MVPF and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 5
•6 January 2025
MVPF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 5 (6 January)
Applicant:MVPF
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8395
Tribunal:Administrative Review Tribunal
Place:Hobart
Date:6 January 2025
Decision: The Tribunal affirms the decision under review.
…………………[sgd]……………………….
Senior Member A Clues
Catchwords
MIGRATION – mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 - applicant fails character test - whether there is another reason to revoke cancellation- application of Direction 110 - applicant is a 33 year old male who arrived in Australia at the age of 18 years - conduct of applicant includes episodes of domestic violence against former partner and significant traffic offences including driving under the influence of liquor on 11 occasions - decision not to revoke cancellation of visa is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Minister for Immigration Citizenship and Multicultural Affairs (Cth), Direction No. 110 –Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 21 June 2024)
Statement of Reasons
The applicant seeks review of a decision of a delegate of the respondent (the Minister) dated 14 October 2024. By this decision, the Minister decided (pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act)) not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner visa (the visa). The application to this Tribunal is made pursuant to s 500(1)(b) of the Act.
Background
The applicant is a 33-year-old citizen of Papua New Guinea (PNG) born in July 1991. He first arrived in Australia on 11 March 2010 when he was 18 years old.[1] He was granted the visa on 4 April 2013.
[1] G18/106
On 26 October 2023, the applicant was convicted of driving under the influence of liquor (blood alcohol reading of 0.191) and driving whilst disqualified, for which he was sentenced to a term of imprisonment of 12 months for each offence.[2] Based on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment,[3] the Minister cancelled the visa on 23 February 2024 under s 501(3A) of the Act (the cancellation decision).[4]
[2] G5/40
[3] G19/116
[4] G19/107
On 11 March 2024, the applicant requested revocation of the cancellation decision[5] and submitted a personal circumstances form,[6] as well as documentary evidence in support of his request for revocation.[7]
[5] G11/61–67
[6] G12/68–80
[7] G13/81–95
On 14 October 2024, the Minister decided not to revoke the cancellation decision (the non‑revocation decision).[8] On 16 October 2024, the applicant was sent a letter advising him of the non-revocation decision and attaching the statement of the Minister’s reasons.[9]
[8] G3/22–37
[9] G3/19–21
The applicant lodged with the Tribunal his application for review of the non‑revocation decision on 22 October 2024.[10]
[10] G2/8–18
The hearing was held on 9 December 2024 via Microsoft Teams video; the applicant was in immigration detention. The following documents were contained in the Tribunal hearing book and marked as exhibits:
a.R1 – G-documents (1–141).
b.R2 – Respondent’s Statement of Facts, Issues and Contentions (142–162).
c.R3 – Respondent’s tender bundle (163–536).
d.A1 – Applicant’s documents (537–542).
e.A2 – Applicant’s email to the Tribunal dated 29 November 2024.
The Tribunal was mindful that the applicant was not represented in these proceedings. The Tribunal provided the applicant with a fair opportunity to provide the Tribunal with:
·Any witness statements and other evidence upon which he intended to rely in support of his application.
·A reply to the issues raised in the Respondent’s Statement of Facts, Issues and Contentions both prior to and at the hearing.
The legislative framework
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of 12 months or more, and the person must be serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth or a State or Territory.
If a visa is cancelled under s 501(3A), then pursuant to s 501CA(3), the Minister must give the person a written notice inviting them to make representations about the cancellation decision. If the person makes representations in accordance with that invitation, then under s 501CA(4), the Minister may revoke the cancellation decision if satisfied that the person passes the character test (s 501CA(4)(b)(i)) or that there is another reason why the cancellation decision should be revoked (s 501CA(4)(b)(ii)).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions made by the Minister under s 501CA(4) not to revoke a cancellation decision. Subsection 500(6B) of the Act states that an application to the Tribunal must be lodged within 9 days after the date on which the person was notified of the non‑revocation decision.
Issues
The evidence supports the following findings which are made by the Tribunal:
i.The application for review was lodged with the Tribunal within the time prescribed by s 500(6B).
ii.The applicant made representations in accordance with s 501CA(4)(a).
iii.The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined by s 501(7)(c). As a result, the applicant cannot rely on s 501CA(4)(b)(i) in order to have the mandatory cancellation of his visa revoked.
Therefore, the issue for the Tribunal to determine is whether, pursuant to s 501CA(4)(b)(ii), there is another reason why the cancellation decision should be revoked.
Is there another reason to revoke the cancellation decision?
When determining this issue, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.
Paragraph 5.2 of the Direction sets out guiding principles that the Tribunal must apply when determining whether or not to revoke a visa cancellation. Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a decision must take into account the primary and other considerations identified in sections 8 and 9 of the Direction where relevant to the decision.
Paragraph 8 of the Direction sets out 5 primary considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out 3 other considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7(1) of the Direction requires the Tribunal to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) of the Direction requires the Tribunal to give greater weight generally to the protection of the Australian community over the other primary considerations and to give greater weight generally to primary considerations over other considerations.
Summary of the applicant’s offending
The applicant’s history of domestic violence relates to his ex-partner, the mother of his daughter. It extends back to 2012. Domestic violence orders were taken out against the applicant over the following dates:
·25 September 2012.
·27 September 2012 until 27 September 2014.
·6 November 2014 until 6 November 2016.
·14 July 2017.
·20 July 2017 until 19 July 2022.
·10 March 2022 until 19 July 2022.
·13 December 2023 until 19 December 2023.
·19 December 2023 until 7 February 2024.
·7 February 2024 until 8 February 2029.
·28 May 2024 until 8 February 2029.[11]
[11] TB1/167–173
All the DVOs refer to both the applicant’s ex-partner and his daughter as persons involved in the protection orders. Each of the orders except those made on 27 September 2012 contain a condition that the applicant must not commit domestic violence against his ex‑partner and must not expose his daughter to domestic violence.
On 10 May 2016, the applicant was convicted of 3 counts of contravention of a domestic violence order and 1 count of wilful damage. On 12 December 2016 he was convicted of 1 count of contravention of a domestic violence order.[12]
[12] G4/39
The applicant’s history of driving convictions is substantial. It extends from 11 February 2012 to 26 April 2023. It includes 11 convictions for driving under the influence of liquor, with blood alcohol readings ranging from 0.120–0.204 (9 of which were in the high‑end range), 8 convictions for driving whilst disqualified and 2 convictions for driving without a licence.[13]
[13] G5/40–45
Summary of the applicant’s family
The applicant has the following members of his immediate family residing in Australia:
·Daughter, aged 11.
·Brother, aged 11.
·Father, aged 54.
·Sisters x 2, aged 25 and 32.
·Nephews x 2, born 2023 and 2024.
