MMCF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2656
•3 August 2020
MMCF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2656 (3 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2872
Re:MMCF
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:3 August 2020
Date of written reasons: 5 August 2020
Place:Sydney
The Reviewable Decision dated 8 May 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
......................................................[sgd]...................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – domestic violence offences – whether there is another reason to revoke the visa cancellation – Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 69C
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Asomua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5425
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
5 August 2020
MMCF (‘the Applicant’), a citizen of New Zealand, was born in 1993.[1] He first arrived in Australia on 17 September 2011.[2] He left Australia and returned to New Zealand on two occasions: from July 2012 until June 2016, and from September 2018 until November 2018.[3] Prior to its cancellation, the Applicant held a Class TY, Subclass 444 Special Category (Temporary) visa (‘the visa’).[4]
[1] Exhibit R1, G11, 52.
[2] Exhibit R1, G22, 118; G7, 36.
[3] Exhibit R1, G7, 36.
[4] Exhibit R1, G7, 36.
On 28 March 2019, the Applicant was convicted in the Liverpool Local Court of two counts of common assault (DV) and two counts of contravene prohibition/restriction in AVO (Domestic) and he was sentenced to 14 months’ imprisonment on each count, to run concurrently from 14 March 2019.[5] The Applicant appealed these sentences and on 29 May 2019, the Parramatta District Court confirmed the sentences of imprisonment but varied the order for the commencement of imprisonment to be backdated to 15 January 2019.[6]
[5] Exhibit R1, G5, 30.
[6] Exhibit R1, G5, 29-30.
On 28 August 2019, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under subsection 501(3A) of the Act on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above.[7] On this date, the Applicant was serving a sentence of full-time imprisonment at Bathurst Correctional Centre in New South Wales.
[7] Exhibit R1, G8, 37-43.
On 20 September 2019, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[8]
[8] Exhibit R1, G10, 47-50; G11, 51-65; G12, 66-70.
On 8 May 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[9]
[9] Exhibit R1, G4, 16-27.
On 13 May 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[10]
[10] Exhibit R1, G1, 1-9.
The matter was heard at a hearing of the Tribunal on 20 July 2020. The Applicant attended the hearing via videoconference from Yongah Hill Immigration Detention Centre (‘Yongah Hill’) in Western Australia and was self-represented. He gave oral evidence at the hearing.
Payment of application fee
The Tribunal made a direction on 20 May 2020 that the Applicant must pay the required application fee of $100 by 24 June 2020, or the application for review may be dismissed pursuant to section 69C of the Administrative Appeals Tribunal Act 1975 (Cth).
On 24 June 2020, the Applicant sent an email to the Tribunal requesting an extension of time until 30 June 2020 to pay the application fee. A further direction was issued on 26 June 2020 extending the deadline for payment of the application fee until 30 June 2020. The Applicant did not comply with this direction, and on 1 July 2020 he requested a further extension of time until 15 July 2020 to pay the application fee. The Tribunal made a further direction, on 2 July 2020, extending the deadline for payment of the application fee until 10 July 2020. The Applicant failed to comply with this direction.
A directions hearing was held on 13 August 2020 to address the issue of the application fee non-payment, at which the Applicant requested a further extension of time to pay the application fee. A direction was made extending the deadline for payment of the application until 15 July 2020. The Applicant was put on notice that if he failed to pay the application fee by this date, his application for review may be dismissed.
At the commencement of the hearing on 20 July 2020 the Applicant had still not paid the application fee. He advised the Tribunal that he wanted the hearing to proceed, and that he had been trying to contact family members to borrow money to pay the application fee but had not yet been able to get into contact with them. The Respondent’s representative advised the Tribunal that the Respondent’s had a neutral position regarding whether the Tribunal should dismiss the application due to non-payment of the application fee.
The Tribunal made a further direction requiring the Applicant to pay the application fee on or before 1 August 2020. The Tribunal advised that the Applicant that he had been granted several extensions to pay the application fee, and that if he did not pay by 1 August 2020, the Tribunal may dismiss his application for review. As at the date of this decision, the Applicant has not paid the application fee and has not contacted the Tribunal to inform it of his reasons for not so doing.
In Asomua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5425 (17 December 2019), SM Groom considered the issue of the non-payment of the application fee in similar circumstances and found as follows at [5]-[6]:
5. Prior to the hearing the respondent submitted that the application be dismissed under section 69C of the Administrative Appeals Tribunal Act 1975 for a failure to pay the prescribed application fee. The applicant had not paid the prescribed fee of $100 at the commencement of hearing. The respondent submitted that the wording of section 69C clearly infers a discretion on the part of the Tribunal in deciding whether or not to dismiss in such circumstances and that it should exercise that discretion in favour of dismissal in the “interests of proper administration”. Section 69C(1) states that:
The Tribunal may dismiss an application to the Tribunal if:
(a) regulations under section 70 prescribe a fee to be payable in respect of the application; and
(b) the fee has not been paid by the time worked out under regulations under section 70.
6. Regulation 24 of the Administrative Appeals Tribunal Regulations 2015 provides a grace period of six weeks for payment of the prescribed fee. Having regard to the date of the application the grace period for payment of the prescribed fee concluded on 28 November 2019. The Tribunal accepts that the wording of the section 69C infers a discretion on the part of the Tribunal in deciding whether or not to dismiss an application in such circumstances. This is reinforced by the wording of regulation 24 itself which also includes language that infers discretion providing that “the Tribunal is not required to deal with the application unless, and until, the fees paid”. While the Tribunal accepts that proper administration dictates that the exercise of a discretion to proceed with an application in the absence of payment of a prescribed fee should be used very reluctantly and only in exceptional circumstances, it is satisfied that such circumstances exist in the present case. In reaching this conclusion the Tribunal notes that the applicant is currently in detention and has had practical difficulties in accessing the funds, the bulk of the costs to be incurred by the Tribunal and the respondent in proceeding with the hearing have already been incurred and the nature of the application before the Tribunal has particularly serious and potentially permanent consequences for the applicant. For these reasons, the Tribunal has decided to proceed with the hearing and determine the matter.
