Muller and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1165
•29 July 2025
Muller and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1165 (29 July 2025)
Applicant/s: Cliff Muller
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2023/9118
Tribunal:Senior Member A. George
Place:Darwin
Date:29 July 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides to revoke the mandatory cancellation of the Applicant’s visa.
Statement made on 28 July 2025 at 10:38am
..................[Sgnd].................
Senior Member A. George
Catchwords
MIGRATION – cancellation of Applicant’s Class BF Transitional (Permanent) visa – very serious ‘glassing’ incident – Applicant moved to Australia in 1981 – very heavy weight placed on strength nature and duration of ties to Australia – very heavy weight placed on best interests of minor children – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
CKL21 v Minister for Home Affairs [2022] FCAFC 70
FYBR v Minister for Home Affairs [2019] FCAFC 185
Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924
R v Muller [2022] VCC 513
Michael Muller v The King [2022] VSCA 193
Pavey and Minister for Home Affairs [2019] AATA 4198
Secondary Materials
Direction No. 99, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
Mr Muller is a 64-year-old grandfather who held a Class BF transitional (permanent visa) for three decades. Born in Tonga in 1961, and educated in New Zealand, Mr Muller moved to Australia in 1981.
In April 2020, Mr Muller was convicted of recklessly cause serious injury and common law assault in the Melbourne County Court. This offending may be characterised as a very serious ‘glassing’ incident. It is the index offending.
Mr Muller was imprisoned, and his visa was cancelled. Mr Muller submitted a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A). On 28 March 2023, considering former Direction 99, the delegate was not satisfied that Mr Muller passed the character test nor was the delegate satisfied that there was another reason to revoke the cancellation decision under section 501CA(4) of the Migration Act 1958. This is the decision under review.
Counsel for Mr Muller has quite properly conceded that Mr Muller does not pass the character test as he has a substantial criminal record. Therefore, the issue for the Tribunal is whether it is satisfied that there is another reason, considering Direction 110, to revoke the cancellation.
For the following reasons, the Tribunal has decided to set aside the decision under review and in substitution decides to revoke the mandatory cancellation of the Applicant’s visa.
SUMMARY OF MATERIAL FACTS
Mr Muller was born in Tonga in March 1961 and completed secondary schooling in New Zealand in 1975. His evidence is that he has not been back to Tonga since then. A letter from New Zealand Immigration, dated 1 April 2025, confirms that Mr Muller holds a Resident Visa with indefinite travel conditions. Mr Muller was granted his Class BF transitional (permanent) visa in September 1994. It was cancelled in March 2023 due to his offending.
The Movement History that is before the Tribunal is, on its face, incorrect. It contains more arrivals than departures. However, the Tribunal is reasonably satisfied that Mr Muller moved to Australia in January 1981. He has substantially resided here since then. Mr Muller has not left Australia since January 1986, when he attended his brother’s wedding. Mr Muller’s son, Mr Daniel Whitlock, attended Mr Muller’s father’s funeral on his behalf.
Prior to the index offending that caused the cancellation of his visa, Mr Muller had engaged in modest criminal offending. This included nuisance and behavioural matters. He was fined for hinder police and resist police in April 1990. Mr Muller’s traffic matters are of greater concern.
Mr Muller was fined for dangerous driving in February 1982. This was his first offence in Australia and occurred approximately one year after his first arrival. He sporadically committed other driving offences over the years, including mid-range drink driving. Mr Muller was disqualified from driving for three years in April 1996.
In March 2018, Mr Muller was disqualified from driving for four years following a conviction of drive under influence of intoxicating liquor and related offences. On Mr Muller’s account, he was drink-driving on 19 October 2017 and injured his friend, Mr Kevin Sanders. These injuries do not seem to have been serious. Mr Muller entered pleas of guilty to the charges arising from this incident.
Unusually in proceedings such as this, it was Mr Muller who disclosed this antecedent when it had not been reflected on his criminal history. It was Mr Muller’s duty to make this disclosure, lest the Tribunal fall into error, but his candour in this respect is also acknowledged and it reflects positively upon his credibility as a witness.
The Tribunal has before it numerous court documents relating to the index offending proceedings in R v Muller [2022] 513 (Judge D Sexton), and subsequent appeal of sentence in Michael Muller v The King [2022] VSCA 193 (Niall JA). The Court of Appeal upheld the total effective sentence imposed on Mr Muller of three years and nine months for the offences of recklessly cause serious injury and common law assault. Mr Muller’s non-parole period was two years and four months.
