MTJB and Minister for Home Affairs (Migration)
[2019] AATA 1768
•8 July 2019
MTJB and Minister for Home Affairs (Migration) [2019] AATA 1768 (8 July 2019)
Division:GENERAL DIVISION
File Number: 2019/2137
Re:MTJB
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:8 July 2019
Place:Brisbane
The decision under review is affirmed.
.........................[SGD]...............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Refugee Class XB visa – where visa was cancelled under s 501(3A) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – risk of harm to Australian community – minor children – expectations of Australian community – strength duration and nature of ties – Non-refoulement – Direction No.75 - decision under review affirmed
LEGISLATION
Bail Act 1980 (Qld)
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Queensland Criminal Code 1899 (Qld)CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Divane and Minister for Immigration and Border Protection [2016] AATA 728
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337
GCLV v Minister for Home Affairs[2019] FCA 845
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Omar v Minister for Home Affairs[2019] FCA 279
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Senior Member Theodore Tavoularis
8 July 2019
BACKGROUND
MTJB (“the Applicant”) arrived in Australia on 17 August 2004 as the holder of a Refugee (Class XB, Subclass 200) visa (“the visa”), that had been granted to him on 29 April 2004.[1] He has not departed Australia since he first arrived here. On 10 February 2017, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.[2] The Applicant subsequently applied for this cancellation to be revoked within the period and manner specified. On 1 August 2018, the Assistant Minister for Home Affairs (“the Respondent”) considered that application and decided, pursuant to s501CA(4) of the Act, not to revoke the cancellation of the Applicant’s visa.[3]
[1] Exhibit 6, s501 G Documents, G27, page 163.
[2] Ibid, G3, pages 6 – 57.
[3] Ibid, G13, pages 79 – 97.
On 23 November 2018, the Federal Court quashed the Assistant Minister’s decision and remitted the matter to the Respondent for reconsideration.[4] The Applicant was invited to make submissions prior to the reconsideration of the remitted matter.[5] A delegate of the Minister then reconsidered the remitted application and on 12 April 2019 determined, pursuant to s501CA(4) of the Act, not to revoke the visa cancellation decision.[6] On 17 April 2019, the Applicant applied to this Tribunal for a reconsideration of the visa cancellation decision by the delegate.[7]
[4] Ibid G15, page 105.
[5] Ibid, G16, pages 108 – 111.
[6] Ibid, G17, pages 112 – 132.
[7] Ibid, G2, pages 3 – 5.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by
s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa should be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[8]“…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…”[9]
[8] [2018] FCAFC 151.
[9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, ;153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66;250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[10] I will address each of these grounds in turn.
[10] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
At the hearing the Applicant did not cavil with the contention that he does not pass the character test due to his substantial criminal record. In my view, this concession was appropriately made because, in an offending history running from February 2011 until May 2017, involving some six sentencing dates, the Applicant has been sentenced to an aggregate custodial period of at least 53 months (or four years and five months) imprisonment for various, serious offences, the most notable of which involved repeated offending in the realm of domestic and family violence.[11] Although these sentences contained certain stipulations about release on parole, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[12]
[11] Exhibit 6, s501 G Documents, G19, National Police Certificate, pages 137-139.
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision-maker:
…
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. [14]
[13] On 28 February 2019, the former applicable direction, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision-makers, including this Tribunal, on and from 28 February 2019. The decision in this matter is due by 8 July 2019 in accordance with the 84 day time limit in s500(6L) of the Act. As this decision is intended to be published after 28 February 2019, Direction 79 will be applied.
[14] The Direction, para 7(1)(b.
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(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.[15]
[15] Ibid, para 13(2)(a)-(c).
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[16]
“…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 [now Direction 79] 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 [now Direction 79] 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 [now Direction 79] 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.”[17]
[16] [2018] FCA 594.
[17] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)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 forfeit the privilege of staying in Australia;
(iv)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;
(v)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;
(vi)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 be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing the aforementioned three Primary Considerations.
Primary Consideration A: The protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides 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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be readily gleaned from his National Police Certificate.[18] Suffice it to say that the offending comprises:
[18] Exhibit 6, s501 G Documents, G19, National Police Certificate, pages 137-139.
Court
Date
Offence
Result
Beenleigh Magistrates Court
28 February 2011
Wilful damage;
s 469 Queensland Criminal Code 1899 (Qld)
No conviction recorded;
Entered into good behaviour bond to be of good behaviour for a period of one year on a recognisance of $300.
Beenleigh Magistrates Court
9 May 2011
Breach of domestic violence and family protection order;
s 80(1)(b) Domestic and Family Violence Protection Act 2012 (Qld)(“DFVP Act”)
No conviction recorded;
Discharged absolutely.
Beenleigh Magistrates Court
13 February 2012
Breach of domestic violence and family protection order;
s 80(1)(b) DFVP Act
No conviction recorded;
Not further punished.
Beenleigh Magistrates Court
7 April 2015
Breach of bail conditions (4 counts);
s 33(1) Bail Act 1980 (Qld)
On all charges conviction recorded; sentenced to a cumulative custodial term of two months.
Beenleigh Magistrates Court
17 December 2015
Assault or obstruct police officer;
s 790(1) Police Powers and Responsibilities Act 2000 (Qld)
Conviction recorded; sentenced to a custodial term of imprisonment of one month; concurrent with following sentences imposed on 17/12/2015.
Beenleigh Magistrates Court
17 December 2015
Contravention of domestic violence order;
s 177(2) DFVP Act
Conviction recorded; sentenced to custodial term of 15 months.
Beenleigh Magistrates Court
17 December 2015
Contravention of domestic violence order;
s 177(2) DFVP Act
Conviction recorded; sentenced to a custodial term of four months.
Beenleigh Magistrates Court
17 December 2015
Contravention of domestic violence order;
s 177(2) DFVP Act
Conviction recorded; sentenced to a custodial term of 12 months.
Beenleigh Magistrates Court
17 December 2015
Breach of bail granted condition;
s 29(1) Bail Act 1980 (Qld)
Conviction recorded; sentenced to a custodial term of one month.
Beenleigh Magistrates Court
17 December 2015
Breach of domestic violence and family protection order;
s 80(1)(b) DFVP Act
Conviction recorded; sentenced to a custodial term of nine months.
Beenleigh Magistrates Court
19 May 2017
Contravention of domestic violence order (aggravated offence);
s 177(2)(a) DFVP Act
Conviction recorded; sentenced to a custodial term of imprisonment of nine months.