The applicant’s mother passed away and is buried in Australia.
Summary of the evidence
The applicant gave the following evidence:
·He was born in Papua New Guinea (PNG) and lived there until he was 18.
·He arrived in Cairns, Australia in 2010 with his father, mother and two sisters.
·In 2010 and early 2011 he travelled between PNG and Australia on four occasions.[14]
[14] G18/106
·He then settled in Cairns, Queensland.
·He went back to PNG in April 2013 to attend his grandfather’s funeral. He has not returned since.
·He attended 8 years of school in PNG. He worked in PNG for a couple of years as a driver for a family member.
·He then moved to live with a friend and did fishing.
·He has family in PNG, namely his uncle and five cousins. His uncle visited Cairns about three to four years ago and one of his cousins visited last year.
·He has no health problems.
·If he is permitted to remain in Australia, he would live with his father, his 11‑year‑old brother and his 11-year-old daughter, who both currently live with his father.
·His daughter goes to school in Cairns where his father resides and during the school holidays she spends time with her mother, who currently resides in Brisbane.
·The mother of his daughter recently had another child and that is why his daughter is residing with his father.
·He has a job working on a casual basis doing labouring work for a party hire business.
·In the past he has worked as a cleaner, a labourer, a tree lopper and a fruit picker.[15]
·Whilst he was in custody on 20 December 2023 he received an email from the recruitment team from a mine, Amrun, QLD, which is near the Weipa mine. In that email the applicant was advised that his application for employment had been received and he was requested to contact them.
·His sister works at that mine; she explained the applicant’s situation to the recruitment team and they have advised her that he should contact them when he can.
·If he obtained employment in the mine, he would work as a service attendant. He would work 2 weeks on in the mine and have 1 week off.
[15] TB4/531
In a statement to the Tribunal dated 29 November 2024 the applicant states:
·He wants to remain in Australia to be with his daughter, his brother, his dad, his 2 sisters and his 2 nephews. He also wants to be close to his mother who is buried in Cairns.
·He regrets and is sorry for all his traffic and other offences, including the domestic violence breaches. He is committed to making huge changes in his life, to address his old life and to never reoffend again.
·Being in detention the second time has opened up his mind and made him realise that all his reoffending comes down to alcohol abuse, which he is getting counselling for.
·His goal is to quit alcohol permanently and get all the help he can in the community.[16]
[16] A2
The applicant’s sister gave the following evidence:
·Her brother is a very kind, caring and humble person.
·Family is everything to him.
·He is a hard worker.
·He loves and cares for his daughter and is a good dad, an amazing brother and friend.[17]
She was unaware of the extent of his offending and has never attended any of his court appearances. She is aware that he has been to jail for drink driving. She currently works at a mine, 2 weeks on, 1 week off. She would be happy to help with the care of the applicant’s daughter when she could. The applicant’s daughter is currently residing with her mother in Brisbane because the mother came back to Cairns and took her daughter to Brisbane with her. Prior to that, the applicant’s daughter stayed weekdays with their father and brother and weekends with her sister and 2 nephews.
[17] HB 538
The applicant’s father gave the following evidence:
·His son is a good boy; he is reliable, honest and hard-working.
·He helps with his 11-year-old brother and he relies upon him so much.
·He is aware of his son’s traffic and criminal history but did not know the details. He has not attended court with him in relation to any of his offending.
·He thought that his son had been convicted of drink driving about three times. He knew that his son went to jail for drink driving in 2018 and he knew his son had a problem with drink-driving.
·When his son’s daughter was residing with him, she always asked after her father. She did not want to go and live with her mother. She loves her father and he loves her.
·He looks after his 11-year-old son and he believes the applicant is the one to look after his daughter. She does not want to stay with him and she would be traumatised if her father was returned to PNG.
·He does not think he would look after his son’s daughter if he was returned to PNG.
·He has a frozen shoulder and his son helps him a lot.
·He accepts when his son has been drinking there have been arguments between them but said they argued because they were family.
Ms P gave the following evidence:
·The applicant has worked for the party hire business as a casual labourer over a number of years, seasonally.
·The season extends between April and October and there are no events outside this period.
·If there is work available for the applicant between April and October next year, she would be prepared to hire him.
·The applicant is a valued member of the team. He is respectful and hard‑working.
The Tribunal accepts the evidence of Ms P. The Tribunal treats the evidence of the applicant, his sister and his father with caution. There were significant discrepancies in the evidence relating to the recent and current care arrangements for the applicant’s daughter. The Tribunal finds that the applicant’s daughter is currently residing with her mother and that will remain the situation regardless of whether or not the applicant’s visa remains cancelled.
Primary consideration 1: protection of the Australian community
Paragraph 8.1(1) of the direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end the direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity and other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non‑citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
In determining the weight to be allocated to primary consideration 1, paragraph 8.1(2) of the direction requires decision‑makers to consider the nature and seriousness of the non‑citizen’s conduct to date and the risk to the Australian community should the non‑citizen commit further offences and engage in other serious conduct.
