Muller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 224
•20 February 2024
Muller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 224 (20 February 2024)
Division:GENERAL DIVISION
File Number: 2023/9118
Re:Cliff Muller
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:R Cameron, Senior Member
Date:20 February 2024
Place:Melbourne
The Tribunal affirms the reviewable decision.
.................................[SGD].......................................
R Cameron, Senior Member
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of
Class BF Transitional (Permanent) visa – substantial criminal record – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No. 99 – recklessly causing serious injury – common law assault – drink driving – other offending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – best interests of minor children – extent of impediments if removed – decision under review affirmedLegislation
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 2008 (Vic)
Migration Act1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
Muller v R [2022] VSCA 193
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (23 January 2023)
REASONS FOR DECISION
R Cameron, Senior Member
20 February 2024
INTRODUCTION
The applicant seeks review of a decision made on 28 November 2023 by a delegate of the respondent not to revoke the mandatory cancellation of the applicant’s Class BF Transitional (Permanent) visa (“the visa”) under s 501(3A) of the Migration Act1958 (Cth) (“the Act”) (“the reviewable decision”).
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and viva voce evidence before the Tribunal.
The applicant gave viva voce evidence and was searchingly cross-examined.
Additionally, the following witnesses gave evidence:
(a)Ms McGee (the applicant’s partner);[1]
(b)Ms Porter (a daughter of the applicant);
(c)Mr Whitlock (a son of the applicant); and
(d)Ms Ferrari (a forensic psychologist).
[1] Also in evidence were statements from Ms McGee dated 23 April 2023 and 23 January 2024.
There were the “G” documents together with tender bundles lodged by both the applicant (hereinafter referred to as the “ATB”) comprising 119 pages, together with a statement of Ms Porter, and the respondent which included documents produced by various parties in compliance with summonses served on them (hereinafter referred to as “SMB”).
A further tender bundle was received in evidence from the applicant comprising six documents which included, amongst others, a “Tendency Notice” under s 97 of the Evidence Act 2008 (Vic) and a transcript of the ruling of Judge Sexton of 1 December 2021 in relation to evidence sought to be adduced by the defence contained in the Tendency Notice of 29 November 2021.
Also received in evidence was a report prepared by Ms Ferrari dated 26 January 2024 following an assessment of the applicant undertaken by her.
Additionally, there was in evidence CCTV footage which was tendered in evidence at a trial of the applicant before a jury sitting at the County Court at Shepparton which convicted him on a charge of recklessly causing serious injury to his victim at the Cricketers Arms Hotel in Mooroopna on 30 June 2019.[2] That CCTV footage was, as requested by the parties to this application, viewed by the Tribunal.
[2] The CCTV footage was divided into several individual files contained in folders entitled "Incident" (13 files), "Pre-Incident 1" (12 files) and "Pre-Incident 2" (nine files).
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A)(a) is outlined in s 501(6) of the Act. Section 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]
[3] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“Direction 99”).
INTRODUCTION TO DIRECTION 99
It is, by way of introduction, appropriate to refer to several paragraphs found in the early part of Direction 99. Such provisions guide decision-makers in the application of the Direction. A more detailed outline of the paragraphs in the Direction containing the primary and the other considerations required to be considered by the Tribunal as decision-maker, where relevant, will be referred to later in these reasons when each of those considerations are applied.
Paragraph 5.2, “Principles”, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for their full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));
(b)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2 (2));
(c)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4));
(e)With respect to decisions to refuse, cancel, and revoke the cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5));
(f)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6, “Making a decision”, provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraph 8, “Primary considerations”, and paragraph 9, “Other considerations”, where relevant to the decision.
Paragraph 7, “Taking the relevant considerations into account”, provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
Paragraph 8, “Primary considerations”, mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9, “Other considerations”, provides in making decisions under s 501(1), 501(2) or 501CA(4), the following considerations must also be taken into account, where relevant, and include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
ISSUES BEFORE THE TRIBUNAL
There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.[4]
[4] G1, 1-10, G2, 11- 125, and G9, 159. In this regard, references to “G” documents are references to documents required to be given to the applicant under s 501G(2) of the Act.
That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is “another reason” why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The applicant does not pass the character test. He does not do so, by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a “substantial criminal record”, having been sentenced to a term of imprisonment of 12 months or more in the County Court of Victoria at Shepparton on 12 April 2022. A total effective sentence was imposed by the sentencing judge of three years and nine months, with an order that he serve a minimum period of two years and four months before becoming eligible for parole.[5]
[5] G2, 31-47. See also the applicant’s statement of facts, issues and contentions of 23 January 2024 (“ASFIC”), 1 [3]. Additionally, in closing submissions, the applicant's counsel further conceded that there was no question, that the applicant does not pass the character test.
BACKGROUND AND OFFENDING
On the material before the Tribunal there was some question concerning the applicant’s citizenship. In his “Personal Circumstances Form” lodged with the Department of Home Affairs, at Part 2 he states that he is a citizen of New Zealand.[6] In other material lodged on his behalf including his Statement of Facts, Issues and Contentions dated 23 January 2024 it addresses possible removal to either New Zealand or Tonga. In his evidence before the Tribunal the applicant stated that he was Tongan by birth, had a Tongan passport and had a permanent residency permit for New Zealand.
[6] G2, 56.
He is presently 62 years of age having been born in 1961 in Tonga. The applicant stated in his evidence that he speaks Tongan fluently and has close connections with and an appreciation of Tongan culture. In the 1970s the applicant and his family moved to New Zealand. Apparently, the applicant only lived in New Zealand for approximately six years prior to his move to Australia.
The applicant has resided in Australia since his arrival here in January 1981 as a young adult, just short of his 20th birthday. He has not left Australia since 1986.
The applicant has committed a range of offences over some years. The precise details of his offending history are contained in a criminal history check report in the G documents.[7] It is appropriate to reproduce details of those offences for the purposes of these reasons. They are set out in tabular form below.
[7] G2, 29.
DATE AND COURT
PARTICULARS OF OFFENDING
PENALTY
22/02/1982
Pannawonica Court of Petty Sessions
Dangerous driving.
Fined $100
30/07/1986
Manly Local Court
Unlicensed driver
$250 or 5 days hard labour
13/12/1988
Rockingham Court of Petty Sessions
Common assault
Bench warrant issued
04/08/1989
Manly Local Court
Evade taxi fare
Fined $100
Ordered to pay compensation of $15
18/04/1990
Manly Local Court
Resist police
Hinder police
Fined $100 on each charge
15/07/1992
Manly Local Court
Low PCA
(Prescribed Concentration of Alcohol)
$400 recognisance to be of good behaviour for 12 months.