The Applicant also has a traffic history in Queensland. It relevantly appears in the material.[19] Notable offences from the traffic history comprise:
(a)6/11/2009 – the Applicant drove with a blood alcohol concentration of 0.227, which is four and a half times over the legal limit. He was fined $1600, duly convicted and disqualified from driving for 16 months;
(b)29/09/2010 – the Applicant was convicted of driving while disqualified. He was convicted and fined the sum of $1200 and disqualified from driving for two years;
(c)29/09/2010 – the Applicant committed the offence of being in unlawful possession of a driver license. He was convicted and fined the sum of $500;
(d)27/03/2011 – the Applicant drove with a blood alcohol concentration of 0.262, which is over five times the legal limit. He was convicted and fined the sum of $1000 and was disqualified from driving for 12 months;
(e)27/03/2011 – the Applicant drove while disqualified. He was convicted and fined the sum of $1000 and disqualified from driving for a period of two years;
(f)17/07/2011 – the Applicant drove with a blood alcohol concentration of 0.21, which is over four times the legal limit. He was convicted and sentenced to a wholly suspended term of imprisonment of nine months. He was disqualified from driving for 12 months; and
(g)17/07/2011 – the Applicant drove while disqualified. He was convicted and sentenced to a custodial term of nine months (wholly suspended) and was disqualified from driving for two years.
[19] See Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), second annexure, summonsed material from Queensland Police service, pages 84-85.
The Nature and Seriousness of the Applicant’s Conduct to Date
During the hearing, there seemed to be unanimity between the parties about the seriousness of the Applicant’s offending conduct. In his material,[20] the Applicant seems to acknowledge the seriousness of his behaviour and repeatedly says “I take full responsibility for my offending behaviour.” Having regard to the totality of the Applicant’s “Statement of Facts”, there seemed to be a tone of defiance and false explanation behind a number of his offending episodes. On the one hand, he speaks of being “very sorry to my family” for a given episode of his offending. But, on the other hand, it appears he has re-cast the factual circumstances around that offending to lessen any impression about the seriousness of his conduct. The general tone of his ”Statement of Facts” is one of purporting to accept responsibility for his offending but, at the same time, glossing over not just the seriousness of what he has done, but the potential catastrophic effects of his offending as well.
[20] See Exhibit 1, Applicant’s Statements of Facts, fifth page.
The Respondent contends that the Applicant’s offending should be viewed as “very serious”.[21] There is quite a consistent theme of domestic violence inherent in the Applicant’s offending history. It would appear his preponderance towards domestic violence offending is consistent with a mindset of refusing to respect and follow lawful authority. This is because his history also contains a number of breach of bail offences, as well as an offence of assaulting a police officer while on active duty. Regrettable as it sounds, the Applicant seems to have difficulty in setting boundaries of respect for those around him, be it a domestic partner, or a police officer on active duty, or the terms of a court order granting him a legal privilege such as, for example, bail. Likewise, this lack of respect for lawful authority is undeniably apparent from his traffic history, littered, as it is, with numerous failures to moderate his behaviour with regard to drink driving and to otherwise respect the terms of a court order disqualifying him from driving a motor vehicle.
[21] Exhibit 5, Respondent’s SFIC, page 7, paragraph [25].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(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…government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (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;
...”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature are viewed very seriously. There can surely be no argument that, viewed longitudinally, the Applicant’s offending undeniably involves an obvious and sustained theme of violence in a domestic context. His offending cannot be viewed in any other way. This violence has extended to a physical attack on a police officer in the course of his/her duty. Having regard to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the often violent circumstances of the Applicant’s history of offending (especially in a domestic context) must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women are to be viewed very seriously, regardless of the sentence imposed. The Respondent has helpfully referred to several authorities relating to the serious impact and consequences of domestic violence offending. As this Tribunal observed in Ahori and Minister for Immigration and Border Protection [2017] AATA 601:
“Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.”[22]
[22] At paragraph [53].
One hesitates to quote oneself in one’s own decisions, but I feel compelled to cite the following passage from my decision in Divane and Minister for Immigration and Border Protection [2016] AATA 728. The reason I cite the following passage is to demonstrate the level of urgency and priority that governments attach to domestic violence offending:
“The Respondent has submitted that the Government also takes a very serious stance on domestic violence in particular. They pointed to the numerous and costly measures that it is currently taking to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness. I find this material a persuasive statement of the Government’s views on domestic violence.”[23]
[23] At paragraph [57].
The factual circumstances around the Applicant’s offending are immediately capable of being understood as both violent and realistically catastrophic. In a domestic violence incident that occurred on 6 May 2011, “During the argument [with his spouse] the defendant [the Applicant] has thrown an empty Jim Beam bottle that he had been drinking out of, at the aggrieved.”[24] In another domestic violence incident that occurred on 5 July 2012, the police noted these things in their Court Brief:
“Police located and took up with the aggrieved a short way from the offence location. The respondent and aggrieved are in a defacto relationship and have a young child together. The aggrieved has five other children from a previous relationship. The aggrieved stated that earlier in the night the respondent had been drinking alcohol at the occurrence address and became aggressive towards her and the baby. The respondent started yelling and stated that the child was not his biologically. In anger the respondent has lashed out by using a closed fist with an unknown hand to punch a hole in a bedroom door. The respondent has then threatened the aggrieved stating words to the effect of: ‘That baby is not mine, I will kill you and that baby’.
The aggrieved has immediately taken the baby and left the address calling police and waiting for them a safe distance away. The other five children were left in the address with the respondent.
…
While investigating this incident police asked the respondent a number of questions at the scene. The defendant did not admit to committing domestic violence. The respondent kept repeating ‘You know what women are like’ and stated that he would describe the incident as a ‘a misunderstanding between himself and the aggrieved’.[25]
[24] Exhibit 5, Respondent’s SFIC, annexed summonsed material from Queensland Police Service, page 49.
[25] Ibid, page 37.
Similarly, on 6 April 2015, police were required to intervene in a further domestic violence incident, the circumstances of which are recorded as follows in the relevant court brief:
“On the 6th day of April 2015 at 11:00pm The Respondent returned home after being out drinking since approximately 10:00am. The Respondent has started an argument with the Aggrieved over his missing mobile phone. The Aggrieved has stated to the Respondent that she did not know where his phone was. The Respondent has grabbed the Aggrieved with one hand around her throat attempting to drag her from her room and out into the lounge room. The Respondent has then grabbed the aggrieved shoulder [sic] and squeezing it causing her pain. One of the children has intervened asking the Respondent to stop, the Respondent has then thrown the Aggrieved away. The Respondent has started verbally abusing the child. The argument continued with both the Aggrieved and the named person until Police arrived. Police arrived and located the Respondent in the front yard of the dwelling moderately intoxicated. The Respondent was unable to answer question [sic] as to why he was there. The Respondent was transported to the Beenleigh watch house where bail was refused.”[26]
[26] Ibid, page 10.
There are further instances of significant violent offending in a domestic setting. For example, on 1 January 2014, the police noted the following in the relevant Court Brief:
“The Respondent was served with a copy of this Protection Order by Constable [name redacted] on the 5th day of November 2013.
