Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1623
•8 June 2021
Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1623 (8 June 2021)
Division:General Division
File Number(s): 2021/1720
Re:Joseph Miller
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Chris Puplick AM, Senior Member
Date:8 June 2021
Place:Sydney
The Tribunal finds it has jurisdiction in the matter; and
The decision under review is affirmed.
....................................[sgd]....................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – preliminary consideration of jurisdiction – application found to be valid – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor child – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 25, 29 and 29AB
Administrative Appeals Tribunal Regulation 2015 (Cth) s 7
Migration Act 1958 (Cth) ss 500, 501 and 501CA
CASES
Beiruti and Commissioner of Taxation [2013] AATA 634; 138 ALD 380
Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364
BFXK and Minister for Immigration and Border Protection [2018] AATA 886
Department of Human Services and WNRW [2015] AATA 304
FYBR v Minister for Home Affairs [2019] FCAFC 185
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Misa and Minister for Home Affairs [2018] AATA 1511
MZAIC v Minister for Immigration and Border Protection and Anor [2016] FCAFC 25; 237 FCR 156
NHYG and Child Support Registrar [2020] AATA 2653
Prasad and Minister for Immigration and Border Protection [2017] AATA 1506
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490
RDVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5141
Sharma and Minister for Immigration and Border Protection [2015] AATA 608
Tasker v Fullwood (1978) 1 NSWLR 20
VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1945
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Administrative Appeals Tribunal: Guide to Applying for Review
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Explanatory Memorandum to the Administrative Appeals Tribunal Amendment Act 2005 (Cth)
Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth)
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
8 June 2021
JURISDICTIONAL ISSUE
Prior to the hearing of the substantive matter, the Minister made a submission to the Tribunal claiming that it lacks the jurisdiction to hear the appeal in Joseph Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021/1720). The Tribunal is required to make a determination on this submission before it is in a position to consider the substantive matter.
That determination is as follows.
On 15 March 2021, a delegate of the Minister (the Respondent) decided not to revoke, pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) a previous decision made under subsection 501(3A) to cancel the Applicant’s subclass 155 visa.
On 24 March 2021 the Applicant, via his Migration Agent filed a document in the Tribunal seeking review of the delegate’s decision not to revoke the cancellation of the Applicant’s visa.
Application form used by Applicant
Section 7 of the Administrative Appeals Tribunal Regulation 2015 (Cth)[1] provides, relevantly:
[1] Made under the Administrative Appeals Tribunal Act 1975 (Cth) and the Tribunals Amalgamation Act 2015 (Cth).
Approval of forms
(1) The President may approve forms (including electronic forms) for the purposes of the following:
(a) the Act;
(b) this instrument;
(c) another enactment that confers powers or functions on the Tribunal.
All forms on the Tribunal’s website are thus approved by the Tribunal President for the purposes of the AAT Act, including all forms which may be lodged electronically.
The form of the application document which the Applicant’s representative understood was a proper application for review and which was filed by him in the Tribunal electronically was published on the website of the Tribunal. It was the form which was identified as an applicable form for use in migration matters. The heading on this form, which is identified as form eM2 is as follows:
Administrative Appeals Tribunal
Application for review – online lodgement and payment details
eM2 – Application for review to the Migration and Refugee Division
Beneath the heading the following appears on the form:
Information
This confirms the details lodged by you online in regards to application for a review with the Administrative Appeals Tribunal, Migration and Refugee Division. Please review the information provided and if you have any questions or corrections please advise the AAT quoting the confirmation reference number for your application. Contact details and further information is available at >
This form was completed by the Applicant’s representative and lodged electronically.
The form used on behalf of the Applicant namely form eM2 contained no provision requiring a statement of reasons to be included in this application. However, it made provision for “Document upload”. In the box provided, the Applicant’s representative included:
Document Type: Notification and decision from department.
General application form
There is more than one acceptable application form published on the Tribunal’s website. One such form is relevant to general matters for determination by the Tribunal. The heading on the form is:
Application for Review of Decision (Individual).
The document states:
This form is for use in the AAT’s General Division, Freedom of Information Division, National Disability Insurance Scheme Division, Security Division, Small-Business Taxation Division, Taxation & Commercial Division and Veterans Appeals Division.
This form states in the heading:
Please read the Guide to applying for review before completing this form. You must complete the fields and answer the questions marked with an asterisk*.
Section 3 is entitled “Reasons for the Application” and the following appears below the heading:
Why do you claim the decision is wrong?*
Please read the “Reasons you are making an application” section in the Guide to applying for review before answering this question.
Accordingly, this form requires a statement of reasons for the application. Whilst the form used was appropriate for general migration matters, another form was provided for use in applications in relation to section 501 of the Migration Act. The website contained a notation to this effect, but it was apparently overlooked.
The Guide which is referred to in the instructions to the form provides:
The Administrative Appeals Tribunal (AAT) can review a wide range of decisions made under Commonwealth laws by the Australian Government and some non-government bodies. We also review decisions made under Norfolk Island laws.