The circumstances of the offending are summarised by both Courts in sentencing and upon appeal. They need not be repeated in detail. It is sufficient to recount that Mr Muller attended a hotel at approximately 9pm on 30 June 2019, after earlier drinking alcohol with friends at his house. After playing pool without incident, and initially greeting the Victim affectionately and talking with him, the Victim became agitated and pushed Mr Muller.
Mr Muller was holding a schooner glass. After various other actions, Mr Muller swung his hand holding the schooner glass and struck the Victim in the head. This gave rise to the offence of recklessly cause serious injury. Mr Muller had entered a plea of not guilty to this offence but was convicted. He was sentenced to a period of imprisonment of three years and six months.
The pair fell to the ground and continued to fight. After that fight had ceased, and the participants had separated, Mr Muller approached the Victim. He picked up a barstool and swung it at the Victim’s head. He missed. This gave rise to the offence of common law assault. Mr Muller entered a plea of guilty to this offence. He was sentenced to a period of nine months’ imprisonment, cumulative on his sentence for recklessly cause serious injury.
It was not immediately clear to Mr Muller, or the hotel staff, that the Victim was in a life-threatening situation. The Victim had suffered a bleeding injury, a skull fracture and a penetrating injury to his brain. After some delay, and being airlifted to Melbourne, the surgery removed a shard of glass from the right temporal lobe of the Victim’s brain. On appeal, His Honour characterised these injuries as “catastrophic”.
In sentencing, His Honour distinguished Mr Muller’s recklessly cause serious injury from other ‘glassing’ offending. There was no animus between Mr Muller and the Victim prior to the offending, and the Victim had initially instigated the altercation. This was not a planned attack, but rather Mr Muller had acted instantly. Materially, Mr Muller was holding the glass throughout the incident. He did not arm himself.
In sentencing, His Honour was prepared to accept that Mr Muller was acting to defend himself. Nevertheless, Mr Muller should have known there was a high probability of serious injury to the Victim by striking him with a schooner glass. Mr Muller’s response was not reasonable in the circumstances.
His Honour’s remarks in sentencing Mr Muller for common law assault reveal the reprehensible nature of that conduct. The Victim was clearly incapacitated at the time of offending.
His Honour sentenced Mr Muller on the basis that his offending was out of character. Mr Muller had no antecedents for violence. An allowance was made for Mr Muller’s remorse. His Honour expressly remarked that “I find your prospects of rehabilitation to be very good”. Accordingly, specific deterrence and community protection played less of a role in the sentencing exercise.
Mr Muller gave evidence in the current proceedings. He has provided a Personal Circumstances form and several statements in support of his application. It is convenient to deal with a difficult aspect of Mr Muller’s evidence first, which goes to the issue of remorse.
On 4 December 2023, Mr Muller wrote a letter titled “POINTS I FEEL TO BE IMPORTANT”. Mr Muller criticised his representation at trial and contested certain facts. Disturbingly, he criticised the Victim Impact Statement. Other aspects of the letter are more innocuous and refer to Mr Muller’s family and work.
At the hearing, Mr Muller resiled from the contents of this letter particularly regarding the Victim. He gave evidence that he took advice from a fellow inmate before sending the letter. The Tribunal interprets Mr Muller’s evidence at the hearing to be that this is something that he now regrets. Indeed, in the Tribunal’s view, the submissions, sentencing remarks and appellate judgement indicate that Mr Muller received skilful criminal representation. The question for the Tribunal is whether Mr Muller’s letter of 4 December 2023 undermines the remorse found in the sentencing remarks, particularly at paragraph [35].
Whether or not Mr Muller received poor counsel from a fellow inmate, the Tribunal is reasonably satisfied that Mr Muller’s letter of 4 December 2023 is consistent with his initial failure to take criminal responsibility for aspects of his offending. In making this finding, no criticism is made of Mr Muller by this Tribunal for exercising his legal rights nor even the slightest negative inference drawn from his not guilty plea at trial. Importantly, upon close reading, the Tribunal is not reasonably satisfied that Mr Muller’s 4 December 2023 letter materially undermines His Honour’s sentencing remarks or the findings made on appeal.
The 4 December 2023 letter simply reflects how Mr Muller thought and felt at the time it was written. At the hearing, one and a half years later, Mr Muller thought and felt much differently. The Tribunal is reasonably satisfied that this development is consistent with remorse.
Mr Muller admits that he was badly affected by alcohol on the night of the index offending. Whilst on bail, and subsequently imprisoned, Mr Muller reflected on his alcohol use and realised that he does not need to drink alcohol anymore.
Mr Muller has consistently maintained employment, including whilst imprisoned. He has worked as an electrical serviceman, structural engineer, and in steel fabrication and design. In an undated letter, Ms Marie Barbance described the trade work that she had seen Mr Muller produce in flattering terms. Mr Muller has a strong work ethic and has completed sophisticated metal design work whilst imprisoned.