At about 10:20pm on the 1st day of January 2014 Police from Logan Central were detailed to attend the offence location in relation to an assault. Reports were received from QAS that a female had been assaulted by her male partner.
On arrival Police located the Aggrieved who had sustained a neck injury and was lying in the back of the ambulance receiving treatment from paramedics. The aggrieved had a neck brace on and was unable to communicate at that time. Police were unable to locate the respondent at the offence address as he had decamped on foot after verbally abusing and threatening the paramedics.
…
During an electronic record of interview the respondent stated to Police that he was aware that he was named in a current domestic violence order. The respondent however stated he thought the order was changed and he was allowed to attend the offence address.
The respondent further stated that after a verbal argument with the aggrieved at some point during the argument [sic] turned physical and he has punched the aggrieved once in the mouth with his right hand knocking her to the floor.”[27]
[27] Ibid, page 23.
The serious nature of the Applicant’s offending was not lost on sentencing judges who dealt with him. In relation to his sentencing for, inter alia, the offending described in the immediately preceding paragraph, the learned sentencing Magistrate said these things:
“BENCH: The charges, Mr [Applicant] – they vary in seriousness. The domestic violence breaches trouble me quite badly. The domestic violence breaches – one occasion, you simply turn up at the residence. You cannot be there, sir. You have got no right to be there unless you have written consent. The other ones involve actual violence, and that is unacceptable in any way, shape or form. It would appear that there is a number of children also named on that order and, sir, domestic violence orders are all about respect. You must respect the order and respect the other person. And if you do not, you will suffer the very significant consequences that can flow from breaching a domestic violence order.”[28]
[28] Exhibit 6, s501 G Documents, G20, pages 141-142.
By way of further example, an additional Court Brief appearing in the material summarises the Applicant’s offending committed on 27 – 28 January 2017:
“On Friday the 27th day of January 2017 at about 11pm the respondent has attended the aggrieved’s address intoxicated and started banging on the front door demanding to be let in. The aggrieved has told the respondent no and that he should come back in day time.
The respondent has threatened the aggrieved that if she did not open the door he would break it, the respondent has then opened the screen door and started banging with force on the front entry door.
When the respondent could not break the door he has gone to a bedroom window of the property waking the children and requesting that they get up and open the door to let him in but they also refused. The respondent has then gone to the aggrieved’s window and continued to threaten her saying that if he gets inside she will know who he is and that he will make her life miserable.
The aggrieved has contacted police
At about 3am on 28th day of January 2017 police attended and located the respondent asleep on the concrete at the front of the house. Police detected a strong smell of liquor emitting from the respondent.”[29]
[29] Exhibit 5, Respondent’s SFIC, annexed summonsed material from Queensland Police Service, page 2.
The sentencing judge, when sentencing the Applicant, said:
“…you were doubly aware that you needed to be very careful, and here, whilst your level of intoxication might explain things a little bit, it certainly does not excuse your behaviour on the 28th of January this year…your particular actions on this evening, banging and crashing on the door and banging on the window, and waking the kids up and carrying on like the pest that you were, until such time as you passed out and went to sleep so the police could find you, was a clear breach of the order and your parole.”[30]
[30] Exhibit 6, s501 G Documents, G22, page 151.
The terms of this sub-paragraph (b) are clear. This type of violent offending against women (and children) is to be viewed very seriously “regardless of the sentence imposed”. I am thus of the view that upon an application of this sub-paragraph (b) to the circumstances of the Applicant’s offending, the nature and seriousness of his conduct can only be assessed as very serious conduct indeed.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction concerns itself with the principle that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are to be regarded as serious. Earlier in these Reasons, I spoke of the Applicant’s assaulting of a Police Officer. Police Officers are clearly “government representatives or officials” and when they were dealt with as they were by the Applicant, they were clearly conducting themselves “in the performance of their duties”. The Applicant’s assaulting of a Police Officer in this way clearly attracts the operation of this sub-paragraph (c). As a consequence, I am of the view that it militates in favour of a finding that his conduct is very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. Even a cursory review of the Applicant’s National Police Certificate demonstrates he has an offending history that runs from February 2011 until May 2017. The imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
In the early phases of his offending history, the Applicant received the benefit of non-custodial penalties in the form of convictions without the recording of a penalty, fines (especially for his traffic offending), and a good behaviour bond. When custodial terms were eventually imposed (as the severity of his offending evolved), the Applicant received the further benefit of serving multiple custodial terms on a concurrent, as opposed to cumulative, basis. Little or no deterrent effect is evident from the sentencing options above and this, in turn, compelled the sentencing Courts to impose more significant custodial terms for his offending. Viewed on a cumulative basis, the totality of the custodial terms imposed upon him since April 2015 are notable. Stated concisely, those custodial terms (in bold) are as follows:
·7 April 2015: two months;
·17 December 2015: 42 months; and
·19 May 2017: 9 months.
Another way of gauging the level of sentencing imposed by the Courts is to compare the respective periods in the offending history when the Applicant had the benefit of non-custodial penalties compared to the period of sentencing episodes where custodial terms were imposed. The period 28 February 2011 to 13 February 2012 can be said to be one of the imposition of penalties not involving any custodial element. But from
7 April 2015 to 19 May 2017, the Applicant’s persistent and very serious offending resulted in the imposition of 53 months of cumulative custodial time.
I am thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. The Applicant has committed 14 offences since he was first dealt with by judicial authority in February 2011.[31] On one view, the offending may be viewed as serious from its commencement but graduating to a very serious level through its evolution. For present purposes, my assessment of this Applicant’s offending is: (1) that it is undeniably frequent; and (2) it is escalating in seriousness, or, at the very least, it is persistently very serious.
[31] It should also be noted that the Applicant’s traffic history contains eight significant traffic offences that can be described as follows: (1) very high-end driving under the influence (0.227 BAC); (2) disqualified driving; (3) unlawful possession of driver license; (4) failure to surrender cancelled license; (5) very high-end driving under the influence (0.262 BAC); (6) disqualified driving; (7) very high-end driving under the influence (0.21 BAC); and (7) disqualified driving.
The Applicant arrived in Australia in August 2004. He has been in this country for approximately 14-15 years. Giving him the benefit of the time he has spent in criminal custody and/or immigration detention during his time here, he has been dealt with by lawful authority – in the form of sentencing episodes – on no less than six occasions. This equates to a sentencing episode about every two and a half years. Viewed another way, he has been in this country for 14-15 years and has committed 1314 offences since 2011. Adopting the figure of 14 and dividing it by say, the 14-15 years he has been here, results in approximately one offence committed each and every year of the totality of his time in this country. If one looks at his total pre-incarceration time in the country (approximately 11 years) and superimposes the totality of custodial terms imposed on him (53 months or 4 years and 5 months), the outcome is even more sobering. The stark reality of the Applicant’s offending is that the sentencing authorities have regarded his offending as so serious such as to impose sentences that would otherwise cause him to be removed from the Australian community for at least a quarter of the time he has spent in that community.