You should use this guide if you want to apply for a review of a decision in the AAT’s General Division, Freedom of Information Division, National Disability Insurance Scheme Division, Security Division, Small Business Taxation Division, Taxation & Commercial Division or Veterans’ Appeals Division.
The five parts of this guide will:
·help you choose which application form to use (Part 1)
·help you complete the application form (Part 2)
·help you work out if you must pay an application fee and, if so, how much (Part 3)
·give you some other information about applying to the AAT (Part 4) and
·show you where to send your form and how to contact the AAT (Part 5).
If you want to apply for a review of a decision in the AAT’s Migration & Refugee Division or Social Services & Child Support Division, go to and follow the links on the website.
Part 1: Choosing Which Application Form to Use is contained directly beneath the Guide. It states:
The AAT has three application forms to apply for a review of a decision in the AAT’s General Division, Freedom of Information Division, National Disability Insurance Scheme Division, Security Division, Small Business Taxation Division, Taxation & Commercial Division or Veterans’ Appeals Division. Application for Review of Decision (Individual) Use this form if you are an individual, unless you want to apply for a second review of a decision of the AAT’s Social Services & Child Support Division.
Application for Review of Decision (Organisation)
Use that form if you are an organisation.
Application for Second Review of Decision
Use that form if you want to apply for a second review of a decision made by the AAT’s Social Services & Child Support Division:
·about a Centrelink decision (except an employer-related paid parental leave decision)
·to refuse an extension of time to apply for a child support review
·about a person’s percentage of care for a child in a child support review.
For information about completing this form, see Part 2 of this guide.
Respondent’s contentions
The Respondent submits that the documents filed by the Applicant do not constitute a valid application because of non-compliance with a requirement of paragraph 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The non-compliance is said to arise because the application did not “contain a statement of the reasons for the application”. The reason relied upon in support of such contention is set out hereunder following the Statutory provisions.
On 9 April 2021 the Applicant provided a statement of reasons, but such was provided after 24 March 2021, which was the extent of the limitation period set by subsection 500(6B) of the Migration Act for the lodgement of an application for review, namely that an applicant file such application within nine days of the Applicant’s receipt of the decision.
Statutory provisions
Subsection 29(1) of the AAT Act provides that an application to the Tribunal for review of a decision must be in made in writing (s 29(1)(a)(i)); must be accompanied by any prescribed fee (s 29(1)(b)); and relevantly, must contain a statement of the reasons for the application (s 29(1)(c)) unless paragraph (ca) or (cb) applies.[2]
[2] Paragraphs (ca) and (cb) apply to security assessments and are not relevant in this matter.
Paragraph 500(1)(ba) of the Migration Act, read in conjunction with subsection 25(1) of the AAT Act makes provision for review of decisions of a delegate of the Minister under subsection 501CA(4).
Paragraph 25(3)(c) of the AAT Act provides that where an enactment makes provision in accordance with subsection 25(1) of that Act, that enactment may specify conditions upon which applications may be made, and subsection 25(6) provides that an enactment may also include provisions adding to, excluding, or modifying the operation of (inter alia) section 29 of the AAT Act.
Section 29AB of the AAT Act is relevant to the content of the application detailed in section 29. It provides that if an applicant statement under paragraph 29(1)(c) does not clearly identify the respects in which the Applicant believes the decision under review is not the correct or preferable decision, the Tribunal may:
by notice given to the Applicant, request the Applicant to amend the statement appropriately within the period specified in the notice.
In other words, the AAT Act itself recognises that an error may be made, but that error is capable of being corrected. It is not taken to be inevitably fatal.
Subsection 500(6B) amends the operation of section 29 of the AAT Act in relation to applications for review of decisions made by delegates of the Minister under subsection 501CA(4). In these circumstances, such application:
must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
Authorities
In Beiruti v Commissioner of Taxation [2013] AATA 634 the Tribunal considered the effect of a modification of section 29 of the AAT Act by section 14ZZC of the Taxation Administration Act 1953 (the TAA). This substituted provisions relevantly requiring that the application to the Tribunal must be made in writing; must be made in accordance with the prescribed form; must set out a statement of the reasons relied upon. The Tribunal held that in its modified form, the application for review could not be made to the Tribunal unless it set out the statement of reasons. Such conclusion was derived from the mandatory word “must” in paragraphs 29(1)(a), (c) and (d). Such decision was arrived at observing that in the unmodified form, the obligation to comply uses both the words “must” or “shall” with a consequence that a statement is not a mandatory requirement to be met before an application could be said to have been made. The effect of the words “shall” as with the word “must” was mandatory but because Parliament had “’deliberately chosen a different word when substituting paragraph 29(1)(c)’, such invited the application of the principle of statutory interpretation that the employment of a different language in the same Act signified intention that the that the language carried different meanings.”[3]
[3] Respondent’s Outline of Submissions Jurisdiction at [19].
Such finding was adopted in Department of Human Services and WNRW [2015] AATA 304 at [17].