The Tribunal respectfully adopts this approach in this case. Having regard to nature of the review application and the serious and potentially permanent consequences for the Applicant, the Tribunal decided to exercise its discretion to proceed with the hearing and determine the application under review.
The material before the Tribunal consists of:
·Applicant’s Statement of Fact, Issues and Contentions (‘Applicant’s SFIC’) sent to the Tribunal by email on 27 June 2020;
·Respondent’s Statement of Facts, Issues and Contentions (‘Respondent’s SFIC’) dated 10 July 2020;
·G-documents (G1 to G28, pages 1 – 161);
·Respondent’s Tender Bundle (TB1-TB7, pages 1-147).
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; 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 a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
Paragraph 6.2(1) of the General Guidance provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The other considerations are:
(a) international non-refoulement obligations;
(b) strength, nature and duration of ties [to Australia];
(c) impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[11] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background
The Applicant was born in New Zealand in 1993.[13] He is the youngest in a family of four siblings. His three sisters and father live in New Zealand. His mother is deceased. As a young boy he was a talented soccer and rugby player and was awarded many trophies. [14]
[13] Exhibit R1, G11, 52.
[14] Exhibit R2, TB2, 83.
The Applicant commenced year 11 but was expelled for truancy. He found school work to be a ‘struggle’ as ‘he cannot focus on tasks at hand for very long.’[15]
[15] Exhibit R1, G16, 83.
Migration to and work in Australia
In his statement in support of his request for revocation dated 20 September 2019 the Applicant stated that he first came to Australia with his eldest sister. They arrived in Perth in September 2011 and resided there for two years. He was employed as a factory labourer and cleaner in Perth from 2011 to 2013.[16]
[16] Exhibit R1, G11, 62.
The Applicant returned to New Zealand from 18 July 2012 to 12 June 2016. He told the Tribunal that he returned home because his mum passed away from cancer. While he was there, he studied carpentry and successfully gained a Level III certificate. He did not complete an apprenticeship, choosing instead to work as in a carpentry labourer.[17] He lived in Auckland and worked at a newspaper factory as a labourer.[18]
[17] Exhibit R1, G16, 83.
[18] Transcript, 14-15.
He returned to Australia with a friend in June 2016 to live and work in Sydney. He was employed as a carpentry labourer with a construction company until July 2018.[19] He left this job to work as a pick packer as he believed he would earn a better income. He worked in this role for only about a month until he lost his job at the end of August 2018.[20] He believes he was unfairly dismissed for reason of his work performance.[21]
[19] Exhibit R1, G11, 62; Transcript, 16.
[20] Transcript, 15.
[21] Transcript, 16.
Drug and alcohol use
The Applicant commenced using cannabis at the age of 12 years and alcohol at the age of 14 years. He has experimented with ICE and MDMA over the years.[22]
[22] Exhibit R1, G16, 83.
The Applicant told the Tribunal that from the age of 14 to 19 years he used cannabis and would drink alcohol excessively, including binge drinking. When he was aged 19 years he stopped drinking to excess and would only drink occasionally. Two or three months before going into custody he gave up alcohol and also gave up smoking tobacco.[23]
[23] Transcript 40-41.
At the time of his offences in 2018 and 2019, the Applicant was not using any illicit substances but he was taking his partner’s medication, Seroquel.[24] He explained to the Tribunal why he started taking this medication:
so, because of what was going on at the time, yes, I lost my job and I was under financial stress and, yes, I had trouble sleeping and anxiety and depression and so we both thought it would help that I take her prescribed medication for her mental health that she had been diagnosed with. But, yes, it didn’t really - it didn’t help, it made things worse.[25]
[24] Transcript, 41.
[25] Transcript, 32.
He said he did not seek treatment for himself as he felt like a failure and thought he could handle his own problems.[26]
[26] Transcript, 32-33.
Family members in Australia and New Zealand
In his Personal Circumstances Form, the Applicant wrote that his father, and three sisters live in New Zealand.[27] All three of his sisters provided written statements in support of the Applicant’s revocation request.[28] In his statement, the Applicant claimed that although his immediate family remain in New Zealand he would not be able to live with them as they have their own families.[29]
[27] Exhibit R1, G11, 60.
[28] Exhibit R1, G18, 94; G18, 95; G18, 97.
[29] Exhibit R1, G12, 69.
During his oral evidence at the hearing, the Applicant told the Tribunal that he no longer has contact with his family in New Zealand. He has not been in contact with them since September 2019 when he was in gaol.[30] He ceased contact with his family as they were not happy that he was in gaol, and did not approve of his relationship with his former partner.[31]
[30] Transcript 12-13, 23-24.
[31] Transcript, 25-27.
The Applicant told the Tribunal that he has not been in contact with his father since about six months before he went to gaol.[32] He explained that they ‘always had a distant relationship. And over the years it just fell apart.’[33] The Tribunal asked the Applicant about the support letter from his father dated March 2019. He said that his father wrote the letter because his older sister asked him to do so.[34]
[32] Transcript, 40.
[33] Transcript, 38-39.
[34] Transcript,39.