The nature and seriousness of the conduct
The applicant’s offending and sentencing history extends from 22 December 2011 until 26 October 2023. It involves a number of convictions, including contravention of domestic violence orders (on 30 October 2015, 1 November 2015 and 17 October 2016); driving under the influence of liquor (11 convictions, nine in the high‑end range and two in the mid range on 1 March 2012, 10 June 2012, 25 January 2014, 5 December 2014, 2 December 2015, 5 May 2016, 29 October 2017, 31 December 2017, 7 March 2022, 21 January 2023 and 26 April 2023); driving whilst disqualified (x8) and driving without a licence (x2).[18]
[18] G4-G5/38–45
With respect to the driving under the influence of liquor and driving whilst disqualified offences, on 5 August 2016 the sentencing magistrate stated:
the traffic history is terrible. The fact is you can’t drive and…on this occasion it’s .204 which is four times the permitted level. Your previous history in relation to your readings are also dreadful. The fact is alcohol and driving motor vehicles just don’t mix. Do you understand that?... I’m going to order that you be convicted and ordered to serve a period of 12 months imprisonment to be served by way of an intensive corrections order in the community. In respect of the UIL, you’ll be disqualified from holding or obtaining a driver’s licence for a period of one year…if you commit any - any offence during that period of time, that is, any offence, Corrective Services will issue a warrant and just take you back to Lotus Glen.[19]
[19] G9/56
On 19 February 2018, the sentencing magistrate said:
You have pleaded guilty before me today in relation to a series of four charges and you are being sentenced in respect of those four charges by me today. Those four charges, two of them arise on the 29th of October. That is the driving under the influence of liquor with a blood alcohol concentration of… .164. Whilst you were on bail in respect of those - that charge which was also a disqualified driving charge, you were then apprehended again on the 31st of December approximately only a couple of months later and you would driving with a blood alcohol concentration of .124 and also driving whilst disqualified. You have pleaded guilty to those charges and I accept that you have entered…a very early plea of guilty. I accept that you cooperated with the police at all times in respect to these offences. I take into account also that you are a very young man, but I also take into account the fact that there have been five alcohol-related driving charges and five disqualified driving charges in a period of over five years - a period of five years and seven months…in Australia these offences are very, very serious. What the court and also the law looks at is whether the effect that it has - that it can have upon other road users and the possibility of accidents and people being fairly injured or dying…there is no doubt that the only sentence that can be imposed in respect to the matter is a term of imprisonment. I note from your traffic history previously that you have been…sentenced to a term of imprisonment in respect to these type of offending before and you were given the opportunity of having an intensive corrections order. That was only ordered by the Court on the 5th of August 2016. You have not offended during the period of that intensive corrections order which would have expired in August 2017, but only a matter of two months later on 29th of October 2017 you have reoffended. That is only a very short period of time…I am going to impose a term of imprisonment upon you. In respect of the driving whilst under the influence of liquor on 29 October 2016, you will be convicted and ordered…to serve a period of nine months imprisonment and you will be disqualified from holding or obtaining a driver’s licence for a period of two years. In respect of the second charge, driving with blood alcohol over the middle alcohol concentration on the 31st of December, you will be convicted and ordered to serve a period of six months, but those terms of imprisonment shall be served cumulatively. You will also be disqualified for a period of nine months in respect of that charge…You have been given so many opportunities in the past and you just keep reoffending…you are disqualified on that history until the year 2031. You are going to have to get it into your head that you cannot drive a motor vehicle. Full stop. That is the rules. Your rules and my rules are exactly the same.[20]
[20] G8/52–53
On 26 October 2023, the sentencing magistrate said:
you did that, the program, last time, though, as well, and we put you on a period of probation, and six days later, you were back in the car with these offences, driving .191, and while you were disqualified as well. You have got a terrible history of drink driving. This is your seventh conviction for disqualified driving in the last 10 years. It is your ninth conviction for driving under the influence of liquor, and your readings are very high. You are getting very drunk and then getting in the car and driving. This is number 9, but - and you have also got two drink driving convictions for going in the mid-to the high alcohol limit. Three of those- this is now the third in, basically, a 12-month period…. It is pretty much the worst that I have seen, really, in terms of serious. You were disqualified but also should have been on an interlock period at the time…the reality is it is a danger to yourself but also other people on the road… It is dangerous, and…the community has really got to be protected, so that is why a deterrent sentence has been imposed…On each offence, you will be sentenced to 12 months imprisonment but I will order a parole release date as at today…You will be disqualified from driving on the disqualified driving offence for three years from today and on the UIL for a period of 18 months, so that is a total of four and a-half years.[21]
[21] G6 47–48
In relation to the domestic violence offences, counsel for the respondent referred the applicant to the sentencing schedules relating to the charges of contraventions of the domestic violence orders that occurred on 30 October 2015 and 1 November 2015.[22] The sentencing schedules state:
On the 30th October 2015 at approximately 10:00pm the respondent attended the aggrieved’s residence. He stated words to the effect of “Baba I still love you.” When the aggrieved asked him to leave and stated that she was going to call the police the respondent began to rattle the sliding door in an attempt to gain access.
When the aggrieved denied him access the respondent became angry and broke the aggrieved’s bedroom window. During the interview the respondent made full admissions to the offence stating he was angry that he could not see his child so he punched the window and broke it. He further stated that he payed [sic] the aggrieved $300 to cover the cost of the window.
On the 1st November 2015 that aggrieved was in her residence asleep. She woke up and heard her screen door rattling. She saw it was the respondent when he walked over to her bedroom window and stated words to the key fact of “I’m going to fucking kill you slut.” The respondent then began to bang on the board that was covering the aggrieved’s broken window.
[22] TB3/514–515
During cross examination, the applicant said he could not recall the specific details of these incidents. He did accept that he was affected by alcohol and he did plead guilty to the charges. He further said that his ex-partner made a lot of false statements against him and that he pleaded guilty just to get it out of the way.
Under cross-examination the applicant was also referred to incidents involving matters that had been reported to the police, but no charges had been laid. The applicant was provided with a warning against self-incrimination.
In relation to questions asked about incidents involving his father, the applicant agreed that on or about 8 January 2011[23] and again on 10 April 2023[24] there were altercations between himself and his father as a result of which the police were called. The applicant was intoxicated on each occasion, no injuries were suffered by either party and they reconciled shortly thereafter.
[23] TB1/260
[24] TB1/279
In relation to questions asked about incidents involving his ex-partner, including allegations of alleged choking and punching on 14 July 2017,[25] the applicant said he did not recall any choking and punching of his ex-partner and that she made his life miserable and she made things up. The Tribunal makes no finding that an act of family violence occurred in relation to the untested allegations of choking and punching on 14 July 2017. The Tribunal notes that on 14 July 2017 DVOs were put in place for the protection of his ex-partner and they were extended from 20 July 2017 to 19 July 2022.
[25] TB1/276–277
The Tribunal accepts that the relationship between the applicant and his ex-partner was complex and turbulent. However, the evidence is that between September 2012 and May 2024, 10 DVOs have been put in place against the applicant for the protection of his ex‑partner. Each of the DVOs mentions the applicant’s daughter as an ‘involved person.’ [26] The applicant was convicted of breaches of DVOs on 10 May 2016 and 12 December 2016. On 10 May 2016, the applicant pleaded guilty to 3 charges of contravening DVOs that occurred on 30 October 2015 and 1 November 2015 and one charge of wilful damage that occurred on 30 October 2015.[27]
[26] TB1/167–173
[27] G4/38–39
The applicant has been convicted for acts involving family violence that occurred on 30 October 2015 and 1 November 2015. The Tribunal finds those acts were committed. The Tribunal also finds that there were acts of family violence committed on 8 January 2011 and 10 April 2023 even though there has been no conviction for these acts or sentences imposed.
Paragraph 8.1.1(1)(a) of the Direction sets out the three categories of offences which are viewed ‘very seriously’ by the Australian Government and the Australian community. The third category is:
acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed.
The Tribunal finds that applicant has engaged in acts of family violence. These acts are viewed as very serious.
Paragraph 8.1.1(1)(b) of the direction outlines the range of conduct (without limitation) that is considered to be ‘serious’ by the Australian Government and the Australian community. On 6 April 2022, the applicant was convicted of obstructing a police officer on 22 March 2022.[28] This conduct falls within paragraph 8.1.1(1)(b)(ii) as a crime committed against “government representatives or officials due to the position they hold, or in the performance of their duties”.