In NHYG and Child Support Registrar [2020] AATA 2653, the Tribunal found that the requirement an application “must be accompanied by any prescribed fee” did not lead to the conclusion that such requirement was mandatory. A distinction was drawn by Forgie DP in the language when she stated that, when subsection 29(1) was read with subsection 609C(1), it could not be understood as requiring the fee to be paid at the time of the application when the words required the application to be “accompanied” by the fee. The Deputy President observed:
If non-payment of the prescribed fee meant that no application be made, there will be no requirement for section 69C(1) to provide one applicant’s dismissal for non-payment of the prescribed fee.
Another reason for reaching such conclusion was that Parliament had used the word “shall” in subparagraph (d) but “must” in paragraphs (a) to (c).
Respondent’s submissions
The respondent in summary makes the following submissions:
(a)the modified form of subsection 29(1) the AAT Act consistently uses the word “must” in modified paragraphs 29(1)(a)-(c) and subsection 500(6B). The wording used gives rise to the mandatory requirement to provide a statement of reasons;
(b)it is submitted that DP Forgie in Beiruti and Commissioner of Taxation [2013] AATA 634; 138 ALD 380 erred in her interpretation of the unmodified text of subsection 29(1B) (now repealed and replaced by section 29AB) , and submits that it should have been found that the language used in both the unmodified and modified sections gave rise to a mandatory obligation. It is submitted that such conclusion is reinforced by the Explanatory Memorandum which introduced subsection 29(1B), namely the Administrative Appeals Tribunal Amendment Act 2005 (Cth) wherein it relevantly states:
Under paragraph 29(1)(c) of the AAT Act, an applicant must include a statement of reasons with the application for review of a decision…
This provision is made to overcome the practice of applicant submitting their statement of reasons that there was “error in fact and law” without further substantiation…. Such a statement does not assist the Tribunal in identifying why the Applicant believes the decision under review was incorrect.
Where the Tribunal request a further statement under new subsection 29(1B), paragraph 29(1)(c) of the Act will be taken to have been satisfied for the purposes of determining if a valid application has been lodged. That is, the request of a further statement by the Tribunal under new subsection 29(1B) does not mean that the original application did not contain a statement of reasons for the purposes of that subsection. Accordingly if the application has met the other requirements for a valid application in subsection 29(1) of the Act, the application would not be found to be invalid for failure to comply with paragraph 29(1)(c) of the Act.
The Respondent submits that such paragraph demonstrates that, whilst a further statement may be required by the Tribunal, all other requirements of subsection 29(1) must be made for an application to be validly made.
(c)The Respondent submits that section 29AB which replaced subsection 29(1B) in 2015[4] assumes that any valid application will have been given but permits it to be “amended” if considered inadequate: however, a valid application must first exist.
(d)The Respondent submits that there is no inconsistency between the requirements of paragraph 29(1)(b) and section 69C in respect to payment of fees; and
(e)the Respondent submits that the unmodified form of section 29 did not impose harsh consequences bearing in mind the power to provide an extension of time.
[4] Ibid at [47].
Observations
Following the lodgement, on 24 March 2021, of the eM2 document in the Tribunal, on 25 March 2021 the Registry of the Tribunal advised that the application had been received and transferred to the General Division.
On 26 March 2021 the application was listed for a case management directions hearing by telephone to be held on 1 April 2021. At this directions hearing, the Respondent raised objection to the validity of the eM2 document used by the Applicant.
During such hearing the Senior Member conducting the Directions hearing suggested that a “statement of the reasons for the application, could be provided by email and that it should be provided by 9 April 2021”. Such statement was duly provided. However, the Respondent claims that it was provided beyond the relevant time limit.
Is the requirement to file a statement of reasons mandatory?
Irrespective of the distinction that is drawn between the words “must” and the word “shall”, the Tribunal considers that either word indicates the intention of Parliament that the requirement to provide a statement of reasons when an application is filed under subsection 29(1) is mandatory, but that the use of such words must be considered in the context and purpose of the statute in question.
The Tribunal also agrees with the submissions of the Respondent that where provision is made for the further provision of information, as provided by section 29AB, such provision is predicated upon the fact that there has been a valid application under paragraph 29(1)(c). However, provided it can be shown that there has been substantial compliance with the requirements for the application, the application will be valid. In MZAIC v Minister forImmigration and Border Protection and Anor [2016] FCAFC 25; 237 FCR 156 at 156, the Full Court of the Federal Court of Australia considered the question whether there had been substantial compliance with the provisions of an application made to the Refugee Review Tribunal in which paragraph 412(1)(a) of the Migration Act required that an application be made on an approved form. The Applicant had used a superseded form. The Full Federal Court concluded that the fact that the application had been made on a form which had been approved, but which had been superseded, did not render the application invalid; that an applicant can “substantially comply” with the requirement in paragraph 412(1)(a) of that Act by using a superseded form. Having considered numerous authorities their Honours concluded (at page 170; [48] – [50]):
It follows, in our view, that there is no authority for the proposition that merely to use a superseded form prevents there being an analysis of “substantial compliance” with the current form. The present appeal is not a case of no form at all being used, or a form which the appellant was expressly or impliedly prohibited from using.
