Nathanson and Minister for Home Affairs (Migration)
[2019] AATA 642
•4 April 2019
Nathanson and Minister for Home Affairs (Migration) [2019] AATA 642 (4 April 2019)
Division:GENERAL DIVISION
File Number: 2019/0235
Re:Narada Nathanson
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:4 April 2019
Place:Perth
The Reviewable Decision of the Respondent’s delegate dated 10 January 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the MigrationAct 1958 (Cth) is affirmed.
.............................[sgd]...........................................
Member S Burford
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – Mandatory visa cancellation – s 501CA(4) – Direction no. 79 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed to New Zealand – weight to be given to the primary and other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501, 501(3A), 501CA, 501CA(4), 501(6), 501(6)(a), 501(6)(e), 501(7), 501G(1)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
CZCV and Minister for Home Affairs [2019] AATA 91
Doan and Minister for Home Affairs [2019] AATA 169
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Margach and Minister for Home Affairs [2019] AATA 353
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Nguyen and Minister for Home Affairs [2018] AATA 3726
QGMJ and the Minister for Immigration and Border Protection [2017] AATA 1537
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014)
Minister for Immigration and Border Protection, Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) – Paras 6.1, 6.2, 6.3, 7(1)(b), 8, 8(3), 13(1), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.1(1)(3), 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13(2), 13(2)(a), 13.2, 13.2(2), 13.2(3), 13.2(4), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(g), 13.2(4)(h), 13.3, 14(1), 14.2(1), 14.3, 14.4, 14.5
REASONS FOR DECISION
Member S Burford
4 April 2019
THE APPLICATION
This is an application for review of a decision made on 10 January 2019 under
s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa (the visa) (R1, G1; R1, G2, page 3).
The visa was cancelled on 6 August 2018 under s 501(3A) of the Act following the Applicant’s convictions for depriving a person of personal liberty, aggravated assault, stealing and driving a vehicle in a dangerous manner (R1, G2, page 3). On 15 May 2018 the Applicant was sentenced by Chief Justice Grant to a total effective period of two years and six months imprisonment on those charges (R1, G3 and G5).
THE ISSUE
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Act), having regard to the primary and other considerations in Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 79).[1]
[1] Minister for Immigration and Border Protection, Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018)
By operation of ss 501(6)(e) and 501(6)(a) of the Act (read with the definition of substantial criminal record in s 501(7)(c) of the Act), the Applicant does not pass the character test. The Applicant did not submit that he did meet the character test.
The only issue remaining for determination is whether the Tribunal is satisfied that there is another reason pursuant to s 501CA(4) of the Act why the decision to cancel the Applicant’s visa should be revoked.
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Act not to revoke a decision to mandatorily cancel a visa.
The Reviewable Decision dated 8 January 2019 was delivered to the Applicant by hand under cover of a letter dated 10 January 2019 (R1, G2). The applicant signed confirming receipt of the decision on 10 January 2019 (R1, G13).
The Applicant lodged his application for review in the Tribunal on 15 January 2019 (R1, G1). The Applicant is in immigration detention and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and s 500(6B) of the Act.
The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.
Further, pursuant to s 500(6L) of the Act, the Tribunal must comply with the
84 day timeframe for handing down a decision in this matter. The parties were in agreement that the decision must be handed down by 4 April 2019.
Direction no. 79 is applicable due to the date of this decision by the Tribunal. This is discussed in further detail below in the section headed “Direction no. 79”.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 21 March 2019. The Applicant appeared in person and was self-represented. The Respondent was represented by Mr Ashley Burgess, Sparke Helmore Lawyers, who appeared in person.
The Applicant gave oral evidence and was cross-examined. Both the Applicant and the Respondent made oral submissions.
The Applicant gave evidence at the hearing but did not call any other witnesses to give evidence. He submitted two statements from his mother and partner in addition to those submitted to the Department with his request for revocation. The Respondent did not seek to cross examine any of the witnesses who provided statements submitted by the Applicant in support of his application for review.
The Tribunal admitted the following documents into evidence at the hearing:
·email from Miranda Nathanson dated 11 March 2019 (Exhibit A1);
·letter from Sandra Nathanson dated 5 March 2019 (Exhibit A2);
·the s 501 documents (G documents) from G1 to G13 (Exhibit R1);
·the Respondent’s Statement of Facts, Issues and Contentions dated 8 March 2018 (Exhibit R2);
·documents produced on summons from the Western Australian Police (Exhibit R3);
·documents produced on summons from the Northern Territory Police (Exhibit R4);
·documents produced on summons from the Darwin Local Court (Exhibit R5); and
·documents produced on summons from the Mandurah Magistrates Court (Exhibit R6).
The Tribunal notes that one of the statements (that of Miranda Nathanson, A1) is in the form of an unsigned email. The material contained in the statement was similar to that contained in a signed letter from Mrs Nathanson submitted to the delegate (R1, G10, pages 114-115) and on that basis the Tribunal accepts the email as evidence of the views of Miranda Nathanson.
BACKGROUND
The Applicant is a 35-year-old man who was born in Zimbabwe and is a New Zealand national. He moved to New Zealand from Zimbabwe as a child. He arrived in Australia on 11 May 2010 (R1, G8), when he was 26 years of age. The visa was granted to him on 7 October 2013 (R2, page 2, para [4])
On 6 August 2018, the Applicant was notified by letter, delivered by hand to the Applicant in Darwin Correctional Centre, from the Department of Home Affairs (Department) advising him that his visa was cancelled under s 501(3A) of the Act (R1, G9).
The letter from the Department advised the Applicant that he could make representations about revoking the decision to cancel his visa (R1, G9). The Applicant did so (R1, G10).
The Applicant did not sign the acknowledgement of receipt of the letter nor did the corrective service officer confirm delivery (R1, G9, page 52). However, the Applicant responded to that letter in his declaration requesting that the Minister revoke the mandatory visa cancellation of his visa which he signed on 9 August 2018 (R1, G10, page 57).
On 15 January 2019 the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal to review the Reviewable Decision (R1, G1).
