020.[55] In 2020, his last employer expressed a willingness to re-employ Mr Miller as a driver.[56]
[55] Ex A6, 66.
[56] Ex R8, RB1, G23, 106.
A statement from Uncle Johnny Lewis, a Kamilaroi Aboriginal Elder, states that Mr Miller assisted him at the Liverpool Lions Club assisting the less fortunate in the community. Mr Miller participated in fundraising events with TAFE raising funds for the Children’s Hospital at Westmead in 2001. His employment and assistance with the Lions Club provides some weight in favour of his ties to the community.
Mr Miller has strong and extensive ties to his immediate family and lesser ties to the community. The strength, nature and duration of the Mr Miller’s ties to Australia weigh moderately in favour of revoking of the decision to cancel his visa.
Best interests of minor children in Australia affected by the decision
Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[57]
·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[57] The Direction, cl 8.4(4)(a)-(h).
Mr Miller has two minor children, Miss B and Mstr C and two minor grandchildren M and N. He has nieces and nephews who are minors in Australia. While he previously relied on the best interests of the minor children of Miss Y, he no longer has contact with them and acknowledges that their interests are not affected by this decision.
I consider the interests of his two minor children and his grandchildren differ from each other and also differ from the interests of his nieces and nephews and I have considered his children and grandchildren separately.
Mr Miller’s children
Mr Miller’s minor children live with their mother who provides parental care. Their mother has remarried, and their stepfather assists financially, however his contribution towards parenting is unknown. Their mother also works to support the family. Mr Miller has not provided any financial contribution for the last four years.
Mr Miller said Ms X is a good parent and that the children are doing well due to her parenting.
Earlier statements from Ms X in 2020[58] state that the children have a close relationship with their father, and the separation while he was in jail had adverse effects on the children. She states that Mr Miller remains in contact with children and that removing him will traumatise the children further. No recent statements have been provided from Ms X, and her current opinion is unknown.
[58] Ex R8, RB1, G24, 107 and 172.
Mr Miller and Ms X separated in 2018, and Mr Miller went to live with his parents, some distance from Ms X and the children. If his visa is reinstated, he plans to live with his parents and said he has a plan to return to live closer to his children in the long term. In the time he was released into the community he lived a considerable distance from the children and had only occasional contact. As he will continue in the short to medium term to again live a distance from his children, his contact with them in this time will also be limited.
Mr Miller said his children have not visited him often in immigration detention, and he said he does not like visits because he does not like saying goodbye.
(i) Miss B
Miss B is doing her last year of high school and is 17 years old. Mr Miller said she is in good health, but she had started using cannabis and was a bit down, and he was told by her mother this is because he is not around. This is included in the first unsigned statement of Miss B, who said she had severe anxiety which led to smoking marijuana which she overcame with the assistance of contact by phone and messages with her father. However, as the provenance of this statement is unknown, and it was withdrawn, I place little weight on this information.
Miss B lodged a further statement but did not appear to give evidence. Her most recent statement includes that her father has been a presence her entire life and she believes he is a hard worker but has had his struggles, including with alcohol abuse. She states that it will be heartbreaking for her and her siblings if he is deported and they would find it difficult to visit him in Fiji.
I consider Mr Miller has a parental relationship with Miss B. He has maintained contact with her however as he does not intend to live near her in the short to medium terms if released, he will have a limited direct role in the short period before she turns 18. I accept that if his visa remains cancelled this will cause his daughter distress and that she will find it difficult to visit him in the future. I consider she can maintain contact with her father in other ways. Her mother plays a parental role.
Miss B, together with her siblings, was initially a protected person under the AVO, and Ms X in her statement of 2020 states she had to take steps to keep herself and the children safe.[59] Miss B states she is aware of Mr Miller’s struggle with alcohol. I infer that Miss B was exposed to Mr Miller’s alcohol abuse and to acts of family violence. There is no information to show Miss B or her siblings were abused or neglected by Mr Miller.
[59] Ex R8, RB1, G24, 107.
I consider the revocation of the cancellation of Mr Miller’s visa is in the best interests of Miss B. However, given the limited time until she is 18, that her mother provides parental care and her mother and stepfather support her financially, I place limited weight on this factor.
(ii) Mstr C
Master C is currently 13 years old. Mr Miller said that when in contact with his son they talk about sport and about the Fortnite game. He did not know how his son was going academically. He said he had been told by Mstr C’s mother that Mstr C has been diagnosed with ADHD and is on medication, and that the medication has improved his performance at school. Photographs of Mstr C with his siblings sent to Mr Miller, and photographs with Mr Miller shows he remain in contact.
