MRNF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 848 (24 April 2024)
Division:GENERAL DIVISION
File Number: 2024/0587
Re:MRNF
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:24 April 2024
Place:Melbourne
The Tribunal:
(a)Sets aside the reviewable decision;
(b)Substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa; and
(c)Pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth), directs that this decision comes into operation at 09.00am (AEST) on 26 April 2024.
.........................[sgd]...............................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444
Special Category (Temporary) visa – substantial criminal record – failure to pass good character
test – whether another reason to revoke visa cancellation – Ministerial Direction no. 99 applied –
decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Returning Offenders (Management and Information) Act 2015 (NZ)
Sex Offenders Registration Act 2004 (Vic)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]
FCAFC 175
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourtv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 199
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023]
FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)
CKL21 v Minister for Home Affairs (2022) 293 FCR 634
DOB18 v Minister for Home Affairs [2018] FCA 1523
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 78
FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 397
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA
468
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroopv Minister for Immigration and Border Protection (2016) 241 FCR 461
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection [2016] FCA 1180
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 (2022)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021)
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395
ALR 403
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 178 ALD 536
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295
FCR 365
Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285
FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Administrative Appeals Tribunal, Publication of Decisions Policy
No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA (commenced 3
March 2023)
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill
2014 (Cth)
Imprisonment, Sentencing Advisory Council (Vic) (Web Page, 28 April 2022)
< Phenix et al, Coding Rules for Static-2002 (Public Safety Canada, Ottawa- Ontario, 2008)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
24 April 2024
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category Visa.
The hearing was held at the Tribunal’s Melbourne Registry on 16, 17, and 18 April 2024. The Applicant was self-represented. The Respondent was represented by Ms Jade Birman from the Australian Government Solicitor.
For the following reasons the Tribunal sets aside the reviewable decision and substitutes a decision that there is another reason for revocation. Pursuant to s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), the Tribunal directs that this decision comes into operation at 09.00am (AEST) on 26 April 2024.
CONFIDENTIALITY
With certain statutory exceptions, the default position in the Tribunal is for public hearings, public availability of evidence, and publication of decisions.[1] This is adopted in the interests of transparency and public awareness. Given the circumstances of this case, however, and absent a confidentiality request from either party, the Tribunal indicated at the commencement of the hearing it was considering such an order of its own motion. This was because the interests of the victim in this matter, who is a minor child and related to the Applicant, merit protection. Neither party objected and the Tribunal ordered that the Applicant will be referred to in these reasons as “MRNF”.
[1] Administrative Appeals Tribunal, Publication of Decisions Policy type="1">
On the first hearing day, the Respondent properly informed the Tribunal that some documents lodged on 26 March 2024 and the Respondent’s Statement of Facts, Issues, and Contentions (“RSFIC”), may not have been received by the Applicant because they were sent to an incorrect email address. The Applicant confirmed he previously received a bundle of documents numbering 155 pages, but not the RSFIC and a second bundle numbered from pp 156-290. The latter contained records obtained under summons from the County Court, Victoria Police, and others. The Tribunal had issued inspection orders for summons material on 7 March 2024 and 12 March 2024, which meant the Applicant was afforded an opportunity to review these documents. That said, it would not have been clear to him which records the Respondent intended to rely upon. The Tribunal adjourned the proceeding until the second hearing day to ensure the Applicant was able to review these documents and have a reasonable opportunity to present his case.[2]
BACKGROUND
The Applicant is 50 years old and was born in the Cook Islands. He lived there until the age of 24 before relocating to New Zealand where he lived and worked for approximately 18 years. He is a citizen of New Zealand.[3]
[3] Exhibit R1, 69
The Applicant married a woman in New Zealand in 2013[4] who the Tribunal will refer to as “Mrs MM”. Mrs MM gave birth to their first child while living in New Zealand.[5] The couple decided to migrate to Australia in late 2015[6] and had a second child in 2018.[7] The Applicant has been consistently employed in Australia and remains married to Mrs MM.[8]
[4] Ibid 106.
[5] Ibid 105.
[6] Ibid 124.
[7] Ibid 104.
[8] Ibid 79, 113; Exhibit A1.
In June 2020 the Applicant was charged with sexual assault.[9] He pleaded not guilty but on 17 October 2022, after a contested hearing in the Melbourne Magistrates’ Court, was convicted of two counts of sexually assaulting a child under 16. The Applicant received an aggregate six-month sentence of imprisonment and 18-month Community Corrections Order (“CCO”).[10] He immediately lodged an appeal in the County Court and was released on bail.[11] This appeal was subsequently abandoned in 2023 and the Applicant was taken into criminal custody.[12]
[9] Exhibit R1, 87.
[10] Ibid 35-36.
[11] Ibid 87-90.
[12] Ibid 156-158.
On 15 May 2023, while serving a full-time sentence of imprisonment, the Applicant’s visa was mandatorily cancelled.[13] After completing his prison sentence the Applicant was transferred into immigration detention on 7 September 2023 where he has since remained.