In his statement, the Applicant stated that he has ‘many family members residing in Australia.’ These include his cousin with whom he is able to reside if he is released into the community.[35] Many of the Applicant’s aunts and uncles and cousins reside in Australia but he does not have their contact details.[36] He also has friends and work colleagues.[37] He has ten nieces and nephews aged from one to 16 years old.[38]
[35] Exhibit R1, G12, 69.
[36] Exhibit R1, G11, 64; G11, 60; Transcript, 35.
[37] Exhibit R1, G12, 69.
[38] Transcript, 37.
Criminal history in Australia
The Applicant’s Nationally Coordinated Criminal History Check dated 26 August 2019 records that the Applicant has been convicted of a number of violent offences while in Australia, all of which involved domestic violence.[39] This offending was against the one victim, who was in a relationship with the Applicant at the time.
[39] Exhibit R1, G5, 29-34.
Court Date
Offence
Penalty
20/11/2018
Liverpool
Local CourtDestroy or damage property (DV) Community Correction Order: 18 months; Supervision by Community Corrections Service: 18 months 20/11/2018
Liverpool
Local CourtContravene prohibition/restriction in AVO (Domestic) Community Correction Order: 18 months; Supervision by Community Corrections Service: 18 months; (Called up on 20/12/2018. Intensive correction order (Aggregate): 2 years) 20/11/2018
Liverpool Local CourtDestroy or damage property <=$2000 (DV) – T2
Community Correction Order: 18 months; Supervision by Community Corrections Service: 18 months; (Called up on 20/12/2018. Intensive correction order (Aggregate): 2 years)
20/12/2018
Liverpool Local CourtContravene prohibition/restriction in AVO (Domestic) (two counts) Intensive Correction Order
(Aggregate): 2 years; Supervision by
Community Corrections Service: 2
years; Community Service Work: 200
hours; required to complete domestic
violence and anger management
courses; Abstention from Drugs: 2
years
20/12/2018
Liverpool Local CourtCommon assault (DV) – T2
Intensive Correction Order
(Aggregate): 2 years; Supervision by
Community Corrections Service: 2
years; Community Service Work: 200
hours; required to complete domestic
violence and anger management
courses; Abstention from Drugs: 2
years
20/12/2018
Liverpool Local CourtAssault occasioning actual bodily harm (DV) – T2 Intensive Correction Order
(Aggregate): 2 years; Supervision by
Community Corrections Service: 2
years; Community Service Work: 200
hours; required to complete domestic
violence and anger management
courses; Abstention from Drugs: 2 years
28/03/2019
Liverpool Local Court
Contravene prohibition/restriction in AVO (Domestic) (two counts) Imprisonment: 14 months, commencing 28/03/2019; (Sentence varied on 29/05/2019: commencement date varied to 15/01/2019) 28/03/2019
Liverpool Local Court
Common assault (DV) - T2
(two counts)
Imprisonment: 14 months, commencing 28/03/2019; (Sentence varied on 29/05/2019: commencement date varied to 15/01/2019) 2018 offences
On 20 November 2018, the Applicant was convicted of two counts of destroy or damage property (DV) and one count of contravene prohibition/restriction in AVO (Domestic).[40] He was sentenced to community corrections order for a period of 18 months. These offences were called up on 20 December 2018 because the Applicant breached the community corrections order by committing further offences.
[40] Exhibit R1, G5, 34.
The facts relating to these offences are described in the relevant New South Wales Police Facts Sheet.[41] On 20 November 2018 the Applicant was inside the victim’s house in breach of an Apprehended Domestic Violence Order (ADVO) that had been issued against him on 12 November 2018. Following an argument with the victim, the Applicant proceeded to enter the kitchen and punch the range-hood of the oven, smash a number of plates, throw the victim’s fridge and freezer to the ground, and pull shelves from the wall causing a pantry to fall to the tiled floor causing damage.[42] When the victim informed the Applicant that she was contacting the Police, the Applicant grabbed the victim’s mobile phone from her hand and threw it to the ground, completely destroying it.[43]
[41] Exhibit R2, TB2, 31-35.
[42] Exhibit R2, TB2, 33.
[43] Exhibit R2, TB2, 34.
On 20 December 2018, the Applicant was convicted of common assault (DV), assault occasioning actual bodily harm (DV) and two counts of contravene prohibition/restriction in AVO (Domestic).[44] The offences occurred during two separate incidents.
[44] Exhibit R1, G5, 30-33.
The facts relating to these offences are described in the relevant New South Wales Police Facts Sheet.[45] On 11 December 2018, the Applicant was staying at the victim’s home with her consent, despite him being aware of the ADVO that remained in effect. He also was subject to a community corrections order at the time. The Applicant and the victim became involved in an argument during which the Applicant grabbed the victim’s shirt and forcefully pulled it, causing it to rip completely off and causing a small abrasion to the back of her neck. He then picked up her mobile phone and threw it to the ground. After the victim called the police, the Applicant again approached her and grabbed her shirt, causing a small tear in the shirt’s neckline. The Applicant left the scene upon observing the Police approaching the house.[46]
[45] Exhibit R2, TB2, 46-49.
[46] Exhibit R2, TB2, 48.
On 19 December 2018, the Applicant and victim were again at the victim’s residence when they became involved in an argument while attempting to move a wooden entertainment unit out of the house. The Applicant became angry and pushed the entertainment unit outside, throwing it onto the driveway. Fearing that the incident would escalate, the victim called the police. During an interview with the Police later that day, the Applicant stated that he was aware of the conditions of the ADVO that was in force against him.[47]
[47] Exhibit R2, TB2, 48-49.