[28] G4/39
Paragraph 8.1.1(1)(c) of the direction requires an examination of the sentences imposed on the applicant as a guide for the assessment of his offending. Without listing all the sentences imposed upon the applicant for his offences, the following offences involved prison sentences:[29]
·On 5 August 2016, the applicant was convicted of one charge of driving under the influence of liquor (0.204) and one charge of disqualified driving. He was sentenced to 12 months’ imprisonment to be served by way of an intensive corrections order in the community and disqualified for holding or obtaining a driver’s licence for a period of one year on each offence.
·On 19 February 2018, the applicant was convicted of two charges of driving under the influence of liquor (0.164 on 29 October 2017 and 0.124 on 31 December 2017) as well as two charges of driving whilst disqualified. The applicant was sentenced to a concurrent term of nine months’ imprisonment and he was disqualified from holding or obtaining a driver’s licence for a period of 2 years.
·On 26 October 2023, the applicant was convicted of driving under the influence of liquor (0.198) and driving whilst disqualified. He was sentenced to 12 months’ imprisonment on each offence and released on parole. He was disqualified from holding a driver’s licence for a total period of 4.5 years.
These sentences support a finding that the applicant’s offending has been of a very serious nature.
[29] G5/40–42
Paragraph 8.1.1(1)(d) of the direction refers to the impact of the applicant’s offending on any victims and their family. There is no evidence about this; accordingly, neutral weight is allocated to this paragraph.
Paragraph 8.1.1(1)(e) of the direction looks at the frequency of the applicant’s offending and/or whether there is any trend of increasing seriousness. The applicant’s history of offending is extensive. He commenced offending shortly after he settled permanently in Australia. His history runs from 11 February 2012 to 26 April 2023. During this period, his offending has included 11 convictions for driving under the influence of alcohol, 9 in the high range and 2 in the mid-range; 8 convictions for driving whilst disqualified and 2 for unlicensed driving; 4 convictions for breaches of DVOs; 1 conviction for wilful damage and 1 conviction for obstructing a police officer. This is plainly frequent offending, and the Tribunal finds accordingly.
With respect to increasing seriousness, the applicant submits that he “did very well for almost 6 years I stayed clean and stayed out of trouble”.[30] This submission is not accurate. The applicant did have a period of almost 4 years when he did not offend between 31 December 2017 and 12 October 2021, but then he committed further offences including 3 driving under the influence of liquor; 2 driving whilst disqualified, 1 unlicensed driving; 1 driving without an interlock and 1 obstructing a police officer. The applicant’s blood alcohol readings on his last three driving under the influence of liquor offences were 0.198, 0.198 and 0.191. Apart from one occasion in 2016 when the applicant recorded a blood alcohol reading of 0.204, these are the applicant’s highest blood alcohol recordings. Further, the applicant’s last offending on 26 April 2023 occurred just 6 days after he was sentenced on 20 April 2023 for previous similar offences. The applicant has completely disregarded all that has been said to him by sentencing magistrates with respect to his offending and the sentences imposed have had little or no impact upon this his offending. In the Tribunal’s view this indicates increasing seriousness in the applicant’s offending.
[30] G13/81
The combined finding of the frequency of the applicant’s offending and the trend of increasing seriousness supports a finding that the applicant’s offending is serious and the Tribunal so finds.
Paragraph 8.1.1(1)(f) concerns the cumulative effect of repeated offending. First, the applicant’s breaches of extant DVOs demonstrates that he has failed to develop respect for the laws governing the Australian community. This failure is also demonstrated by his appalling traffic record whereby he has displayed an absolute failure to follow the laws and regulations governing driving on Australian roadways. Second, his acts of family violence and his driving offences have exposed members of the Australian community to a real risk of injury or worse. Third, the totality of the applicant’s offending has consumed a significant amount of time and money associated with law enforcement. Accordingly, the Tribunal finds that the cumulative effects of the applicant’s offending make that offending serious.
Paragraphs 8.1.1(1)(g) and (i) do not apply and are given neutral weight in this case.
However, paragraph 8.1.1(1)(h) is relevant. By letter dated 14 May 2018 the applicant was advised that a decision had been made to cancel his visa at that time.[31] On 17 May 2018 the applicant completed a “Request for revocation of a mandatory visa cancellation under s 501(3A)” form.[32] In that form he stated:
I regret the circumstances of my prosecution and imprisonment for my traffic offences here in Australia.
I also have a five (5) year old biological daughter who is an Australian citizen and currently resides in Australia with her biological mother.
I am committed to making major changes in my life to address my previous lifestyle and offending conduct.[33]
[31] G17/96–102
[32] TB4/517–534
[33] TB4/523
By notice dated 20 December 2018, the applicant was advised that the decision to cancel his visa had been revoked.[34] The notice contained this warning:
Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.
[34] G17/103–104
The applicant acknowledged receipt of the notice and signed the following acknowledgement:[35]
I, [the applicant] acknowledge that I have received the Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958. I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be reconsidered.
[35] G17/105
Despite these warnings the applicant engaged in further criminal or other serious conduct involving traffic offences on 12 October 2021, 7 March 2022, 22 March 2022, 2 January 2023 and 26 April 2023. He also admitted to being involved in a family violence incident involving his father on 10 April 2023.
The Tribunal finds that this conduct and further offending, particularly after being warned of the consequences of that offending, is classified as serious conduct.
The Tribunal has considered each of the relevant paragraphs in 8.1.1(1) of the direction relating to the nature and seriousness of the applicant’s conduct. Based on this consideration, the Tribunal finds the applicant’s conduct is very serious and weighs against revocation of the cancellation of his 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 risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(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 the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);
(c)where consideration is being given to whether to refuse to grant a visa to the non‑citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
As the Tribunal is not considering whether to refuse to grant a visa to a non‑citizen, paragraph 8.1.2(2)(c) is not relevant to this case.
Paragraph 8.1.2(2)(a) requires an assessment of the nature of the harm to individuals or the Australian community should the applicant engage in further or other serious conduct. If the applicant was to re-offend the potential for significant harm is substantial. If he was to repeat similar family violence, such conduct could result in actual physical and psychological harm to his victim. If he was to drink and drive again, the resulting outcome to himself and other users could be catastrophic. Further reoffending will consume the communities law enforcement and health care resources. Accordingly, the Tribunal finds the nature of the harm resulting from the applicant reoffending is so serious that it would be unacceptable to the Australian community.