[13] Ibid 116-123.
The Applicant made representations to have the cancellation of his visa revoked[14] but on 1 February 2024 a delegate of the Minister declined to do so (“non-revocation decision”).[15]
[14] Ibid 16, 64-66, 126-7.
[15] Ibid 12.
On 3 February 2024, the Applicant asked the Tribunal to review the non-revocation decision.[16]
[16] Ibid 1-9.
Pursuant to s 500(6L) of the Migration Act 1958 (Cth) (“The Act”),[17] the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision. Failure to do so results in the reviewable decision being affirmed by operation of law.[18] The 84th day in this matter falls on 25 April 2024, a public holiday, which is four working days after the hearing.
[17] Migration Act 1958 (Cth) s500(6L) (‘The Act’).
LEGISLATIVE FRAMEWORK
The Tribunal’s jurisdiction to review a non-revocation decision by a Ministerial delegate is enlivened by s 500(1)(ba) of the Act read in conjunction with s 25(1)(a) of the AAT Act.
Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Amongst other things, s 501(6)(e) of the Act was introduced, with the Explanatory Memorandum stating in part:
‘New paragraph 501(6)(e) of the Migration Act provides that a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child…
…
The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test…’[19]
[19] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), 10 [48] -11 [50].
Section 501(3A) of the Act obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. The character test is defined in sections 501(6) to 501(12) of the Act and refers to a range of matters a decision-maker may have regard to in deciding whether to refuse, cancel, or revoke a mandatory cancellation decision. Section 501(6) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
…
Under s 501CA(3) of the Act the Minister must provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Section 501CA(4) of the Act confers a power on decision-makers to revoke a visa cancellation decision if satisfied the person passes the character test or there is another reason to revoke the original decision. The decision-maker must revoke the cancellation if satisfied that one of the relevant requirements in s 501CA(4)(b) of the Act exists.[20]
[20] Marzano v Minister for Immigration and Border Protection [2016] FCA 1180, [48] (Moshinsky J), affd (2017) 250 FCR 548.
Section 33(1)(a)–(b) of the AAT Act provides that the procedure of the Tribunal is within the discretion of the Tribunal and ‘shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of [the AAT Act] and every other relevant enactment and a proper consideration of the matters before the Tribunal permit’. Section 33(1)(c) of the AAT Act states that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’.
ISSUE TO BE DETERMINED
The Applicant does not pass the character test by reason of his 2022 convictions. Accordingly, s 501CA(4)(b)(i) of the Act is not a valid basis for revocation. It remains to be determined under s 501CA(4)(b)(ii) of the Act whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so. [21]
[21] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 191–192 [3]–[5] (Katzmann J), 198 [24] (Derrington J), 219 [103] (O’Bryan J).
The Full Court in Bettencourt[22] has reflected with approval upon the approach taken in Viane,[23] about how ‘another reason’ is determined. Their Honours stated at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[22] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 (‘Bettencourt’).
[23] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [66]–[68] (Colvin J) (‘Viane’).
More recently in Plaintiff M1/2021,[24] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[24] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 598–599 [22]–[25] (Kiefel CJ, Keane, Gordon and Steward JJ) (‘Plaintiff M1/2021’).
DIRECTION 99
In making its decision, the Tribunal must comply with a ministerial direction made under s 499(1) of the Act, known as “Ministerial Direction 99” (“the Direction”).[25] The Tribunal is said to ‘stand in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[26] based on the material currently before it.[27]
[25] The Act (n 17) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417–418 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 178 ALD 536, 540 [4] (‘Nathanson’); Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 3 March 2023) (‘The Direction’).
[26] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 314 [96]-[98] (Hayne and Heydon JJ) ('Shi'), 324 [134] (Kiefel J) (‘Shi’); Nathanson (n 25) 541 [7].
[27] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson (n 25); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Beezley v Repatriation Commission (2015) 150 ALD 11, [68]; Shi (n 26) 299 [40], 315 [100], 324-325 [134].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(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.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature, and duration of ties to Australia;
(4) The best interests of minor children in Australia;
(5) Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[28]
[28] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23], [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[29]
EVIDENCE BEFORE THE TRIBUNAL
Documentary evidence
The Applicant did not lodge an outline of submissions despite having an opportunity to do so. The following was taken into evidence during the hearing:
(a)Documents lodged by the Respondent numbering 290 pages;[30]
(b)Two-page statement of the Applicant dated 14 March 2024;[31]
(c)Two-page statement of Mrs MM dated 6 March 2024;[32] and
(d)Five-page report of forensic psychologist Mr David Ball dated 15 June 2022.
[30] Exhibit R1.
[31] Exhibit A1.
[32] Exhibit A2.
Witnesses
The Applicant gave oral testimony and called Mrs MM as his only witness. The Tribunal found them both to be open and forthright witnesses.