The Applicant’s criminal history
The Applicant’s criminal history, as disclosed by New Zealand Police Report (R1, G4), Criminal History Checks Report - Australian Criminal Intelligence Commission (R1, G3), the Western Australian Police History for Court – Criminal and Traffic (R3, pages 5-6) and the Northern Territory Police Antecedents Report (R4, pages 376–377), is as follows:
Jurisdiction Offence date Result date Offence Result NZ 17/08/08 27/08/08 Breath Alcohol Level Over 400 Mcgs/Litre of Breath
Blood/Breath = 475
Convicted and Sentenced Fine - $400
Court Costs - $130
Disqualification from driving – 27/08/08 – 6 Months
WA 30/05/10 28/09/10 Assault occasioning bodily harm Fine - $1,000 WA 15/09/16 17/01/17 No authority to drive Fine - $2,000 (global) WA 22/09/16 17/01/17 Possessed a prohibited weapon Fine - $2,000 (global) WA 22/09/16 17/01/17 Possess a controlled weapon Fine - $2,000 (global) WA 19/10/16 17/01/17 Unlicensed person possess firearm/ammunition Fine - $2,000 (global) WA 19/10/16 17/01/17 Unlicensed person possess firearm/ammunition Fine - $2,000 (global) WA 19/10/16 17/01/17 Possessed drug paraphernalia in or on which there was a prohibited drug or plant Fine - $2,000 (global) WA 19/10/16 17/01/17 Possess a prohibited drug (methylamphetamine) Fine - $2,000 (global) WA 19/10/16 17/01/17 Possess a prohibited drug (cannabis) Fine - $2,000 (global) WA 19/10/16 17/01/17 Possess firearm with circumstances of aggravation Fine - $2,000 (global) WA 19/10/16 17/01/17 Being armed or pretending to be armed a in a way that may cause fear Fine - $2,000 (global) WA 18/02/17 11/04/17 Possess a prohibited drug (methylamphetamine) Fine - $1,500 (global) WA 18/02/17 11/04/17 Knowingly possessed counterfeit money Fine - $1,500 (global) WA 18/02/17 11/04/17 Criminal damage or destruction of property Fine - $1,500 (global) WA 22/03/17 12/05/17 Possess a prohibited drug (cannabis) Fine - $200 NT 03/05/17 05/09/17 Assault a worker victim not suffer harm Convicted
Sentence: 14 days
NT
07/08/17 05/09/17 Breach of bail Convicted
Sentence: 2 days
NT 12/08/17 15/05/18 Deprive a person of personal liberty Convicted
Sentence:
18 months Suspended after 1 year operative 18 months
Supervised with conditions
NT 12/08/17 15/05/18 Stealing Convicted
Sentence:
1 month cumulative suspended after 1 year operative 18 months supervised with conditions
Restitution: $250 Sentence: 3 months
NT 12/08/17 15/05/18 Driving a vehicle in a dangerous manner Convicted
5 months cumulative suspended after 1 year operative 18 months Supervised with conditions
Sentence: 8 months
NT 12/08/17 15/05/18 Aggravated assault Convicted
Cumulative suspended after 1 year operative 18 months supervised with
Conditions (Harm – Defenceless – Weapon)
Sentence: 6 months
NT 13/08/17 30/05/18 Breach of bail Convicted
Sentence: 2 days
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A)The Minister 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.
Section 501(6) of the Act provides that:
For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7)); or
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;…
(Original emphasis.)
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction no. 79
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Act states that ‘[a] person or body must comply with a direction under subsection (1)’.
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Act, which commenced operation on 28 February 2019. Direction no. 79 replaced the previous Direction no. 65.[2] Consequently, as the Tribunal is handing down this decision on 4 April 2019, the Tribunal must apply Direction no. 79. The Tribunal proceedings were conducted on the basis that Direction no. 79 applied.
[2] Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014)
As the delegate’s decision was made under the previous direction, Direction no. 65, at the commencement of the hearing the Tribunal highlighted that it would be considering the application applying Direction no. 79. As the Applicant was self-represented, the Tribunal provided a copy of Direction no. 79 to both parties which marked-up the changes from the earlier direction, according to which the delegate’s decision was made.
The Tribunal highlighted the sections of the direction relevant to consideration in such an application (introduction Sections 1 and 2 and Part C) and noted that the changes made in Direction no. 79 related primarily to the treatment of offences against women and children. The Tribunal noted that having regard to the conviction history of the Applicant these changes would be less relevant in his case.
Paragraph 6.1 of Direction no. 79 sets out the “Objectives” of the Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction no. 79)
Paragraph 13.1(1) of Direction no. 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
Paragraph 13.1(2) of Direction no. 79 then provides:
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant made a number of submissions in relation to his offending and the protection of the Australian community. In summary, these submissions were that:
(a)the Applicant is not a violent person and his violent offences were one-off events which were out of character;
(b)the Applicant’s violent offences reflect a time in the Applicant’s life when he was experiencing immense stress due to a combination of circumstances in his personal life, in particular the breakdown of his marriage;
(c)the Applicant has deep remorse for his actions. His acknowledgement of the factors which contributed to his offending lessen his risk of re-offending in the future;
(d)the Applicant’s employment status was connected to his offending and his intention to return to employment will help to reduce the risk of recidivism, as will the support of the Applicant’s family;
(e)the Applicant understands that drug addiction drove his offending. His recognition of these issues and willingness to seek help reduces the risk of his re-offending;
(f)the Applicant has undertaken a number of courses while in prison which better equip him to avoid drug use and re-offending; and
(g)the Applicant’s family intend to take steps to support the Applicant. Therefore, these protective factors should be given more weight in terms of the Applicant’s likelihood of re-offending.
The Applicant submitted that, as a result of these factors, if the Reviewable Decision was revoked, his risk of re-offending would be diminished and the protection of the Australian community would not require the cancellation of his visa.
The Respondent contended that the protection of the Australian community weighed heavily against revocation (R2, pages 6-9, paras [25]-[39]). The Respondent submitted that the Applicant’s offending should be viewed as very serious having regard to the Applicant’s history of :
(a)multiple violent offences;
(b)offences committed against a vulnerable member of the community;
(c)terms of imprisonment on separate occasions for offending;
(d)repeat offences increasing and seriousness since his arrival; and
(e)false and misleading information provided to the Department by failing to disclose criminal convictions on incoming passenger cards.
The Respondent submitted that the Applicant represented an unacceptable risk of harm to the Australian community having regard to:
(f)his history as a repeat offender including violent acts against unsuspecting members of the community;
(g)the broad range of the Applicant’s offences which could involve significant physical, financial and psychological harm to members of the Australian community;
(h)the Applicant’s history of reoffending despite receiving fines, licence disqualifications and suspended terms of imprisonment, including committing serious offences whilst on bail; and
(i)the little evidence of the Applicant undertaking appropriate rehabilitation since incarceration and rehabilitation undertaken in the past has either proven to be ineffective or is untested outside of a controlled environment of incarceration and detention.
Nature and seriousness of the conduct (paragraph 13.1(2)(a)of Direction no. 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Since arriving in Australia in 2010, the Applicant has been convicted of 22 offences in the Australian courts (R1, G3, pages 29-31). These offences include:
(a)aggravated assault;
(b)deprivation of a person’s personal liberty;
(c)stealing;
(d)driving offences;
(e)weapons offences: and
(f)drug offences.
For these offences the Applicant has received a range of penalties, including terms of imprisonment.
The Applicant’s first offence in Australia, assault occasionally bodily harm, was committed on 30 May 2010, several weeks after arriving in Australia. He was convicted of that offence on 28 September 2010 (R1, G3).
It was several years before he committed another offence in September 2016. Between September 2016 and August 2017 he committed a range of offences including driving, drug and weapons offences and culminating in the offences committed on 12 August 2017 which gave rise to the mandatory cancellation of his visa.
The Tribunal accepts the Respondent’s submission that the Applicant’s offending history increased in seriousness since his arrival (paragraph 13.1.1(1)(e)). The Applicant’s offending history in Australia commenced with an assault charge, however he was not charged with any offences for a number of years until 2016 when his offending recommenced. His early offences in 2016 were principally drug, weapons and driving offences. While on bail on an assault charge he committed the offences which led to the mandatory cancellation of his visa including deprivation of liberty and aggravated assault charges. These charges evidence a serious escalation in his offending.
The facts of the Applicant’s most recent offending which led to the mandatory cancellation of the visa are set out in the Sentencing Remarks of Chief Justice Grant (R1, G5, pages 33-36_:
You [Nathanson] were 33 years of age at the time of this offending … It should be a matter of great shame to you that the victim was 70 years of age.