Mr Muller’s mother was born in October 1939 in Tonga, and she resides in New Zealand but remains close with her son. In her letter of support, Mr Muller’s mother describes how he has provided her with significant financial support over many years. Mr Muller is one of six children. His sister, Ms Clairlene Muller, also noted Mr Muller’s generosity in her letter of support. She wrote that Mr Muller was a scholar and sportsman at school. Although offered a university scholarship in Auckland, Mr Muller instead pursued work in mines in Western Australia.
Mr Muller’s de facto partner is Ms Cindy McGee. Ms McGee gave evidence at the hearing and has previously provided letters in support of Mr Muller’s application. The couple had previously separated but have reunited. Mr Muller and Ms McGee intend to live with each other again. Ms McGee does not drink alcohol and does not tolerate alcohol in her home.
Ms McGee says that Mr Muller has an interest in fine art and says this is how he would try and make money if he were to come home. In both of their evidence, Ms McGee and Mr Muller have said that they would retrieve his tools where they are being stored by Mr Sanders. Mr Muller could then resume his metalwork. Ms McGee noted that Mr Muller has previously done both paid and volunteer work for her employer.
Ms McGee is employed as the Business Support Manager at an Aboriginal Cooperative. Ms McGee cannot relocate to New Zealand or Tonga if Mr Muller is removed to those places. The family and financial strain upon her would be too much. Ms McGee shares the care of her granddaughter, Mariella, with her daughter, Ms Julianne Bamblett. Ms McGee also cares for her adult son and her father. Ms McGee would strongly welcome Mr Muller’s assistance with Mariella.
Mr Muller has a large family in Australia, with whom he is close. His children are Mr Daniel Whitlock, Ms Ellen Porter, Ms Lavina Henney-Tsibidis, Ms Joelle Henney, Mx Ed Muller, Mr Michael Muller, and Ms Tayla-Marie Muller. Where it is material, their evidence is summarised as follows:
(a)Mr Daniel Whitlock lives in Queensland with his wife and four of Mr Muller’s grandchildren. Mr Whitlock is aware of his father’s offending and wrote, insightfully, that “I understand my father’s actions were beyond reasonable force needed to de escalate the situation at hand could have been handled in a much more mature way”. Mr Whitlock describes the devastating impact that removing Mr Muller from Australia would have on his wider family.
(b)Ms Porter is the mother of five of Mr Muller’s adult grandchildren. Due to choices made by her mother, Ms Porter grew up without Mr Muller and they reconnected late. Ms Porter and her children appreciated connecting with Mr Muller and their culture. Ms Porter is concerned for her father’s welfare should he be removed to New Zealand.
(c)Ms Lavina Henney-Tsibidis wrote about the shame her father feels and that she did not know him as a malicious man. She does not have the luxury to travel outside of Australia to visit Mr Muller if he is removed.
(d)Ms Joelle Henney also wrote that she never knew her father to be violent or aggressive. Ms Henney has five children, not all of whom have had an opportunity to meet their only grandfather. Ms Henney asks that the needs of Mr Muller’s family are considered in the decision-making process.
(e)Mx Muller wrote in support of their father. They say Mr Muller raised them when their mother did not wish to do so. Mx Muller was supported by their father and Mr Muller is important to them.
(f)Mr Michael Muller is Mr Cliff Muller’s youngest son. Mr Cliff Muller always made sure that Mr Michael Muller and his siblings were well looked after when they lived with him. Mr Michael Muller believes that his father is integral to their wider family, and that Mr Michael Muller could learn aspects of his father’s culture.
(g)Ms Tayla-Marie Muller wrote about how Mr Muller used to care of her as a child. When issues arose, he would drop everything to make sure that everything was okay. He provided food, money and care. Ms Muller expressed Mr Muller’s care for his family.
Mr Muller’s step-children are Mr David McGee, Ms Julie-Anne Bamblett, Mr Shannon Roberts, and Mr Mark Roberts. Where it is material, their evidence is summarised as follows:
(a)Mr David McGee looked up to Mr Muller as a father figure in the absence of his own father.
(b)Ms Julie-Anne Bamblett is Ms McGee’s daughter. She is a nurse and works at with the same employer as her mother in Shepparton. Ms Bamblett gave oral evidence at the hearing and provided written evidence in support of her step-father. Ms Bamblett has never had much to do with her biological father. The substance of Ms Bamblett’s evidence is that he is both a “father figure and grandfather to my daughter Shaelah”. Ms Bamblett also cares for her niece, Mariella.