Indeed, the present form is not an application for a visa at all, which may well involve precise and detailed information, but an application for a review of the merits by the Tribunal of an identified decision. We would distinguish the cases concerned with visa applications, to which we have referred and those on which the Minister relies, as concerned with different and more specific statutory language and as having a different purpose in the scheme of the Migration Act.
In our opinion, it would be counter to the scheme of the legislation to hold that the mere use of a superseded form, subject to the question of substantial compliance with the current form, rendered ineffective an application to the Tribunal which had been made.
The Full Court considered a submission by the Minister that unless the correct form was use, uncertainty would result and concluded that such submission could not be accepted, stating at [51]:
The answer to both these issues, in our opinion, is that the Tribunal would ask itself the question whether the form of the application made contained the information the Tribunal needed to set in train the process of review.
The Full Court considered that the focus should be on the question whether an application had been made under section 412 of the Migration Act, albeit lodged on the wrong form. Their Honours continued at [52]:
We reject the Minister’s submissions that where a superseded form is used for an application to the Tribunal, s 25C of the Acts Interpretation Act cannot apply. We would read s 412(1)(a) with s 25C as raising the question whether an application for review to the Tribunal had been made in or substantially in the approved form.
At [58] the Court summarised its reasons for finding that substantial compliance had been achieved stating:
First, the purpose of the form is to indicate that the visa applicant invokes the jurisdiction of the Tribunal and for that purpose states who he is and identifies the decision that is being challenged. Secondly, the appellant’s application to the Tribunal attached a copy of the notification letter from the Department which contained the appellant’s name, date of birth, client ID, application ID and file number. Thirdly, many applicants to the Tribunal would not have passport numbers. Senior Counsel for the Minister accepted that the Tribunal could still deal with applications by those who did not have passports. Fourthly, the request for a passport number appears to be directed, at best, to the administrative convenience of the Tribunal rather than to whether, as a matter of substance, its jurisdiction has been duly invoked. Fifthly, in context, the request for a passport number provides merely a further or additional means, as a matter of detail, of the purpose stated on the form: “ ... to collect information about the person, or persons, applying for review.”
Buchanan J at [129] adopted the reasoning in Braganza v Minister for Immigration andMulticultural Affairs (2001) 109 FCR 364 which held that the fact that a fee was not paid when an application was made did not render the application being invalid.
Is there a valid application before the Tribunal?
The eM2 form, which is used by the Applicant, is one of the approved forms which would validly commence an application for review in the Tribunal in matters pertaining to the Migration and Refugee Division. This is plain not only from the information provided on such form. It is also confirmed by the Guide contained in the general application form which does not list migration matters as one of the relevant subject matters for the form’s use. Accordingly, the Applicant has used one of the forms which appeared to be relevant to his application, within his understanding as a layperson.
The eM2 form contains no provision for the provision of a statement of reasons. Instead it makes provision for a “Document upload”. This was the electronic means by which an applicant could lodge the form and provide information to the Tribunal.
In the section provided for Document upload, the Applicant included “Notification and decision from Department”. By providing that information, the Applicant made it plain that the reason for his application was to seek review of the reasons for the notification and the decision. In that respect, a decision, which itself consists of a “statement of reasons” was attached.
The Tribunal accepted the eM2 as a valid application, as evidenced by the receipt on the face of the document providing you with an application number namely:
8244273 Application for Review.
The Tribunal also allocated a case number: Case Number: 2103768. There is no requirement that an application, when stating the reasons for the application, must follow any prescriptive form or words. The clear indication on the eM2 form used by the Applicant demonstrated the reasons for his application was to challenge the decision. There was nothing more that the Applicant could do using this prescriptive form provided by the Tribunal.
The eM2 form was accepted by the Tribunal as a valid application. The subsequent Directions hearing demonstrated this fact.
To construe the requirement to provide a statement of reasons as a mandatory requirement would lead to invalidity of this application due to a technicality. Moreover, this is not an invalidity capable of cure by the provisions of section 29AB of the AAT Act because such a course of action is rendered nugatory by section 500(6B) of the Migration Act. In turn that means that the Applicant could not have his matter reviewed before the expiry of the time limit imposed by paragraph 500(6L)(c) of the Migration Act, with the automatic result that the reviewable decision is taken to have been affirmed. The Applicant’s visa would be revoked without further consideration and he would be potentially subject to deportation.
The Tribunal does not consider that this could have been the intention of Parliament. The Tribunal considers that the Applicant has placed before the Tribunal everything which the form provided required; whether another form should have been used is a matter which can be excused, on the basis of the reasoning in MZAIC. At [50] in that decision the Full Court observed:
Indeed, in the present case, such is the similarity of the forms that those not versed in the identification system in very small print at the foot of each page would be hard pressed to tell whether or not the form currently approved was being used.
By analogy, the same observations can be made of the fact that the website of the Tribunal did not suggest any form other than the form which was provided by the Applicant was the correct form for use in his application for review.
The Tribunal respectfully adopts the observations of the majority of the High Court of Australia in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 where the majority observed that:
a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid… In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute” [Tasker v Fullwood].