Paragraph 8.1.2(2)(b) relates to the risk or likelihood of the applicant reoffending. The applicant’s position on risk is as follows:
·He regrets and is sorry for all of his traffic offences and other offences including the domestic violence breaches. He knows he cannot change this [the past] but he can make huge changes [in the future].[36]
·He wants to do better and being in immigration detention for the second time has opened up his mind and made him realise that the problem with reoffending all comes down to his “intake of alcohol abuse” which he is getting counselling for in the detention centre.[37]
·His goal is to quit alcohol permanently and continue getting all the help he can in the community.[38]
[36] A2
[37] A2
[38] A2
The applicant has attended the following courses:
·an 11‑week drink-driving rehabilitation program, “Under the Limit”, in 2013.[39]
·3 appointments with an Alcohol, Tobacco and Other Drugs program (ATODS) in March 2014.[40]
·Queensland Traffic Offences Program (QTOP); he did three units online between August 2022 and September 2023.[41]
·Queensland Injectors Health Network program (QuIHN) in September and October 2023.[42]
[39] TB2/498
[40] TB3/509
[41] G13/83–87
[42] G13/82
The rehabilitation courses that the applicant attended in 2013 and 2014 had absolutely no impact upon his offending or conduct at all. The courses completed in September and October 2023 were completed immediately prior to the applicant’s court appearance on 26 October 2023 in relation to further drink-driving offences that occurred on 7 March 2022, 2 January 2023 and 26 April 2023. There is no evidence of the applicant participating in any rehabilitation since his court appearance on 26 October 2023.
The Tribunal is not satisfied that any of these courses have had any impact upon the applicant. He continued to reoffend after he completed the courses in 2013 and 2014. He was released on parole after his court appearance on 26 October 2023. There is no evidence that he continued any counselling and if he did, it did not prevent him from drinking excessively. According to the notes from Queensland Corrective Services, on 13 December 2023 the applicant allegedly attended the residence of his ex-partner threatening violence by words or conduct. He was arrested and transported to the Cairns Watch House where he was not offered an interview due to intoxication.[43] The applicant denies this occurred. He says that the statement made against him by his ex-partner was not true but landed him in custody on 13 December 2023. His evidence is that on 9 February 2024 his case went to court but was dismissed due to no evidence.
[43] TB2/322
There is a note in the records of Queensland Corrective Services dated 9 April 2024, which states:
It is also important to note that [the applicant] continues to minimise his behaviour and victim blame. He denies the incident that led to his return to custody and believes false allegations from the aggrieved is reason behind his visa cancellation.[44]
[44] TB2/319
The Tribunal does not make a finding that the applicant threatened violence against his ex‑partner on 13 December 2023. However, the Tribunal does find that when the applicant was arrested at his ex-partner’s residence, he was so intoxicated that he was not offered an interview.
In the applicant’s request for revocation of the cancellation of his visa form dated 17 May 2018, he said:
When I return to the community I intend to register for professional support, training {ATAPS} and support for alcohol abuse.[45]
During cross-examination, the applicant admitted he did none of those things. He said that he did some self-rehabilitation in the form of a fitness program. The Tribunal is not satisfied that the applicant is rehabilitated or that he takes rehabilitation seriously. The Tribunal is not satisfied that the applicant has resolved his “alcohol abuse,” which he admits is the cause of his re-offending.[46]
[45] TB4/530
[46] A2
The applicant insists that if he is allowed to remain in Australia:
I will stay clean and stay out of trouble for as long as I live and thats are [sic] promise for the sake of my daughter my brother and my Dad and for me as well to have a bright future and also to be safe and responsible in the community.[47]
The applicant’s daughter and his brother are now 11 years of age. For the last 11 years his daughter and his brother have not been sufficient incentive for the applicant to “stay clean and stay out of trouble”.
[47] G11/65
Finally, in relation to the risk of the applicant re-offending, Queensland Corrective Services prepared an ‘Information Notice Security Classification’ document. That document states that the applicant was classified as “HIGH-security classification” and that he had:
been assessed as having a Risk of Reoffending Probation and Parole Version (RoR-PPV) of 11 which indicates you fall into the category of prisoners who pose a moderate risk of further general offending.[48]
[48] TB/504
In relation to the applicant’s risk of reoffending, the Tribunal finds:
·The applicant has displayed a pattern of and propensity for repeated offending and conduct likely to give rise to further offending.
·The applicant has chronic difficulties with alcohol abuse. He has engaged in rehabilitation to a limited extent and the Tribunal is not satisfied that he has overcome his alcohol abuse issues.
·Each time the applicant has been given the opportunity to display his rehabilitation in the community, he has failed.
Having regard to the applicant’s unresolved alcohol abuse issues, the Tribunal finds that the applicant poses a real risk of committing further offences if he was returned to the Australian community, whose safety is regarded by the Direction as ‘the highest priority of the Australian Government.’ Based on the evidence, the Tribunal accepts that there is a real risk that the applicant will commit further offences or engage in other serious conduct. If he does reoffend, the risk of injury or worse to the Australian community is significant.
Conclusion for primary consideration 1
As a result of the above analysis and evaluation of the evidence relating to primary consideration 1 – the protection of the Australian community from criminal or other serious conduct, the Tribunal finds the evidence weighs strongly towards the Tribunal affirming the decision under review and the cancellation decision.
Primary consideration 2: whether the conduct engaged in constitutes family violence
Paragraph 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a.a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b.there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non‑citizen, the following factors must be considered where relevant:
a.the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b.the cumulative effect of repeated acts of family violence;
c.rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d.Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non‑citizen engage in further acts of family violence.
The Tribunal has already discussed the family violence committed by the applicant. In summary, he has 4 convictions in 2016 for contravening DVOs on 30 October 2015 and 1 November 2015 put in place to protect his ex-partner. Between September 2012 and May 2024, 10 DVOs have been taken out against the applicant for the protection of his ex‑partner. The applicant admits to 2 acts of family violence involving his father. No police charges were made and reconciliation with his father occurred shortly after the incidents.
The applicant’s conduct on 30 October 2015 and 1 November 2015 gave rise to 3 convictions against him on 10 May 2016 of breaching a DVO, which involved conduct that was violent and threatening and it would have caused the family member (his ex-partner) to be fearful.[49]
[49] TB3/514–515
Paragraph 4(1) of the direction defines ‘family violence’ and ‘member of a person’s family’. Based on these definitions, the Tribunal finds that the applicant’s ex-partner and father were members of the applicant’s family and that he committed acts of family violence involving them. Accordingly, paragraph 8.2(2)(a) of the direction is engaged. Further, paragraph 8.2(2)(b) of the direction is engaged, because the applicant’s conduct involving three breaches of DVOs has been recorded by independent and authoritative sources, demonstrating the applicant’s involvement in the perpetration of family violence. The Tribunal has not taken into account information or any evidence relating to allegations of family violence where the applicant has not been afforded procedural fairness.