In terms of making a finding about any trend of increasing seriousness in the Applicant’s offending, one need look no further than two things. First, the National Police Certificate, which describes the actual offences as the history evolves. The first phase of his offending (i.e. 28 February 2011 – 13 February 2012), while not necessarily trivial, was not sentenced by the imposition of a custodial term. Concerningly however, this non-custodial offending did involve domestic and family violence and the wilful damage of property belonging to a third party. The nature of the Applicant’s offending (i.e. the actual offences) does not actually change in any material sense in the second phase of his offending history (i.e. 7 April 2015 to 19 May 2017). It broadly involves the same kind of offences – primarily domestic violence offending, a lack of respect for lawful authority in the form of repeated breaches of bail, assaulting a police officer and significant traffic offending. However, the nature of his conduct giving rise to these offences during this second phase is clearly more serious.
Second, the comments of the sentencing judicial officers indicate a similar apprehension that the Applicant’s offending is on an irrevocable path of increasing seriousness and that it needs to be reined in by way of imposition of not-insignificant custodial terms. As observed by the learned sentencing Magistrate who dealt with the Applicant on
17 December 2015:
“In relation to your criminal history, you are also no stranger to the courts. In relation to that, the criminal history shows that you were dealt with for wilful damage 2011, breach domestic violence order May 2011, breach domestic violence February 2012. You were also dealt with for some failing to appears on 7th of April 2015. You received two months’ imprisonment and parole release date on the 7th of June. Because of that previous criminal history, the maximum penalty as we sentence you today for breaching the domestic violence order is three years’ imprisonment. But from here on in – from after today or after we finish today – if you were to breach any more domestic violence orders, the maximum penalty is five years’ imprisonment. The law changed about six weeks ago. The maximum penalty is now five years’ rather than three…”[32]
[My underlining]
[32] Exhibit 6, s501 G Documents, G20, page 141.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the frequency of the Applicant’s offending and its increasing severity is such as to render his offending as very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant’s offending has, to my mind, a predominant theme of a lack of respect. His offending involves a lack of respect for the property of third parties (wilful damage), a lack of respect for the safety and personal rights of a domestic spouse and children in his immediate domestic vicinity (repeated domestic violence offending), a repeated refusal to observe the terms of a court ordered privilege or benefit (five breaches of bail) and a refusal to respect the lawful authority that governs and regulates the Australian community into which the Applicant seeks re-admission ((1) assault or obstruct a police officer in the course of their duty; and (2) his traffic offending).
The cumulative effect of the Applicant’s offending has culminated in the imposition of sentences warranting his removal from the mainstream Australian community for over a quarter of his time in this country. His offending has culminated in him representing a genuine threat to other people in the community, be they people in his domestic vicinity or government officials in the course of their duty or other road users. The application of this sub-paragraph (f) leads to a finding that the cumulative effect of the Applicant’s offending and its increasing seriousness is clearly indicative of its very serious nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. The Applicant’s criminal history cannot be said to be a short one. His appearances before lawful authority have been numerous. He arrived in this country as a 30 year old. He is now 45. On any reasonable view, the Applicant’s difficulties with lawful authority can be said to have largely dominated his time in this country.
Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, can, to my mind, be properly informed by the nature of his offending apparent in his criminal history to date.
I am mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.[33]
[33] The Direction, para 9.1.2(1).
In terms of the nature of the harm that could result from any repeat of the Applicant’s unlawful activity, one should have regard to the nature of his unlawful activity to date. It is predominated by offending in a domestic violence context. The offending has, at its core, a virtual absence of any respect for the personal rights and safety of his domestic spouse and infant children in that domestic setting. Having regard to the nature of his offending thus far, it is clear that, were it to be repeated to even a lesser, similar or greater level of severity than has occurred thus far, the nature of the resulting harm could, quite conceivably, involve very significant and even catastrophic physical, psychological and financial harm to members of the Australian community. Nowhere in the Applicant’s material is there any recognition or understanding by him that his offending creates a drain and financial impost on the administrative machinery funded by taxpayers of this country involving, as it does, the maintenance of public health systems, law enforcement and judicial systems, and other community-based groups (primarily, volunteer and faith-based entities) involved in addressing the adverse consequences of the type of very serious offending in which the Applicant has engaged.
Even a cursory view of his criminal history confirms the Applicant to be a serious repeat offender. I have earlier outlined the nature of his offending. At the risk of repeating myself, were he to re-offend in any aspect of his offending history thus far, but particularly in the realm of his very serious domestic violence offending, it is not a stretch of the imagination to suggest that members of the Australian community could be realistically harmed, and catastrophically so, on a physical, psychological or financial level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In his Personal Circumstances Form, the Applicant said the following about his risk of reoffending:
Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?
YES. My main factor of receiving [sic] my charges, more and more is because of Alcohol. But I have learnt how Alcohol can do damage to human life, damage to my families, to the Australian community at Large. I am asking for a chance to prove myself back in the community.
…
“What do you think is the likelihood that you may re-offend now? Please give reasons for your answer.
Coming to Jail, has Made Me realise that the problem was Alcohol, all my offences is Alcohol related issues. But I have come up with solution and that is to give up Alcohol.”[34]
[Emphasis in original]
[34] Exhibit 6, s501 G Documents, G31, page 184.
There is no escaping the reality that the Applicant’s offending has its roots in his unresolved issues with alcohol. As can be noted from the above-quoted sentencing remarks, sentencing judges had formed the same view. The principle difficulty with the Applicant’s self-reported intention of “I have come up with solution and that is to give up Alcohol” is that there is no independent psychological or other expert evidence to: (1) confirm that he has done so; and (2) that his risk of re-offending has been thereby reduced. There is no expert to say that the Applicant’s issues with alcohol are the subject of any demonstrable form of rehabilitation and/or remedial management and control to address this issue.
It should not be forgotten that the Applicant’s unresolved issues with alcohol have seen him commit three drink-driving offences with extraordinarily high levels of blood alcohol concentration. He purported to drive, manage and control a motor vehicle with respective blood alcohol concentrations of 4.5 times over the legal limit (6/11/09), 5 times over the legal limit (27/3/2011), and 4 times over the legal limit (17/7/2011). While it may be said that those offences are now of a certain age, that contention goes nowhere in the absence of independent and expert evidence that his issues with alcohol have been resolved.
I accept the Applicant has undertaken certain alcohol-abuse remediation courses while in detention. The outcome of those courses is not known and thus cannot be determinative of any finding about the level of his risk profile relative to his known risk of offending whilst under the influence of alcohol. To make any finding in those circumstances is to engage in little more than speculation.