Their Honours further noted that legislation should be constructed with an eye to ensuring consistency and fairness reflecting the public policy expressed in the relevant legislation:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [I915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J).
(emphasis added)
The Respondent has urged upon the Tribunal that, in changing the word “must” to “shall” in updates to the original AAT Act, the Parliament was intending to move from a less proscriptive regime of requirements (“must”) in relation to the lodgement of applications, to a more prescriptive (“shall”) regime. The Respondent makes this claim without being able to adduce any direct evidence from the extensive extrinsic materials which it has submitted to support this claim.
By contrast, in the Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 which establishes the legislative framework now in place, the provisions and purport of the new (current) paragraph 29(1)(c) are outlined as follows:
[381] New paragraph 29(1)(c) would preserve the policy of exiting paragraph 29(1)(c) that, in most circumstances, an application must contain a statement of reasons for the application. The exception from this requirement has been extended to oral applications, to reflect the amendment to allow applications to be made orally for decisions reviewable in the Social Services and Child Support Division. (emphasis added).
From this, the Tribunal adduces that the Parliament clearly understood and intended that there would be circumstances in which an application could be accepted without a statement of reasons. Had it intended this requirement to be absolute, it would not have described the requirement as operating “in most circumstances”, that it to say, with exceptions. Similarly, if such an avenue were not open in the previous regime, which the new regime is intended to “preserve”, there would be no relevance in making reference to such a regime being “extended”. One cannot extend what is not already present (and being preserved).
It follows that the regime prior to the 2014 amendments generally required the submission of a set of reasons, but not in all circumstances and that the new regime was not intended to disturb that arrangement, but rather to preserve it.
Hence, the change in the terminology from “must” to “shall” cannot now, retrospectively, be invested with a meaning which the Parliament clearly did not intend. That very same set of amendments gave the Tribunal a new set of objectives, now stated in section 2A of the AAT Act as follows:
In carrying out its functions, The Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Construing the whole of such Act, it is plain that it could not have been intended that a technical issue of the kind which has been raised by the Respondent could defeat an application which is otherwise valid, or to facilitate use of a technicality to deny an applicant an opportunity for independent review of a decision, especially one which might compromise his very right to liberty. The construction of the relevant statute will provide a guide to its interpretation: see Tasker v Fullwood (1978) 1 NSWLR 20 at 23-24.
In summary, the Tribunal finds that the intention of the Parliament was to permit an application for review to made and that such application will be deemed to be valid provided the information demonstrates that the Applicant is challenging a decision and the decision is identified. In addition, in the facts of this application, the Applicant has substantially complied with the requirements.
Conclusion as to jurisdiction
The Applicant has provided an application which is valid.
The Tribunal determines that it has jurisdiction to hear the substantive appeal.
CONSIDERATION OF APPLICANT’S APPEAL
The Applicant seeks review of a decision of a delegate of the Respondent made on 18 February 2021 (the decision under review) not to exercise the discretion under s 501CA(4) of the Migration Act to revoke the original decision made under s 501(3A), on 24 March 2020, to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa) (the original decision).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: subparagraph 501(3A)(a)(i) of the Migration Act.
On 25 May 2020, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Migration Act (that is, the original decision).
On 18 February 2021, a delegate of the Minister decided not to revoke the original decision (that is, the decision under review). On 26 February 2021, the Applicant applied to the Tribunal for review of that decision. The substantive hearing before the Tribunal was held on 25 and 28 May 2021 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Migration Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Migration Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Migration Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Migration Act which 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.
Section 500(1)(ba) of the Migration Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to subsection 499(1) of the Migration Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction or Direction 90). Subsection 2A of section 499 states that “A person or body must comply with a direction under subsection (1).” This binds the Tribunal to make its decision in accordance with any clear statement of public policy contained therein.
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
FACTS
The Applicant, who is 39 years of age is a citizen of Fiji. He was born in Fiji and has resided in Australia since his arrival on 10 August 1991 aged 10 years. Apart from periods of brief overseas travel, he has remained in Australia. He last entered Australia on 5 January 2018.
EVIDENCE
Statements
The Tribunal has had regard to several witness statements filed in support of his application. The authors of several such statements have provided oral evidence. However other statements have been provided by the children of a current partner of the Applicant; by a former employer, Bushman’s group Pty Ltd who wrote in favour of the Applicant’s work ethic; by the Applicant’s sisters, Remona and Sera; a statement by a step-daughter and her partner; by Isaac Miller, the father of the Applicant who resides in Australia; by “uncle” Johnny Lewis who testifies as to the support which the Applicant has provided to Liverpool Lions Club.
Oral evidence
The Tribunal heard oral evidence from the Applicant and Sarah-Jane Stewart, the former wife of the Applicant; Cheree Leigh Bevan, the Applicant’s current partner; and Alicia Boland who is a close friend of Cheree Bevan. All were supportive of the Applicant being allowed to remain in Australia, although the primary reason addressed by them in this regard related to the claimed best interests of the relevant children.