I consider the relationship between Mr Miller and C is parental, and with five years until he is 18 there is a possibility of Mr Miller playing a positive parental role in the future. If released from immigration detention, he will have consistent but limited contact with Mstr C in the short to medium term until he relocated closer to the children. Mast C is being cared for by his mother and financially supported by his mother and stepfather. I also infer C was exposed to acts of family violence perpetrated by Mr Miller. There is nothing before me to indicate Mstr C was otherwise abused or neglected.
I accept that separation from his father is not in Mstr C’s best interests, however there is limited information before me of his views.
Mstr C’s best interests are for his father to remain in Australia, and this attracts moderate weight in favour of revoking the cancellation of Mr Miller’s visa.
Mr Miller’s grandchildren
Mr Miller has three grandchildren, one of whom is four years old and two of whom are approximately one year old. On being asked about his grandchildren at the hearing, he stated he has two grandchildren.
His eldest grandchild is the son of his eldest daughter with whom he has little contact. Mr Miller has seen photographs of his grandson, but acknowledged this child would not be affected by a decision regarding his visa. The best interests of this child are neutral in this matter.
Mr Miller said he has met his 14 month old granddaughter once for two hours and has not met his grandson, but has communicated with him in calls to his daughter. I accept that Mr Miller will be involved in the lives of his grandchildren if his visa is reinstated, but that these children have a non-parental relationship with Mr Miller and that separation from him will have little effect of these children.
The best interests of Mr Miller’s grandchildren weigh slightly in favour of revoking the cancellation of Mr Miller’s visa.
Nieces and nephews
Mr Miller has many nieces and nephews but struggled to name them. He said he speaks to his nieces and nephews if they are around when he calls his siblings and he maintains contact solely over social media. Some of his nieces and nephews have sent him messages and drawings while he has been in prison and in immigration detention.
His minor nieces and nephews may be affected by a decision not to revoke the cancellation of Mr Miller’s visa. I do not consider their interests differ. I accept this is a large and close family with many young children, and that it is in the best interests of these children that the cancellation of Mr Miller’s visa is revoked. However, he does not have a parental relationship with them and I do not consider they will be significantly adversely affected by a decision not to revoke the cancellation of his visa.
The Tribunal finds that the best interests of the children in Mr Miller’s life, particularly Miss B and Mstr C, are to revoke the cancellation of his visa. This consideration weighs moderately in favour of revoking the cancellation of his visa.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[60]
[60] The Direction, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
Mr Miller has engaged in offences involving family violence which carries an expectation that he will not continue to hold a visa. Accordingly, the expectation of the Australian community weighs against revocation.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration.
In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. In applying these principles, I find this consideration weighs heavily in favour of not revoking the cancellation of Mr Miller’s visa.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[61] Mr Miller does not claim that Australia’s non-refoulment obligations apply in his case.
[61] Ibid cl 9.1.
There are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
- Unlawful status;
- The likelihood of becoming subject to detention and/or removal;[62]
- Refusal of other visa applications and cancellation of other visas;[63]
- A prohibition on applying for other visas;[64] and
- Periods of exclusion and special return criteria may apply.[65]
[62] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.
[63] Ibid s 501F.
[64] Ibid s 501E.
[65] Ibid s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[66] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[67]
[66] Ibid s 15.
[67] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
If the cancellation of Mr Miller’s visa is not revoked, he will continue to be detained under s 189 of the Act and will be removed from Australia as soon as practicable under s198 of the Act. Mr Miller’s removal from Australia and the visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501. While it is the intended consequence of s 501 of the Act, the effect of the decision on Mr Miller is significant because it involves his detention and removal from Australia, and his ability to return. This attracts some weight in favour of revoking the cancellation of Mr Miller’s visa.
Extent of impediments if removed
Clause 9.2 of the Direction provides that taking into account the matters identified in sub-clauses 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-clauses 9.2(1)(a), (b) and (c) are:
- The Applicant’s age and health;
- Whether there are substantial language or cultural barriers; and
- Any social, medical and/or economic support available to the Applicant in their country.
Age and health
Mr Miller is 43 years old. He claims he has lower back pain due to jumping from a second storey window when there was a fire at Villawood Immigration Detention Centre. He said he has a loose disc in his lower back treated by a steroid injection every couple of years. He describes the effect of this condition as an uncomfortable feeling which stops him bending in certain directions, and when it is cold he cannot walk far. He also has varicose veins and is waiting for surgery as one vein has popped. This gives him a sore leg and swelling and it sometime hard to walk. He did not describe any other health conditions.