(c)Mr Shannon Roberts is Ms McGee’s son and the father of Mariella. Mr Roberts is under a disability and says that his sister, Ms Bamblett, currently has custody of Mariella. Mr Roberts’ father has had issues with drugs and crime and Mr Muller “is the only father figure I ever had”. Mr Roberts has worked with Mr Muller and completed a Certificate II in metalwork. Mr Muller has taught Mr Roberts useful work skills.
Mr Muller has numerous grandchildren and step-grandchildren, many of whom are minors. Minor grandchildren are Lexi (aged 17), Koen (aged 16), Tanayah (aged 15), Keanu (aged 15), Levi (aged 11), Xavier (aged 11), Siannah (aged 9), Kenzley (aged 7), Kingston (aged 6), Marli (aged 5), Isaiah (aged 5), Zaydiah (aged 4), Evander (aged 4) and Xantha (aged 1). Minor step-grandchildren are David (aged 14), Shaelah-Anne (aged 14), Mariella (aged 13), Laporsha (aged 10), and Raiken (aged 1).
The evidence before the Tribunal reveals little about the individual relationships that Mr Muller has with most of his grandchildren and step-grandchildren. In broad terms, Mr Muller has cared for them, babysat them and enjoyed their company where he could. He has lived with Tanayah and Keanu. He has had minimal contact with the younger children due to his incarceration.
The Tribunal notes that Mr Muller has had a significant impact in the lives of Shaelah-Anne and Mariella. Shaelah-Anne gave evidence at the hearing which, given her age, the Tribunal had to approach sensitively. The substance of Shaelah-Anne’s evidence is that Mr Muller, or “Poppy Mick”, is a big part of her life. Shaelah-Anne regards Mr Muller as a father-figure, protector, and a friend. He has taught her many things, including cooking. He has helped her with schoolwork. Mr Muller has supported Shaelah-Anne emotionally and she cannot imagine not having him in her life.
Although Mr Muller is relatively healthy, he has suffered some health complaints that are consistent with his increasingly advanced age. These include vision deterioration and gout.
A referral to the Royal Victorian Eye and Ear Hospital of 10 October 2024 notes that Mr Muller is suffering from a right dense dislocated cataract where the right pupil is also fixed. The prognosis of Mr Muller’s eyesight has not been confirmed in clear medical terms that the Tribunal can rely upon, although the Tribunal accepts that it is likely that Mr Muller’s eyesight will continue to deteriorate. In turn, the Tribunal is reasonably satisfied that this will limit Mr Muller’s ability to drive a motor vehicle with an unrestricted licence in due course.
In making the above finding, the Tribunal notes a VicRoads licence check of 17 February 2022 that indicates that Mr Muller will need to be re-tested before he is re-issued with a licence. Mr Muller’s evidence is that he is not confident that he will be able to hold a driver’s licence again. Ms McGee has also sold Mr Muller’s cars on his behalf.
Whilst imprisoned, Mr Muller has been working on improving his health. He has enthusiastically been losing weight, which is referred to in numerous prison reports. His gout is now under control since he has been controlling his cholesterol and blood pressure. He feels better since ceasing drinking alcohol.
Mr Muller has given evidence regarding his changed attitudes to alcohol. He has completed the Know the Score course in alcohol awareness. Although Mr Muller has always been anti-drugs, he had not realised the dangers of alcohol. Mr Muller had accepted drinking as part of the Australian way of life. He is now committed to abstinence from alcohol.
Evidence indicates that Mr Muller has experienced periods of low mood whilst on bail and in prison, but he does not have a diagnosed psychiatric disorder. A note from Fulham Correctional Centre of 10 February 2022 noted that Mr Muller “denies suffering with depression, anxiety or any physical ailments, he has no suicidal thoughts”. The same note also recorded that “Michael stated that he never used illicit substances”.
Mr Muller was assessed by a rehabilitation and reintegration team whilst at Fulham Correctional Centre to determine his suitability for inclusion in treatment programs. In a letter dated 27 April 2022, Mr Muller was found to be ineligible for intervention for his offending behaviour as he was “identified as falling into the low risk category for violent recidivism”. A Level of Service/Risk, Need, Responsivity Summary Report of 6 May 2022 identifies Mr Muller as being low risk.
Various file notes indicate that Mr Muller has been of good behaviour in prison. Mr Muller is often known as ‘Michael’ or ‘Mick’, rather than ‘Cliff’, in prison files. This is consistent with him being known by younger members of his family as ‘Poppy Mick’.