Paragraphs 8.2(3)(a)–(d) require an assessment of the seriousness of the applicant’s family violence. As stated, the Tribunal accepts that the relationship between the applicant and his ex-partner was complex and turbulent. The applicant maintains that his ex‑partner made things up to make his life miserable. In his evidence the applicant stated that he could not recall any of the incidents of family violence referred to him and he denied any acts of physical violence against his ex-partner. He did admit to 2 altercations with his father but both he and his father agreed they were not serious and they reconciled shortly after the incidents.
The fact remains that 10 DVOs have been taken out against the applicant for the protection of his ex-partner. The applicant has never accepted responsibility for any acts of family violence or the impact those actions may have had upon his victims. He does say in a statement to the Tribunal dated 29 November 2024 that he regrets his domestic violence breaches and he is truly sorry for all his offences. Regretting domestic violence does not amount to accepting responsibility for that conduct.
Paragraph 8.2(3)(a) requires an analysis of the frequency of the applicant’s family violence conduct and whether there is any trend of increasing seriousness. Despite the fact that a number of DVOs have been taken out against the applicant, since the applicant pleaded guilty in 2016 to 3 charges of breaching DVOs there is no tested evidence supporting a finding of frequent or increasingly serious acts of family violence.
Paragraph 8.2(3)(b) calls for a consideration of the cumulative effects of repeated acts of family violence. There is no clinical or any other evidence in relation to this.
Paragraph 8.2(3)(c) compels the Tribunal to consider any rehabilitation achieved by the applicant at the time of his decision since his last known act of family violence. The Tribunal finds on the evidence that the applicant has not accepted any responsibility for his family violence‑related conduct. He blames this conduct on his ex-partner. The applicant displayed no measure of understanding about the impact of his behaviour on his victims. Further, the applicant has made no effort to address the factors which contributed to his family violence conduct.
With respect to paragraphs 8.2(3)(c)(i)–(iii), the Tribunal is satisfied that the applicant has not accepted any responsibility for his family violence conduct, he has little or no understanding of the impact of that conduct and has made no effort to address the causative factors behind his conduct.
Paragraph 8.2(3)(d) instructs the Tribunal to look at whether the applicant has reoffended since being formally warned about the consequences of further acts of family violence, including warnings in relation to his migration status.
Prior to the applicant being convicted of breaching DVOs on 30 October 2015, 1 November 2015 and 17 October 2016, he had been served with 2 DVOs which would have contained a warning in relation to the penalties he may receive if he contravened the order. Accordingly, the Tribunal is satisfied that the applicant committed offences of family violence after being made aware of some of the consequences of further acts of family violence. However, the Tribunal further finds that he received no warnings about the impact on his migration status should he engage in further acts of family violence.
Conclusion for primary consideration 2
As a result of the above analysis and evaluation of the evidence relating to primary consideration 2 – whether the conduct engaged in constituted family violence, the Tribunal finds that the applicant’s conduct on five occasions, 3 involving his ex-partner and 2 involving his father, constitutes family violence. All family violence is serious in the context of the weighing and evaluation exercise that the Tribunal must conduct in this case. However, the Tribunal finds that the conduct established on the evidence in this case is not at the high end of seriousness for conduct contemplated by paragraph 8.2 of the Direction. Consequently, the Tribunal finds that consideration 2 confers a moderate level of weight in favour of the Tribunal affirming the decision under review and the cancellation decision.
Primary consideration 3: the strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Impact on immediate family
With respect to paragraph 8.3(1), the applicant’s immediate living family members who are Australian citizens, Australian permanent residents or people who have a right to remain Australia indefinitely are:
(i)Daughter, born December 2013;
(ii)Father, born December 1970;
(iii)Sister, born August 1992;
(iv)Sister, born August 1999;
(v)Brother, born February 2013;
(vi)2 Nephews; born 2023 and 2024.
With respect to other ties with the Australian community referred to in paragraph 8.3(2), the applicant states in his request for revocation of a mandatory visa cancellation form dated 11 March 2024 that he has a number of other relatives in Australia, namely 50 plus uncles/aunts, 40 nieces/nephews, 20 plus cousins and 6 plus grandparents.[50] There is no evidence to support these assertions. The Tribunal finds that apart from his immediate family he does not have strong ties with other members of the Australian community.
[50] G12/76
Paragraph 8.3(2)(a) requires consideration of how long the applicant has resided in Australia, when the applicant began offending and any positive contributions the applicant has made to the Australian community.
The applicant arrived in Australia in 2010, when he was 18 years old. He moved to Australia permanently in 2011 when he was 19 years old. The applicant grew up in PNG, went to school there and worked there for a couple of years prior to moving to Australia. The applicant commenced offending shortly after he arrived in Australia. On 22 December 2011 he was convicted of unlawful possession of suspected stolen property which occurred on 25 September 2011 and on 30 March 2012, he was convicted of a traffic offence: namely, exceeding the speed limit. He continued offending on a regular basis, apart from the period between 31 December 2017 and 12 October 2021.[51]
[51] G4 and G5/38–45
The applicant has had periods of employment working as a cleaner, a labourer, a tree lopper and a fruit picker.[52] Evidence was given by the owner of the party business. In a statement dated 2 September 2024 she said the applicant has worked seasonally for that business for a number of years.[53] In her oral evidence she said that the applicant was employed as a labourer on a casual basis and that the season ran from April until October each year. Further, she said there was no work for the applicant outside of that season.
[52] TB4/531
[53] A1/540
The applicant’s employment is considered to be a positive contribution to the Australian community. However, he began offending shortly after arriving in Australia and apart from the applicant’s periods of employment, he has spent little time contributing positively to the Australian community. Accordingly, the Tribunal confers a neutral weight with respect to paragraph 8.3(2)(a).
Paragraph 8.3(2)(b) refers to the strength, duration and nature of any family or social links with people in Australia and paragraph 8.3(1) requires consideration of the impact upon them should the applicant’s visa cancellation be affirmed. In a document attached to his request for revocation of a mandatory visa cancellation dated 17 May 2018, the applicant states:
My mother who is deceased was an Australian citizen and buried here in Cairns. The remaining members of my family, my father and two (2) sisters are all resident in Australia on five (5) year permanent residence Visa and my younger brother, who was born in Australia and is (4) years old is an Australian citizen too.