28/07/1994
Wyong Local Court
Drive an uninsured vehicle
Drive unregistered vehicle
Drive with mid-level PCA
On each charge fined $350
11/04/1996
Wyong Local Court
Drive whilst cancelled
Drive with mid-level PCA
Fined $300, disqualified from driving for 6 months
Fined $400, disqualified from driving for 3 years
18/04/2008
Wyong Local Court
Common assault
Assault occasioning actual bodily harm
Arrest warrant issued
17/12/2009
Gladstone Magistrates’ Court
Unlawful use of motor vehicles, aircraft or vessels
No conviction recorded, fined $300
13/01/2012
Gladstone Magistrates’ Court
Contravene direction or requirement
No conviction recorded, fined $300.00
15/06/2012
Gladstone Magistrates’ Court
Breach of order
No conviction recorded, fined $350
05/02/2020
Shepparton Magistrates’ Court
Contravene a condition of bail (3 charges)
Without conviction, fined an aggregate of $500
12/04/2022
County Court of Victoria
Common law assault
Recklessly cause serious injury
9 months imprisonment, 6 months of sentence concurrent
42 months imprisonment
Total 3 years 9 months
The offending by the applicant at the Cricketers Arms Hotel in Mooroopna on 30 June 2019
Clearly the most serious offences committed by the applicant are the ones for which he was most recently sentenced in the County Court of Victoria on 12 April 2022. The trial judge’s Reasons for Sentence with respect to those charges were before the Tribunal. The circumstances surrounding those offences, which will be recounted below, are derived from those Reasons for Sentence unless otherwise stated.[8]
[8] G2, 31-47.
The applicant was convicted of the charge of recklessly causing serious injury on 14 December 2021 following a trial before a judge and jury. With respect to the charge of common law assault the applicant entered a plea of guilty upon his arraignment at the commencement of that trial.
The applicant’s offending with respect to the convictions of common law assault and recklessly causing serious injury took place on Sunday, 30 June 2019 at the Cricketers Arms Hotel in Mooroopna, a provincial country town in Victoria on the Goulburn River north of Melbourne, relatively close to Shepparton.
The incident which resulted in the applicant’s conviction was recorded, as is not uncommon in this day and age, on CCTV footage which was tendered in evidence at the trial and viewed by the judge and jury. The victim did not give evidence at the trial.
The applicant arrived at the hotel at approximately 9.00 pm with several friends. In his evidence the applicant said that prior to his arrival at the hotel, he had consumed 10 cans of beer at home with a friend with whom he shared a house in Gange Street, Mooroopna. A friend of his housemate’s from Albury arrived. After his arrival the friend asked the others if they wanted to have a game of pool. They agreed to the suggestion and thought they would go to the hotel. As the applicant said in his evidence after giving that account, “We thought we would go there and have a game of pool. That’s what happened and how we ended up going to the pub.”
Upon his arrival the applicant proceeded to consume alcohol and played pool. After some time at or around 10.15 pm, the victim arrived at the hotel. Following his arrival, the victim also consumed alcohol. From that time, it appears that both the victim and the applicant engaged with one another in various ways. The interactions between them ranged from visible affection to what was described in various ways as “bagging each other out”, “having shots at each other” and “hanging shit on each other”. The sentencing judge stated that prior to the assault, he was not satisfied that there was any significant degree of animosity evident between the applicant and the victim. He concluded that it was likely that they were engaging in “robust, alcohol fuelled interactions, largely with no ill intent.” The Tribunal, having had the opportunity to observe the CCTV, agrees that the interactions between the applicant and the victim prior to the incident, were consistent with two people who vaguely knew one another in the past in a comparatively small town, who happened to bump into each other in the public bar of a country hotel. They commenced speaking to one another in a comparatively convivial fashion.
At the time the incident occurred the applicant and the victim were seated near a corner section of the bar drinking alcohol and talking to each other, seemingly, as noted earlier, in a cordial or convivial way. Clearly by this time the applicant had been drinking in the bar of the hotel for several hours. He was clearly intoxicated by this time. This was confirmed by the applicant in his evidence to the Tribunal when, in response to a question in cross examination, he replied, “I accept that on that night I was drunk”. The CCTV footage reveals that the incident occurred at 23.48 pm (11.48 pm). The barman returned to the corner of the bar and appeared to briefly speak to the victim. The applicant stated in his evidence, and having viewed the CCTV footage, the Tribunal agrees that it was only when the barman spoke to the victim that he looked at the applicant for a split second. It seemed to be a trigger to the victim. The applicant gave evidence that prior to the barman speaking to the victim he could not recall any animosity or hatred between them. Once again, having viewed the CCTV footage of the lead up to the incident, this observation by the applicant seems to the Tribunal to be accurate. The engagement between the barman and the victim seemed shortly, if not immediately, afterwards to prompt the victim to raise his left arm and point his finger at the applicant. At that time, for some unknown reason the victim appeared to become considerably agitated, stood up, took his sleeveless puffer jacket off, gesticulated towards the applicant with his hands, then forcefully pushed the applicant in the chest with an open right hand. The trial judge observed, as was demonstrably evident, that to that point, the victim was the aggressor.
In response, the applicant, after retreating several steps, then took several steps forward towards the victim and, using his right hand, firstly pushed him in such a way that he fell, lost his balance or lay back on to a pool table adjacent to the bar, then grabbed him around the neck and pushed, continuing to push or shepherd him backwards onto the pool table, whilst still holding a schooner glass in his left hand. It seems from viewing the CCTV footage of the incident that the applicant at this stage was in control, or physically in a position of ascendency over the victim. A momentary pause then ensued. The victim then appeared to regain his balance and stood upright from the pool table, pushing his left arm out towards the applicant whilst moving a step or two towards him, with the applicant similarly moving backwards a step whilst still holding the schooner glass in his left hand. Simultaneously, whilst somewhat leaning backwards as the victim continued to move forward, with at least his left arm extended, the applicant then swung his left hand which was holding the schooner glass at the right side of the victim’s head. The schooner glass struck the right side of the victim’s head, shattering, with shards of it then penetrating his head, and the remaining shards, or shattered pieces, flying across in the air and landing on the floor of the bar. This contact was said to form the basis of the recklessly causing serious injury charge. The sentencing judge also observed that it appeared the applicant struck the victim with some degree of force.