On 31 December 2021, Mr Muller was described as “polite and courteous”. On 18 June 2024, he was described as “friendly, respectful and happy to positively engage with all staff and fellow prisoners”. On 9 July 2024, he was observed “engaging positively with fellow prisoners and staff. He is always respectful and happy to have a conversation with officers”. On 14 August 2024, Mr Muller was described as “always happy to engage in conversation and is polite and respectful to unit staff and fellow prisoners”. On 15 December 2024, Mr Muller was described as keeping his cell in good order and being “polite and respectful to unit staff and fellow prisoners”. Almost identical observations were made on 14 January 2025. There is consistency to these observations over time.
Photographs of sophisticated metalwork fabrications completed by Mr Muller whilst imprisoned indicate that he is a skilled craftsman. In an internal email dated 25 September 2023, Mr Sheean wrote of Mr Muller in flattering terms that are not often seen in a prison environment:
I have the pleasure of watching Michael work with the guys here and find him Patient, and willing to offer his advice and experience in manufacturing.
Michael has amassed a wealth of knowledge from his worldly experience in the Metal Industry over the years and is very cleaver with his drawing interpretations of sizes and dimensions of what his project may be at the time.
Michael is a worker that can be left to his own devices and the outcomes are amazing, he is punctual and considerate of others around him.
Alot of his work comes from memory and he doesn’t have the reading material for most of his work and relies on pictures for sizes and shapes and design of his projects.
A report from Fulham Correctional Centre dated 18 June 2024 says, “Michael was one of the best they had, he always produces top quality work and is in general an excellent employee”. A Case Management Review Committee meeting on 6 January 2025 commended Mr Muller for his work ethic. A further report dated 3 February 2025 says:
Michael is a fantastic worker in M&N and is always completing his projects to the highest quality, Michael also lends his hand to other workers who need help with their own projects.
Mr Muller has now completed his sentence and is detained at Melbourne Immigration Detention Centre.
The Tribunal has the benefit of expert evidence by a forensic psychologist that goes directly to the issue of the risk of recidivism, which must be assessed by the Tribunal within the context of Primary Consideration 1. Ms Carla Ferrari produced reports dated 26 January 2024 and 17 April 2025. She gave oral evidence at the hearing.
It is unnecessary to repeat the history contained in Ms Ferrari’s reports, suffice to observe that it is broadly consistent with other evidence before the Tribunal. Where there are differences, particularly regarding Mr Muller’s mental health, the Tribunal does not regard these differences as material. Ms Ferrari conducted a Mental State Examination, where “He acknowledged the influence of alcohol in relation to the offending and remains committed to abstain once in the community”.
Ms Ferrari used the Millon Clinical Multiaxial Inventory, Fourth Edition (‘MCMI-IV’) when conducting psychometric testing. The details of this testing are clearly set out in her report and were addressed in evidence. They need not be repeated. The substance of Ms Ferrari’s assessment is that Mr Muller presents as a “low risk of future violence, a low risk of committing serious physical harm, and a low risk of imminent violence”. This risk would increase if Mr Muller engaged in binge-drinking. Mr Muller does not have an Alcohol Use Disorder.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction makes clear that violent crimes are a type of conduct that is viewed very seriously by both the Australian Government and the Australian community.
Mr Muller committed a violent crime. This type of offending is very serious, and the Tribunal is reasonably satisfied of as much. The objective seriousness of the individual circumstances of the index offending is considered in sub-paragraph 8.1.1(1)(c) below.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(i) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(ii) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Mr Muller’s index offending is not contemplated by this sub-paragraph.
Mr Muller has historical convictions for resisting and hindering police. The Tribunal notes submissions by Counsel for Mr Muller that use of the term ‘against’ in this subparagraph 8.1.1(1)(b)(ii) means that it does not apply. Certainly, the drafting of this sub-paragraph may give rise to ambiguity. Indeed, in some historical circumstances, in some jurisdictions, it might also be open to submit that a non-indicatable summary offence was not a ‘crime’ at all. However, such submission need not be considered further in the present matter.
The facts that formed the elements of resisting and hindering police, and the Magistrate’s sentencing remarks, are not before the Tribunal. Although the Tribunal generally regards this type of offending as a ‘crime’ and ‘against’ police, and therefore serious, the Tribunal refrains from asserting that the individual offending was objectively serious noting the small pecuniary penalty.
As such, the Tribunal places negligible weight upon sub-paragraph 8.1.1(1)(b).
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. It is well established, since Pavey and Minister for Home Affairs [2019] AATA 4198, [44] (Senior Member Tavoularis), that the imposition of a custodial term by a Court is a last resort and reflective of the objective seriousness of a given offence.
The sentencing remarks for the index offending, and the judgment on appeal, address the reasons for sentence in detail and the material aspects have already been summarised. The Tribunal notes denunciation and general deterrence played a significant role in the sentencing exercise. Specific deterrence and community protection played a lesser role. Nevertheless, the total effective sentence of three years and nine months, with a non-parole period of two years and four months, unmistakably reflects the objective seriousness of Mr Muller’s convictions for recklessly cause serious injury and common law assault.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness.