Further, the Applicant’s self-reported rehabilitation has only been tested in the closed environs of criminal custody and immigration detention. It is yet to be tested in the broader Australian community, where he would be exposed to an unfettered capacity to, for example, present at a local pub or other social scenario where alcohol would be available. I am not convinced from the evidence now before the Tribunal that his capacity to moderate and control his intake of alcohol is such as to render him as being of a lower risk of: (1) succumbing to the mind-altering effects of overuse of alcohol; and (2) feeling sufficiently free and empowered to re-commence his offending behaviour.
Any assessment of an Applicant’s risk of re-offending in an application such as this is a somewhat arbitrary exercise performed without the benefit of a defined formula or scale for fixing a representative number from a continuum, ranging from, for example, a low to a high risk of re-offending. Viewing the evidence in its totality, there is a dearth of independent and expert medical (or other) opinion to convince the Tribunal of the Applicant’s assertions of wanting to re-configure his life, such that he no longer represents any risk to the Australian community. The state of the medical and other rehabilitative evidence is such that I have minimal confidence in this Applicant not further offending were he to be returned to the Australian community.
I am mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[35]
[References omitted]
[35] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81, 133.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that: (1) the nature of the Applicant’s offending conduct to date is very serious; and
(2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community, especially were he to resume his abuse of alcohol.Were he to re-offend, the harm that would be occasioned to others would be physically, psychologically and financially substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by the cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Respondent’s Statement of Facts, Issues and Contentions speaks of the Applicant having nine children, comprising three biological and six step-children. Of those nine children, six are presently under the age of 18 years. Of those six children, the Applicant’s ex-partner (“JD”) is the mother to two biological children the Applicant has had with her. She (JD) is also the mother of two of the Applicant’s step-children. A former partner of the Applicant (“FK”) is the mother to two of the Applicant’s biological children. Therefore, for the purposes of application of this Primary Consideration B, I must consider the Applicant’s six children under the age of 18 years.
The Applicant said the following things in his Personal Circumstances Form in response to specific questions:
“Are there any court orders that relate to your children?
…No.
Please describe your relationship with each child including when it began, how often you contact/see the children and the role you play in their lives.
My relationship with my children is good. I love them and they love me, I respect them and they respect me too and I see them all the time, give them money every fortnight to there [sic] Mother. every Saturday we take them to a park and played with them As a families [sic] and every Sunday we go to Church with them together As families Cause [sic] I want them to growth [sic] up and be a good children in the community, and I always tell them the Philanthropy of Australians.
Please describe the impact the cancellation of your visa would have, or has had, on the child/ren listed.
the impact would bring them depression, stress, confusetion [sic], pains, if I get deported. What happen to me I don’t want it to happen to my children, I growth [sic] up without a father, my Mother is the one who brought me up and I can feels [sic] the pains up to now growing up fatharless [sic], I don’t intent [sic] that to my children.”[36]
[Emphasis in original]
[36] Exhibit 6, s501 G Documents, G31, page 181.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children.
It is necessary to cautiously analyse the Applicant’s offending history, not just in terms of the sentences he received, but, for the purposes of assessing the extent of his role in the children’s lives, the amount of time he has been physically absent from their lives as a result of being in custody. His two main sentencing dates (i.e. in terms of the imposition of custodial terms) are 19 May 2017 and 17 December 2015. As I understand the National Police Certificate, if one looks at the sentencing date of 17 December 2015, the Applicant was sentenced to a cumulative total of 42 months of custodial time. However, as part of each custodial sentence, the learned sentencing Magistrate repeatedly made a declaration “…that time spent in pre-sentence custody be deemed as time already served under this sentence – 11 days (07/12/15 to 17/12/2015) parole release date: 17/12/2015”[37] Therefore, it can be fairly said that although the Applicant was sentenced to 42 months of custodial time, he only spent 11 days in actual custody and thus can only be said to have been physically absent from the lives of the children for those 11 days.
[37] Ibid, G19, pages 137-138.
On 19 May 2017, the Applicant was sentenced to a custodial term of nine months. The parole eligibility date was fixed for the next day, 20 May 2017. While the National Police Certificate does not contain any reference to a declaration for time already served, the learned sentencing Magistrate accepted the Prosecutor’s submission that the Applicant had, on the date of his sentencing (19 May 2017), “served a total of 76 days in relation to this offence.”[38] Therefore, for the purposes of the sentence he received on 19 May 2017, it can be fairly said that of the nine month sentence imposed, the Applicant spent 77 days in actual custody.
[38] Ibid, G21, page 148, line 15
On 7 April 2015, the National Police Certificate discloses[39] that the Applicant came before the Beenleigh Magistrates Court on four counts of breaching a bail undertaking. He was sentenced to a custodial term of two months with the notation of a “parole release date: 07/06/2015”.[40]
[39] Ibid, G19, page 138.
[40] Ibid.
Therefore, as best as I understand the Applicant’s National Police Certificate, he had three sentencing episodes involving the imposition of custodial time, which saw him spend the following amount of time in actual custody:
·7 April 2015: two months in actual custody;
·17 December 2015: 11 days in actual custody;
·19 May 2017: 77 days in actual custody
It cannot be said, therefore, that the nature and duration of the Applicant’s relationship with the child/ren has been to any significant extent adversely affected as a result of him being absent from their lives due to physical incarceration in criminal custody. The situation is, of course, different with regard to his placement into immigration detention. I presume that upon activation of his most recent parole eligibility date on 20 May 2017, he was taken into immigration detention and has found himself in such detention for a period of just over two years. So in terms of his physical absence from the children, it can be fairly said that he has been physically absent from their lives for just over two years he has found himself in immigration detention.
Be that as it may, it can also be reasonably found that the Applicant has, by virtue of the various domestic violence orders that have been made against him, been physically marginalised from the lives of the children. As noted by the learned sentencing Magistrate (Mr Duroux SM) in his remarks during the sentencing episode on 17 December 2015:
“In relation to your criminal history, you are also not a stranger to the courts. In relation to that, the criminal history shows you were dealt with for wilful damage in 2011, breach of domestic violence order May 2011, breach of domestic violence February 2012.”[41]
[My underlining]
[41] Ibid, G20, page 141, lines 21-24.
Further, the following submissions were made by the Prosecutor during the Applicant’s subsequent sentencing episode on 19 May 2017 (which submissions appear to have been accepted by the learned sentencing Magistrate, Mr Kucks, Acting SM):
“PROSECUTOR: Thank you, your Honour. On the 17th day of December 2015, in the [indistinct] Magistrates Court, a domestic violence order was made, naming [the Applicant] as a respondent and [JD] as the aggrieved. There are also seven children named on the order. The order consists of mandatory conditions plus two.
The respondent is prohibited from entering, attempting to enter or approach to within 100 metres of where the aggrieved lives, works or frequents, except for the purpose of having contact with children, but only as set out in writing by the aggrieved or in compliance with an order of the court. The respondent be of good behaviour toward the [indistinct] person and not commit associated domestic violence against the person or a child – not expose the child to domestic violence.