After the victim had been struck in the right side of his head with the schooner glass, both he and the applicant fell to the floor of the bar where the altercation, certainly according to the applicant, and the Tribunal infers from having observed the CCTV footage, continued for just over one minute.[9] This portion of the incident was out of view of the CCTV footage.
[9] In reaching this conclusion the Tribunal counted the number of seconds that passed when the applicant and the victim could not be seen on the footage whilst they were on the floor of the bar. In a tense, violent and unfortunate setting such as this watching the CCTV footage, one minute can seem like a very long time.
Shortly afterwards, the victim managed to stand up. The sentencing judge described his white T-shirt as ripped and covered in blood. He then walked to the side of the bar where he had been sitting prior to the incident. After some attempt to clean himself up the victim fell to the floor and again picked himself up. It was quite apparent to the Tribunal, having viewed the CCTV footage of the incident, that the victim was seriously injured by that time. This must have been apparent to the applicant, let alone everyone else present in the bar at that time. The applicant was then seen on the CCTV footage walking towards the victim whilst picking up a barstool and swinging the stool towards the left side of the victim’s head. Fortunately, the stool missed the victim’s head because he was able to deflect it with his arm. They both then fell to the floor. The applicant’s actions in using the barstool in an attempt to strike the victim formed the basis of the common law assault charge.
It was evident from viewing the CCTV, and as the sentencing judge observed, no one present to witness the assault, including the barman, intervened to assist the victim afterwards. He became gradually more unsteady on his feet and the applicant eventually, as the trial judge described it, offered a degree of comfort to him.
The victim was taken to the Goulburn Valley Hospital and was unconscious on arrival. He was determined to be suffering from significant head injuries and in a life-threatening condition. This required him to be airlifted to the Alfred Hospital in Melbourne. Emergency surgery was conducted on 1 July 2019 which resulted in the removal of part of his skull together with a shard of glass from the right temporal lobe of his brain.
Unfortunately, the victim remained intubated and in intensive care until 9 July 2019. Further surgery was undertaken, which was unsuccessful, in an attempt to remove a remaining shard of glass from his brain. Assessments undertaken at the Alfred Hospital revealed that he was in a state of post traumatic amnesia for a period of approximately 16 days. Following further time in Goulburn Valley Health he was eventually discharged on 11 September 2019.
A forensic physician gave evidence at the applicant’s trial that the victim’s injuries were life-threatening and recovery from them was substantial and protracted. The physician further gave evidence that the victim suffered a bleeding injury to the right side of his head, a comminuted skull fracture, together with a penetrating injury into the brain from a piece of glass into the front temporal lobe. There was also a subdural haematoma, which is blood between the brain and the skull, very severe post-traumatic amnesia which caused memory impairment for 16 days after the event, damage to the eye, including blurred vision, nerve palsy and injury to his retina.
There was further medical material before the sentencing judge which he observed reflected the victim’s significant and ongoing health issues, which also included vision problems, dysphagia or difficulty in swallowing, memory impairment and mobility impairment.
With respect to the other offences recorded on the National Criminal History Check in evidence before the Tribunal, there was comparatively little material detailing the circumstances of such offending.
With respect to the applicant’s record of drink-driving, which is of significant concern, further details of that will be provided in the application of the other primary considerations.
Paragraph 8.1.1 of Direction 99 – The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction 99 identifies several factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph are not exclusive.
Paragraph 8.1.1(a)(i) of Direction 99 provides that without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include violent and/or sexual crimes.
Paragraph 8.1.1(b) of Direction 99 also provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct considered by the Australian Government and the Australian community to be serious include crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties.
Additionally, para 8.1.1(1)(c) of Direction 99 provides in considering the nature and seriousness of the non-citizen’s criminal offending, decision-makers must have regard to the sentence imposed by the courts for a crime or crimes.
Paragraph 8.1.1(1)(d) of Direction 99 also states that the Tribunal must have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
Finally, under para 8.1.1(1)(e) of Direction 99, the Tribunal is also required to have regard to the cumulative effect of repeated offending.
There can be little doubt, given the evidence before the Tribunal, particularly the reasons of the sentencing judge, that the applicant’s offending for which he was sentenced in the County Court of Victoria on 12 April 2022 was a crime of violence as contemplated by para 8.1.1(1)(a)(i) of Direction 99. The applicant swung his left hand which was holding the beer glass at the right side of the victim’s head, causing the glass to break and shards of such broken glass to then enter the right temporal lobe of his brain. As noted earlier, the victim required emergency surgery where part of his skull was removed to extract a shard of glass. Further surgery was unsuccessful to remove a remaining shard of glass. The injuries suffered by the victim can only be described as horrendous. There was no attempt by the applicant to retreat or walk away from the victim. It may not have been, as contended for by the applicant, intentional, but it was, given his conviction in the circumstances, extremely reckless behaviour. Such offending by reason of this fact is viewed very seriously by the Australian Government and the Australian community.
It is also appropriate in undertaking an analysis of the nature and seriousness of the applicant’s offending with respect to the matters for which he was sentenced in the County Court of Victoria on 12 April 2022 to consider the observations of the sentencing judge, who it will be recalled heard the evidence adduced in the trial before the jury.
Several observations were made by the sentencing judge in his Reasons for Sentence under the heading “Gravity of the Offending and Level of Culpability”.
The judge said that the applicant’s assault on the victim represents a serious example of the crime of recklessly causing serious injury. He further observed that the injuries sustained by the victim were extremely serious. His counsel in the plea hearing readily conceded that the impact of those injuries on the victim was catastrophic. The Tribunal agrees. The treatment of the victim that was required was substantial and protracted. The judge observed that the victim continues, it appears, to labour with considerable impairments.
Indeed, the observation that the victim’s injuries were catastrophic was admitted by the applicant in written submissions, lodged by counsel who appeared for him at the hearing before the sentencing judge. In that document it was conceded that the impact of the injuries received by the victim were catastrophic. It was further conceded that such injuries were life-threatening.[10]
[10] Applicant’s written submissions dated 6 March 2022 lodged at the County Court of Victoria, [14]
Further, on this note, in this application it was conceded on behalf of the applicant that he committed two offences of violence which are to be viewed “very seriously”. This concession was made in a setting where it was also contended on his behalf that such offending featured numerous mitigating factors.[11]
[11] ASFIC, 12-13 [37]
Additionally, it was observed by the judge that the applicant struck the victim to a vulnerable part of his body, namely the head. At the time the applicant was holding an object with obvious capacity to do harm, being a beer glass. The judge stated after viewing the footage, which was shown also to the jury, bearing in mind that the victim did not give evidence, that the applicant appeared to have struck the victim with some degree of force, given the shattering of glass and the concomitant injuries sustained by him.