He claims his back condition followed a fire at Villawood detention centre in the common room on the second floor. He provided a news article on the fire at Villawood in July 2023[68] and health records showing he was present.[69] The health records state he was referred to hospital for smoke inhalation, but he declined to go to hospital as he did not want to wear a body shackle. The health records at the time do not refer to a back injury.
[68] Ex A6, 109.
[69] Ex A6, 69-71.
Other health records show that before the fire at Villawood, Mr Miller ‘reported a longstanding history of chronic back pain. His pain was described as intermittent and may have been the result of heavy lifting when he was younger.’[70] A CT scan 24 August 2023, after the fire, reports degenerative changes with nerve impingement.[71] This condition was not observed to affect his movement on the CCTV footage, and Mr Miller said that it is intermittent. I do not have health records that are dated after January 2024, and do not have information on the assessment of his conditions or the treatment of any conditions after this time.
[70] Ex A6, 106.
[71] Ibid.
The Department of Foreign Affairs and Trade Country Information Report Fiji from 20 May 2022 (‘DFAT Report’)[72] states that healthcare is generally available to those who need it, with quality better in urban areas. Medication availability is reported to vary and the range of medication is less than in Australia. Healthcare is free.[73]
[72] Ex R7, T8, 285 ff.
[73] Ex R7, T8, 292.
Mr Miller has a back condition that causes him intermittent pain and may affect his movement at times. He has a varicose vein. I consider treatment would be available to him for his back pain and the varicose vein in Fiji equivalent to that generally available to other Fijian citizens.
Mental health
Mr Miller claims there is a risk of harm to him due to isolation, depression and suicidal tendencies if he is deported to Fiji.
Immigration health records show Mr Miller has seen a psychiatrist while he has been in immigration detention,[74] and report that he has periods of depression. He reported that he struggles with drug use and uses both ICE and marijuana. The psychiatrist reports that he does not have a full depressive syndrome and his symptoms are more in keeping with an adjustment disorder. Anti-depressant medication was restarted in January 2024 as a preventative measure given the potential destabilising effect of an adverse outcome.
[74] Ex R7, T5, 106.
Mr Miller has declined treatment for his mental health.[75] It was suspected that his non-compliance or intermittent compliance may be due to ADHD,[76] however there is little information before me on a diagnosis of ADHD the effect of this condition or the treatment for this condition.
[75] Ex A6, 107.
[76] Ex A6, 102.
Past records include that Mr Miller attempted suicide prior to being re-detained and concerns about a threat of suicide were recorded while he was in immigration detention, however Mr Miller denied any intention to harm himself at that time.[77] He states that if he is removed to Fiji, his mental health will deteriorate, and he will be at risk of self-harm.
[77] Ex A6, 106.
Mr Miller also consulted a drug and alcohol counsellor in immigration detention. The notes from the last consultation on the records before me was on 15 January 2024,[78] and reports that his last drink was April 2023. It reports that Mr Miller said he was using one gram of ICE roughly every three days.
[78] Ex R7, T5, 107.
Dr Kwok reports that Mr Miller requires some treatment to address the trauma following the fire at Villawood, as he describes reacting to the sounds of fire alarms and was relocated to a downstairs room.
The DFAT report states the law provides for public mental health care, but that it may not be available in practice with an inadequate number of health care professionals.[79] Drug and alcohol services are available but are underfunded.
[79] Ex R7, T8, 292.
I consider it likely Mr Miller’s mental health will deteriorate on being separated from his family if he is removed from Australia because his visa is cancelled. I consider that some medical and mental health treatment is available, but it may be difficult for him to access treatment, and treatment to the standard he has received in Australia may not be available.
Language or cultural barriers
While at hearing Mr Miller reported that he understood but could not speak Fijian, he is reported as being multilingual in Fijian and English by the drug and alcohol counsellor.[80] Mr Miller acknowledged that English is commonly spoken in Fiji, but said he would face language barriers if he had to work in more traditional areas where he would also be unfamiliar with the culture.
[80] Ex R7, T5, 108.
Mr Miller has returned to visit Fiji on six occasions since he arrived n Australia, with his most recent visit in December 2017 – January 2018 for the funeral of his aunt. He acknowledged that he visited relatives but said he did not stay with relatives during these visits.
I consider he has some familiarity with the Fijian language and the culture but will find it more difficult outside the capital or in more traditional areas. I consider it highly likely he would return to Suva where he has family and can obtain accommodation and unlikely that he would return to a traditional area.