Other evidence
Other evidence before the Tribunal included:
·A Statement of Attainment in Manufacturing and Engineering Training Program issued by the NSW Technical and Further Education Commission in July 2000 to certify that the Applicant has been awarded such certificate;
·a certificate provided by the South-Western Sydney Institute of TAFE Students Associations confirms the participation of the Applicant in a raft team for a money raising event for supporting the Children’s Hospital at Westmead;
·a Certificate of Appreciation dated November 2001 had been issued confirming the Applicant’s participation in the rafting team event;
·pay advice slips issued by Bushman’s Group Pty Ltd have been provided relating to the employment of the Applicant from November 2019 to January 2020.
APPLICANT’S CRIMINAL HISTORY
The Applicant was convicted of the following offences:
·29 November 2000 – convicted of two accounts of assault occasioning actual bodily harm: sentence two months periodic detention for one count and 12-month supervision/probation for the other;
·25 March 2002 – convicted of common assault and demand property with menaces with intent to steal: fine and sentenced to 300 hours of community service respectively;
·29 July 2002 – use offensive language in/near public place/school: fined $75;
·3 May 2005 – use offensive language in/near public place/school: fined $100;
·6 October 2004 – common assault: two-year supervision/probation order;
·6 October 2004 – driving without licence/middle-range PCA: fines totalling $1550 and 3-year licence suspension;
·2 June 2007 – behave in offensive manner in/near public place/school: fined $100;
·2 June 2007 – shoplifting value less than $2000: sentenced to section 9 bond for 12 months;
·10 September 2018 – convicted in the Local Court of NSW on five counts of contravene prohibition/restriction in AVO (domestic): fine on four counts: on the fifth count 12 months supervision/probation service order for counselling, educational development or drug and alcohol rehabilitation;
·10 September 2018 – conviction of using carriage service to menace/harass/offend: sentence of 12 months of good behaviour bond;
·10 September 2018 – conviction on five counts of stalk/intimidate intend fear physical et cetera harm (domestic): same sentence as for breaches of AVO above;
·25 October 2018 – conviction of contravening prohibition/restriction AVO (domestic): sentenced to 6 months community corrections order; and
·27 November 2019 – conviction by the Local Court of NSW at Orange of common assault, stalk/intimidate intend fear physical et cetera harm (domestic) and two counts of contravene prohibition/restriction in AVO (domestic): sentenced to an aggregate term of imprisonment for two years with a non-parole period of 12 months: reduced on appeal to the District Court of New South Wales to period of 12 months aggregate term of imprisonment with a non-parole period of six months.
The Applicant consequently received a continuous period of imprisonment in respect of the convictions referred to relating to the 27 November 2019 convictions which was in excess of 12 months.
Sentencing observations
The Tribunal has considered sentencing observations in relation to these convictions.
On 27 November 2019 before the Local Court of New South Wales at Orange Magistrate Day referred to the evidence before the Court and stated inter alia:
The pattern of behaviour by Mr Miller directed towards this partner is absolutely appalling. The extensive repetitious intimidating behaviour over period of time is appalling. All this while he is unconditional liberty that is to say a community corrections order…
Turning then to have the offences were sentence. There are positive matters raised in the sentencing assessment report, in particular his ability to hold down employment and his ability to be abstinent alcohol. I have already indicated I disagree with the report writer who assesses his risk of reoffending as medium to low, I consider it at least medium if not leading to high because of his propensity to resume consuming alcohol and offending.
Intimidation is a serious matter, on indictment it carries a maximum sentence of five years. The intimidation is involving threats to People’s throats in my view is serious and although it is below mid-range it is still in my view crosses the custody threshold. Likewise the contraventions by way of intimidation are serious.
This is a prolonged offending taking all those matters together, balancing it against the very early plea which will reduce the penalties in general for the sentences. All these matters in my view because of his background and because of the deep fear in which he placed his victim, require a custodial sentence.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by paragraphs 501(6)(a) and 501(7)(c) of the Migration Act: subparagraph 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: subparagraph 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Migration Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
MINSTERIAL DIRECTION 90
Before proceeding to consider all the criteria which are set out in Ministerial Direction 90 (MD90) as they relate to the Applicant, something should be said about particular aspects of the Direction itself.
There is a lengthy history of Ministers giving directions to decision-makers about how to exercise their responsibilities under the Migration Act. The history of such directions is set out in detail in the Tribunal’s decision in BFXK and Minister for Immigration and Border Protection [2018] AATA 886 at [113].
The first such statement was made by the relevant Minister in May 1983 and the first formal Direction (Direction 17) was issued in 1999. The current Direction (MD90) was made on 8 March 2021 (to commence operation on 15 April 2021). Its predecessor was Ministerial Direction 79 (MD79) (operational 28 February 2019).
Changes between Ministerial Directions indicate clearly to decision-makers that there have been changes in public (government) policy to which they must have regard.
One of the most significant changes between MD79 and MD90 has been to add a fourth item to the list of “primary considerations” which must be taken into account by decision-makers. This item is:
(2) whether the conduct engaged in constituted family violence.