The applicant has from time to time, emphasised that the victim was the initial aggressor.[12] The sentencing judge acknowledged this fact and recorded that the applicant may have acted out of some sense of provocation. However, he emphasised that as evidenced by the jury’s verdict, the applicant’s subsequent actions in striking the victim with the beer glass to the head were completely indefensible. The judge also stated that the applicant must have known when striking the victim to the head with the beer glass that there was a high probability of serious injury to him. The Tribunal also agrees with these observations.
[12] G1, 7-8; G2, 64.
Also, the sentencing judge stated that given the specific matters he referred to in his reasons concerning the incident between the applicant and the victim, where the applicant struck the victim in the head with the beer glass, he regarded the objective gravity of the recklessly causing serious injury offence to be high. He also regarded the applicant’s moral culpability, whilst somewhat reduced, to be nevertheless significant.
Further observations were made by the sentencing judge concerning what he described as a serious assault by the applicant on the victim when he picked up a barstool and attempted to strike the victim to the head area. He found it to be reprehensible conduct on the applicant’s part. A further concession made by the applicant’s counsel to the sentencing judge in written submissions concerning this aspect of the applicant’s offending was that it was a cowardly act.
The sentencing judge acknowledged that when the applicant assaulted the victim with the attempt to strike him using a barstool, that he may not have appreciated the degree to which the victim had been injured by reason of the assault with the beer glass. However, he formed the view that the applicant must have known the victim was seriously injured in the circumstances. Therefore, that the applicant did assault him in those circumstances, in the sentencing judge’s view, beggared belief. The judge, accordingly, did not accept submissions made by the applicant’s counsel that such conduct represented a lower-level example of the offence of common law assault. The Tribunal, having viewed the CCTV footage of the incident, agrees with this assessment.
It should be observed that the applicant, following his conviction after a jury trial and subsequent sentence, made an application to the Court of Appeal of the Supreme Court of Victoria, seeking leave to appeal against the sentences imposed upon him on the grounds that such sentences were manifestly excessive. The leave application was considered by Niall JA on the papers and refused. The Judge of Appeal made several observations concerning the applicant’s offending to which should be referred.[13] It is acknowledged that, to some extent, they were similar to those of the sentencing judge in the County Court of Victoria.
[13] Muller v R [2022] VSCA 193.
Niall JA, amongst other things, acknowledged in his reasons that he accepted, as the trial judge did, that the victim was the instigator of the physical contact between the applicant and the victim. However, he found that the applicant’s conduct in striking the victim to the head with the beer glass was deplorable and completely unjustified when considered in the light of the victim’s initial aggression.[14]
[14] Ibid 3 [15].
The Court of Appeal judge also emphasised that the impact of the applicant’s offending on the victim was most profound, serious and fairly categorised as catastrophic. One cannot disagree with these conclusions. They are findings made by a senior judge of the very serious nature of the applicant’s offending on this occasion and must inform the Tribunal of not only the view it should take concerning such offending, but the weight that should be placed upon it for the purposes of this primary consideration under Direction 99.
There is another portion of the reasons of Niall JA in the Court of Appeal which are not only apposite to a consideration of the nature and seriousness of the applicant’s offending for the purposes of considering the weight to be applied to this primary consideration, but also reflect the grim reality that the courts and community face with respect to these types of “glassing” offences. The Tribunal agrees with such statements, and they do provide a logical platform for concluding that the applicant’s offences of violence can only be categorised as very serious. Niall JA observed as follows:
“Alcohol fuelled violence is a major social evil. Not infrequently it arises in licensed premises and in circumstances where a glass or bottle will be close to hand. To use a glass as a weapon and to smash it into the side of the victim’s head carries with it the gravest risk of serious injury and must be denounced. To the extent that they can, the courts must impose sentences that bring home the seriousness of this offending, the risk of serious injury that is involved and the catastrophic consequences that may follow.”[15]
[15] Ibid 7 [38].
In terms of weighing up or assessing the nature and seriousness of the applicant’s offending with respect to the convictions for recklessly causing serious injury, the nature and extent of those injuries suffered by the victim are relevant. They have been outlined in some detail earlier in these reasons. Those details are referred to and repeated. The injuries suffered by the victim as a result of the applicant’s actions on that night were horrendous. They were both life-threatening and life changing. It is more probable than not that the victim will never be the same again in many significant respects. The ongoing health issues experienced by the victim have also been outlined above. They are also referred to and repeated.
The sentencing judge in his reasons devoted some further attention to the “Impact on the Victim” caused by the applicant’s offending. There was in evidence before him a Victim Impact Statement from the victim’s sister, apparently both from her and her brother.[16] That statement recounted the impact that the offending against the victim by the applicant had on his brother and sister, who stated that their lives had been turned upside down. The Victim Impact Statement also provided details of the victim’s situation prior to the incident in question. He was apparently an active person who enjoyed many pursuits including painting with regard to his aboriginal cultural heritage, a pursuit that he was no longer able to engage in as a result of his injuries. Additionally, the victim obtained some level of income from the aboriginal painting that he undertook. It was further stated that the victim, as a result of the injuries sustained due to the applicant’s offending, is embarrassed with his eating difficulties caused by them, has lost motivation to engage in life and isolates himself.[17] Additionally, the victim does not wish to attend family gatherings due to his appearance. He also requires help with daily tasks such as preparing meals, laundry and household duties. It appears from the preponderance of the evidence before the sentencing judge that the victim has some significant disabilities.
[16] G2, 35 [15].
[17] Ibid 36.
Concerning the sentence imposed upon him, the applicant concedes that it is significant.[18] He contends, however, that the sentence imposed by the Court of three years and six months for recklessly causing injury amounts to approximately one fifth of the potential maximum sentence that the Court could have imposed for such an offence, namely 15 years.
[18] Paragraph 40 of the applicant's Statement of Facts, Issues and Contentions of 23 January 2024 is referred to.