At 5 o’clock on the afternoon… the victim drove his vehicle to the park carpark at Casuarina Beach. You [and his co-accused] were already there in your vehicle.
Nathanson walked up to the victim and said he needed his car to go and get petrol. The victim said that Nathanson could not take his car, but that he would take him to get petrol if he needed it.
Nathanson said, “no, I’m taking your car” Nathanson then backhanded the victim to the face and got into the driver’s seat of the victim’s vehicle. [The co-accused] … jumped into the passenger seat. The victim at that point was afraid that his vehicle would be stolen, and he jumped into the back seat.
Nathanson then drove to [the co-accused]’s residence. While he was driving, Nathanson told the victim that he would hit him if he was not quiet. [The co-accused] got out at her residence and Nathanson then drove to Hungry Jacks with the victim still in the back seat. He ordered a drink using the victim’s money taken from the victim’s wallet.
Nathanson then drove back to Casuarina Beach. He told the victim to stay in the car and not to look at anyone or attempt to draw any attention to himself.
[The co-accused] then returned to the beach in a taxi with a jerry can feel. She put the fuel into Nathanson’s vehicle, but they were unable to start it because [the co-accused] left the key to the vehicle back at her residence.
You then both got back into the victim’s vehicle and drove back to [the co-accused]’s residence and collected the keys. During the course of that drive, Nathanson again told the victim not to move or seek to attract any attention.
Once you had collected the key, Nathanson decided to drive into the city. Once there, he purchased alcohol from a bottle shop using a $50 note also taken from the victim’s wallet.
You then drove to a needle exchange in the city, and from there out to Palmerston. While you were driving out Palmerston, Nathanson asked the victim for the PIN numbers of his bank accounts. He attempted unsuccessfully to access the victim’s bank accounts using the victim’s mobile phone. Nathanson then drove to the house of an associate with the intention of getting assistance to access the victim’s bank accounts.
Nathanson spent some time in the house before coming out, getting back into the vehicle, and then driving to McDonald’s takeaway place on Bagot Road and ordering food and drink using another $50 note from the victim’s wallet.
The Chief Justice went on to describe further the circumstances of the offences:
Nathanson accused the victim of lying to him about his name and began hitting him and spitting on him. Nathanson threw an object which hit the victim in the head, causing it to bleed. Nathanson then stopped the vehicle and began hitting the victim alternately with one open hand and a thong held in the other. The victim suffered swelling, bruising and cuts as a result of that assault.
You then returned to the beach and [the co-accused] drove Nathanson’s vehicle to the Casuarina Village car park and Nathanson followed in the victim’s car together with the victim. You then drove together in the victim’s vehicle with the victim still into the back into Darwin City and then back out towards Palmerston.
At about ten minutes to one in the morning, the vehicle was recorded by police radar travelling 120 kilometres per hour in a 100 kilometre per hour zone. By that stage, you had held the victim captive for most eight hours.
Police followed the vehicle and signalled you to pull over. Nathanson was driving. Rather than pulling over, Nathanson increase the speed of the vehicle 190 kilometres per hour and drove through a red light. Police terminated the pursuit as a result, obviously out of public safety considerations.
Sometime later, you drove to a petrol station near Palmerston and parked in the car park. Nathanson removed hub caps and number plates from the vehicle and hid them in nearby bushes. He then used a towel to wipe the insides of the vehicle and the door handles in an obvious attempt to remove fingerprints.
Nathanson then threatened the victim that he would kill him, presumably if he reported the matter to police. You then left the area. The victim was so frightened and understandably so, that he remained in the vehicle for a further 30 minutes before he got out.
… By that point in time, you have deprived the victim of his liberty for more than 11 hours.
Paragraphs 13.1.1(1)(a) and 13.1.1(1)(b) of Direction no. 79 applies to sexual crimes or “crimes of a violent nature against women or children”. The Tribunal notes that the Applicant’s convictions were not for offences which fell into these categories. However, the Respondent submitted that having regard to all the evidence before the Tribunal, the Applicant’s history with regard to complaints made to police concerning family violence and the issuing of a violence restraining order against the Applicant for the protection of his wife should be regarded as extremely serious conduct particularly having regard to the new directions in Direction no. 79 (Transcript, page 34). The Respondent also referred the Tribunal to the comments of Deputy President Kendall (as His Honour then was) in QGMJ and the Minister for Immigration and Border Protection [2017] AATA 1537 (QGMJ), where Deputy President Kendall noted the serious impact of domestic violence.
The material submitted by the Respondent indicates that the Applicant has been involved in violent conduct against his wife within the family home in 2012 and 2016 (R3, pages 7-11). The Applicant’s wife declined to press charges on either occasion though she did seek and obtain an interim Violence Restraining Order (VRO) against the Applicant on 13 May 2016. The VRO had an expiry date of 12 May 2018. The records show its status as ‘revoked’ but do not indicate the date of revocation (R3, page 55).
The Applicant accepted in cross-examination that the police had been called to his home on at least two occasions at the behest of his wife following arguments. He denied violence against her but admitted that his eldest child was a witness to one of these reported incidents in 2012, in which the Applicant was reported to have grabbed his wife by the throat and smashed her head against a wall. He indicated that he was excluded from the family home once the VRO was issued and while he was permitted to see his children under the terms of the order he did not seek to do so.
The Respondent took the Applicant to another incident report which was heavily redacted and did not indicate the identity of the victim or the location of the offence (R3, pages 17 and 62). The Applicant was mentioned as a person of interest in relation to the offence but when asked about the incident he denied any knowledge of it. The Tribunal places no weight on this report as there is no other information which connects to report to the Applicant.
The Tribunal notes that the Applicant accepted that two domestic violence incidents had occurred in his home. He indicated that he could not recall grabbing his wife by the neck on two separate occasions or banging her head against the wall. He stated that he accepted he had committed these acts because that is what his wife reported. He also accepted he had grabbed his wife by the neck hard enough to cause bruising which was visible to police who attended the 2016 incident at the request of his wife and noted in their report of the incident.
Paragraph 13.1.1(1) of Direction no. 79 provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
…
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed
The Tribunal notes that paragraph 13.1.1(1)(b) of Direction no. 79 refers specifically to ‘crimes’ against women or children. This reference would appear to limit the prescriptive application of the provision to offences in relation to which a finding of criminal liability has been made against an applicant. However, paragraph 13.1 requires decision-makers to give consideration to a non-citizen’s ‘conduct’. Paragraph 13.1.1(1) differentiates ‘criminal offending’ from ‘other conduct to date’. The requirement that decision-makers must have regard to certain factors listed in 13.1.1(1) does not limit the Tribunal’s consideration of ‘other conduct’. Indeed the fact that it is highlighted in 13.1.1 with respect to the treatment of particular crimes including those specified in 13.1.1(1)(b) may inform consideration of how seriously ‘other conduct’, which has not resulted in criminal conviction including when a victim has chosen not to press charges, should be regarded.
The Tribunal notes that the Applicant’s wife, Sandra Nathanson, provided a statement that includes the following:
… I admit my faults in the past of not thinking before how I handled our arguments and disagreements. On two occasions I proceeded to report my husband to the police and making statements against him. Those statements were made out of selfishness, fear, out of anger, frustration and, maybe, even despair. I didn’t realise that my thoughtless actions would affect not only our relationship further it even affected our children as well as my husband’s character in the future. Unfortunately, it’s taken this brokenness to make me realise how damaging that was and still is.