The term “family violence” is extensively defined in MD90 as:
family violence 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 behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
PRIMARY CONSIDERATIONS
Primary consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should also 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted were violent and many were committed against a woman in a domestic violence context. There is no doubt that such conduct is serious.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the long period over which the Applicant has proved to have a violent disposition;
(b)the disregard of the Applicant for the requirements of Australian law by committing offences whilst he was restrained by AVO from approaching the victim and whilst he was subject to a corrections order;
(c)the serious threats which were repeatedly made by the Applicant, for example:
(i)“I’m going to cut all of your throats while you’re sleeping”
(ii)"I'm come back and kill you and kill your dog”
(iii)"I’m gunna end up like one of those crazy cunts, you know like the one that just killed his kids on the news”.[5]
(d)the propensity to engage in violent behaviour which has included numerous assaults on his former wife[6] and at least one previous partner; including such instances as kicking his partner in the stomach while she was 3 months pregnant;[7] attempting to steal a bicycle from a young man by threatening him[8]; assaulting a bus driver for no reason [9]and assaulting a store clerk during an attempted robbery[10]; and
(e)the Applicant’s disregard of the Australian law which, in addition to the above matters include offences of shoplifting, driving without a licence, driving with a prescribed level of alcohol and using a carriage service to menace or harass.[11]
[5] Tender Bundle at 155-156.
[6] Tender Bundle at 128, 166-167, 170, 172-176.
r Tender Bundle at 176.
[8] Tender Bundle at 102; 117-119.
[9] Tender Bundle at 99.
[10] Tender Bundle at 177.
[11] G documents at 37-41.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction.
Finding on Primary Consideration A
Over time, the seriousness of the Applicant’s offending has increased. Although he has claimed that much of his offending was related to alcohol abuse and that he has stopped drinking, it is apparent that he has not taken opportunities open to him to attend course which would assist with his anger management issues.[12]
[12] Tender Bundle at 27.
In the sentencing remarks, his Honour said:
I know the sentencing assessment report is to assist and guide me but I disagree with the assessment of his risk of reoffending because he’s assessed as medium to low. I consider he’s medium to high looking at his record and if he relapses and becomes a regular alcohol user to excess he’ll reoffend.[13]
[13] G-docs at 51.
The Tribunal agrees with his Honour’s assessment. It is not satisfied that the Applicant would not be at substantial risk of re-offending based upon his previous course of conduct in disregarding repeated AVOs or restraining orders and engaging in unprovoked acts of violence.
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides 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.
Paragraph 4(1) defines family violence to mean "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".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
The conduct of the Applicant has been shown to be violent and dangerous on repeated occasions towards his family members. On 9 November 1999 and AVO was applied for with the court dated 6 December 1999. The AVO was drawn. Two weeks later namely on first of February 2000 the victim, having been absent from Australia, requested and AVO as she had fears for her safety.
On 24 July 2004 the victim (a different partner) who was pregnant was assaulted by the Applicant being pushed to the ground, having her hair repeatedly pulled, sustaining bruising.
Between 2015 and 2018 repeated incidents occurred during which the Applicant threatened the Applicant’s wife and children resulting in the issue of AVOs and subsequent breaches of those AVOs by the Applicant.
The Tribunal, even prior to the special emphasis placed on the issue of family violence by Ministerial Direction 90 has regarded domestic violence, violence against women[14] and threats to children, or acts of violence committed in their presence[15], as particularly serious matters and ones to be counted heavily against applications for citizenship or appeals for revocation of cancellation decisions. It also recognises that “it is well established that psychological threat and intimidation can be just as harmful as actual physical violence and have long lasting negative effects for women and their children.”[16]
[14] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686; Prasad and Minister for Immigration and Border Protection [2017] AATA 1506; Sharma and Minister for Immigration and Border Protection [2015] AATA 608.
[15] Misa and Minister for Home Affairs [2018] AATA 1511.
[16] VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1945 at [89].
Finding on Primary Consideration B
The Tribunal finds that this consideration weighs heavily against the Applicant. Even though the offences may have occurred whilst he was under the influence of alcohol, the fact that existing orders were defied renders the conduct especially serious.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
(a)the nature and duration of the relationship between the child and applicant. 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 (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
(b)the extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
(c)the impact of the applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
(d)the likely effect that any separation from the applicant would have on the child, taking into account the child's or applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
(e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the applicant, or has otherwise been abused or neglected by the applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has biological children. As follows:
(a)a daughter who is now approximately 20 years of age. The Applicant has had no contact with her for approximately 16 years and the Tribunal has not been provided with any further information concerning this child.
(b)children of his marriage. They are:
(i)Taliah born in 2004;
(ii)Tiara born in 2007; and
(iii)Tyler born in 2011.
Each of the above children reside with the Applicant’s former wife. If the Applicant’s application is upheld, the Applicant would not live with his former wife and children. However, the Applicant would have such children for overnight stays, unlimited phone calls, and visits.
(c)children who are the issue of the current partner:
(i)Montana Bevan born in 2003;
(ii)Sonny Bevan born in 2006;
(iii)Memphis Bevan born in 2010;
(iv)Maebelle born in 2015; and
(v)Maxie born in 2015.