The respondent, on the other hand, contends that the term of imprisonment imposed on the applicant is a significant one which reflects the seriousness with which the Court viewed the applicant’s offending.
There were no authorities before the Tribunal from appellate courts which would indicate what a typical sentence might be for crimes of recklessly causing serious injury (being cases involving “glassings”) and assault of a similar nature to those committed by the applicant, such that it would enable a comparative analysis of such sentences to be undertaken.
The Tribunal considers, however, that when one views the duration of the prison sentence imposed on the applicant, it is a significant one. It is frequently noted in applications such as this one that a term of imprisonment is always the sentence of last resort imposed by a court in the sentencing hierarchy. Clearly, as was the case, the applicant’s offending called for a significant prison sentence, particularly in the face of the applicant’s not guilty plea to the charge of recklessly causing serious injury. Whilst it is nowhere near the maximum sentence that a court could have imposed, the sentence imposed on the applicant was a significant deprivation of his liberty for a comparatively lengthy period. It does reflect the sentencing judge’s view that the applicant’s offending was very serious. It was properly imposed given the horrendous injuries suffered by the victim.
Other crimes committed by the applicant that are considered to be serious by the Australian Government and the Australian community under para 8.1.1(1)(b)(ii) of Direction 99 include convictions in the Manly Local Court on 18 April 1990 of hindering police and resisting police. These offences against the police, it would appear, were committed by the applicant against them due to the position they held or in the performance of their duties. The applicant sought to contend submissions that these offences did not occur because of the police officer’s position. The applicant contended that, having worked as a security guard, he always had a high respect for police and other public officials. The Tribunal, on the limited evidence available to it, cannot accept this submission. The police officer concerned was properly discharging his or her duties at the time of the applicant’s offending, even if the offending was relatively minor. The Tribunal acknowledges that the penalty imposed by the court on each charge of $100 is comparatively minor in the scheme of things. It is nonetheless offending which the Direction specifically identifies as being considered serious. It is apparent that police officers in the day-to-day execution of their duties are frequently subject to a variety of offences that the community, quite rightly, considers to be unacceptable.
As for the frequency of the applicant’s offending which para 8.1.1(1)(d) of Direction 99 requires the Tribunal to have regard to, the Tribunal observes that he has been found guilty of 17 offences between 1982 and 2022. It is acknowledged that there have been significant gaps at times between such offending occurring. For instance, he did not offend between 1996 and 2009. There was no offending between 2012 and 2020 when he was found guilty of contravening a condition of his bail. Nonetheless, the pattern of offending is of concern. It is also of concern that the offending has continued when he was considerably older. Particularly, the offending for which he was sentenced in the County Court of Victoria on 12 April 2022. It is disappointing that with the comparative maturity that the passage of many years should have bestowed upon him that he committed the serious offences that he did in June 2019. Generally, as people get older, they become wiser and are less likely to offend or commit offences with a trend of increasing seriousness. Older, wiser men, when confronted with a fact situation similar to that experienced by the applicant in the hotel bar on 30 June 2019, should know to walk away from a situation of potential conflict.
As mandated by this paragraph of Direction 99, the recent offences for which the applicant was sentenced on 12 April 2022 does reflect a trend of increasing seriousness. His most recent offending was the most serious, involving crimes of serious violence, and the trend of increasing seriousness of such offending is reflected in the term of imprisonment to which he was sentenced, having never been previously sentenced to imprisonment for his prior offending.
Realistically, the cumulative effect of the applicant’s repeated offending which para 8.1.1(1)(e) of Direction 99 requires the Tribunal to take into account does have several dimensions. The applicant contends that there is not a significant cumulative effect arising from his offending. The respondent, on the other hand, contends that the cumulative impact of his offending cannot be classified, or categorised as trivial. The Tribunal cannot agree with the applicant’s contention. There are several cumulative effects arising from his offending that are manifest.
Due to the significant injuries suffered by the applicant’s victim, one effect is the substantial diversion of ambulance, medical and hospital facilities that were of necessity involved in the transport and treatment of the victim. One has to pose the question what might have occurred if a law-abiding citizen suffered a coronary or cerebral event and required urgent treatment (or an air ambulance) at the same time or close to the same time as the victim. There could have been serious ramifications. This was all caused by the acts of the applicant and wholly avoidable.
Another effect of the applicant’s offending involved the significant diversion of the resources of police, the courts and the prisons. As the applicant pleaded not guilty to the charge of recklessly causing serious injury, a jury trial was required. The police and prosecutorial authorities, therefore, were required to devote substantial resources to the preparation of the prosecution brief and conduct of the subsequent committal hearing and trial. Many days of court time were occupied with respect to the case as it wound its way through the legal system. Additionally, the prosecution list of witnesses revealed that up to 37 people were prepared to be called at the trial. No doubt, the police would have been required to have obtained a witness statement from each one of those potential witnesses. This, in its own right, is a significant diversion of police resources. Many of those witnesses would have been required to give up working days for the purposes of giving evidence at both the committal and subsequent trial. The very high cost to the taxpayer associated with imprisonment of an individual is well-known.
The applicant has also committed a number of traffic or motoring-related offences. They include, amongst other things, unlicenced driving, driving whilst a licence is cancelled and on three occasions driving with a level of blood alcohol in excess of the prescribed percentage. Whilst on one view these motor traffic offences may be regarded as comparatively minor, from another perspective this is not quite so.
It is of concern that the applicant has been found to have breached the applicable drink-driving laws on four separate occasions. There were the three cases in the Local Court of New South Wales in July 1992, July 1994 and April 1996. The first case recorded the applicant driving with a low prescribed concentration of alcohol and the latter two cases recorded the applicant driving with a mid-range prescribed concentration of alcohol. Concerning these offences, the applicant offered several explanations. He stated that he did not feel at the time he was under the influence. He stated at the time he did not think that he was failing in his capacity to drive the vehicle. He stated that he did not know he was under the influence at the time and professed that he was always cautious to follow the law. To his credit, he stated that he totally agreed that such conduct places other road users at risk.
Additionally, in evidence before the Tribunal were records summoned from VicRoads, the relevant Victorian licensing authority. Those records reveal that the applicant’s drivers’ licence was suspended on about 19 October 2017 and subsequently cancelled on 9 March 2018.[19] It was also recorded in those documents that the applicant would remain indefinitely banned from being reissued with his driver’s licence until he produced a “Certificate of Completion of an Intensive Drink and Drug Driving Program (stage 2)” and a “Certificate of Installation of an Alcohol Interlock”.