Any social, medical and/or economic support available to the Applicant in their country
Mr Miller claims that he does not have family or a social support network in Fiji and he will struggle to find housing. Mr Miller has some family members remaining in Fiji who can provide support on his return. His mother’s siblings are deceased, however contrary to his statement that he has no family support his father has three brothers and a sister in Fiji in the capital Suva. His father said his siblings would take in Mr Miller and give him somewhere to live but have their own problems and Mr Miller would not want to live with them. They have limited financial capacity to support Mr Miller.
Mr Miller may not like to live with family but will not be homeless if he returns to Fiji. He has a number of cousins, and some social connection with Fiji, but says he has a distant relationship with his cousins many of whom are much younger than him.
Mr Miller’s parents and sisters can provide limited financial support if Mr Miller were to return to Fiji.
As Mr Miller will have access to accommodation and some financial support he will have assistance in re-establishing himself in Fiji.
Mr Miller intends to resume work as a driver if released to the Australian community and can seek work as a driver in Fiji. He states that he is limited by his back complaint, however said he could work driving short distances, and I find this is also the case if he returns to Fiji. He has some work capacity and an ability to earn an income. I do not accept his unsupported claim that his criminal record will result in difficulty obtaining employment as a driver.
Mr Miller is not without support in Fiji and has visited Fiji on several occasions since arriving in Australia. He has health conditions and may have difficulty accessing treatment to the standard he has received in Australia. It is likely his mental health will deteriorate over the short term if he is removed from Australia.
Mr Miller will face some impediments if removed from Australia to Fiji, however has access to housing, some financial support and access to medical and mental health care to the extent that other people in Fiji can access these services. He is able to work and can seek employment as a driver. The Tribunal finds that the extent of impediments if removed weighs slightly in favour of revoking the cancellation of his visa.
Impact on Australian business interests
Clause 9.3 of the Direction states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Mr Miller hopes to return to work for his previous employer and provides a reference from 2020 stating he could return. I do not have anything more recent to show his employment prospects in Australia. There is no information before me to show his employment related to delivery of a major project or delivery of an important service in Australia.
This consideration is neutral.
CONCLUSION
Mr Miller does not pass the character test under s 501 of the Act, and I must consider whether there is another reason why the decision to cancel his visa should be revoked, having regard to the primary and other considerations in the Direction.
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[81]
[81] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said ‘[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.’[82]
[82] [2023] FCAFC 138, [23].
In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them in light of the evidence and findings using the guidance provided by the Direction.
Greater weight must generally be given to the protection of the Australian community than other primary considerations. Greater weight will also generally be given to primary considerations. In examining what this requires, the Full Court in CRNL states that this means greater weight will be given unless there is some reason why that general approach should not be adopted.[83] In the circumstances of this case I consider the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations.
[83] Ibid [27].
I have found that the protection of the Australian community weighs heavily against revoking the cancellation of Mr Miller’s visa. The consideration of family violence also weighs heavily against revoking the cancellation of his visa, as do the expectations of the Australian community. These are given greater weight than the other considerations.
The strength, nature and duration of Mr Miller’s ties to Australia and the best interests of the children affected by the decision each weigh moderately in favour of revoking the cancellation of his visa. I do not consider these primary considerations outweigh the other primary considerations.
The legal consequences of the decision weigh slightly in favour of revoking the cancellation of Mr Miller’s visa, and the impact on Australian business interests is neutral. The extent of impediments if removed weighs slightly in favour of revoking the cancellation of Mr Miller’s visa.
In the circumstances of this case, I consider the protection of the Australia community, that the conduct was family violence, and the expectations of the Australian community, outweigh the strength, nature, and duration of Mr Miller’s ties to Australia, the best interests of minor children in Australia, the legal consequences of the decision, and the extent of impediments Mr Miller will face if removed from Australia.
I have found that the considerations weighing against revocation outweigh those in favour of revocation. As a result, I am not satisfied there is another reason that the decision to cancel Mr Miller’s visa should be revoked, and the decision under review is affirmed.
DECISION
The decision not to revoke the cancellation of the Mr Miller’s visa under section 501CA(4) of the Act is affirmed.
I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Millar.
………………………………………
Associate
Dated: 17 October 2024
Date of hearing: 19 and 20 September 2024 Advocate for the Applicant:
Instructed by:
Peter Berg
Wendy Milojkovic,
Milojkovic Visa and Migration Legal Services
Advocate for the Respondent:
Cormac Burke,
Sparke Helmore
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