The sentencing magistrate, Magistrate Miller, found that the offences were serious and violent. They were aggravated for reason that the Applicant was on conditional liberty at the time. His Honour found that the Applicant had ‘made a conscious and deliberate decision not only to breach the AVO, but to breach the terms of his conditional liberty’.[48] He considered that there was no doubt that a custodial sentence was warranted, but found that the sentence could be dealt with by way of an alternative to full-time gaol. The Applicant was sentenced to an intensive corrections order lasting two years.[49]
[48] Exhibit R1, G21, 115.
[49] Exhibit R1, G21, 116.
2019 offences
On 28 March 2019, the Applicant was convicted of two counts of common assault (dv) and two counts of contravene prohibition/restriction in AVO (domestic).[50] The New South Wales Police Facts Sheet records that the Applicant lived with the victim and her daughter, who was then aged three and a half years. At the time of the offending, there continued to be an enforceable ADVO protecting the victim against the Applicant.[51] The Applicant had been staying in the victim’s home with the consent of the victim, despite both being aware of the ADVO. The offending consisted of two incidents, which occurred on 7 January 2019 and 15 January 2019.
[50] Exhibit R1, G5, 30.
[51] Exhibit R1, G13, 72.
The first incident on 7 January 2019 involved the Applicant engaging in a verbal argument with the victim, during which he called her ‘useless’ and she became upset. The victim asked the Applicant when he was going to move out and he continued to argue with her. A physical altercation resulted during which the Applicant ripped the victim’s shirt and then they wrestled. The victim then bit the Applicant several times before pushing him away. Later that afternoon when the victim and the Applicant were picking up the victim’s daughter from childcare, the victim attempted to use her iPad to send a message to her friend asking her to call the Police. The Applicant became aware of the message and a verbal argument ensued, during which he kicked the victim on the right side of her leg. This took place in front of the victim’s daughter. The victim refused to enter the Applicant’s car and leave with him, and went to a neighbour’s house, which was subsequently attended by Police.[52] During cross-examination at the hearing, the Applicant confirmed the facts relevant to this offence.[53]
[52] Exhibit R2, TB2, 78
[53] Transcript, 17.
The second incident occurred on 15 January 2019 at the victim’s home following an argument with the Applicant during which they argued about a previous breach of an apprehended domestic violence order. The victim attempted to persuade the Applicant to report to the Police as he was wanted in relation to the incident on 7 January 2019. The Applicant became emotional and angry, and leaned on the victim while she was seated on a couch. This resulted in her screaming multiple times for help. Police arrived a short time later and the Applicant was arrested.[54]
[54] Exhibit R2, TB2, 79.
The sentencing Magistrate, Magistrate Schurr, found that the fact that the Applicant had committed the offences while already serving a sentence in the community (an intensive correction order) for similar offences was ‘the most aggravating factor’.[55] The Applicant was sentenced to 14 months’ imprisonment, which was confirmed on appeal with only the date of commencement of the sentence being varied. In Her Honour’s judgment on appeal, Judge Harris stated that ‘[t]he Courts must impose sentences that speak loudly against the commission of domestic violence offences, particularly in relation to repeat offenders.’[56] She found the fact that the Applicant was on conditional liberty for similar offences aggravated the offending ‘to a significant degree’, and that ‘the only appropriate sentence in all of the present circumstances is one of full time imprisonment’.[57]
[55] Exhibit R1, G22, 109.
[56] Exhibit R1, G19, 103.
[57] Exhibit R1, G19, 103.
In his statement in support of his request for revocation the Applicant outlined the circumstances surrounding his criminal offending:
I had been in a relationship for six months with [the victim] who suffers from Bi-Polar Type 2 and Borderline Personality disorder.
When money became tight I became depressed and our relationship suffered. At this time [the victim] offered me her prescription medication to alleviate my depression.
Stupidly, I took it and it changed my emotional and mental state inhibiting my ability to make rational decisions and enabling me to act in an anti-social way.
After being charged and sentenced I became homeless at 24 years of age, living in my car. I felt like a failure and did not believe that I could ask for help from my friends.
[The victim] contacted me and said that I could stay with her even though there was an AVO in place … I now know this was wrong as I have a much clearer understanding of what an Apprehended Violence order means. I was still depressed and again took some of her medication. Every time I offended I was under the influence of her medication.
…
… I now realise that I was in a toxic relationship and that there is an Apprehended Violence order protecting me from [the victim].[58]
[58] Exhibit R1, G12, 66-67.
The Applicant told the Tribunal that he was ‘prone to outbursts of anger’ and ‘would get angry easily.’[59]
[59] Transcript, 20
Contact with the victim
A New South Wales Justice Sentencing Assessment Report records that when the Applicant was in Cessnock Correctional Centre, he attempted to maintain contact with the victim by phone.[60] The Applicant told the Tribunal that he had lost his phone so he called the number a couple of times and she picked up.[61] He agreed that he would like to have a relationship with the victim again if she wished to do so, and if there was not an ADVO in place.[62] He has not however been in contact with the victim for the past 18 months.[63]
[60] Exhibit R2, TB2, 74
[61] Transcript, 22
[62] Transcript, 22.
[63] Transcript, 23
Criminal History in New Zealand
According to information obtained from the New Zealand Police, the Applicant was convicted of the following criminal offences in New Zealand committed prior to his arrival in Australia:[64]
[64] Exhibit R1, Exhibit R1, G6, 35
Court date
Offence
Penalty
65. 24/01/2011
66. Blenheim DC
Wilful Damage
Community Work: 40 hours
67. 24/01/2011
Blenheim DC
68. Failure to Answer District Court Bail
Community Work: 40 hours
01/08/2011
Blenheim DC
69. Possess Offensive Weapon (Other)
Community Work: 40 hours
01/08/2011
Blenheim DC
Failure to Answer Police Bail
Convicted and discharged
06/08/2012
Blenheim DC
70. Unlawfully in Enclosed Yard or Area
Supervision: 7 months
While no formal police or court records are before the Tribunal, the Applicant provided some online news articles that provide brief details of two of his offences.[65] In relation to the Possess Offensive Weapon offence it was reported that Police found the Applicant sitting in his car holding a knife, which he told the officers was to protect him in case someone attempted to steal his car.[66] The Unlawfully in enclosed area or yard offence was reported as resulting from the Applicant climbing a fence and entering a property while he was drunk.[67] No details are available in relation to the Failure to Answer Police Bail and Failure to Answer District Court Bail offences.