[19] SMB, 32-33.
The applicant was probed about the reasons for this suspension and subsequent cancellation of his driver’s licence recorded in those VicRoads documents. He stated in response to several questions that his driver’s licence was cancelled following a suspension arising from an incident when he was driving home and failed to negotiate a “T” junction in Mooroopna and drove his van into a trench. A friend, who was a passenger in the vehicle at the time, was injured. The applicant in his evidence readily admitted that he was drink-driving when this occurred. After driving his van into the trench, he and the injured passenger, who was his friend, just sat there for some time until the police subsequently arrived and arrested him. He described later waking up in a police station. It appears that the police in this case did not proceed against the applicant in a court but took steps, as they are now able to do under applicable Victorian legislation, to suspend, and subsequently cancel, his driver’s licence administratively.
The incident in Mooroopna was a bad example of drink-driving and poor control, in the use, management and control of a motor vehicle by the applicant. Driving a van into a ditch whilst under the influence of alcohol over the prescribed limit is plainly unacceptable. There was no evidence before the Tribunal as to the nature and extent of the injuries suffered by the applicant’s passenger. However, it is of significant concern that a reasonably serious accident occurred and that the passenger was injured. It is an example of how a motor vehicle driven by someone under the influence of alcohol can be a cause of significant road trauma. In terms of the nature and seriousness of the applicant’s offending on this occasion, it has to be viewed very seriously.
When giving his evidence the applicant conceded that there were four occasions when he had been found to be drink-driving in breach of the applicable laws. He also agreed that drink-driving is an issue for him and had, by reason of his conduct, placed other motorists and road users at risk over some period of time. It is also of concern to the Tribunal, as it should be to any objective observer, that the four drink-driving offences committed by the applicant occurred between approximately July 1992 and October 2017. They have occurred over a significant time span and with a pattern of increasing seriousness. His first offence recorded a low prescribed concentration of alcohol in his system, it then increased to two mid-range offences and, whilst we do not know what his reading was at the time of the incident in Mooroopna when he drove into the ditch, it is more probable than not that he was affected to some significant degree by alcohol when that incident occurred.
By 2017 the applicant was not a young man. One would expect that with several prior drink driving offences to his name and given his age, and one hopes maturity, that he would have learnt from his experiences. However, regrettably he did not. This is despite the fact, as he readily acknowledged in his evidence, that such conduct puts other drivers and road users, not to mention his passengers, at risk.
A lack of obedience to road traffic laws, which are imposed by the legislature in the interests of public road safety, can be the cause of injury, including serious injury and death. For well over half a century the Australian community, through its constituent legislatures, has implemented a progressive range of road safety laws to ensure that the motoring public drive safely. Significant sanctions apply for breaches of those laws. This is for good reason. Australia’s road toll remains far too high. The applicant’s failure to obey the road safety laws, as he did, had the potential to put members of the public at significant risk of harm. The Tribunal considers that it is a cumulative effect of the applicant’s offending within the meaning of this paragraph of Direction 99.
Overall, when one considers all of the matters referred to above with respect to this primary consideration, the Tribunal concludes that the nature and seriousness of the applicant’s offending is very serious and substantial weight must attach to it against revocation of the mandatory cancellation of the visa.
Paragraph 8.1.2 of Direction 99 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 99 relevantly provides:
(1)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.
(2)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 applicant really did not seriously identify the nature of the harm to individuals or the Australian community that would arise were the applicant to engage in further criminal or other serious conduct.
The respondent contended that the harm that would arise to the Australian community, including physical, psychological and financial harm should the applicant reoffend in the way he has to date, would be substantial. Certainly, were the applicant to offend again in the future by committing crimes such as recklessly causing serious injury, the potential injuries that could be suffered by his victims would be serious. Already, he has caused his victim horrendous injuries as have been described earlier in these reasons. In addition to the physical injuries that his potential victims might incur, there would also be the risk of substantial psychological or mental health issues arising as a consequence of such injuries, as they frequently do. Whilst one may speculate, it is apparent, as is the case with the victim of the applicant’s offending in June 2019, such victims may suffer significant cognitive impairment. Finally, also there is the potential financial harm that victims, not to mention government agencies, may face as a result of such future offending. In the case of the victim there may be the inability to work and derive a livelihood, as is the case with the applicant’s most recent victim, and of course the demands that this fact situation may place upon both the revenue by way of payment of government benefits and various government agencies that provide support, both by way of criminal injury compensation and other disability support schemes. The net effect of such harm should not be underestimated.
With respect to the applicant’s breaches of the applicable motor traffic law, particularly drink-driving, to some extent the nature of the harm that would arise to the Australian community should the applicant reoffend has been touched on. There is a risk of death or injury which will have a dramatic impact on those victims. Often, lives can be irretrievably altered by the effect of road trauma. There are the continuing physical and psychological effects on the victims and their families. The road toll places significant demands on the ambulance, hospital and healthcare systems. There are also the demands that such a toll places on the several accident compensation systems operating in the states and territories. Compensation cases also not infrequently require the application of court and appropriate Tribunal resources to resolve contested compensation claims. Ultimately, these demands are paid for by the taxpayer and other road users through registration charges which are imposed, in part, to meet such demands. Finally, there is the inevitable opportunity cost paid by the victims of road trauma when lives are irretrievably altered, and they are unable to achieve their intended potential with their careers and personal lives. It cannot be underestimated.
The applicant contends that he is a low risk of reoffending, particularly, of committing crimes of violence and that there are negligible risks of it occurring.[20] With respect to his other offending, he contends that it is “low-level”.[21] Concerning the risk of him committing further offences involving violence, several grounds are relied upon by the applicant in support of such submission.
[20] ASFIC, 89.
[21] Ibid.
The applicant contended that he was remorseful for his offending and, in particular, for the offending that occurred at the Cricketers Arms Hotel in Mooroopna on 30 June 2019. Reference was made to the comments from the sentencing judge in the County Court of Victoria concerning the issue of remorse. He identified the applicant as being remorseful for the common law assault charge as evidenced by his guilty plea. Additionally, the trial judge observed that after the assault upon the victim, virtually the only person offering support and assistance to the victim was the applicant.[22]
[22] G2, 34 [10].