Mr Muller caused his Victim catastrophic injuries. However, the evidence before the Tribunal regarding the impact of Mr Muller’s offending on his Victim in the index offending is historic rather than current. It indicates that the Victim will suffer life-long effects from his injuries, but beyond this the Tribunal cannot be reasonably satisfied as to the practical impact on the Victim. Simply put, the Tribunal cannot accurately assess the impact of Mr Muller’s offending on his Victim in the absence of current information.
The same principle applies to the various victims of Mr Muller’s antecedents, including Mr Muller’s friend Mr Sanders who was injured in the most recent drink-driving incident. Any finding made by the Tribunal in this regard risks becoming a generalisation based on vague or unfounded assumptions. The Tribunal declines to make any such finding.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Tribunal appreciates the considered submissions by the parties as to whether Mr Muller’s antecedents can be characterised as a ‘trend’. The Tribunal’s view is that, when considering the term ‘trend’ within the context of the Direction, it would detract from the meaning of that term to take an overly statistical or geometric approach to its application. For the purposes of this decision, a ‘trend’ is taken to mean a general movement.
Mr Muller has offended sporadically over the years and the index offending is significantly more serious than any antecedent. The Tribunal is reasonably satisfied that Mr Muller’s offending has trended in increasing seriousness.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The objective evidence before the Tribunal does not allow it to reach a state of reasonable satisfaction regarding the cumulative effect of Mr Muller’s repeated offending. Accordingly, no weight attaches to this consideration.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Mr Muller has not provided false or misleading information to the Department. Mr Muller has disclosed prior criminal offending regarding his most recent drink-driving offence, although this is not counted in his favour for the purposes of this sub-paragraph. The Tribunal therefore regards this consideration to be irrelevant.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. However, this consideration is irrelevant as Mr Muller has received no formal warnings.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia. However, this consideration is irrelevant as there is no evidence that Mr Muller has committed any offences in any other countries.
The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against the revocation of the cancellation of Mr Muller’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community, should Mr Muller engage in further criminal or other serious conduct, must feature prominently in the Tribunal’s considerations. This is not a matter where Mr Muller’s conduct and the harm that would be caused, if the index offending were to be repeated, is so serious that any risk that it may be repeated would be unacceptable. However, the Australian community’s tolerance for risk of future harm is low with glassing offences.
The Tribunal is not reasonably satisfied that alcohol was the cause of Mr Muller’s offending, although it played an essential role. This is a fact to which Mr Muller readily admits and was addressed by Ms Ferrari.
The Tribunal notes that Mr Muller has now abstained from alcohol for years. He feels healthier for his abstinence and, if released into the Australian community, he would be supported in his continued abstinence by Ms McGee. Ms McGee, and Mr Muller’s wider family, present as a pro-social influence on his life. Mr Muller has significant family responsibilities that he takes seriously too.
Noting the caution urged in CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [79] (Moshinsky, O’Bryan & Cheeseman JJ), it may be said that Mr Muller’s desire not to drink alcohol again has not been properly tested in the community. However, negligible weight would attach to this view. Disregarding issues of bail, the Tribunal is aware that illicit drugs and homebrew alcohol is often available to prisoners who seek out such contraband whilst imprisoned. In Mr Muller’s case, his conduct within prison has been exemplary. He has not displayed any alcohol seeking behaviour and has demonstrated a change in attitude towards alcohol. He has also long displayed a healthy disinterest in drugs.
The Tribunal is reasonably satisfied that Mr Muller’s enduring abstinence in prison is a positive predictor of his low-risk future behaviour. Similarly, Mr Muller’s respect and diligence whilst enduring the inherent hardship of prison is also a positive predictor as to low-risk behaviour if returned to the Australian community.
Although the Tribunal cannot be satisfied that there is no risk that Mr Muller would offend again in the manner of the index offending, the Tribunal regards that specific risk to be so low as to be negligible. Placing weight on Ms Ferrari’s MCMI-IV psychometric testing, the Tribunal is reasonably satisfied that Mr Muller generally presents as an acceptably low-risk to the Australian community.
The sub-paragraphs of paragraph 8.1.2 of the Direction, in their totality, weigh slightly against the revocation of the cancellation of Mr Muller’s visa.