[65] Exhibit R1, G23, 119-122.
[66] Exhibit R1, G23, 121-122.
[67] Exhibit R1, G23, 120.
Remorse and rehabilitation
In his statement dated 20 September 2019, the Applicant described his remorse for his offending:
I have a full understanding of my appalling behaviour and accept total responsibility for it. I feel ashamed that I could do this to someone I cared deeply for and it was 100% wrong for me to do what I did. I also deeply regret that [the victim’s] daughter had to witness my behaviour.[68]
…
Whilst I acknowledge the seriousness of my offence, I also would like to point out that this is my only offence. I would like to illustrate the complexity of my current situation in respect of my offence. As your records indicate, I was charged with 'Damage Property' and 'Domestic Violence' as a result of my relationship with a woman who suffers from significant mental illness.
I assert that our relationship was pro-social and the majority of our problems and the reason I have come to the attention of the Criminal Justice System, is because during periods of mental illness and my own personal substance abuse issues caused by sharing the mental health medication to improve our ability to communicate, we became violent.
I understand now the complexity of the law in relation to AVOs and understand that my personal feelings for this woman allowed me to see her invitation to visit as ok, were illegal despite the visit being at her request.[69]
[68] Exhibit R1, G12, 67.
[69] Exhibit R1, G12, 69.
Course and programs in gaol
At Bathurst Correctional Centre the Applicant was enrolled in the High Intensity Program Unit (HIPU), which runs for sixteen weeks. In September 2019 he completed the EQUIPS Foundation, EQUIPS Addiction and EQUIPS Domestic Abuse,[70] and Reintegration services provided by Wesley Mission and the Community Restorative Centre.
[70] Exhibit R1, G16, 82; G16, 87-89.
The High Intensity Program Unit Completion Report dated 16 September 2019 records the following in relation to the Applicant:
[The Applicant] has throughout the HIPU program moved along the continuum from someone who had minimal insight into his behaviour to someone who now has the ability to recognise his emotions, thoughts and feelings. He has shown insight into the impact on others of his offence, shown remorse and is future focused on being the best person he can be.
[The Applicant] would benefit from participating in a mentoring program to help him improve his problem solving skills, further develop his insight, understand the importance of recognizing emotions and be able to apply decisional balance techniques on a daily basis.
[The Applicant] would also benefit from one on one counselling upon release as he has identified. This would be a useful strategy for him to better manage himself and his emotions.[71]
[71] Exhibit R1, G16, 85.
The report includes a Triage Risk Assessment Scale (TRAS) risk level assessment in relation to the Applicant. The TRAS is ‘an actuarial (statistically based) risk assessment tool that provides an estimated probability of an individual returning to custody within 2 years of release.’ The report states:
[The Applicant’s] score on the TRAS falls within the low/medium range of risk of re-imprisonment. On average, offenders in NSW with the same score had a 30.4% probability of return to custody within two years.[72]
[72] Exhibit R1, G16, 81.
The report includes the following qualification:
This is not a risk assessment report and it does not provide any statement reflecting changes in risk of re-offending and therefore it alone is not appropriate for use in any legal/court or release applications.[73]
[73] Exhibit R1, G16, 81.
Risk of re-offending
The NSW Justice Sentencing Assessment Report dated February 2019 records that the Applicant was assessed as being at a medium risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).[74]
[74] Exhibit R2, TB2, 75.
In his statement dated 20 September 2019, the Applicant addressed the issue of the risk of him re-offending:
This is my first offence and I have no offences in custody … I believe that my youth, falling in love, loss of employment, lack of support and taking medication prescribed for a psychotic illness that I did not have, are all contributing factors of my offence.
Since coming to custody I have time to reflect on my behaviour. I am aware that I practiced avoidance and failed to face my problems, and my innate shyness prevented me from asking friends or family for help.[75]
…
My history clearly has shown me to have significant familial and professional supports in the Australian Community. I am also engaged in community building through supporting services for homeless people in the Liverpool area.
I am attempting to illustrate to you that I am committed to live a positive family focused, law abiding life. I am committed to contributing to the economy of my adopted nation and have post-release accommodation and employment plans to help me achieve this goal.
I understand I have made a mistake. I have engaged in activities that led me to committing an offence. Without trivialising my offence, I have made a conscious effort to develop thinking patterns and skills to prevent this from reoccurring in the future.[76]
[75] Exhibit R1, G12, 67.
[76] Exhibit R1, G12, 70.
He made reference to the courses and programs he completed in gaol:
I have committed to addressing the issues that have led me to this situation and completed a 16 week, High Intensity Program Unit at Bathurst Correctional Centre where I completed Cognitive Behaviour Therapy programs designed to address offending behaviour in terms of Addiction, Foundation and Domestic Abuse.[77]
…
These are cognitive behaviour programs and they have taught me how to recognise my emotions, feelings and thoughts and how they impact on my behaviour. I now have strategies that I can implement when I feel myself getting angry that will lower my arousal level and enable me to problem solve in a positive way.
I have also gained knowledge about my negative core beliefs and how these also impact on my self-talk and behaviour.