Each of these children reside with his current partner. The Applicant would reside with them if permitted to stay in Australia. The Tribunal accepts that the Applicant has been a father-figure for a period of approximate the five months between the first meeting between the Applicant and the current partner and his imprisonment. The current partner has been the children’s primary caregiver and will continue to do so.
(d)nieces and nephews of his younger sister namely:
(i)Ethan born in 2010;
(ii)Faith born in 2012;
(iii)Benjamin born in 2014;
(iv)Daniel born in 2015; and
(v)Valerie born in 2016.
No detail has been provided with these children except for an assertion that they “absolutely adore” the Applicant.
Finding on Primary Consideration C
The Tribunal considers that the best interests of each of the biological children weighs in favour of the revocation of the original decision. The presence of their father in Australia would undoubtedly be a benefit to them.
As to the children of the current partner, the Tribunal notes at the relationship between the Applicant and the current partner commenced in September 2020. The Applicant commenced his period of imprisonment approximately four months later. During the period from the commencement of the imprisonment to date the partner has seen the Applicant on only one occasion but has spoken to him on several occasions by telephone. Despite the letters written by her children, suggesting a very close relationship, the Tribunal takes into consideration the relatively short period of time during which the Applicant and the partner have cohabited and accordingly the short period in which any significant bonding may have developed between her children and the Applicant. However, the Tribunal acknowledges that the Applicant has been a support for the partner during the short period that he has known her both morally and financially. Further, one child of the partner does require special needs due to health-related issues. Nevertheless, the interests of these children weigh to a lesser extent in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage; or
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect; or
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance… adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Finding on Primary Consideration D
In this case, the Tribunal accepts that the Australian community’s expectations would prima facie weigh against the Applicant. The history of violence displayed by the Applicant including assault, violence and disregard for court issued orders demonstrates that the Applicant has little regard for Australia’s laws.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter and was not raised by any party.
Extent of impediments to the Applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·the non-citizen's age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to them in that country.
The Applicant is in good health and could readily adapt to residing in his home country. The Applicant’s strong family connections residing in Fiji include nine uncles and aunts; 12 cousins and approximately 12 nieces and nephews.
The Tribunal finds that whilst the task of re-establishing himself in Fiji may be inconvenient and that he may suffer economically as he has been earning substantial wages in this country, this consideration weighs minimally in the Applicant’s favour.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The former wife of the Applicant has provided both the written statement and oral testimony to the Tribunal in support of the revocation of the decision. The former wife has referred to the history of the threats and breaches of the orders which she sought for her protection and for the protection of the children. Despite such matters, she testified that she has no concerns for her safety nor for her children’s. She states that in part she blames herself for some of his conduct because she had, on at least one occasion “baited him” and “made all the decisions” which provoked him. She said that on occasions, she abused alcohol and this led to confrontations between them.
However, the Tribunal in RDVN addressed this very matter stating:
“The Tribunal makes the point that it would be inimical to other parts of the Direction to determine that this consideration could weigh in favour of an Applicant who has been convicted of domestic violence offences, even where the domestic violence victim might have expressed views of forgiveness or support for a person to be granted a visa. This is because when Direction No 79 was made by the Minister, it specifically emphasised, amending the Direction it replaced, that crimes against women and children are to be regarded seriously, regardless of the sentence imposed.”[17]
[17] RDVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5141 at [127].
The even greater emphasis placed on this issue in Ministerial Direction 90 merely reinforces the point.
The current partner of the Applicant states that she has no fear for the safety of herself or her children. However, she is not a victim of any conduct which resulted in the issue of any AVO.
This criterion must count significantly against the Applicant given his record of repeated domestic violence offences plus those committed against other members of the community.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(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.
The Applicant has resided in Australia for 29 years.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh strongly in favour of the revocation of the original decision.
Impact on Australian business interests
The Applicant has a strong employment record. He has been engaged as a clerk engaged in customer service for a large supermarket chain, as a labourer and as a truck driver delivering water tanks to rural areas in New South Wales. He stated he has been employed the whole of his adult life.
However, this cannot be given any weight as the Direction specifically states 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.” That is not the case in this instance and so this criterion is of no weight either way in these considerations.
CONCLUSION
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that the circumstances clearly weigh in favour of upholding the decision under review.
For these reasons, the Tribunal is satisfied that the Applicant, having failed the character test, finds that there is no other reason why the original decision to cancel the Applicant’s visa should be revoked.
DECISION
The Tribunal finds that the correct and preferable decision is that the decision under review is affirmed.
I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President and Chris Puplick AM, Senior Member
.....................................[sgd]...................................
Associate
Dated: 8 June 2021
Date(s) of hearing: 7, 25 and 28 May 2021 Solicitors for the Applicant: Mr M Sanders, No Borders Migration Counsel for the Respondent: Mr N Wood (Jurisdiction Hearing only) Solicitors for the Respondent: Ms E Tattersall, Sparke Helmore Lawyers
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