Balancing the Tribunal’s findings regarding paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1, in its totality, weighs moderately against the revocation of the cancellation of Mr Muller’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs moderately against the revocation of the cancellation of Mr Muller’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
It is not submitted by either party that Primary Consideration 2 is enlivened in these proceedings, nor does the Tribunal identify any evidence that would do so. This consideration is therefore irrelevant and does not attract weight.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs does not attract weight.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
Mr Muller has resided in Australia for over four decades, since his early adulthood. He has an extensive work history, although this is moderated by his sporadic low-level offending that commenced reasonably soon after his arrival in Australia.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The extent of Mr Muller’s family in Australia has already been summarised in the material facts. The Tribunal infers that all members of Mr Muller’s family in Australia are citizen, permanent residents, or otherwise have an indefinite right to remain.
The impact on Mr Muller’s numerous children and stepchildren and adult grandchildren and adult step-grandchildren would be pronounced were he to be removed from Australia. There is no evidence that any of these people would be able to reunite with Mr Muller in either New Zealand or Tonga. Similarly, Ms McGee and Mr Muller would have to live separately.
There is minor evidence before the Tribunal regarding Mr Muller’s wider social connections in Australia, although evidence from Mr and Mrs Barbance indicates that Mr Muller is sociable. Nevertheless, the focus of Mr Muller’s life in Australia has been on his family and his work.
Placing significant weight on Mr Muller’s family connections, this primary consideration weighs heavily in favour of the revocation of the cancellation of Mr Muller’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs very heavily in favour of the revocation of cancellation of Mr Muller’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) 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 refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) 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.
It is unnecessary to summarise the material facts. From these facts, the Tribunal is reasonably satisfied that Mr Muller has been a caring and responsible grandfather and step-grandfather. Mr Muller intends to spend his time working and with his family if released into the Australian community.
Beyond the above finding, the interests of Shaelah-Anne and Mariella may be separated from Lexi, Koen, Tanayah, Keanu, David, Levi, Xavier, Laporsha, Siannah, Kenzley, Kingston, Marli, Isaiah, Zaydiah, Evander, Raiken, and Xantha.
The evidence before the Tribunal does not allow it to separate the interests of Shaelah-Anne and Mariella with any precision. Similarly, the interests of the other minor grandchildren and step-grandchildren cannot be separated with precision.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of 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).
Mr Muller has a meaningful relationship Shaelah-Anne and Mariella that has a parental aspect. Despite his long-period of absence in gaol, Mr Muller has maintained contact and the relationship between him and Shaelah-Anne and Mariella is strong.
He has lived with Tanayah and Keanu but has had minimal contact with the younger children due to his incarceration. His relationship with them is meaningful, but non-parental.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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.
Shaelah-Anne is aged 14 and Mariella is aged 13. The evidence indicates that they will likely have difficult adolescent years ahead of them as they grow into adulthood. It is clear to the Tribunal that Ms McGee and Ms Bamblett would welcome as much assistance as possible in raising Shaelah-Anne and Mariella, and that (notwithstanding his offending) Mr Muller is a responsible father figure.
The evidence before the Tribunal allows it to be reasonably satisfied that Mr Muller will play a parental role in the future with his other grandchildren and step-grandchildren.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
The evidence before the Tribunal is overwhelmingly that Mr Muller has had a positive impact on his minor grandchildren and step-grandchildren. Accordingly, the Tribunal does not regard this sub-paragraph to be relevant.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of 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.
The evidence before the Tribunal infers that both Shaelah-Anne and Mariella require a present father figure in their lives at their present stage of development. The Tribunal is reasonably satisfied that this would be best achieved through Mr Muller’s physical and routine presence as a member of their household.
It is not possible to make meaningful findings regarding all affected minor children on the evidence before the Tribunal. In general terms, the evidence suggests that all substantial contact would need to be by electronic means should Mr Muller be removed from Australia.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
Given Mr Muller’s incarceration, all minor children have persons who already fulfill a parental role relation to them.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The relatively mature evidence of Shaelah-Anne has been summarised previously. ‘Poppy Mick’ is a big part of her life. The same is inferred for Mariella.
The views of all other relevant minor children are either unknown, or too vague for the Tribunal to place weight upon.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally. However, this consideration is not relevant as there is no evidence of any minor children being exposed to, or at risk of, violence, abuse or neglect from Mr Muller.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. However, this consideration is not relevant as there is no evidence before the Tribunal that any minor child has suffered or experienced any physical or emotional trauma arising from Mr Muller’s conduct.