I am in the process of change and I know I will not reoffend. I am building my confidence by catching my negative self—talk and replacing it with more positive thoughts.
I am a better man than my previous behaviour would suggest and am consistently working toward always being in control of myself. I have realised that in order for me to achieve my dreams I have to make the right choices, which means thinking before reacting, taking time out (walking away, using a distraction such as going for a run, going to the gym) thinking about the consequences of my behaviour and then dealing with the situation when I have calmed down and am in a less stressed frame of mind. I also know that I have the option of seeking help through a GP and mental health plan.
I have also been able to reconnect with my friends and members of my family, and know that their support will help me as well when I'm released.[78]
[77] Exhibit R1, G12, 70.
[78] Exhibit R1, G12, 67-68.
Health
The Applicant told the Tribunal that he saw a counsellor in Villawood Immigration Detention Centre and discussed his anxiety and depression. Since he has been at Yongah Hill he has been prescribed diazepam and has been taking it for two months. He has seen a mental health nurse and she said she will refer him to see a psychiatrist and a psychologist, but he has not yet been given an appointment.[79]
[79] Transcript, 29-30.
He has no physical health issues and is ‘in a much better place to deal with [his] emotions’ than before he entered custody. He has a ‘good understanding of where [he] he can go in (sic) community to get mental health treatment and support.’[80]
[80] Exhibit R1, G12, 69.
Plans for the future
The Applicant told the Tribunal that if he is released into the community he will reside with his cousin in south-western Sydney.[81] He later said he would live with his uncle if released.[82] His former employer, the construction company, has indicated it is happy for him to return to work at the company.[83]
[81] Transcript, 18.
[82] Transcript, 33.
[83] Exhibit R1, G16, 85; G18, 98; Transcript, 33.
He intends to enroll in a TAFE course to complete further study so he can become either a qualified carpenter or roofer.[84]
[84] Transcript, 35.
Impediments on return
In his statement, the Applicant claims that it will be ‘extremely difficult for me to return [to New Zealand] as I will be unemployed and homeless.’[85] He also claims that his return to New Zealand would place a ‘financial burden’ on his immediate family members.[86]
[85] Exhibit R1, G12, 69.
[86] Exhibit R1, G11, 64; G11, 60.
The Applicant described to the Tribunal the hardships he believes he will experience on return:
I have no family support and I would need to look at other avenues to make sure that I don’t become homeless. And so that’s just my - that’s just my own preference of what I think would happen. And in my experience jobs have been very difficult to apply for in New Zealand.[87]
[87] Transcript, 14.
He said he would have to ‘[s]eek some sort of support and assistance from community services.’[88]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[88] Transcript, 14.
Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 26 August 2019 regarding his criminal convictions and sentences. In his statement in support of his request for revocation, the Applicant stated:
I accept that my offence is serious under s501(7)c and therefore under the law I do not pass the character test.[89]
[89] Exhibit 1, G12, 66.
The evidence before the Tribunal is that on 28 March 2019, the Applicant was convicted of four offences and sentenced to a term of imprisonment of 14 months. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:
When considering protection of the Australian community, decisionmakers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on noncitizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen's conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f) The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(i) …
The Applicant’s offending includes a series of domestic violence offences against the same victim, his former partner, which resulted in physical injuries to her and damage to property. In accordance with paragraphs 13.1.1(1)(a) and (b) of the Direction the Tribunal is required to view these offences very seriously as they are violent crimes against a woman.
The Tribunal finds that the seriousness of the Applicant’s offending is increased by the fact the Applicant continued to re-offend, ignoring numerous warnings from the courts, and despite being afforded an intensive correction order allowing him to serve his sentence in the community rather than in gaol. The Applicant’s recorded convictions in New Zealand serve as further indication of his disregard for complying with orders made by the courts or by Police.
Having regard to paragraph 13.1.1(d) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The Tribunal finds that while the sentences imposed on the Applicant are not at the higher end of the sentencing range, they do not detract from the serious nature of his criminal offending.
The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending was frequent and repetitive during the period November 2018 to January 2019. The Applicant regularly engaged in violent and intimidating conduct against his victim, which included physical assaults and verbal abuse. The Tribunal finds that the frequency and cumulative effect of the Applicant’s repeated offending increases its severity, noting that all of his offences were committed against the same victim in breach of an ADVO.
The evidence before the Tribunal is that when the Applicant first entered Australia in September 2011, he did not disclose his New Zealand convictions on his incoming passenger card.[90] In the Applicant’s SFIC, he claims that he was unaware that his offences resulted in criminal convictions. However, the Applicant did disclose his criminal convictions in subsequent incoming passenger cards dated 12 June 2016 and 1 September 2018.[91]
[90] Exhibit R1, G22,118.
[91] Exhibit R2, TB6, 145-146.
In circumstances where the Applicant had penalties of community service imposed upon him in New Zealand just two months before he entered Australia, the Tribunal does not accept that the Applicant did not understand that he had criminal convictions. Having regard to paragraph 13.1.1(1)(g) of the Direction, the Tribunal has placed some weight on the Applicant’s failure to provide truthful information to the Department upon his arrival in Australia in September 2011.
On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct was committed against his female partner, and was violent and repetitive and is therefore serious.
The seriousness of the Applicant’s criminal offending weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community, particularly women. The Applicant's criminal offending has included actual and threatened violence committed against his partner and property damage. The potential harm to individuals and the Australian community should he again engage in such conduct is serious. His violent behaviour has caused, and has the potential to cause in future, substantial harm to victims, being both the psychological and physical impacts of his offending, and significant financial cost to the community associated with emergency services and law enforcement activities.