This statement would suggest that Mrs Nathanson seeks to accept responsibility for the impact her reports to police have had on the Applicant. The Tribunal notes that Mrs Nathanson’s statement does not indicate that she falsified these reports or that the events did not occur. The Applicant accepts that the events did occur. The reports made to police at the time and the events observed and recorded by the police indicate circumstances of family violence within the home. Based on the evidence available, the Tribunal finds that there is evidence that the Applicant engaged in violent behaviour towards his wife on two occasions in 2012 and 2016. The Tribunal also finds that the Applicant’s eldest son witnessed one of the incidents. Having regard to the general principles expressed in Direction no. 79, the Tribunal regards such conduct seriously.
Paragraph 13.1.1(1)(c) of Direction no. 79 provides that crimes committed against vulnerable members of the community “such as the elderly and the disabled” are serious. The victim of the Applicant’s most recent crimes, which form the basis for the mandatory cancellation of the visa, was a 70 year-old-man. He was unarmed. As the Chief Justice noted on sentencing (R1, G5, page 38):
The assault in the car park was aggravated by the fact you applied force to this 70-year-old man because he was resistant to you exercising dominion over his vehicle and taking it against his will. It was made all the worse by the fact that he had offered, as an act of kindness, to take you up to the petrol station and get petrol if you needed it. But that was an offer you rejected, and you sought to impose physical dominance over him and continue to do so for the following 12 hours.
… That violence included hitting the victim column, throwing objects at him, slapping him with a thong and your hand, and the degrading and humiliating act of spitting on him.
I also accept the Crown’s submissions in relation to the high level of objective seriousness of this offending. The victim was a diminutive 70 year old. The attack was unprovoked. The victim was unknown to either of you or [the co-accused]. He had gone to the beach for his afternoon walk. The period of deprivation, as I have said, was for almost 12 hours, over which the victim was subjected to the insults to his person which I have already described. You threaten the victim’s life. You involved the victim in high-speed pursuit with police while the victim was in the vehicle. The victim suffered physical injury as a result of your conduct.
The Tribunal finds that the victim of the Applicant’s offending was an elderly man. He was a vulnerable member of the community. On any view the offences committed against him were serious and fall far short of what the community expects in terms of the treatment and protection of vulnerable members of the community. Applying paragraph 13.1.1(1)(c) the Applicant’s offences are serious crimes.
Applying paragraph 13.1.1(1)(d) of Direction no. 79, prior to the Applicant’s conviction for the offences committed on 12 August 2018, the Applicant had been sentenced to fines and had been disqualified from driving in New Zealand. He was sentenced on 5 September 2017 to 14 days’ imprisonment for ‘assault a worker victim not suffer harm’ and two days for breaching bail. That offence involved an incident where the Applicant threatened a hotel worker and lunged at him with a knife. On 15 May 2018 the Applicant was sentenced to an effective term of two and a half years imprisonment for the offences committed on 12 August 2017. This included 18 months imprisonment for the depravation of liberty charge. These sentences of imprisonment reflect the serious nature of the Applicant’s offending.
With respect to the sentencing of the Applicant, Chief Justice Grant referred to a term of imprisonment being appropriate, given the seriousness of the Applicant’s offending and his failure to amend his offending behaviour (R1, G5, pages 38-39):
You have a history of violent offending, although relatively minor. Minor though it may be, you clearly have not learned from the punishments that have previously been imposed on you, and you are not entitled to the leniency that might be extended to a person of otherwise good character…
General deterrence is a primary consideration in this exercise. The community must be assured that people who prey on the vulnerable to steal from them and inflict violence on them will receive condign punishment. Personal deterrence, punishment and denunciation are equally important purposes. You must be made to understand that the community will not tolerate conduct of this nature. The community must be protected from these sorts of breaches of peace and order committed by people who have allowed themselves to fall into the grip of methamphetamine, and then inflict the consequences of that addiction on the innocent. The innocent in this case include not only the victim in this offending, but also your children and your family.
The Tribunal notes that the Applicant acknowledged his offending was serious and expressed remorse for his actions. He maintained that his offending was caused by drug use and that he had changed and turned his life around. He submitted at the hearing (Transcript, page 7 at [10]):
I am greatly remorseful for everything I've done and I do acknowledge, you know, the crimes I've committed, the people I've hurt in my life, including myself and also I can't change anything that has been done. Basically what I'm trying to say is, everything that was committed in my past was under the influence of drugs. Since then I'm a completely changed person. I have completely changed my life around. I have been rehabilitated for a while now and I've also ever since then become a Christian.
The Tribunal notes that Chief Justice Grant accepted ‘in a general sense’ that the Applicant’s offending could be attributed to methamphetamine use (R1, G5, page 37). His Honour noted:
… This type of behaviour with which you are presently charged, in this particular context, almost invariably suggests a recent and acute methamphetamine addiction.
(R1, G5, page 36)
However as Chief Justice Grant noted (R1, G5, page 39):
Your addiction does not operate as a mitigating factor here, nor does your counsel suggest it does. You are to be regarded as morally responsible for the condition you were in at the time of your offending. Nor have you suffered from a dysfunctional family background, economic disadvantage, poor education, abuse or the other issues which might in themselves operate as mitigating factors. You had a good start in life and you came from a supportive family environment. The addiction provides some form of explanation for your conduct, but certainly does not provide any excuse.
While the Tribunal accepts the Applicant is genuinely remorseful and that drug use and addiction played a role in his offending, in the Tribunal’s view that does not lessen the seriousness of those offences or their impact on the community.
As noted above, although the bulk of the Applicant’s offending took place over the period from late 2016 to early 2017, in the Tribunal’s opinion, the most recent offences evidence an escalation in the Applicant’s offending and are indicative of a trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction no. 79). This includes consideration of the fact that the most recent offences were committed while the Applicant was on bail for an earlier assault charge.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction no. 79), the Tribunal notes that the Applicant offended over a relatively short period of time. His repeated offending however and his failure to learn from or abide by the sentences given to him prior to his recent custodial sentences, places a burden on the resources of police, corrective services and the courts. Further, while some of the Applicant’s earlier offences, taken in isolation, are relatively minor the cumulative effect of his repeated offending indicates that the Applicant has a propensity to violence and dangerous behaviour and a disregard for the law and the safety of the community when under the influence of drugs.
The Respondent submitted that the Applicant provided false or misleading information to the Department, by not disclosing prior criminal offending on his incoming passenger cards (paragraph 13.1.1(1)(g) of Direction no. 79; see R2, page 8, para 32). The Respondent provided copies the Applicant’s incoming passenger cards for 2010 and 2013 (R1, G8). On both cards in response to the question ‘Do you have any criminal convictions?’ the Applicant ticked ‘No’. This was despite the fact that he had a conviction for driving over the blood alcohol limit (Breath alcohol level over 400 Mcgs/Litre breath. Blood breath = 475) in New Zealand in August 2008. He was convicted and sentenced to fines and driving disqualification for this offence. At the hearing the Applicant gave evidence that he did not understand the seriousness of that offence at the time he filled out the 2010 and 2013 passenger cards.