Applicant’s evidence
At the commencement of the hearing the Tribunal took the Applicant through key aspects of the Act, Direction, procedure, and his privilege against self-incrimination, which he said he understood. The Applicant’s documentary evidence includes his 2023 revocation request and a two-page statement dated 14 March 2024. His written submissions centre on the adverse family impact of non-revocation and impediments that would arise if he was removed to New Zealand. The Applicant’s oral testimony is summarised as follows:
(a)The Applicant spoke about his life in the Cook Islands and New Zealand until his early 40s, following which he migrated to Australia with Mrs MM and their child for a better life. He referred to being consistently employed[33] and has completed some vocational and other courses in Australia.
(b)The Applicant does not dispute his criminal history in New Zealand between 2001 and 2014, which consists of three instances of drink driving, operating a vehicle carelessly, and driving while disqualified.[34] He attributes this conduct to immaturity and the influence of adverse peers. He claimed that since leaving New Zealand he has not consumed alcohol.
(c)The Applicant referred to intermittent involvement with his ethnic and faith community in Melbourne. This is because he and Mrs MM lead busy working lives and spend most of their free time with their children. He did not particularise any other hobbies or community involvement.
(d)The Applicant denies his offending and insists he did nothing more than rearrange a blanket on a sleeping child. He contextualises some comments to the contrary at a second police interview as resulting from the victim’s father beating him up, making threats to kill him, and the fear he and Mrs MM experienced because of this. The victim’s father is Mrs MM’s brother. Despite his claim of innocence, the Applicant said there was a time when he thought that pleading guilty would satisfy the victim’s father. He felt the issue quickly ‘got out of hand’ with other family members becoming involved and thought a guilty plea could be a circuit breaker. He recalled that Mrs MM asked him after the first police interview to ‘go back [to a second police interview] and plead guilty’ to ‘settle everything down’. He initially agreed because he ‘just wanted to end it’ but said he subsequently changed his mind and pleaded not guilty after securing legal representation. The Applicant recalled lodging an appeal after his conviction and being released on bail but said he abandoned the appeal about 11 months later because of prohibitive costs and was taken into criminal custody.
(e)The Applicant moved out of the family home immediately after the incident in June 2020 and recalled that his relationship with Mrs MM was badly affected. Mrs MM returned to New Zealand with their children and stayed with her mother, sister, sister’s partner, and their six children. He said Mrs MM worked in New Zealand but also withdrew about AUD $1000 from his account weekly. The Applicant said he had no issue supporting his own family but objected to his income being spent on Mrs MM’s extended family. The Applicant said he regularly talked with his children by telephone while they were in New Zealand and reconciled with Mrs MM. She returned to Australia with the children in approximately April 2022. The Applicant said Mrs MM visited him in prison and immigration detention. He referred to her as the love of his life and said he is ‘nothing’ without her and their children.
(f)The Applicant said it is not possible to erase the past, but he had learned from it. Upon release he will complete any required rehabilitative program, be of good behaviour, and comply with supervisory conditions. He misses his family, has found time in custody ‘pretty hard’, and has ‘seen things never seen before in [his] life’. He has been compliant in custody with no disciplinary issues. The Applicant broke down several times when discussing the impact of his circumstances on Mrs MM and their children during the last four years. He recalled instances when she was sick, but no one was there to assist her with the children. He wants to return to work, provide for his family, be a good father, and resume the life he and Mrs MM aspire to in Australia. The Applicant’s unchallenged evidence is that he has been contacted by two past employers who will immediately re-employ him if released.
(g)The Applicant said he did not have the same work connections in New Zealand, has no family support there, and would have to live alone because Mrs MM and their children will remain in Australia to access better education and employment opportunities. He claimed that he will be unable to find work in New Zealand because of his 2022 convictions and lack of connections. Late in his evidence he submitted for the first time that he also fears harm from the victim’s broader family group if repatriated, irrespective of whether he lives in the Cook Islands or New Zealand.
[33] Exhibit R1, 113-115.
[34] Ibid 59.
Mrs MM’s evidence
Mrs MM’s oral evidence is summarised as follows:
(a)She came to Australia for a better life and considers the Applicant to be a loving father. Mrs MM does drop offs at school and day-care in the morning before working evening shifts. The Applicant starts work early in the mornings and does pickups in the afternoon. She recalls getting home from work late each evening to find the house clean, dinner cooked, and their children well cared for. Mrs MM said the Applicant worked half days on Saturday but is otherwise ‘always with the kids’. The family attend church occasionally but mostly prefer to spend time with each other.
(b)Mrs MM said she became aware of the June 2020 incident after responding to a phone message from her brother in the early hours of the morning. She recalled her brother threatening to kill the Applicant and giving the Applicant ‘a hiding’. Mrs MM said she was ‘numb with shock’, was being ‘drip fed’ information by her brother, and said the threats continued when the Applicant was not immediately arrested. Mrs MM said she told the Applicant after his first police interview: ‘let’s go down and plead guilty’, because she was ‘tired and over it’. This is the context in which she gave a statement to police[35] but does not accept the Applicant is guilty.