…
…Your Honour, I’d submit that an actual term of imprisonment of 12 to 18 months is within range and warranted in this case to serve a third. I would also like to make submissions on the current protection order and submit that a further two years be placed on that order…”[42]
[My underlining]
[42] Ibid, G21, page 147, lines 27-39 and page 148, lines 28-31.
Thus for the purposes of this Primary Consideration B, while it may not necessarily be able to be said that the Applicant’s placement in criminal custody has resulted in his prolonged physical absence from the lives of the children, it can be said that he has been physically excluded from their lives as a result of the combined effect of domestic violence orders dating back to 2011-2012. Importantly, and as conceded by the Applicant in his Personal Circumstances Form, there are no court orders or parenting plan in place for him to spend time with the children. In terms of more pronounced physical separation, it is clear that the Applicant’s time in immigration detention has caused him to be, in a purely physical sense, physically absent from the lives of the children for two years from May 2017 to May/June 2019.
While he speaks of having a strong relationship with the children, there is minimal evidence of any consistent parenting role he previously may have played in their lives for any significant duration. Nor for that matter does there seem to be any identifiable measure of duration in the Applicant’s relationship with the six minor children. Accordingly, having regard to the totality of the evidence and, in particular: (1) the combined effect of the domestic violence orders that have been made against him; (2) the time he has spent in actual criminal custody; and (3) the time he has spent in immigration detention, I am of the view that this factor (a) only slightly, if it all, militates in favour of a finding that it is in the best interests of the six children that the Applicant’s visa status be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Apart from the Applicant’s own evidence, there is no expert and independent evidence before the Tribunal analysing: (1) the role, if any, played by the Applicant in the lives of the children thus far; and (2) any adverse impact on the minor children were the Applicant compelled to return to South Sudan.
Even in the absence of any such report, it is reasonable to conclude that it is more likely than not that the Applicant will play at least some measure of a positive role in the lives of his six minor children until each of those children attain the age of 18 years. This likelihood can be found in the reality that, between them, the six relevant children have something like 38 years (combined) between their current age and when they attain the age of 18 years. I therefore positively apply this factor (b) to my consideration of whether restoration of the Applicant’s migration status is in the best interest of those six children and allocate a slight measure of weight to it.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on his six minor children in Australia. I have earlier quoted the Applicant’s comments that the children will show symptoms of “pain” and “depression” as a result of his absence from their lives. These observations are, of course, those of the Applicant and his alone. There is nothing else in the material – be it from a lay or expert witness - indicating any negative impact of the Applicant’s physical absence from the lives of his six minor children in Australia. However, any permanent separation between the Applicant and any of his children would not be beneficial to them.
Given the Applicant’s numerous (and serious) breaches of domestic violence orders, while no definitive finding can be made, it would be extraordinary if his conduct did not have some kind of lasting traumatic effect upon the children. At least two of his breaches of the various domestic violence orders have occurred and/or have involved one or more of the children. In the absence of any medical or other expert commentary in this regard, I am prepared to give the Applicant the benefit of the doubt about any adverse effects his conduct may have had on the children on those two particular breach occasions.
Any actual or potential mental health consequences upon the children arising from the Applicant’s absence has not been verified or identified by expert medical opinion. It is thus unclear whether the Applicant’s prior conduct and subsequent enforced removal from the lives of his six Australian minor children has had any negative impact on them. The only reasonable finding is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of the Applicant’s migration status to remain in this country is in the best interests of his six minor children.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the six minor children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. We live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his six minor children from South Sudan by SMS and/or social media platforms. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the six minor children via Skype and other digital platforms.
Even if one accepts the Applicant’s evidence about an apparently strong bond between him and the children, it is clear that were he to be returned to South Sudan, he would be able to maintain a level of contact with them. I also note there is little or no evidence before the Tribunal that the children have been in contact with him during his time in criminal custody and/or immigration detention. In these circumstances, this factor (d) is of minimal and of only slight, if any, weight in favour of the Applicant in assessing whether restoration of the Applicant’s migration status is in the best interests of the six minor children.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. On the present state of the evidence, there clearly are. His former de facto spouse, JD, is the primary caregiver to the Applicant’s two biological children and two of his step-children. His other former de facto spouse, FK, appears to be the primary caregiver to the Applicant’s two other. I cannot glean from the evidence whether any other people are involved in the daily care, management and control of the six minor children currently primarily parented by JD and FK. For the purposes of this factor (e) I am of the view that it is of minimal weight in favour of the Applicant in assessing whether restoration of the Applicant’s migration status is in the best interest of the six minor children.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. Apart from what the Applicant says in his Personal Circumstances Form, there is no other evidence before the Tribunal containing any reference to, or record of, any of known views of any of the six minor children. This is significant because while the children are aged three, five, fourteen, fifteen, sixteen and seventeen, one would have expected at least some note or statement from, say, the fifteen, sixteen or seventeen year old children in support of their father/step-father were any of those more mature children to have specific views about the removal of the Applicant to South Sudan. There is no such evidence from any of the children, nor from either of his former de facto spouses. As best as I understood the evidence, the Applicant – since his time in criminal custody and then immigration detention – has had very sparse contact with his six children.
There are no known views of the six minor children such as to facilitate a positive application of this factor (f) in favour of restoration of the Applicant’s visa status. Nor is there any such evidence from either or both of his former de facto spouses confirming any such views being held by the children. Accordingly, no weight is attributable to this factor (f).
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent factual evidence – is of no weight and is not determinative of any finding about Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the lack of evidence – apart from the Applicant’s own reporting - from any of the six minor children or either of the Applicant’s former de facto spouses, about the nature of the relationship between him and his minor children;
(b)the relative absence of any convincing evidence of any parental or other role the Applicant has played in the lives of his six minor children;
(c)the slight weight to be taken from factors (a), (b), (c) (d), and (e), of paragraph 13.2(4) of the Direction; and
(d)the limited concession from the Respondent that this Primary Consideration B should be given “minimal weight, if any”[43]
I am of the view that the best interests of the Applicant’s six minor children in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is moderate only and does not outweigh that weight attributable to Primary Consideration A.
[43] Exhibit 5, Respondent’s SFIC, page 9, paragraph [35].