The Applicant was also convicted of assault occasioning bodily harm in Australia in September 2010. That offence was also not declared on the Applicant’s 2013 incoming passenger card. He accepted in questioning that he knew that this was a criminal offence and that his response to the question on the incoming passenger card was false (Transcript, page 13). The Tribunal accepts that at the time of filling out the 2010 passenger card the Applicant did not appreciate that the 2008 drink driving offence constituted a criminal conviction. This may speak to the Applicant’s lack of appreciation of the seriousness of such offences but the Tribunal finds that the Applicant’s response was not intentionally false. On that basis his responses on the 2010 card do not add to the seriousness of his offending history and conduct. However, the Tribunal finds that the Applicant did appreciate that the assault conviction in 2010 was a criminal conviction and hence the response the provided to the question regarding criminal convictions on his 2013 incoming passenger card was false and misleading. Providing false information to the Department regarding criminal history is a matter of some significance in the proper administration of the immigration system and this action weighs against exercising the discretion to revoke the cancellation of the visa. However, in the scheme of his offending history the Tribunal does not place significant weight on this act.
Paragraph 13.1.1(1)(h) of Direction no. 79 is not applicable because the Applicant has not previously received any warning that further offending may affect his migration status.
Paragraph 13.1.1(1)(i) of Direction no. 79 is also not applicable because there is no evidence that the Applicant has committed any crimes in immigration detention. The Respondent referred in submissions to an incident in immigration detention allegedly involving the Applicant (R2, page 9, para 38 and Annexure B). However, as no charges were laid [and the Applicant denied the incident] the Tribunal does not place any weight on this factor.
Having regard to all the evidence including of the circumstances of the Applicant’s conduct and offending, the Tribunal finds that the Applicant has a history of repeated violent offences. While some of these offences were relatively minor, on balance, the Tribunal finds that the nature of the Applicant’s offending is very serious and strongly weighs against exercising the discretion to revoke the cancellation of the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:
(1)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 summarised the task for the Tribunal as follows:
56.… the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
57.In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”
The Applicant submitted that he is a changed person and will not reoffend (Transcript, page 7). At the hearing the applicant stated:
I am greatly remorseful for everything I’ve done and I do acknowledge, you know, the crimes are committed, the people I’ve hurt in my life, including myself and also I can’t change anything that has been done. Basically what I’m trying to say is, everything that was committed in my past was under the influence of drugs. Since then I’m a completely changed person. I have completely changed my life around. I have been rehabilitated for a while now and I’ve also since then become a Christian. (Transcript, page 7)
In his request in August 2018 to the Department for revocation of the cancellation, in response to the question regarding the likelihood that he would reoffend, the Applicant stated:
Never. Because of such a big impact this has had on not only me but all my family and I am never going to touch drugs again. With gaol and plans I have put in place and have been clean now for over one year. (R1, G10, page 67)
The Applicant submitted statements in support of his rehabilitation from his mother and wife (A1 and A2). The Applicant submitted a large number of third-party supportive character references from friends and family (R1, G10, pages 81-147; A1, A2). Many of these made reference to the Applicant’s violent offences being ‘out of character’. They note his remorse and his potential to make a positive contribution to the community and his connection to his family.
The Applicant’s mother stated in her email dated 11 March 2019:
His [sic] a changed man. In fact his [sic] always been a good person, he just fell off the wagon and made a mistake, but has learned from it.
As a mother I can vouch that my Son will not be a menace or cause any problems instead he will do good in the Community like he always did. He went through a difficult marriage problem and now they both realise they’re wrong. And have paid for them.
In her statement dated 5 March 2019 Sandra Nathanson stated:
We were separated for a while, during that time we realised that we made the wrong choice. We were and are continually remorseful of both our choices we made in the past. During the separation we have rebuilt and allowed restoration to lead us.
With respect to the nature of the harm that could result if the Applicant is to reoffend and the likelihood of the Applicant engaging in further criminal or other serious conduct, the Respondent submitted that the Applicant is a serious repeat offender with a history of violent acts against unsuspecting members of the Australian community. Given the nature of the Applicant’s previous offences the nature of harm to victims if the Applicant were to reoffend in the future is serious and could involve significant physical, financial and psychological harm to members of the Australian community. Further the Respondent submitted that having regard to the Applicant’s history there is a high risk that the Applicant would reoffend. This is emphasised by the fact that the Applicant’s most recent offences were committed whilst he was on bail for a violent offence and by his willingness to evade the law by driving recklessly. Further the Respondent submitted that there was little evidence that the Applicant had undertaken appropriate rehabilitation and that his efforts at rehabilitation had been untested outside the controlled environment of incarceration or immigration detention.
Applying paragraph 13.1.2(1)(a) of Direction no. 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend is serious. The Applicant has a history of violent offences, a reckless driving offence arising from an attempt to evade police at high speed and offences involving prohibited weapons including firearms. He was convicted of serious offences involving a vulnerable member of the community on whom he inflicted violence and domination for a period of almost 12 hours, including to subjecting him to a high speed vehicle pursuit. His behaviour in committing those offences, as described by the Chief Justice, suggest a callous and violent disregard for the well-being of others, albeit fuelled by drug addiction. Were the Applicant to again prey on a vulnerable member of the community, seek to evade police by driving at dangerous speeds or engage in the possession or use of prohibited weapons, the harm to victims and the broader community would be serious.
Further, were the Applicant to continue to engage in violent conduct within the family home, the potential physical and psychological damage to his spouse and children would also be serious.
The Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
no. 79).
In relation to the Applicant’s risk of reoffending Chief Justice Grant noted (R1, G5, page 39):
Your prospects for rehabilitation, given the length of your addiction and your conduct during it, must be considered as marginal unless you receive some effective intervention to deal with your drug addiction.
The Applicant submitted evidence that he completed a voluntary rehabilitation program while in prison. He provided a certificate of completion from the ‘Safe, Sober, Strong Program’ at Darwin Correctional Centre. The certificate indicates that the program was held for 45 hours over 15 sessions in July 2018. The program objectives included anger and stress management, problem solving skills, self-awareness and future planning (R1, G10, page 73). He indicated in response to questions from the Tribunal that he had also undertaken one-to-one drug and alcohol counselling while in prison (Transcript, page 31). There was no other evidence before the Tribunal in relation to such counselling and no information before the Tribunal as to the nature or effectiveness of any one-on-one counselling undertaken by the Applicant in prison. As such the Tribunal is unable to place much weight on this evidence in terms of assessing the Applicant’s efforts at rehabilitation and the effect of these efforts on the risk of reoffending.
The Applicant provided evidence that he commenced a voluntary residential drug rehabilitation program in October 2015 at the Salvation Army Sunrise Drug and Alcohol Service in Darwin. The Applicant discharged himself from the program prior to its completion on 30 November 2015. He indicated that he left the rehabilitation program early to attend the birth of his third child. On his self-discharge, the service informed him of the dangers of taking drugs and alcohol and of the risks of leaving residential rehabilitation before his scheduled completion date (R1, G10, page 75-76). The Tribunal notes that the Applicant committed a number of offences after leaving the drug and alcohol program. He admitted in evidence having returned to drugs and alcohol following his self-discharge from the program (Transcript, page 25).
The Applicant also provided evidence that while in prison he helped as a tutor to other inmates in Darwin Correctional Centre (R1, G10, page 72). While good prison behaviour is to the Applicant’s credit, in the Tribunal’s view, good behaviour in a controlled prison environment is generally to be expected and is not in and of itself evidence of rehabilitation.