I also have a five (5) year old biological daughter who is an Australian citizen and currently resides in Australia with her biological mother.[54]
[54] TB4/523
The applicant’s evidence is that if the decision to cancel his visa is affirmed, his daughter “will be sad heartbroken and she’ll be emotionally affected”.[55] Further, in relation to his father and brother he says, “if I were to get a negative response for my visa, I am 100 percent sure that it will really hurt them and break their hearts.”[56]
[55] G12/73
[56] G12/75
In a statement from the applicant’s father dated 11 November 2024, he says:
To be honest, [the applicant] helps me pay our bills, helps with house chores and helps out with his younger eleven (11) year old brother…and I really rely on him so much.[57]
[57] A1/541
In a statement from one of the applicant’s sisters dated 10 November 2024, she says:
The way he works for his family is unreal, he provides for us, cares for us and make [sic] sure the family get everything.
I’ve never seen anyone in my life that the way my brother cares for his daughter is unreal, the way he care’s [sic] for her, gets her everything she wants and loves and cares for her is just amazing. His [sic] such a good dad, he will do everything to make sure she has an amazing life.[58]
[58] A1/538
Based on the evidence, the Tribunal is satisfied that his ties with his daughter, father, brother and two sisters are strong. He has maintained a presence in their lives despite his difficulties with alcohol and offending. The Tribunal is also satisfied that these family members would be adversely impacted in the event of the applicant’s removal to PNG. The Tribunal finds that the applicant’s ties with his immediate family members weighs heavily in favour of restoring his visa.
Conclusion for primary consideration 3
With respect to consideration 3, the following factors weigh against the applicant:
·He did not arrive in Australia as a young child.
·He began offending soon after arriving in Australia.
·He has not spent a lot of time contributing positively to the Australian community.
The following factors weigh in favour of the applicant:
·he has paid employment and his most recent employer (Ms P) speaks positively about his work ethic and would continue to employ him when work is available in the season between April and October if he is available.
·He has strong family links with his immediate family who on the evidence are either Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal finds that on balance this consideration weighs moderately in favour of revoking the cancellation decision.
Primary consideration 4: best interests of the minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination about whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of the Direction goes on to outline the factors that a decision‑maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:
·the nature and duration of the relationship between the child and the non-citizen, noting 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;
·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;
·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 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;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·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; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[59]
[59] The Direction, paragraph 8.4(4)(a)–(h)
The evidence is that there are four minor children relevant to this consideration, namely:
·the applicant’s daughter, 11 years old.
·The applicant’s brother, 11 years old.
·the applicant’s 2 nephews, born 2023 and 2024.
The evidence relating to the applicant’s involvement in the care of his daughter to date is unclear. In the applicant’s request for revocation form dated 17 May 2018, he states:
I had a close relationship with my daughter and partner one (1) year after her birth on 01‑12‑2013. When my partner and I separated I continues [sic] with irregular contact every 2 to 3 months until 01/2017.[60]
[60] TB4/528
The evidence contains a report titled ‘Domestic Violence – Application Police’ prepared on 14 July 2017. That report includes the following note relating to an alleged incident that occurred on that date:
The named child is the daughter of the respondent and the aggrieved, she resides only with the aggrieved and the respondent makes little effort to see her or support her in any way. The named child was on the previously expired Dv orders and has been present during previous domestic incidents.[61]
The Tribunal accepts that this is untested evidence. The Tribunal notes that after that alleged incident a DVO was put in place. In cross‑examination, the applicant said he did not remember the circumstances giving rise to that report. His evidence was that his ex‑partner made things up and make his life miserable.
[61] TB1/276–277
The Tribunal does not accept as accurate all of the information contained in the report but it does accept the objective evidence that the police were called to an incident involving the applicant and his ex-partner on 14 July 2017 and an application was made for a DVO which was granted for a period of 4 years with a notation that it was necessary and desirable to protect the daughter who resided with the ex-partner.
The evidence contains an email from the applicant dated 30 August 2024 relating to his request for revocation of the cancellation of his visa. In that email he says:
Just a bit has changed after I got released from custody, when I came into immigration detention center on the 5th of April 2024.
I went to court over the phone and all went in favour for my daughter…to be with me and my family so I just wanted to mention that now my daughter is with my dad…[62]
[62] G13/81
The applicant gave evidence at the hearing that:
·His daughter primarily lives with his dad in Cairns during the school terms and spends the school holidays with her mother in Brisbane.
·He plans to live with his daughter, father and brother.
·He hopes to obtain a job at the mine near Weipa, where he will live and work two weeks at the mine and have one week in Cairns with his daughter, father and brother.
·He currently speaks to his daughter every day, either by video or audio call.
·Up until April 2024 his ex-partner (his daughter’s mother) was the primary carer and parent for their daughter.
The applicant’s sister gave evidence that his daughter’s mother recently took the daughter back to Brisbane with her. Prior to that the applicant’s daughter was living with their father and their other sister. His daughter spent weekdays with their father and weekends with their other sister.
The applicant’s father gave evidence that the applicant’s daughter is currently living with her mother in Brisbane but she did not want to go there. Whilst the daughter was living with him she always asked for her father and wanted to be with him. If the applicant is returned to PNG, his daughter would be traumatised. The applicant is the one to look after his daughter. He does not think he would look after the applicant’s daughter if the applicant was returned to PNG.
The applicant’s evidence is that he has a very close relationship with his younger brother, they are the “best of buddies” and “whenever my daughter and I are planning our fun activities my brother is always with us.”[63]
[63] G12/75
The applicant has not yet met his sister’s second son (his nephew) born in 2024. In relation to his sisters first son (his nephew) born in 2023, he says: “I visit him and the mother my sister every now and then and when I do visit them, as my sister describes telling me saying… When you come to visit us my son is always happy and smiles alot [sic].”[64]
[64] G12/75
The Tribunal accepts that it would be in the best interests of the applicant’s daughter for his visa cancellation to be revoked. However, less weight should be placed on this consideration given the long periods of separation between the applicant and his daughter, due to him being in custody and detention and due to the fact that she has lived most of her life with her mother and is currently living with her mother now. Further, it is his daughter’s mother who has fulfilled the primary parental role for her for the past 11 years.
Whilst there is a possibility that the applicant’s daughter has been or is at risk of being exposed to family violence perpetrated by the applicant, there is insufficient evidence to establish that this has occurred or will occur in the future and the Tribunal gives no weight to this possibility.
The Tribunal accepts that it would be in the best interests of the applicant’s brother for his visa cancellation to be revoked. However, less weight should be given to this considering that the applicant’s relationship with his brother is non-parental and his brother is primarily cared for by his father.
The Tribunal finds that there is a very limited relationship between the applicant and his 2 nephews.
Conclusion for primary consideration 4
The Tribunal accepts that the applicant has a good relationship with his daughter and brother and he wants to be involved in their lives and support them. The Tribunal finds that the interests of the applicant’s daughter weigh strongly in favour of the revocation of the cancellation decision. It finds that the interests of the applicant’s brother weigh moderately in favour of the revocation of the cancellation decision. Further, it finds that the interests of the applicant’s 2 nephews weigh slightly in favour of revocation. Overall, the best interests of minor children in Australia weighs strongly in favour of the cancellation decision being revoked.