Primary Consideration C: Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending and his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should retain the right to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·he arrived in Australia in August 2004 as a 30 year old and commenced offending in January 2011, six-seven years after arriving here;
·he has committed in 14 offences since he was first dealt with by lawful authority in this country in February 2011. This equates, on average, to him committing an offence each and every year of the totality of his time in this country;
·I have found his offending to be undeniably frequent and clearly escalating in seriousness;
·his 14-15 years in this country have seen him dealt with by lawful authority on no less than six occasions, equating to a sentencing episode approximately every two and a half years;
·his offending has seen him removed from the Australian community (1) for relatively short periods for his criminal offending (two months in April 2015, 11 days in December 2015 and 77 days from April-May 2017); and (2) on a continuous basis (for just over two years) in immigration detention from approximately 20 May 2017 to the present time;
·for the totality of his offending in this country, the sentencing courts have seen fit to impose total custodial terms equating to approximately 53 months. In round terms, the Applicant’s offending has warranted the imposition of custodial terms intending for him to be removed from the Australian community for four years and five months of his approximately 14-15 year period in Australia. This does not include the time he has spent in immigration detention;
·there is no certainty that the Applicant will remain compliant with any future domestic violence and family protection orders, nor that he will consistently remain sober or otherwise in control of his propensity to abuse alcohol;
·the stark reality that this Applicant has a six year history (i.e. from 2011-2017) of failing to comply with domestic violence and family protection orders (and other orders relating to bail and driving while disqualified) and of otherwise failing to come to grips with his difficulties with alcohol; and
·there is no definitive, independent or expert evidence before the Tribunal of: (1) any diagnosis of psychological or other factors predisposing the Applicant towards alcohol and a consequential propensity to offend and otherwise not respect lawful authority; (2) that those factors have been identified and are now the subject of remedial therapy and management; (3) that the Applicant has demonstrated any convincing level of insight into his offending so that; (4) this Tribunal can confidently find that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[44]
[44] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[45] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[45] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[46]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[46] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[47] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[47] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term or terms for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)the very serious nature of his offending to date;
(ii)his demonstrated lack of insight into the nature of his offending;
(iii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend, particularly with regard to a spouse and/or children in his immediate domestic environment;
(iv)the absence of any expert opinion containing an informed assessment of the Applicant’s propensity to re-offend;
(v)the Applicant’s six-seven year history of failing to comply with domestic violence and family protection orders and other orders representing lawful authority (e.g. a grant of bail) with which he must comply; and
(vi)the comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision-maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed very serious and potentially catastrophic offences, has breached the trust that was placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
In his Personal Circumstances Form, the Applicant said:
“I would like the Minister and the delegate to consider that I am going to put myself into Alcohol Anonymus [sic] Courses to become that Man my wife and kids love. I am a good man, I just made some bad decisions in my life.
The reasons for drinking is because I had bad child-hood. I was raised by my Mum only, had no male role model, I am a sibling of (5) raised with no dad, mother only.
I am asking for a chance. I have support from the Mormon Church which will help me and my families back in to the community thanks God bless you and God bless Australia.”[48]
[48] Exhibit 6, s501 G Documents, G31, page 186.
At the hearing (and consistent with his written material), the Applicant spoke of wanting to return to the community to, in effect, re-define his life and re-engage with his children in a non-violent way and to otherwise participate as a member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[49]
[49] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant came to Australia in 2004, aged 30 years. He commenced offending approximately six-seven years after that, in January 2011 when aged 37 years. His offending has seen him before lawful authority on the following occasions:
·February 2011;
·May 2011;
·February 2012;
·April 2015;
·December 2015; and
·May 2017.
It can be fairly argued that any likelihood of him reoffending is yet to be tested in the community because he has been removed from that community on a continuous basis.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “Other Considerations” disclosed in the Direction:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[50]
[50] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
While it is necessary for the Tribunal to turn its mind to any claims of protection giving rise to non-refoulement obligations, it is unnecessary for this Tribunal to make a definitive decision on whether Australia has non-refoulement obligations to the Applicant. This is on the basis that the Applicant is able to make an application for a Protection visa if the mandatory cancellation decision under review is not revoked.
Be that as it may, I nevertheless will, more out of an abundance of caution than anything else, briefly address this Other Consideration (a). The Applicant has contended and continues to contend that he fears the prospect of returning to South Sudan. In his Personal Circumstances Form, the Applicant said these things in response to these questions (in bold):
“Do you have any concerns or fears about what would happen to you on your return to your country of citizenship?
Yes.
If yes, please describe your concerns and what you think will happen to you if you return.
There is nothing over there, only War tribe fighting tribe. No support over there, if other tribe find me, they will kill me.
Are there any other problems you would have if you have to return to your country of citizenship?
Yes, no life there, no future for my kids and no opportunity there, only tribe war and I would be kill if other tribe find me.”[51]
[51] Exhibit 6, s501 G Documents, G31, pages 185-186.
The Applicant seems to have raised his asserted traumatic experiences in South Sudan at the time of being sentenced by the learned sentencing Magistrate at the Beenleigh Magistrate’s Court. In the sentencing episode of 17 December 2015, the learned sentencing Magistrate noted in his sentencing remarks:
“…You were born in 1974. You are still a fairly young man. You are 41 years of age. You were born in the – Sudan. You were a victim of the civil war in Sudan. Your family fled to Kenya when you were 16 years of age. You had ten years in a refugee camp in Kenya. Mr [Applicant] I have got no idea of the difficulties you dealt with. I can only begin to imagine how tough that must have been, and I can appreciate that you have a very, very difficult background.”[52]
[52] Ibid, G20, page 141, lines 4 – 9.
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm…
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa…
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[53] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[53][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No. 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No. 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[54] In Greene v Assistant Minister for Home Affairs,[55] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[56]
[54] [2018] FCA 650.
[55] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[56] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
In the instant matter, the Applicant has been residing in Australia on a Refugee (Class XB, Subclass 200) visa. This visa is distinct from Protection visas, and is not a visa, the holding of which, would bar a person from applying for a Protection visa.[57] Accordingly, I find that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No. 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
[57] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
As the Applicant is already on a Refugee visa, it seems like there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that an assessment was made before the Applicant came to Australia in August 2004. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:
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).[58]
[58] Ali v Minister for Immigration and Border Protection [2018] FCA 650.
As things stand, the Applicant has given evidence of previous persecution against him and his family, which caused them to flee South Sudan. While those claims were, to an extent, ventilated in evidence in chief and tested in cross-examination, it seems those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor on or prior to August 2004 that his claims for a Refugee (Class XB, Subclass 200) visa were genuine. The Applicant has given evidence about his traumatic experiences in South Sudan, but the totality of his evidence about harm to him, were he to be returned to South Sudan, seems to principally centre on his possible persecution by the “other tribe.[59]
[59] See paragraph [107] of these reasons for additional grounds of apprehended persecution.
I am mindful of the recent decision of Omar v Minister for Home Affairs.[60] In that case, Her Honour Judge Mortimer found that the Assistant Minister had failed to carry out the statutory task under s 501CA(4) of the Act by failing to consider the Applicant’s representations going to “another reason” why the cancelation of the visa should be revoked and, in particular, failing to consider the Applicant’s representations to be owed non-refoulement obligations. I am of the view that Omar is distinguishable from the present matter in circumstances where the evidence demonstrates that the Applicant has failed to set out “a serious and substantive basis in fact and in law for that representation”.
[60] [2019] FCA 279.