(c)Mrs MM said she returned to New Zealand with her children about a month after the June 2020 incident for her ‘mental health’ and because of COVID-19 lockdowns. She lived with her sister and facilitated the Applicant’s telephone contact with their children. She said the Applicant continued to financially support them and the children ‘missed him terribly’. They reconciled and upon returning to Australia in April 2022 Mrs MM found him to be the ‘same caring and loving father he’s always been’. Mrs MM recalled that after the Applicant’s court appearance in 2022, he went to the police station to ‘sign up’ and he was told to contact ‘DHHS’ because of registration requirements under the Sex Offenders Registration Act 2004 (Vic) (“SORA”). He was subsequently required to move out of the family home while a social worker did some ‘tests’. Mrs MM said the Applicant could return home whenever he liked but could not sleep over. She recalled that a report was written allowing the Applicant to live at home provided he complies with certain conditions.[36]
(d)Mrs MM said she has visited the Applicant in prison and immigration detention, and they speak by telephone multiple times daily. In the event of a non-revocation decision, she intends remaining in Australia because of better education opportunities, higher pay, and career prospects. Mrs MM said she could not secure comparable pay or career progression in New Zealand and would again be subjected to financial demands from her family. She is also concerned about the children’s continuing separation from the Applicant and currently lives ‘each day as it comes’. She will talk with the children and further consider what to do if the Applicant is removed.
(e)Mrs MM said she has not been in touch with her brother, his wife, and the victim for some years and is just trying to repair her life. She believes they live interstate.
[35] Ibid 176 [23].
[36] Ibid 108.
Expert evidence
The only expert evidence was a five-page report dated 15 June 2022 from forensic psychologist Mr David Ball. This report is almost two years old and was commissioned by the Applicant’s lawyers ahead of his criminal trial. Mr Ball states that he met the Applicant once in person for a 90-minute consultation. Key aspects of Mr Ball’s report follow:
(a)He did not administer any ‘personality instruments’ due to the Applicant’s ‘insufficient English literacy’ and because his birth and education in the Cook Islands placed him ‘outside of [the] standardised range’ for such instruments;
(b)The Applicant’s ‘mental state examination was largely unremarkable’ and he ‘denied any depression or anxiety. There was no evidence of thought disorder in flow, form or content’;
(c)Mr Ball assessed the Applicant ‘as a man with the clear capacity for generally good judgment and the ability to plan and execute positive and self-sustaining behaviour’;
(d)The Applicant reported he had been abstinent from alcohol for a decade since his marriage and denied ever abusing or overusing medication;
(e)The Applicant maintained his innocence of the charges confronting him;
(f)Mr Ball said he applied ‘pure actuarial prediction, clinically adjusted actuarial prediction and empirically guided clinical judgment in assessing [the Applicant’s] risk of recidivism’. Approximately one page of the report is devoted to an explanation of the coding rules derived from the STATIC-2002R methodology.[37] Mr Ball said these rules, coupled with the Applicant’s personal and forensic history, and Mr Ball’s clinical judgement, were utilised in assessing recidivism risk. Mr Ball assessed the Applicant to be a ‘Low Risk of recidivism’. Mr Ball added:
[37] Amy Phenix et al, Coding Rules for Static-2002 (Public Safety Canada, Ottawa- Ontario, 2008).
Dynamic Risk Factors
…
The features associated with [the Applicant’s] lifestyle which increase his risk of recidivism is the absence of a completed adult sex offender treatment program and understanding of the effects of his offending upon his victim.
Protective Factors
The main protective factors that may be applied to [the Applicant] are the successful completion of a sex offender treatment program. He would greatly benefit from developing the understanding of the effects of sexual abuse upon his alleged victim.
Diagnosis
Based on [the Applicant’s] clinical interview, personal and forensic history, my view is that he fails to satisfy DSM-5-TR diagnostic criteria for frank mental illness, personality disorder, mood disorder, substance use disorder or other pervasive clinical syndrome.
Rehabilitation and Management in the Community
[The Applicant] is likely to present with few, if any, challenges in terms of his safe management in the community…
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should 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. In this respect, decision-makers should 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.
(2) 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.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
While living in New Zealand the Applicant was convicted of drunk driving on three occasions between 2001 and 2014, one count of driving while disqualified in 2004, and careless operation of a vehicle in 2014.[38] He received fines and had his driver’s licence disqualified for periods of up to a year.[39] This offending is serious because of the potentially devastating consequences an alcohol-affected driver can have on other road users or pedestrians. The Applicant has not been convicted of comparable crimes since arriving in Australia.
[38] Exhibit R1, 59.
[39] Ibid.