Primary consideration 5: expectations of the Australian community
This consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that 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 is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Tribunal has found the applicant has committed offences including acts of family violence and crimes against Government representatives or officials due to the position they hold or in the performance of their duties, which fall within paragraph 8.5(2)(a) and (d) of the Direction.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision‑makers are required to consider are those set out in the Minister’s Direction.[65] However, the Tribunal must determine what weight is to be attached to the expectations set out in the Direction and this will depend on the Tribunal’s assessment of the totality of the relevant consideration including the primary and other considerations.
[65] See FYBR v Minister for Home Affairs [2019] FCAFC 185
In weighing this consideration, the Tribunal is guided by the principles set out in paragraph 5.2 of the Direction. Applying those principles, because the applicant has engaged in criminal or other serious conduct, he should expect to forfeit the privilege of staying in Australia.[66] The applicant arrived in Australia when he was an adult (18 years old). Shortly after he arrived, he engaged in and has continued to engage in criminal and serious conduct, which raises serious character concerns as referred to in paragraph 8.5(2). The applicant has failed to heed past warnings about the consequences of his sustained offending and despite repeated promises to change his life and address his problems, he has failed to do so. In such circumstances, the Tribunal finds that the community’s tolerance for the applicant’s repeated offending is significantly diminished.
[66] Principle 5.2(3)
Conclusion for consideration 5
Overall, the Tribunal finds that primary consideration 5, relating to the expectations of the Australian community, weighs strongly towards the Tribunal affirming the decision under review and the cancellation decision.
Other considerations
Legal consequences of the decision
Paragraph 9.1(1) of the Direction requires the Tribunal to be mindful that unlawful non‑citizens are liable to removal from Australia as soon as reasonably practicable and in the meantime, they are in detention. As no protection finding has been made with respect to the applicant, there is no information to suggest he would be detained indefinitely.
The applicant did not raise any concerns other than those relating to his separation from his family and re-settlement in PNG. There is no evidence that Australia’s non‑refoulement obligations are enlivened in respect of the applicant.
The Tribunal accepts that if the decision to cancel the applicant’s visa is not revoked, the applicant will be liable to removal from Australia as soon as reasonably practicable[67] and that removal from Australia would be permanent. While it is the intended consequence of s 501 of the Act, the effect of the decision on the applicant is significant because it involves his detention and removal from Australia, and his ability to return. This attracts some weight in favour of revoking the cancellation of the applicant’s visa.
[67] Sections 189 and 198 of the Act
Extent of impediments if removed
Paragraph 9.2 of the Direction provides that taking into account the matters identified in 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified are:
·the applicant’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to the applicant in their country.
The applicant is 33 years of age and he has no diagnosed medical or psychological conditions.[68] Accordingly, the applicant’s age and state of mental and physical health are not impediments to his return to and re-settlement in PNG.
[68] G12/79
The applicant gave evidence that he was born in PNG. He went to school and worked there. As he grew up in PNG, he is familiar with the culture there. He has no problems with the language as English is commonly spoken. The applicant gave evidence that his uncle and 5 cousins live in PNG. After he left school, he worked in PNG as a driver for his ‘Dad’s sister’s husband.’ His dad’s brother and his 5 cousins also live in PNG. His dad’s brother and 1 cousin have both travelled to Australia to visit them. He travelled to PNG in 2013 to attend his grandfather’s funeral. Accordingly, the applicant does have some family ties in PNG. If removed to PNG, he could make contact with his known family members and he should be able to re-establish his ties and contacts in that country. In terms of support in PNG, the applicant has a history of engagement with employment in both Australia and PNG. Given his age and work experience, he should be able to find work in PNG. Accordingly, the question of economic support in PNG is a relatively minor impediment. Accordingly, there are no substantial language, cultural, medical, social or economic barriers impeding the applicant’s return to and re-settlement in PNG. This consideration weighs neutrally in the applicant’s case.
Impact on Australian business interests
There is no evidence to suggest that the applicant’s removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the applicant’s case.
FINAL CONCLUSION
The applicant does not pass the character test under s 501 of the Act. The Tribunal has therefore considered whether there is ‘another reason’ why the cancellation decision should be revoked, having regard to the primary and relevant other considerations in the Direction.
Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of weighing and evaluating the considerations contained in the relevant Ministerial Directions is to be undertaken. Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[69] While the court considered a different Direction, the observations apply to the Direction. The court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[70]
[69] [2023] FCAFC 138.
[70] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by the Direction. The Tribunal has ascribed weight to each of the primary and other relevant considerations under the Direction and explained the basis upon which it has assessed the weight to be given to each consideration. The Tribunal has gone on to compare and balance all the considerations to determine whether the cancellation decision should be revoked.
The Tribunal has considered all the primary considerations, including the protection of the Australian community. The Tribunal finds that the protection of the Australian community weighs against revocation of the cancellation of the applicant’s visa and that very strong weight should be afforded to this consideration.
The consideration of family violence also weighs moderately against revocation of the cancellation decision.
The strength, nature and duration of the applicant’s ties to Australia weigh moderately in favour of revoking the cancellation decision.
The best interests of the children identified as being impacted by the decision, in particular the applicant’s daughter and brother, are that the applicant remains in Australia and this weighs moderately in favour of revocation of the cancellation decision.
The expectations of the Australian community weigh strongly against revocation of the cancellation decision.
In relation to the relevant ‘other considerations’ identified in the Direction, the Tribunal finds that the legal consequences of the decision weigh slightly in favour of revocation of the cancellation decision.
The extent of impediments if removed weighs neutrally in the applicant’s case.
The Tribunal has found that the impact on Australian businesses is not relevant to this case, so it weighs neutrally in the applicant’s circumstances.
In weighing these considerations against one another, the Tribunal considers that although there are countervailing considerations which favour revocation of the cancellation decision, including the best interests of children, the applicant’s ties to Australia and the legal consequences, the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community outweigh those considerations in the applicant’s case.
In summary, having regard to all the primary considerations and the relevant other considerations in the Direction, the Tribunal is not satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
Decision
The decision of the delegate of the Respondent not to revoke the cancellation of the applicant’s visa is affirmed.
I certify that the preceding 149
(one hundred and forty-nine)
paragraphs are a true copy of the
reasons for the decision herein
of Senior Member A Clues…........................[sgd].............................................
Associate
Dated: 6 January 2025
Date of hearing:
9 December 2024
Counsel for the Applicant:
Self-represented
Counsel for the Respondent:
Mr J Kyranis, Sparke Helmore Lawyers
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