I am also mindful of the recent decision of GCLV v Minister for Home Affairs.[61] In that case, His Honour Justice Bromwich found that:
“12. In the context of the exercise of a s501CA(4) visa cancellation revocation decision…there is no meaningful distinction between making a so-called ‘final’ determination as to whether non-refoulement obligations are owed to the applicant and making an assessment of his non-refoulement claims. Either Australia has non-refoulement obligations in relation to the applicant, or it does not. The live issue is whether [14(1)(a)] of Direction 65,[62] in the context of [14.1], permits or requires the applicant’s claims in relation to non-refoulement obligations to be considered by the Tribunal in the sense of being taken into account in assessing his revocation request.
13. There is no room for the applicant’s asserted beneficial reading of [14.1(4)] of Direction 65.[63] What is required is a literal reading. The applicant was clearly able to make a valid application for another visa, relevantly a protection visa, if the visa cancellation decision was not revoked, as happened…In those circumstances, in compliance with the express terms of [14.1(4)] of Direction 65,[64] it was expressly not necessary for the Tribunal to determine whether non-refoulement obligations were owed to the applicant for the purpose of determining whether the visa cancellation should be revoked.”[65]
[My underlining]
[61] [2019] FCA 845.
[62] Now Direction 79.
[63] Now Direction 79.
[64] Ibid.
[65] GCLV v Minister for Home Affairs [2019] FCA 845, at page 5, paragraphs [12] and [13].
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No. 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his visa status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
There is a concession by the Respondent (which I note and accept) that whilst this Other Consideration (b) may slightly weigh in favour of revocation, it should be given limited weight and that it does not outweigh the Primary Considerations weighing against revocation.[66] The Respondent contends that this Other Consideration ought to be given limited weight largely because “The strength of the applicant’s relationship with these family members is presently unknown.”[67]
[66] Exhibit 5, Respondent’s SFIC, page 13, paragraph [54].
[67] Ibid, paragraph [53].
The Applicant arrived in Australia in August 2004, aged 30 years. Given that he commenced offending in January 2011, some six-seven years after his arrival in this country, less weight should be afforded to this Other Consideration (b), pursuant to paragraph 14.2(1)(a)(i) of the Direction.
The Applicant has not been entirely dilatory during his time in Australia. In his Personal Circumstances Form, the Applicant summarises his employment history thus:
(a)2005 to 2006: storeperson – Pacific brand (a company in Melbourne);
(b)2007 to 2008: Warehouse – Aldi company; and
(c)2009 to 2013: Meat Process – Australian Country Choice.[68]
[68] Exhibit 6, s501 G Documents, G31, page 183.
Interestingly, there is no record of any employment beyond 2013. As well, there is little or no other evidence before the Tribunal to enhance the weight attributable to this Other Consideration (b) on the basis that the Applicant has made any observable positive contribution to the Australian community during his time in this country.[69] Only a moderate level of weight can be allocated to this Other Consideration (b) having regard to paragraph 14.2(1)(a)(ii) of the Direction.
[69] Ibid, paragraph 14.2(1)(a)ii.
In his Personal Circumstances Form, the Applicant specifies that his mother, two brothers and two sisters are of Sudanese nationality and that their country of residence is presently “unknown”.[70] As well, he says he has seven uncles, all of Sudanese nationality, who all reside in Australia.[71] As mentioned earlier, the Applicant has six minor children residing in Australia: two biological and two step-children with his former partner, JD, and two biological children with his former partner FK. As best as I understood the evidence, each of the six minor children and the three adult children/step-children all reside in Australia.
[70] Exhibit 6, s501 G Documents, G31, page 182.
[71] Ibid.
While it may be arguable that the Applicant may have a level of ties to this country, I am not persuaded that those ties are either strong or of any significant duration. As mentioned earlier in this decision, the Applicant has been absent from the lives of his children for significant periods of time. To the extent that the Applicant can be said to have any measure of ties to Australia, that factor would slightly favour him, consistent with paragraph 14.2(1)(b) of the Direction.
However, such an observation must be tempered by the factors appearing at paragraph 14.2(1)(a)(i) and (ii) of the Direction. While this Other Consideration (b) may weigh slightly in favour of revocation, it is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration is of relevance in determining this Application.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on the victim(s) of his domestic violence and other offending. Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
It is contended by the Applicant that if he is returned to South Sudan, he would face impediments there because, according to him there is, “…no life there, no future for my kids and no opportunity there…” and, further, that there is “no support over there…”[72]
[72] Ibid, pages 185-186.
Paragraph 14.5(1) of the Direction reads as follows:
“To 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.”
With reference to the factor appearing at Paragraph 14.5(1)(a) of the Direction, it can be noted that the Applicant is aged 45 years and does not suffer from any diagnosed medical or psychological condition. His Personal Circumstances Form discloses that, in response to the question “Do you have any diagnosed medical or other psychological conditions?”, the Applicant replied “N/A.”[73]
[73] Ibid, page 185.
The Applicant spent the first 16 years of his life in then-Sudan, now South Sudan.[74] For the purposes of paragraph 14.5(1)(b) of the Direction, it is difficult to accept that he would face insurmountable language and cultural barriers were he to be returned there. While I accept he would face difficulties in re-establishing himself in South Sudan, I regard it as, to an extent, implausible that there is no one at all in South Sudan who could vouch for him upon his return there.
[74] See G20, page 141, lines 4 – 9.
For the purposes of paragraph 14.5(1)(c) of the Direction, I am mindful of the difference between the level of any social, medical and/or economic support available to citizens in South Sudan compared to Australia. As against that, regard must be had to the ambit of this particular sub-paragraph of the Direction. It relevantly stipulates that the extent of any impediments confronted by a non-citizen in obtaining social, medical and/or economic support in their country of origin, is to be considered in the context of what is generally available to other citizens of that country. There is no evidence before me to suggest that the Applicant would not be able to access those facilities in the same manner as they are available to all of the other citizens of South Sudan.
The Respondent further acknowledges that the Applicant may face initial difficulty in re-establishing himself in South Sudan; its further contention is that the evidence does not demonstrate that such impediments would “only present as a short-term hardship and would not preclude resettlement.[75] Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) weighs slightly in favour of revocation, but that it does not outweigh Primary Considerations A and C, both of which favour non-revocation.
[75] Exhibit 5, Respondent’s SFIC, page 14, paragraph [56].
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength, nature and duration of ties: weighs slightly in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs neither in favour of nor against the Applicant; and
(e)Extent of impediments if removed: weighs slightly in favour of the Applicant.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by
s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.
·Primary Consideration B weighs moderately in favour of revocation.
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 139 (one hundred and thirty - nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.........................[SGD]...............................................
Associate
Dated: 8 July 2019
Date of hearing: 20 June 2019 Applicant: Represented himself and appeared in person Advocate for the Respondent: Mr Jake Kyranis (Solicitor) Solicitors for the Respondent: Sparke Helmore
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