The Tribunal has previously recognised the physical and psychological harm that is inflicted as a result of violence directed towards women in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (‘XFKR’), the Tribunal observed (at [45]):
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal notes that the Sentencing Assessment Report indicates that the Applicant was assessed as being at a medium risk of reoffending according to the LSI-R.[92] The TRAS risk level assessment in relation to the Applicant places the Applicant on the low/medium range of risk of re-imprisonment in two years. The Applicant completed a range of courses and programs while in gaol, including the HIPU from which he received a favourable report. On the basis of this evidence, the Tribunal finds that the likelihood of the Applicant engaging in further criminal offending is low to moderate.
[92] Exhibit R2, TB2, 75.
The Applicant attributes his offending to his youth, losing his employment, and a lack of support. He claims that he has now acquired the knowledge and skills required to control his actions, make the right choices and think about the consequences of his behaviour. The Tribunal notes that the Applicant was aged 25 years at the time of his offending and then had the support of his partner and his family members, which did not act as protective factors against his offending. As observed by the sentencing judge, Judge Harris, on 29 May 2019 the Applicant had ‘a great deal of family support’, which he had had throughout his life at that point in time.[93] Despite this family support, the Applicant continued to offend.
[93] Exhibit R1, G19, 102.
The Applicant’s evidence is that if he is able to return to the community he will have secure accommodation with a family member, and he has an offer of employment with his former employer. He wishes to undertake study at TAFE to obtain formal qualifications in carpentry or as a roofer. On the basis of the evidence before it, the Tribunal finds that if the Applicant has secure accommodation and regular paid employment, these will be protective factors against him engaging in future criminal behaviour.
The Applicant claims that at the time of his offending, he was under the influence of medication for psychotic illness, which he claims the victim gave him for his depression. The Tribunal notes that he chose to take this medication, and did not seek out medical advice or treatment for his own mental health condition, including once it became apparent that it had negative effects on his behaviour.
The Tribunal refers to the Sentencing Assessment Report which records that the Applicant continued to ‘[show] complete disregard for the conditions of the ADVO’ whilst in custody, by repeatedly contacting the victim and hiding her contact details under a different name in the contact list of his phone.[94] The Tribunal is not persuaded by the Applicant’s claims that he phoned the victim because he had lost his phone and she answered it when he called. The Tribunal finds that the Applicant’s decision to breach the conditions of the ADVO by contacting the victim by phone multiple times was deliberate.
[94] Exhibit R2, TB2, 74-75.
The Applicant’s continued breaches of the ADVO reveal his complete lack of insight into the seriousness of his offending or its consequences. As Magistrate Miller observed on 20 December 2018, the Applicant ‘displayed limited insight into the impact of his offending stating that he did not believe that the victim suffered any fear as a result of what had occurred’.[95] In his statements and submissions in support of his request for revocation, the Applicant appears to blame his victim’s mental health and their ‘toxic relationship’ for his criminal offending towards her.[96]
[95] Exhibit R1, G21, 115.
[96] Exhibit R1, G12, 67.
Despite being afforded numerous warnings and second chances by the courts through the imposition on him of a community service order and an intensive correction order, the Applicant continued to re-offend. On 20 December 2018, Magistrate Miller refused to grant bail as he was not satisfied that the Applicant would comply with any bail conditions, and found that there was an ‘unacceptable risk of endangering the safety of the victim and of committing serious offences’ should bail be granted.[97] The Applicant’s blatant disregard for authority and court orders through his repeated breaches of the ADVO and court orders reinforces his risk of re-offending. The Tribunal has given significant weight to the LSI-R and TRAS assessments and the Applicant’s behaviour both before and after his offending, and finds that there remains an unacceptable risk that the Applicant will continue to reoffend if released into the community.
[97] Exhibit R1, G21, 112.
On the basis of the evidence before it, and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the low to moderate level, but that this level of risk is unacceptable given the nature of the harm he may cause if he does re-offend.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
The Applicant does not have any children of his own,[98] and did not identify any other minor children in his life in his personal circumstances form.[99] His evidence is that he has 10 nieces and nephews in Australia who range in age from one year to 16 years. There is no evidence before the Tribunal that the Applicant has played any parental role in the lives of these children, nor is there any evidence of how they would be impacted if the Applicant were not to hold a visa.
[98] Exhibit R1, G11, 56.
[99] Exhibit R1, G11, 58.
In circumstances where there is no evidence of what role, if any, the Applicant plays in the lives of any of the children, nor of the impact on them of the Applicant’s removal from Australia, the Tribunal has given little weight to this primary consideration.
On the basis of the evidence before it, the Tribunal finds that Primary Consideration B does not, on balance, weigh in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[100] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[101]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[102] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[103]
[100] Charlesworth J at [66]; Stewart J at [91].
[101] Charlesworth J at [67]; Stewart J at [104].
[102] Charlesworth J at [76].
[103] Stewart J at [97].
The effect of Paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving domestic violence, which as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of the non-citizen’s visa.
The Applicant has a criminal history consisting of violent offences against the same woman, which Direction 79 requires be viewed very seriously. In light of the Applicant’s risk of re-offending and the nature of the harm that would be caused if he were to re-offend, the Tribunal finds that this primary consideration weighs heavily against revocation.
This finding is supported by paragraph 6.3(5) of the Direction, which recognises that the Australian community would have a low tolerance of the Applicant’s criminal conduct in circumstances where he has been participating in or contributing to the Australian community only for a short time. The Applicant first arrived in Australia as an 18 year old and remained here for less than one year before returning to New Zealand where he stayed for nearly four years. He came back to Australia in June 2016 and has remained here since then, with the exception of a brief period at the end of 2018. When these periods in Australia are aggregated, the Applicant’s residency in Australia has been for approximately five years. However, of this time, the Applicant has been incarcerated in either gaol or immigration detention for more than two years. Accordingly, while the Applicant has been employed in Australia during his residency, any positive contribution to the community has been limited.