The sentencing judge also noted that whilst the applicant did not accept criminal responsibility for his offending in the record of interview conducted by the police, he nonetheless was horrified by his actions and expressed empathy for the victim’s state. He agreed with the applicant’s counsel that the displays or expressions of grief by him with regards to the victim’s injuries were, at times, palpable during that police record of interview. Apparently, several character references were provided for the purposes of the plea hearing which spoke of the applicant’s expressions of remorse for his actions. Ultimately, the sentencing judge also noted that the prosecution had conceded that there was a limited degree of remorse evident in relation to the CCTV footage and the applicant’s responses during the police interview.[23]
[23] G2, 10-11.
Additionally, on several occasions throughout his evidence to this Tribunal, including his evidence in chief and cross examination, the applicant expressed his remorse for his actions at the Cricketers Arms Hotel on 30 June 2019 in various ways. There were in that evidence outright expressions of remorse for his actions. On other occasions in his evidence, he stated that he was very upset with what had happened, that he regretted it, and in particular when he watched the CCTV of the incident, it saddened him immensely.
Another manifestation of the applicant’s remorse expressed in his evidence were his expressions of how terrible he felt when specific details of his victim’s injuries were explained to him. He readily accepted the victim suffered the injuries as outlined in the sentencing judge’s remarks. On another occasion in his evidence during cross examination he conceded that after he saw what he did to the victim on CCTV it was, “a low act; it was a coward act. I agree with what the judge said.”
The applicant’s expressions of remorse were also couched from a perspective of the terrible predicament that his offending on 30 June 2019 had on himself. He described what he had been through in approximately the last four and a half years as devastating. In other parts of his evidence, he stated that his whole life had been turned upside down and the events have had a massive impact upon him. It was explained by him that he had caused the victim very serious injuries. He was charged, then conveyed in handcuffs to Melbourne, spent several days in custody at the Metropolitan Remand Centre before being granted bail with strict conditions, and then it took approximately two and a half years for the matters to proceed to trial.[24] During that time these charges were hanging over his head and caused him much worry and stress. There was the ongoing stress of the preparation for and the trial itself. The conviction and sentence, causing him to serve a lengthy term of imprisonment, as he now is a man in his 60s, is not easy. There has also been the separation from his extended family, including his partner, seven children, four stepchildren, 15 grandchildren and community. Due to the bail conditions and subsequent imprisonment, he has been unable to visit his mother and family in New Zealand. This has caused him considerable distress. Finally, there was the cancellation of the visa which he said really struck him and, in a sense, hurt him the most. When giving these portions of his evidence, from time to time, the applicant became very emotional, broke down and was in tears.
[24] It is not particularly relevant for the purposes of this application, but the applicant consistently maintained in his evidence that he was held in remand in the Metropolitan Remand Centre for 8 days. Whereas the sentencing judge in his reasons stated that the applicant was held on remand for 10 days. The Sentence/Remand report at page 154 of the G documents records he was in remand for five days. However, the Tribunal considers more probably than not, that it was a situation where the applicant in the witness box had a faulty recollection of some matters.
This primary consideration and its application have been the subject of much judicial comment over several years. Both parties understandably referred to several passages from the decision in FYBR v Minister for Home Affairs.[47] Several passages from that decision explain that, as is apparent from an examination of the language used in that paragraph of the Direction, to the extent it contains a statement of the expectations of the Australian community, the clause is “deeming”. As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. These expectations are established and are to be applied as norms.
[47] (2019) 272 FCR 454.
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[48] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.
[48] [2017] FCA 1466, 27-8 [76].
The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not as an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by Direction 99 is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[49]
[49] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, 19 [97].
The applicant contends that when regard is had to the relevant countervailing factors as identified in Direction 99, the Tribunal should give little or no weight to this primary consideration. On the other hand, the respondent contends that the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked. The respondent contends that the community’s expectations weigh heavily against revocation. It does so for several reasons.
The Tribunal considers that when all the circumstances are taken into account, the expectations of the Australian community would weigh very heavily against revocation of the mandatory cancellation of the visa.
The details of the applicant’s convictions for offences involving violence have been described in detail earlier in these reasons. The Tribunal repeats that the act of striking the victim on the side of the head with the schooner glass was particularly violent. It was unnecessary and the jury rejected the applicant’s defence. This was notwithstanding that the victim was the instigator. Clearly, the applicant should have stepped back and attempted to defuse the situation, but he did not. The consequences were that the victim suffered horrific injuries. They were life changing injuries. It is more probable than not on the evidence before the Tribunal that the victim will suffer permanent disabilities and most likely never work again. The applicant had been binge drinking for a long time span on the day in question. The Tribunal agrees with the observations of Niall JA in the Court of Appeal that denunciation and general deterrence are very important factors to be taken into account. Alcohol fuelled violence is, as he also observed, a major social evil. Further, as he also observed, to use a glass as a weapon and smash it into the side of the victim’s head carries with it the gravest risk of serious injury and must also be denounced. The Tribunal also agrees with his observations that, to the extent they can, the courts must impose sentences that bring home the seriousness of this offending, the risk of serious injury that is involved and the catastrophic consequences that may follow. These observations reflect why the Australian community must have an extremely low tolerance for this kind of offending. This is notwithstanding the significant weight that the Tribunal has placed in favour of revoking the mandatory cancellation of the applicant’s visa by reason of the strength, nature and duration of the applicant’s ties to Australia and the best interests of minor children in Australia affected by the decision. The applicant’s offending involving violence was an example of a major social evil and, in such circumstances, the Tribunal concludes that the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.
Another word should be mentioned about the applicant’s drink driving record. It is not a good one that has accrued over many years with some pattern of increasing seriousness. His irresponsible driving led to the most recent event where he drove his van into a ditch causing his passenger injury whilst he was over the prescribed blood alcohol limit. Drink driving is also another significant social problem. The applicant does not seem to have learned from his mistakes. One normally expects a person with maturity, as in the case of the applicant, to be less likely to offend. When he said, both in evidence and to Ms Ferrari, that he had difficulty knowing when to stop or, in the case of motoring, knowing when he was over the limit, is inadequate. Should the applicant relapse into binge drinking, both in terms of the potential for committing acts of violence, as noted earlier, and posing a risk to other road users, there is a significant risk to innocent members of the Australian community. It is another reason why significant weight is attached to this primary consideration against revocation of the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 9(1) of Direction 99 provides as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims;
(d) impact on Australian business interests.