Considering all the evidence before it under this Primary Consideration and placing weight on the best interests of Shaelah-Anne and Mariella, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision very weigh heavily in favour of the revocation of cancellation of Mr Muller’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs very heavily in favour of the revocation of cancellation of Mr Muller’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Mr Muller has breached this expectation through his criminal conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
The Direction makes clear the Australian community’s expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states that consideration is concerns the “expectations of the Australian community as a whole”. The Tribunal should proceed on the basis of the Government’s views as articulated in the Direction, “without independently assessing the community’s expectations in the particular case”. It is well established that paragraph 8.5(4) is consistent with FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Tribunal notes a previous merits review of the decision under review, which was quashed in Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924 (Rofe J). At paragraphs [79]-[80] and [83]-[86], Her Honour made salient observations about assessing the expectations of the community as a whole.
In assessing the weight attributable to Primary Consideration 5, the Tribunal notes that the index offending is not clearly contemplated by this consideration. However, the Tribunal places limited weight on Mr Muller’s offences of hindering and resisting police over 30 years ago. The Tribunal embraces the Respondent’s submissions that, as a general proposition, police officers place themselves in vulnerable positions to serve the community. In turn, Mr Muller’s historic offending against police raises concerns about his character.
Upon consideration of the evidence before it, the Tribunal is reasonably satisfied that the expectations of the Australian community as a whole weigh slightly against the revocation of the cancellation of Mr Muller’s visa
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs slightly against the revocation of the cancellation of Mr Muller’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
Mr Muller’s application has not been advanced based on any legal consequences of the Tribunal’s decision, and the Tribunal does not identify any arising from the evidence. This consideration is therefore irrelevant and does not attract weight.
(b) Extent of impediments if removed
Paragraph 9.2 of the Direction addresses the extent of impediments that an applicant may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards. The Tribunal must take into consideration:
(a)an Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to an applicant in that country.
Mr Muller is aged 64. His formative years were spent in Tonga and New Zealand, and Mr Muller has close family members in both countries. The Tribunal is reasonably satisfied that Mr Muller would not suffer any substantial language, or cultural, barriers were he removed to Tonga or New Zealand.
On the evidence before it, the Tribunal is reasonably satisfied that Mr Muller’s health is in a gradual state of decline consistent with his age. Although his gout has improved with his diet, his eyesight is worsening. At the age of 64, it seems unlikely to the Tribunal that Mr Muller’s general health will markedly improve.
Mr Muller is a citizen of Tonga. Were he removed to Tonga, it is unlikely that he would receive medial and economic support of the level to which he would be entitled in either Australia or New Zealand. Were Mr Muller removed to New Zealand then he could expect to receive a comparable standard of medical and economic support as he would in Australia.
The Tribunal notes that Mr Muller has a brother in Tonga and a mother and sister in New Zealand, all of whom could provide him some limited support. In both Tonga and New Zealand, the Tribunal is therefore reasonably satisfied that Mr Muller would receive family and social support. However, it is probable that this level of social support would be less than were he returned to the Australian community in which he has resided now for approximately four decades.
On balance, therefore, this consideration weighs slightly in favour of the revocation of the cancellation of Mr Muller’s visa.
(c) Impact on Australian business interests
Mr Muller’s application has not been advanced based on any impact on Australian business interests, and the Tribunal does not identify any arising from the evidence. This consideration is therefore irrelevant and does not attract weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of Mr Muller’s visa: either he must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, considering Direction 110, to revoke the cancellation. Mr Muller clearly does not pass the character test.
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs moderately against the revocation of the cancellation of Mr Muller’s visa.
(b)Primary Consideration 2 does not attract weight.
(c)Primary Consideration 3 weighs very heavily in favour of the revocation of cancellation of Mr Muller’s visa.
(d)Primary Consideration 4 weighs very heavily in favour of the revocation of cancellation of Mr Muller’s visa.
(e)Primary Consideration 5 weighs slightly against the revocation of the cancellation of Mr Muller’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh slightly in favour of the revocation of the cancellation of Mr Muller’s visa.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greater weight on Primary Consideration 1 and the protection of the Australian community than it does on the Primary Considerations 2, 3, and 4. However, Primary Consideration 1 is not determinative. The Tribunal also places greater weight on the Primary Considerations than the Other Considerations. The balance of these considerations, in their totality, weigh in favour of the revocation of the cancellation of Mr Muller’s visa.
Accordingly, the Tribunal is satisfied that there is another reason why the cancellation of Mr Muller’s visa should be revoked.
The correct and preferable decision of the Tribunal is therefore to set aside the decision under review that the mandatory cancellation of Mr Muller’s Class BF transitional (permanent visa) visa not be revoked, and substitute a decision to revoke the mandatory cancellation of his visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding one-hundred and forty-eight (148) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
............................[Sgnd]...................................
Associate
Dates of hearing: 18-19 June 2025 Counsel for the Applicant: Mr G. Hughan Solicitors for the Applicant: Australian Migration Lawyers Solicitors for the Respondent: Ms G. Ho, Clayton Utz
0
4
0