The Applicant’s only convictions in Australia relate to a single, brief incident in June 2020 where the Court found he kissed his 11-year-old niece and touched her vagina once.[40] The sentencing remarks refer to this conduct as ‘very serious’ and a breach of trust.[41] Such offending falls within cl 8.1.1(a) of the Direction.
[40] Ibid, 49 [8], 185.
[41] Ibid 49 [27]-[29].
Imprisonment is a sentence of last resort and the most severe sanction available.[42] An aggregate sentence of six months imprisonment for a first-time offender in Australia is significant, but well below the 10-year maximum sentence available for sexual assault.
[42] See e.g. Imprisonment, Sentencing Advisory Council (Vic) (Web Page, 28 April 2022)
<
In addition to the Applicant’s criminal history, the Tribunal can consider ‘other conduct to date’.[43] This includes conduct in custodial settings or failing to declare convictions on Incoming Passenger Cards (“IPC”) when entering Australia. There is no evidence the Applicant has been other than well behaved in custodial settings. In relation to his IPC declarations, however, the Applicant ticked the ‘No’ box on IPC dated 28 March 2017 and 6 September 2017, which failed to declare his New Zealand convictions.[44] He explained during the hearing that these were ‘general traffic fines’ and he thought that conviction equated to imprisonment. Notwithstanding the Applicant’s possible confusion, his New Zealand convictions should have been declared to Australian border authorities and fall within the meaning of cl 8.1.1(f) of the Direction.
[43] The Direction (n 25) cl 8.1.1(1).
[44] Exhibit R1, 129-130.
The Applicant’s Australian convictions and failure to declare his New Zealand offending is collectively very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[45] The notion of risk and its nexus to future possibility were explored by Justice Mortimer, as her Honour then was, in Murphy:[46]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[45] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540, 543-4.
[46] Murphy v Minister for Home Affairs [2018] FCA 1924, [37]; Tanielu vMinister for Immigration and Border Protection (2014) 225 FCR 424.
The risk of future harm should the Applicant repeat his offending is potentially very serious. This encompasses adverse psychological effects on a victim and their family consistent with the victim impact references in evidence.[47]
[47] Exhibit R1, 46 [5], 49 [19], 50 [10], 51 [10], 278-280.
The Applicant and Mrs MM continue to deny his guilt but accept the Court’s finding and its consequences.[48] In any event it is impermissible for the Tribunal to impugn the essential factual basis of a criminal conviction.[49]
[48] Ibid 78.
In terms of rehabilitation, the Court placed ‘great weight’ on the Applicant’s prospects of rehabilitation.[50] The Tribunal respectfully agrees. The Applicant is yet to complete a sex offender’s program because of his imprisonment and immigration detention, but states he is willing to complete any mandated course to be able to return to his family,[51] which the Tribunal accepts.
[50] Exhibit R1, 49 [34].
[51] Ibid 78; Exhibit A1, 1 [8].
In terms of recidivism risk, the sentencing remarks refer to Corrections Victoria assessing the Applicant as a low risk of sexual offending.[52] Mr Ball similarly assessed the Applicant as a ‘low’ risk of recidivism with few, if any, challenges regarding his safe management in the community. The Tribunal accepts these assessments.
[52] Exhibit R1, 48 [31].
In terms of protective factors, the Applicant invokes the interests of Mrs MM and their children, a consistent ability to find work, the salutary effects of his experiences during the last four years, and the supervisory conditions of his 18-month CCO and SORA obligations as ameliorating his already low risk of reoffending. The Tribunal found his and Mrs MM’s testimony in this regard to be persuasive.
The nature of harm from a repeat of the Applicant’s offending is very serious. The prospect of reoccurrence on current facts, however, is low bordering on remote. Although his offending falls into a category of conduct where even a low risk of repeat may be unacceptable,[53] on balance this primary consideration weighs no more than moderately against revocation.
[53] The Direction (n 25) cl 5.2(6); CKL21 v Minister for Home Affairs (2022) 293 FCR 634, 653 [66].
Family violence committed by the non-citizen
Clause 8.2(1) of the Direction reflects the Australian government’s serious concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; 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, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
The High Court has held that cl 8.2 of the Direction ‘involves a field of operation separate’ to the other primary considerations:
‘…the potential relevance of the commission of family violence is not logically or reasonably confined either to the protection of the Australian community (under para 8.1) or the expectations of the Australian community under para 8.4 [of the Direction]. Paragraph 8.2 (“Family violence committed by the non-citizen”) is identifying a different relevance for family violence’.[54]
The Full Court has held that the word ‘family’, and phrase ‘member of a person’s family’, should not be narrowly construed and reflects a common understanding of that word and term.[55] The victim is Mrs MM’s niece and therefore the Applicant’s niece by marriage. The way the victim interacted with the Applicant’s family plainly reflects a relationship founded on mutual affection and obligation. The Applicant agreed during the hearing that the victim was a member of his family, and the Tribunal is satisfied this is so within the meaning of the Act and Direction.[56]
[55] Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157 [59], [61].