The Tribunal notes that it was a condition of the Applicant’s suspended sentence that he complete a residential rehabilitation program in the community of at least three months duration. The Tribunal accepts that this would provide an opportunity for rehabilitation for the Applicant were he released from immigration detention into the community. Further his sentence requires that he be supervised for a period of 12 months following his release from prison which occurred on 15 August 2018. The Tribunal accepts that in the event that the suspension period is in effect when he is released from detention, this may provide additional protection to the Australian community. The material before the Tribunal included a letter dated 13 February 2018 indicating that the Applicant had been accepted into the 12 week residential Rehabilitation Program at the Salvation Army Sunrise Centre (R1, G10, page 78). While it is not clear from the letter the Tribunal assumes the program was to be undertaken on the Applicant’s release from prison. As the Applicant went from prison to immigration detention he has not yet completed the residential program.
There is no psychological evidence before the Tribunal or referred to in the Sentencing Remarks with respect to the likelihood the Applicant will reoffend. The Tribunal notes the Chief Justice commented on the Applicant’s prospect’s for rehabilitation. His Honour noted (R1, G5, page 39):
Your prospects for rehabilitation, given the length of your addiction and your conduct during it, must be considered as marginal unless you receive some effective intervention to deal with your drug addiction.
The Applicant has not yet undertaken such treatment and while the Tribunal accepts he is remorseful and committed to reform his capacity to maintain that commitment once he has returned to the community and is exposed to the stressors which led to his addiction and offending, this is untested. There is evidence that he has failed to follow through on such a commitment in the past and while the circumstances of that decision were understandable the consequences for the Applicant’s victims was very serious as have been the consequences for his family.
Further, there were instances in his evidence where the Applicant sought to excuse or downplay the seriousness of his criminal offences or other conduct. Examples include:
(a)his reference to assaulting a worker at a Northern Territory hotel with a knife as ‘holding a butter knife at someone’ (Transcript, page 20); and
(b)describing the latest offences in which the Court found he held the victim for almost 12 hours and repeatedly assaulted and stole from him as ‘initially turned to this person that was there and asked him if we could borrow – if we could get a ride off him or borrow his car to go and get some fuel, and then it just escalated from there’ (Transcript, page 29).
These instances suggest that while the Applicant talks about taking responsibility for his past actions he attempts to diminish the seriousness of those offences. In the Tribunal’s opinion this failure to accept the seriousness of his past actions may contribute to a likelihood that he would engage in similar conduct in the future.
There is evidence before the Tribunal that the Applicant has strong support from his family and from broader members of the community including his church. The Chief Justice referred to references supplied in support of the Applicant and noted that (R1, G5, page 38):
They say that you come from a stable, caring and loving home. They say that you were, up until you your addiction took hold, a model son and brother. They say that you have been a loyal and devoted husband and father. They say that you were courteous, kind and compassionate. They say that you are a polite and respectable young man, and were as a boy when growing up.
Of course, none of those qualities were apparent during the commission of these offences. These references stand as yet another testament to the insidious and destructive nature of methamphetamine addiction and the awful effect it can have on a person’s behaviour and personality.
However, as noted earlier his Honour went on to note (page 39):
Your addiction does not operate as a mitigating factor here, nor does your counsel suggest it does. You are to be regarded as morally responsible for the condition you were in at the time of your offending. Nor have you suffered from a dysfunctional family background, economic disadvantage, poor education, abuse or the other issues which might in themselves operate as mitigating factors. You had a good start in life and you came from a supportive family environment. The addiction provides some form of explanation for your conduct, but it certainly does not provide any excuse.
The Tribunal accepts that the Applicant has a strong family background. The support of his family and church may provide protective factors against the Applicant reoffending. However the Tribunal notes that, as the Chief Justice’s comments reflect, the Applicant comes from a supportive family background and offended notwithstanding the support of his family. He submitted that his offences were triggered by the breakdown of his relationship with his wife, however he also testified that he was a member of his church community prior to his offending and that he has a close relationship with his family. This gives rise to a concern for the Tribunal that the support of his family, his faith and church community were not sufficient in the past to prevent his drug taking and consequent offending. As such the Tribunal regards on the evidence that his family support does not remove the risk that the Applicant will reoffend.
Statements from family and friends submitted in support of the Applicant stressed that the behaviour reflected in his offences was out of character. However, accepting that the Applicant offended whilst under the influence of drug addiction, having regard to the nature of the offences it is clear that at least whilst under the influence of drugs the Applicant engages in violent behaviour. In addition, at least one incident of family violence which the Tribunal has found, on the evidence, was committed in 2012 before the Applicant says he began taking drugs. This leaves open the risk that the Applicant may engage in violent conduct within the home even in the absence of a drug addiction.
Based on the evidence before it, the Tribunal finds that there is a likelihood that the Applicant may reoffend, although the evidence before the Tribunal suggests that the likelihood of reoffending is moderate and depends on the Applicant’s capacity to commit to and follow through with drug and alcohol rehabilitation.
Further, the principle set out in paragraph 6.3(4) of Direction no. 79 is relevant:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
Based on the above discussion, the Tribunal finds that there is a moderate likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community. With regard to paragraph 6.3(4) of Direction no. 79, the Tribunal finds that the circumstances of the Applicant’s convictions particularly those in relation to his elderly victim in the Northern Territory and the serious nature of the harm that can result to victims of this type of offending, mean that even a moderate likelihood of reoffending in the future presents an unacceptable risk. On balance, the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant’s visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13(2)(b) of Direction no. 79)
Paragraph 13.2 of Direction 79 provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction 79 outlines the factors that a decision-maker must consider when determining the best interests of a child:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three children under 18 years of age. He has two sons aged seven and nine and a daughter who is three years old. The oldest child was born in New Zealand and moved to Australia with his parents as a baby. The younger two children were born in Australia. As neither parent is an Australian citizen, none of the children are Australian citizens. All three children are New Zealand citizens (Transcript, page 26). Their mother is a South African citizen (Transcript, page 26). There is no information before the Tribunal that the children’s interests differ, so the Tribunal will proceed to consider the interests of the children together (paragraph 13.2(3) of Direction no. 79).
The children reside with their mother in Perth (paragraphs 13.2(2) and 13.2(4)(e) of Direction no. 79). The Applicant testified that he has not lived with them since his wife took out the VRO against him on 13 May 2016 (Transcript, page 25). He did not see the children following the issuing of the VRO and his incarceration in the Northern Territory. He testified that he and his wife reconciled while he was in prison and his wife and the children visited him in prison in the Northern Territory. They communicated daily via telephone (Transcript, page 25).
The Tribunal also notes that the children’s mother fulfils a parenting role in relation to the children who reside with her (13.2(4)(e) of Direction no. 79). She has done so since May 2016. However, the Tribunal accepts that the Applicant has had contact with the children since sometime after his incarceration in the Northern Territory in August 2017. The Tribunal also accepts on the evidence that he played a parenting role with respect to the children prior to the issuing of the VRO in May 2016. However, the Tribunal notes that at some point during the preceding year, 2015, the Applicant was staying in the Northern Territory (where he checked into a rehabilitation centre) while the family were in Perth. It is not clear from the evidence how long he was absent from the family home at that time.
Applying paragraph 13.2(4)(a) of Direction no. 79, the Applicant is the biological father of the two children who are aged three, seven and nine. There have been periods of separation from his children when the Applicant was estranged from his wife and the VRO was in place and when he was serving his term of imprisonment in the Northern Territory.