Paragraph 9.1 of Direction 99 – Legal consequences of the decision
Paragraph 9.1 of Direction 99, “Legal consequences of decision under section 501 or 501CA”, provides as follows:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A 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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The applicant, who was represented by a legal practitioner, did not make any submissions to the Tribunal concerning this other consideration with respect to the legal consequences of the decision. Further, there was no evidence before the Tribunal which established that any international non-refoulement obligation arises in his favour. Therefore, no weight will be attached to this other consideration.
Paragraph 9.2 of Direction 99 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
As noted earlier, the applicant is presently 62 years of age, having been born in Tonga March 1961. He is apparently in reasonably good health. There was some evidence whilst in prison he has experienced some flare up of a gout condition. He had also reported to prison staff that he had experienced bad aches and pains throughout his body from time to time. No specific treatment had been administered for this condition. There is some evidence that the applicant is overweight. He had expressed a desire to a case management officer at the prison to lose approximately 10 kg. He has been endeavouring to eat well and embark upon a regime of exercise for this condition. Otherwise, for a man of his age, his health is relatively normal.
A question remains whether the applicant would be removed from Australia to New Zealand or Tonga. Whichever country he were to be removed to, there would be a certain level of hardship which, as he explained, in response to one of the questions in his Personal Circumstances Form, that starting over again is not an easy thing at 62 years of age. Further, he obviously would be separated from his children, grandchildren, stepchildren and step grandchildren.
In either New Zealand or Tonga, there are not substantial language or cultural barriers. The applicant stated that he speaks Tongan and has maintained a strong awareness of his Tongan culture and heritage.
It appears that all social, medical and/or economic support that a New Zealand or Tongan citizen would be entitled to, he would be able to access.
As for social considerations, Ms McGee stated that if the applicant were to return to either New Zealand or Tonga, she would endeavour to join him as she is due for retirement reasonably soon. The applicant gave evidence that he has a brother and a large bill of cousins in Tonga who he would be able to connect with in the event that he were removed to Tonga. With respect to New Zealand, both the applicant’s mother and a sister reside in Auckland. He would be able to draw some support and assistance from them, certainly in a social setting.
The Tribunal acknowledges that the applicant has not lived in Tonga for almost 50 years and New Zealand for over 40 years. His return to either of those places as a resident will be difficult. The respondent does not seek to minimise the hardship that the applicant would face whichever country he returns to. However, it is contended on the respondent’s behalf that such hardships are not insurmountable. Accordingly, it should be given limited weight in favour of revocation of the mandatory cancellation of his visa.
Given the relatively limited impediments, if any, that the applicant has been able to identify were the applicant to be returned to either Tonga or New Zealand, the Tribunal finds that limited weight should attach to this other consideration in favour of revocation of the mandatory cancellation of his visa.
Paragraph 9.3 of Direction 99 – Impact on victims
No evidence was placed before the Tribunal concerning the impact of the s 501CA decision on victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.
Paragraph 9.4 of Direction 99 – Impact on Australian business interests
There was no evidence before the Tribunal that related to this other consideration. Therefore, no weight will be attached to it.
CONCLUSION
For the reasons articulated in its consideration of the primary consideration contained in paragraph 8.1.1 of Direction 99, the nature and seriousness of the applicant’s offending, the Tribunal concludes that such offending is very serious and substantial weight must attach to it against revocation of the mandatory cancellation of the visa.
Considering paragraph 8.1.2 of Direction 99, the risk to the Australian community should the applicant commit further offences, the risk of the applicant committing further acts of violence or drink driving offences justifies attaching significant weight to this primary consideration against revocation of the cancellation of the visa.
As the applicant has not been responsible for any acts of family violence as contemplated by para 8.2 of Direction 99, no weight is attached by the Tribunal to such primary consideration.
Significant weight is attached to primary consideration 8.3 of Direction 99, the strength, nature and duration of ties to Australia for the reasons articulated. Particularly there are the fact that he has seven Australian citizen children and a significant number of grandchildren.
More limited weight has been attached by the Tribunal to primary consideration 8.4 of Direction 99, best interests of minor children in Australia affected by the decision. This is particularly because there has been limited contact with some of the grandchildren and, added to this fact of limited contact, has been the imprisonment of the applicant now for over two years, during which time there has been no contact.
Considering paragraph 8.5 of Direction 99, expectations of the Australian community, by reason of the applicant’s convictions for offences involving significant violence and due to his drink driving record, this primary consideration weighs very heavily against the revocation of the mandatory cancellation of the visa.
No weight is attached to the other consideration contained in para 9.1 of Direction 99, legal consequences of the decision.
Limited weight has been attached to the other consideration contained in para 9.2 of Direction 99, extent of impediments if removed. This is because whilst there will be some hardship imposed on the applicant being 62 years of age and not having lived in either Tonga or New Zealand for many years, the impediments are relatively limited.
No weight is attached to either para 9.3, impact on victims, or 9.4, impact on Australian business interests.
When one appraises the totality of the weight as placed upon para 8.1.1, the nature and seriousness of the applicant’s conduct, 8.1.2, the risk to the Australian community, and 8.5 of Direction 99, expectations of the Australian community, the Tribunal concludes that the significant weight that has been applied to each of these primary considerations ultimately outweighs the weight it collectively attaches in the applicant’s favour. In particular, to primary considerations 8.3, the strength, nature and duration of ties to Australia and 8.4 of Direction 99, best interests of minor children in Australia, together with the other consideration contained in para 9.2 of Direction 99, extent of impediments if removed.
The applicant’s offending committed at the Cricketers Arms Hotel in Mooroopna on 30 June 2019 was extremely violent and totally unnecessary. It should be repeated that they have had catastrophic effects on the victim. The applicant’s drink driving record is poor. It is of concern that this offending, both in respect to violence and drink driving, has occurred by an individual in his late 50s who really should know better.
DECISION
By reason of the foregoing matters, the Tribunal is not satisfied there is another reason why the mandatory cancellation of the applicant’s visa should be revoked.
Accordingly, the Tribunal affirms the reviewable decision pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
215. I certify that the preceding 214 (two hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
........................[SGD].........................
Associate
Dated: 20 February 2024
Dates of hearing: 29 January, 2 and 5 February 2024 Counsel for the Applicant:
Solicitors for the Applicant:
Advocate for the Respondent:
Mr Gregory Hughan
Australian Migration Lawyers
Ms Gabrielle Ho
Solicitors for the Respondent: Clayton Utz
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