[56] The Act (n 17) s 5G; The Direction (n 25) cl 4(1)(b).
The Applicant’s offending relates to a brief, isolated incident approximately four years ago. It is his only offending in Australia and there is no trend of increasing seriousness. He is yet to complete an offence-specific rehabilitative course because of his custodial circumstances but expresses a willingness to comply with any order if released. The Tribunal accepts this. As discussed earlier, both he and Mrs MM continue to deny his guilt but accept the consequences of his conviction.
The Tribunal notes the Court has precluded any contact between the Applicant and victim until October 2032.[57] The Applicant and Mrs MM state they have no contact with the victim or her family, who appear to have relocated interstate.
[57] Exhibit R1, 100-103.
Having assessed the seriousness of the Applicant’s conduct from the perspective of the Government’s concerns about family violence, the Tribunal attributes moderate weight to this primary consideration against revocation.
The strength, nature, and duration of ties to Australia
Clause 8.3 of the Direction provides:
(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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Family ties in Australia
The Applicant was born and raised in the Cook Islands, moved to New Zealand when he was 24 years of age, and resided there for approximately 18 years. He has therefore lived overseas for 42 years of his life and in Australia for the last eight years. The Applicant has not been ordinarily resident in Australia during and since his formative years.
The Applicant’s unchallenged evidence is he has no family in New Zealand and that Mrs MM and their two children are his only immediate family in Australia.[58] Mrs MM referred to the Applicant’s loving role as a husband, father, and his valued financial, practical, and emotional contribution. The Applicant speaks with Mrs MM and their children daily by telephone and Mrs MM has visited him in custodial settings. Mrs MM’s evidence is that the children believe the Applicant is working interstate and will return home soon.
[58] Ibid 77.
Except for Mrs MM’s statement, the Applicant did not provide other statements from family members or friends. He and Mrs MM work very long hours and spend what free time they have predominantly with their children. Some reference was made to intermittent interaction with friends from work and in their faith community. Notwithstanding the lack of supportive statements from others, the Tribunal accepts there are likely to be other family members and friends in Australia who would be upset by a non-revocation decision.
The Tribunal has considered the Applicant’s submissions that it would be hard for him to re-establish himself in New Zealand because of a lack of family support, his criminal history, and likely separation from Mrs MM and the children who would remain in Australia. The Tribunal accepts that a non-revocation decision would pose very difficult choices for the Applicant and Mrs MM to consider. Their lives would be significantly disrupted irrespective of the decision made. If Mrs MM remained in Australia this would cause family separation. If she accompanied the Applicant to New Zealand this would cause educational disruption, the loss of their children’s social and support networks, and adverse pay and career implications. That said, the children are five and nine years of age and lived for almost two years with Mrs MM in New Zealand from late 2020. This demonstrates it is possible, albeit not currently preferred, that they could accompany the Applicant to New Zealand.
In terms of positive contributions in Australia, the Tribunal accepts the Applicant has been consistently employed,[59] paid taxes, helped raise his children, and has had some interaction with his ethnic and faith community.
[59] Ibid 113-115.
Aboriginality
Even if an applicant makes no submissions about aboriginality, nor advances any connection to the Australian Aboriginal community, this is no longer the end of the matter. Justice Feutrill held in Brownlie that neither the absence of an express representation nor materials disavowing the relevance of this consideration are determinative.[60] The applicant in Brownlie was born in Wales and expressly stated he did not identify as an Aboriginal or Torres Strait Islander person. No claims about Aboriginality were advanced by the Applicant or his barrister during the hearing. His Honour noted at [80] of Brownlie:
‘There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?’
[60] Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (‘Brownlie’).
In quashing the Tribunal’s decision, however, his Honour held that the decision-maker’s task extends to searching for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials before the Tribunal’.[61] The Tribunal is therefore required to review the lodged materials and identify any conflict between an applicant’s express non-identification as Aboriginal and contrary unarticulated representations or ‘integers’.[62] His Honour held that failing to do so is sufficiently material to constitute jurisdictional error.
[61] Ibid [101].
[62] Ibid [50], [54], [102].
In his application to the Tribunal, the Applicant responded ‘No’ to a question asking if he was of Aboriginal or of Torres Strait Islander origin.[63] He did not advance any aboriginality claims in his oral or documentary evidence. The Tribunal notes that in his interview with police in June 2020, the Applicant was asked if he was of Aboriginal or Torres Strait Islander descent, to which he initially responded: ‘Torres, I think’.[64] When asked a confirmatory question, however, he stated he was from the Cook Islands.[65] The available documents do not disclose any evidence about the Applicant’s recognition or acceptance as an Aboriginal or Torres Strait Islander from anyone enjoying traditional authority in these communities. The Applicant did not advance aboriginality or Torres Strait Islander claims in the hearing. The Tribunal is therefore unable to identify any conflict between the Applicant’s express non-identification as Aboriginal, and other integers or contrary references in the materials that raise an unarticulated case to the effect that he identifies as an Aboriginal Australian with ties to the Australian Aboriginal community.