The Applicant made submissions about his children to the Department and appears to love his children very much. In his submission to the Department the Applicant stated (R1, G10, page 65):
I am very close with all my kids. We have a bond that is extremely close starting from me been [sic] there for all of them during my wife’s pregnancy and been [sic] there at all their births and cutting all their cords. I live for my children they are my life and they look up to me in everything they do and rely on their father. They need their daddy home with them. Our connection is so tight they feel lost and alone without me and have already been through so much with me been [sic] in prison for so long. I try and talk to my children every day by calling them and my wife …
My children need me more than anything right now just from me been [sic] away in prison has had such a big impact in their lives. Now them finding out about my visa cancellation has just broken they [sic] hearts. And left them crying themselves to sleep at night feeling lost and scared. Emotionally broke down. It is traumatising for them with so much more pressure from school kids asking questions why has your father still not come home.
This speaks to the Applicant’s love for, and commitment to, his children. It also evidences that the children are likely to have experienced worry and stress due to their father’s criminal conduct (paragraph 13.2(4)(c) of Direction no. 79).
Applying paragraph 13.2(4)(b) of Direction no. 79, the Tribunal notes that the children are still young and that they would likely benefit from having a relationship with both their mother and father, up until they attain the age of 18 years and beyond. The Tribunal is not aware of any Court orders relating to parental care and access arrangements for the children and notes that the evidence of both parents is that they wish to parent the children together as a family unit (A2; Transcript, page 27). The Tribunal notes that the Applicant provided numerous third party statements in support of his character including his commitment to his children and his family (R1, G10).
However, despite the stated intentions of the Applicant to reform so he can have an active and positive relationship with his children, the Tribunal has concerns that regarding the Applicant’s ability to carry out these intentions in order to play a positive parental role in the future, given his history of drug use, violent offending and violent conduct within the home. If he continues to offend, he will not be a positive role model for the children.
Similar considerations apply when considering paragraph 13.2(4)(c) of Direction no. 79. If the Applicant returns to drug use and offends in a manner consistent with his offending history, it will most likely have a negative impact on the children. In this regard, the Tribunal notes in particular the history of family violence in the relationship including one violent incident which was witnessed by the Applicant’s eldest son (R3, pages 7-11).
The Respondent submitted that in circumstances where the children have suffered or experienced emotional trauma arising from the Applicant’s conduct (paragraph 13.2(4)(h)), specifically a result of incidents of domestic violence resulting in the issuing of a violence restraining order, limited weight should be given to the Applicant’s relationship with the children (R2, page 10, para 42-43). In making this submission the Respondent referred to the comments of Deputy President Kendall (as he then was) in QGMJ. In that case Deputy President Kendall noted:
… The victims of domestic violence are obviously those are assaulted or threatened. However, they also include the children who witness threatening behaviour from one parent to another. The destructive, long-term psychological impact on these children cannot be overstated. This is insidious behaviour and threatens the opportunities traumatised children have long-term safety and a sense of normality.
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to ‘serious crimes’. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
As noted above, Direction no. 79 provides that certain crimes are to be considered ‘serious crimes’. Applying paragraph 13.1.1(1)(c) of Direction no. 79, the Applicant’s crimes against an elderly member of the community are ‘serious’ crimes. The Australian community expects that the Applicant’s visa can and should be cancelled in such circumstances.
The Tribunal finds that the Applicant has committed crimes which are serious crimes and the Australian community would reasonably expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s visa. Paragraph 6.3(3) of Direction no. 79 makes it clear that the Applicant, as a non-citizen who has committed a serious crime against an elderly member of the community, should expect to be denied the privilege of remaining in Australia. While this principle is expressed in terms of the consequences an offending non-citizen should generally expect, in the Tribunal’s view when read in the context of paragraph 6.3(2) and 13.3(1) the principle expressed in paragraph 6.3(3) directs the Tribunal to view these crimes in a particular way – crimes with respect to which there is generally an expectation that the offender will forfeit the right to remain in Australia. In any event, it follows from the direction in paragraph 13.1.1(1)(c) that crimes against the elderly, as vulnerable members of the community, are ‘serious’ crimes and as such should be considered in light of the expectation expressed in paragraph 6.3(2) of Direction no. 79.
Having regard to the relevant authorities and applying the direction in this way, the Tribunal finds that the expectations of the Australian community weigh against the revocation of the cancellation decision.
In determining the weight to be applied to this consideration, the Tribunal has had regard to the Applicant’s circumstances. The Tribunal finds that the expectation of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. This is so, notwithstanding the Applicant’s efforts to rehabilitate in a context where such efforts have previously failed.
Although the expectations of the Australian community will weigh against an applicant with respect to serious crimes the Tribunal must, in the exercise of its discretion, decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations.
In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the offences committed by the Applicant and the unacceptable risk of harm to vulnerable members of the community were he to reoffend and the interests of his minor children. The Tribunal has had particular regard to the nature of the Applicant’s most recent offending against an elderly member of the community.
The Tribunal has also had regard to the relevant other considerations, which are discussed below, including the strength, nature and duration of the Applicant’s ties to Australia and the challenges the Applicant would face if he was returned to New Zealand, which weigh in the Applicant’s favour.
Nevertheless, the Tribunal finds that on balance, the expectations of the Australian community would be that the decision to cancel the Applicant’s visa should not be revoked. The Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant’s visa.
Other considerations
Paragraph 14 of Direction no. 79:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction no. 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Additionally, paragraph 6.3(7) of the Principles section of Direction no. 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused
The Applicant is now 35 years of age, having arrived in Australia in 2010 when he was 28 years of age. While the Applicant has lived in Australia a number of years he arrived as an adult with his wife and young child. His first offence in Australia, assault occasioning bodily harm, was committed several weeks after his arrival. The Respondent submitted in applying paragraph 14.2(1) of Direction no. 79 as his offending commenced shortly after he arrived in Australia less weight should be given to the strength, nature and duration of ties to Australia (R2, page 12, para 53). The Tribunal does not accept this submission as the Applicant had an extended period free from convictions following the single 2010 offence. The Tribunal regards that any discount to the weight applied to the strength, nature and duration of ties to Australia should be minimal. His ties to the Australian community should not be disregarded on that basis.
During the break in his offending between May 2010 and September 2016, the Tribunal finds that the Applicant has positively contributed to the community working as a mechanic and as a mechanical fitter and living in the Australian community. He worked as an assistant tutor during his term in prison and his discharge notes from the Sunrise Drug and Alcohol Services residential program notes that he was ‘a great support system for many of the clients here’ (R1, G10, pages 72 and 76).
The majority of the Applicant’s family including his wife and children, his parents and members of his extended family live in Australia (Transcript, page 38). As noted above, the Applicant’s children are New Zealand citizens and his wife is a South African citizen.
The Applicant testified that he is a member of a Christian Church in Australia and this evidence was supported by third party statements from members of his church community (see for example R1, G10, page 96,112 and 116).
The Tribunal finds that the Applicant’s links to the Australian community are strong. On balance the Tribunal finds that this other consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. However, the Tribunal also notes that the Applicant came to Australia as an adult. He and his wife commenced their relationship, life together and family in New Zealand. There is no evidence before the Tribunal that suggests that they would be unable to resettle in New Zealand together as a family. In the Tribunal’s view this lessens the weight to be afforded to this consideration.