The Tribunal has had regard to paragraph 6.3(7) of the Direction which requires it to have regard to the consequences of the cancellation of the Applicant’s visa on his immediate family members in Australia. There is limited evidence before the Tribunal in relation to the impact of the Applicant’s removal from Australia on the Applicant’s immediate family members, particularly his uncle and cousins. On the basis of the evidence before it, the Tribunal cannot be satisfied as to whether the Applicant’s family members in Australia will be detrimentally impacted by his removal to New Zealand.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C, weighs strongly against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this other consideration is of neutral impact.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen has 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As outlined in paragraph 114 above, the Applicant first arrived in Australia in September 2011 but has returned to New Zealand for an extended period of four years between 2012 and 2016. Accordingly, for the purpose of paragraph 14.2(1)(a), the Tribunal finds that the Applicant has only resided in Australia for approximately five years.
Guided by paragraph 14.2(1)(a)(i)) of the Direction, the Tribunal has given less weight to the period of time the Applicant has resided in Australia in circumstances where the Applicant began offending shortly after his return to Australia in June 2016. Further, having regard to paragraph 14.2(1)(a)(ii) of the Direction, the Tribunal notes that the Applicant has been in custody, gaol or immigration detention since January 2019, which has necessarily limited any positive contribution he has made to the Australia community.
Having regard to the considerations in paragraph 14.2(1)(b), the Tribunal accepts the Applicant has some ties to Australia through extended family members and friends,[104] who may wish him to remain in Australia and will be disappointed if he is returned to New Zealand. However, there is no evidence before the Tribunal to indicate that these family members or friends have any particular reliance on the Applicant, or would suffer any financial or practical hardship if he were removed. Insofar as this this consideration weighs in the Applicant’s favour, the Tribunal has given it limited weight
[104] G12, 69, G18, G25, G26.
On the basis of the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration does not, on balance, weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant was employed as a carpentry labourer and a pick packer prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal on the impact of the non-revocation of the cancellation decision on the Applicant’s victim.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 27 years and claims to suffer from anxiety and depression but is in good physical health. In October 2019 he told a nurse during his induction assessment that he did not have a past history of mental health problems. He is currently taking diazepam prescribed for him by a doctor at Yongah Hill. The Applicant’s IHMS clinical records do not reveal a formal diagnosis of depression or anxiety.[105] A clinical note dated 17 February 2020 made following a mental health consultation reported that the Applicant’s ‘mood had lifted somewhat’ and that his sisters and friend are ‘strong protective factors’.[106] A later record dated 6 April 2020 noted that there was ‘nil clinical need for formal mental health follow up’.[107]
[105] Exhibit R2, TB5.
[106] Exhibit R2, TB5, 126.
[107] Exhibit R2, TB5, 118.
As the Applicant does not currently have an ongoing treatment relationship with a psychiatrist or psychologist in Australia, his treatment will not be unduly interrupted by the non-revocation of the visa cancellation. He will however need to establish contact with a mental health practitioner in New Zealand and continue his medication if he is to remain stable. Having regard to paragraph 14.5(1)(c) of the Direction, the Tribunal is satisfied that, as a New Zealand citizen, the Applicant will have access to healthcare and medical supports available to all New Zealand citizens, which is likely to be of a similar quality to what is available in Australia.
The Applicant’s evidence is that although his immediate family, including his father and three sisters remain in New Zealand, it would be extremely difficult for him to return as he would be homeless. He claims that he has no contact with his family, and has not been in touch with them since he went to gaol. However, all three of the Applicant’s sisters provided letters to the Department in September 2019 in support of his revocation request.[108] These letters state that the Applicant was raised in a loving family and indicate that, at least until September 2019, the Applicant had a close relationship with his sisters who reside in New Zealand. The Tribunal therefore finds that the Applicant has immediate family members in New Zealand who could provide him with a degree of support if he were to reach out to them upon his return.
[108] Exhibit R1, G18.
The Applicant is young, physically healthy, and has many years of experience working as a labourer.[109] While his Australian construction licences may not be transferrable to New Zealand, there is no evidence that the Applicant would be unable to obtain similar licences in New Zealand. The evidence before the Tribunal is that the Applicant has a previous work history in New Zealand. The Applicant worked there for a period of four years as recently as June 2016 before he returned to live in Australia.
[109] Exhibit R1, G11, 62.
Having regard to paragraph 14.5(1)(b) of the Direction, the Applicant would not face any language or cultural barriers, having spent the majority of his life living in New Zealand.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including welfare benefits and social services that he will need to re-establish himself in New Zealand.
On the basis of the evidence before it, the Tribunal finds that, on his return to New Zealand, the Applicant will face hardship, particularly financial and emotional stress, while he finds suitable accommodation, accesses available welfare and mental health services, and looks for a job or education and training opportunities. This hardship will be exacerbated if he is unable to re-establish contact and re-build his relationship with his immediate family members in New Zealand.
Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s domestic violence offences, and the low to moderate risk of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B is of neutral weight in determining whether the Mandatory Visa Cancellation Decision should be revoked as there is limited evidence that there are minor children with whom the Applicant has a significant relationship and who may be affected by his removal.
Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia.
In regard to the relevant other considerations, only the extent of impediments on return New Zealand weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
DECISION
The Reviewable Decision dated 8 May 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
................................................[sgd]........................
Associate
Dated: 5 August 2020
Date(s) of hearing: 20 July 2020 Applicant: In person Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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