[63] Exhibit R1, 2.
[64] Ibid 254 [15].
[65] Ibid [16].
On balance, this primary consideration carries substantial weight in favour of revocation. The Applicant has very close ties to Mrs MM and their children and has developed other work and social relationships in Australia during the last decade. What relationships he has are here and there is no evidence of any familial, social, or other support in New Zealand. There would be a significant adverse impact on Mrs MM and their children if he was repatriated, irrespective of whether they chose to accompany him or not.
Best interests of minor children in Australia
Clause 8.4 of the Direction requires decision-makers to determine whether the best interests of minor children in Australia are served by grant or refusal of the visa.[66] This applies only if the child is, or would be, under 18 years old at the time the application is decided. If there are two or more relevant children, the best interests of each affected by the decision should be given individual consideration, to the extent their interests differ.
[66] RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 295 FCR 365, [44].
The Applicant has two minor children who are five and nine years of age. It is not possible on current facts to differentiate between their interests. There are references to his interaction with the children through activities like fishing, sports, homework assistance, and other practical and financial contributions. There are also references to him being required to leave the family home and contact limitations arising because of his SORA obligations.[67]
[67] Exhibit R1, 108.
The Tribunal is satisfied the Applicant would play a positive role in his children’s lives if released. He has maintained a close and loving parental relationship with them notwithstanding his circumstances since June 2020, and has committed to abiding by whatever rehabilitative or supervisory conditions are imposed if released. Mrs MM’s evidence is that the children love their father, miss him, and want him to return home as soon as possible. In the event of a non-revocation decision Mrs MM said she is likely to remain in Australia with the children. This is a very difficult and ultimately personal choice. Remaining in Australia would impose continuing pressure on Mrs MM in terms of the children’s care. There would be little if any prospect of the Applicant returning to Australia and, in that sense, non-revocation may result in his future relationship with the children being long-distance in nature except for visits in New Zealand or a third country.
The Tribunal accepts the Applicant has a close and loving relationship with his children, has played a positive parental role in their lives, and would continue playing a positive role if released. The best interests of each child are therefore advanced by revocation. Significant weight in favour of revocation is attributed to this primary consideration.
Expectations of the Australian community
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[68] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘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’.[69] The High Court refused an application for special leave to appeal from the orders in FYBR.[70]
[68] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[69] Ibid 473 [75]–[76] (Charlesworth J).
[70] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The Applicant’s sexual assault of a child raises serious character concerns.[71] Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, and he should expect to forfeit the privilege of remaining in Australia.[72] On current facts, however, this primary consideration carries no more than moderate weight against revocation.
[71] The Direction (n 25) cls 8.5(2)(a) and (c).
[72] Ibid cls 5.2(1)–(2).
OTHER CONSIDERATIONS
No submissions were made by the parties regarding cl 9.3 (Impact on victims), and cl 9.4 (Impact on business interests). Having considered the available evidence, the Tribunal agrees and does not consider these aspects further. That is not to diminish the adverse effects experienced by the victim of the Applicant’s offending and their family, but simply reflects the absence of evidence about the impact of a decision in this matter.
Legal consequences of the decision
The Applicant’s claims focussed on impediments encountered if removed to New Zealand. These are considered under Extent of impediments if removed.[73] Late in his evidence he faintly advanced for the first time the prospect of his victim’s relatives harming him in either the Cook Islands or New Zealand. This was a passing and uncorroborated remark.
[73] Ibid cl 9.2.
In a general sense, the Applicant’s convictions resulted in visa cancellation, rendering him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[74] Because of the operation of s 501E of the Act, he would be prevented from applying for a visa, other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12AA of the Migration Regulations 1994 (Cth). There is no evidence that removal of the Applicant is not reasonably practicable, although how long this takes is uncertain because of choices he might make in the event of a non-revocation decision. This includes possibly lodging a Protection Visa application, or appealing to the Federal Court, or applying for the exercise of a non-compellable ministerial discretion,[75] or voluntary removal. If the Applicant did apply for a Protection Visa, but this was rejected, he would be on a pathway to removal as soon as reasonably practicable.[76] If he was found to be owed non-refoulement obligations, then s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made.
[74] The Act (n 17) s 196.
[75] For example, The Act (n 16) s 195A or s 197AB; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
[76] The Act (n 17) s 198(2B).
Irrespective of future decisions yet to be made or options that might emerge, the Tribunal accepts that non-revocation would be a significant, adverse outcome for the Applicant and Mrs MM. Having identified some of the potentialities, however, the Tribunal is not required to engage in speculation or fact-finding about future events,[77] and respectfully adopts the reasoning in Aliv Minister for Immigration and Border Protection (‘Ali’):[78]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
In DOB18 v Minister for Home Affairs at [35],[79] Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
It remains open to the Applicant to apply for a Protection Visa. In the absence of any persuasive claims regarding international non-refoulement obligations, and because none can be discerned from the available evidence, the Tribunal allocates neutral weight to this consideration.
Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider 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.
The Applicant is currently 50 years of age. He lived in the Cook Islands and New Zealand for the first 42 years of his life and has spent the last eight years in Australia. He referred to returning to the Cook Islands and New Zealand for family funerals, most recently in September 2017.[80]
[80] Exhibit A1, 2 [13].
The Applicant did not advance any language or cultural barriers, and none are discernible from the evidence. He also did not advance any medical or psychological conditions[81] and said there is no health-related or other reason precluding his immediate return to work. The Applicant’s primary concerns centre on the difficulties Mrs MM and their children would encounter if they had to ‘start again’ in New Zealand and his ability to re-establish himself with a criminal history and absent any familial or other support.[82]
[81] Exhibit R1, 80.
[82] Ibid 81; Exhibit A1, 1 [3].
The Applicant reports a consistent work history in New Zealand and Australia. He contends that opportunities for himself, Mrs MM, and their children are better in Australia than in New Zealand. The requirement under the Direction, however, is to consider a person’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’[83] rather than by comparison with Australia. The Applicant’s ability to resettle in New Zealand or the Cook Islands is reinforced by the fact that he spent most of his life until his early 40s living in those countries. There is no evidence he could not competitively apply for work, or that he would not have the same entitlement to healthcare, income, housing, or other support available to all New Zealand citizens who meet required prerequisites, such as to constitute an impediment to removal.[84] This includes reintegrative support that may be available through legislation enacted in New Zealand focussed on returnees in the Applicant’s circumstances.[85]
[83] The Direction (n 25) cl 9.2.
[84] GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468, [57], [60]–[62] (Derrington J).
[85] Returning Offenders (Management and Information) Act 2015 (NZ).
The Tribunal accepts that as a 50 year-old man with a criminal record, who has lived in Australia for most of the last decade, and without familial support, the Applicant will be confronted by hardship if returned in New Zealand. This includes unfamiliarity with services, trying to find employment, and accessing prosocial support. On balance, this consideration weighs moderately in favour of revocation.
CONCLUSION
The Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to primary considerations.
The Applicant’s offending is very serious. The Tribunal accepts the expert evidence that his recidivism risk is low and considers it remote on current facts. This includes because of the salutary experiences of the last four years, the supervisory conditions under his CCO and SORA obligations, and the protective factors earlier referred to.
What family ties the Applicant has are predominantly in Australia and are closest with Mrs MM and their children. It is unlikely they would accompany him to New Zealand because of the established nature of their lives in Australia. A non-revocation decision would therefore result in difficult choices and significant adverse effects for this family irrespective of what decisions are made. The Applicant would encounter considerable impediments if returned.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal is satisfied there is another reason to revoke the cancellation decision. That is because the primary considerations ‘Strength, nature and duration of ties’, ‘Best interests of minor children’, and the other consideration ‘Extent of impediments if removed’, outweigh the countervailing primary considerations.
DECISION
It follows that the Tribunal:
(a)Sets aside the reviewable decision;
(b)Substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa; and
(c)Pursuant to s 43(5B) of the AAT Act, the Tribunal directs that this decision comes into operation at 09.00am (AEST) on 26 April 2024.
I certify that the preceding ninety (ninety) paragraphs are a true copy of the reasons for decision of Senior Member A. Nikolic AM CSC
…………[sgd]……………………….
Associate
Dated: 24 April 2024
Date of hearing:
16, 17, and 18 April 2024
Advocate for the Applicant:
Applicant in person
Advocate for the Respondent:
Ms Jade Birman
Solicitors for the Respondent:
Australian Government Solicitor
- AGLC
- MRNF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 848
- Case
- [2024] AATA 848
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether there was "another reason" to revoke the visa cancellation decision, as contemplated by section 501CA(4) of the *Migration Act 1958* (Cth). This required the Tribunal to consider the applicant's circumstances in light of Ministerial Direction No. 99, which provides guidance on the exercise of the power to revoke a mandatory visa cancellation.
The Tribunal found that the delegate had erred in failing to adequately consider the applicant's personal circumstances and the best interests of his children, which were relevant considerations under Ministerial Direction No. 99. The Tribunal applied the principles established in cases such as *Marzano v Minister for Immigration and Border Protection*, which confirm that the power to revoke a cancellation under section 501CA(4) is engaged when a decision-maker is satisfied that such "another reason" exists. The Tribunal concluded that the applicant's circumstances, when weighed against the grounds for cancellation, constituted another reason to revoke the cancellation.
Consequently, the Tribunal set aside the delegate's non-revocation decision and substituted it with a decision to revoke the cancellation of the applicant's visa.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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