Impact on Australian business interests
It is also not relevant to consider whether a decision not to revoke the cancellation of the visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79). The Applicant is not involved in the delivery of any major projects, or the delivery of an important service in Australia. Although he has worked in Australia his employment in Australia would not fall within this ‘business interests’ other consideration.
Impact on victims
The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his criminal behaviour or the family members of the victims (paragraph 14.4(1) of Direction no. 79).
The Respondent admitted that while there was no evidence from the victims regarding the impact of non-revocation of the visa, there was material before the Tribunal pointing to the impact of the Applicant’s conduct on his elderly victim in the Northern Territory. On that basis the Respondent contended that this consideration weighed in favour of non-revocation (R2, page 13, paras 56 - 57).
The Tribunal does not accept this submission. Paragraph 14.4(1) refers to the ‘impact of a decision not to revoke’ and members of the Australian community including victims of the non-citizen’s criminal behaviour. While evidence of the impact of the Applicant’s offending on his victim at the time of the offending or sentencing may be relevant to considering the seriousness of the offence and other considerations in the context of a decision regarding revocation, it does not assist the Tribunal in assessing the impact of a decision not to revoke the Applicant’s visa on the victim, or on the Australian community more generally.
There is no evidence as to how other victims of the Applicant’s offending would be impacted, and based on the material available, by a decision not to cancel the Applicant’s visa. There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community of which are discussed above in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact from a decision not to revoke the visa. Accordingly, the Tribunal places no weight on this factor.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is a 35 year old man who is likely to face some social and emotional difficulties if he is returned to New Zealand. The Applicant submitted that he would face difficulties re-establishing himself in New Zealand as he has built his life here and no longer has ties in New Zealand (Transcript, page 38). His family, including all the members of his immediate family, and community are in Australia.
The Applicant also gave evidence, as was also noted above, that his wife may not join him if he were to return to the New Zealand. This was also suggested in the letters from the Applicant’s wife (A2; R1, G10, pages 104-105). While the Tribunal finds that any ongoing separation of the Applicant from his wife and children in the event of his return to New Zealand would be largely as a result of a choice made by the Applicant’s wife to remain in Australia. Regardless, the Tribunal finds on the evidence that the Applicant is close to, and emotionally reliant on, his immediate family and that the lack of family and other social supports are likely to be impediments to the Applicant in adjusting to life in New Zealand, particularly if his wife chooses to remain with the children in Australia and not relocate with him.
In his ‘Personal Circumstances Form’ which was submitted to the Department as part of his request for revocation, the Applicant indicated that he was suffering from lower back pain for which he take medication (R1, G9, pages 69). He also indicated he takes medication for depression. The evidence produced on summons included a medical certificate indicating that the Applicant was suffering ‘mental stress’ on 16 January 2017 due to the breakdown of his relationship and felt unwell from 13 January to 16 January 2017. There is no other medical evidence before the Tribunal that the Applicant suffers from any physical or mental health issues which might give rise to an impediment on his return to New Zealand. In any event, the Applicant accepted that the health system in New Zealand was similar to Australia and the Tribunal finds that he would have access to health care as a New Zealand citizen.
The Applicant came to Australia as an adult and as such would not face any language or cultural barriers if he were to return to New Zealand. He has family members in New Zealand and while the bulk of his family are in Australia, the third party letters of support include statements from family members in New Zealand (see for example R1, G10, page 87-88 and 106). The Applicant also had support from several family members residing in Zimbabwe and Botswana. On the evidence the Tribunal formed the view that the Applicant has a strong family network and while that network is strongest in Australia he is likely to have support from family members in New Zealand if he returns there.
The Applicant has skills and experience as a petrol and diesel mechanic and as a mechanical fitter. He was working in New Zealand prior to moving to Australia. (Transcript, page 27). His skills and work experience would assist him to find employment if he is returned to New Zealand. The third party statements include positive statements regarding his experience and work ethic (see for example R1, G10, pages 82-83). The Tribunal finds, and the Applicant accepted, that he is likely to be able to find employment in New Zealand.
The Tribunal put to the Applicant that the employment, social security and health systems of New Zealand were similar to those in Australia. The Applicant agreed that a lot of things are similar though he was not sure about services for kids. There is no evidence before the Tribunal to suggest that particular country circumstances in New Zealand would present an impediment to the Applicant’s resettlement there and the Applicant did not submit that there were any such impediments.
The principal impediments identified by the Applicant were the separation from his family support network, the need to re-establish himself in New Zealand, the impact on his children of moving from the country in which they have grown up including moving from schools where they are settled and the impact his relocation would have on his marriage. The Tribunal accepts that these are challenges which would be faced by the Applicant if he were removed to New Zealand. However, such challenges do not, in the Tribunal’s view and taking into account the evidence available, amount to impediments to his return to New Zealand.
On balance, the Tribunal finds that the Applicant is likely to experience some challenges in re-establishing himself in New Zealand. The Tribunal accepts that he may face social and emotional difficulties because the bulk of his family members reside in Australia. If he is returned, he may be separated from his partner and children if she chooses not to relocate with him to New Zealand. He may also be limited to seeing his family when they visit New Zealand if they also choose to remain in Australia.
In summary, the Tribunal finds that Applicant would suffer some hardship if he were returned to the New Zealand, which weighs in favour of the revocation of the decision to cancel the visa. However, the Tribunal does not regard the challenges faced by the Applicant as significant impediments to his return and accordingly places limited weight on this consideration.
WEIGHING THE PRIMARY AND OTHER CONSIDERATIONS
Direction no. 79 provides some guidance as to how a decision maker should apply the primary and other considerations and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
The treatment of primary and other considerations has been subject to judicial consideration. [11]
[11] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 (HSKJ).
Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [164] summarised the weighing exercise as considered by the Courts as follows:
The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.[12]
[12] Although Senior Member Evans was considering Direction no.65 the relevant provisions were materially the same as those under Direction No. 79 and her comments remain applicable under the later direction.
The Tribunal agrees with this statement of the principles to be applied in the weighing exercise and has had regard to these principles in balancing the primary and other considerations in this decision, which are summarised in the conclusion below.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community and the expectations of the Australian community weigh strongly in favour of the Tribunal refusing to revoke the cancellation of the visa (that is, affirming the Reviewable Decision).
The Tribunal has found, on balance that the best interest of the Applicant’s children weighs in favour of revoking the cancellation of the visa. However, on the evidence the Tribunal has found that the Applicant’s children are New Zealand citizen’s there is no evidence before the Tribunal that his children and wife would not be able to return to New Zealand with him if they chose to do so. Accordingly, the Tribunal places less weight on this consideration.
The other considerations of the Applicant’s strength, nature and duration of ties to Australia, and the extent of impediments if returned to New Zealand weigh in favour of the Applicant. However, having regard to all the circumstances of the Applicant’s case the Tribunal does not place significant weight on these considerations for the reasons outlined above.
The Tribunal is of the opinion that the primary obligations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations that are in favour of the revocation of the decision to cancel the visa, namely the best interests of minor children; the strength, nature and duration of ties; and the extent of the impediments if removed.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of the Respondent’s delegate dated 10 January 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
I certify that the preceding 190 (one hundred and eighty-six) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
..........................[sgd]..............................................
Associate
Dated: 4 April 2019
Date(s) of hearing: 21 March 2019 Applicant: In person Representative for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore
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