Navugavuga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 155
•12 February 2020
Navugavuga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 155 (12 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7952
Re:Jeremaia Navugavuga
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:12 February 2020
Place:Sydney
The decision under review is affirmed.
...............................[SGD].........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BS Subclass 801 (Partner) visa- where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
12 February 2020
INTRODUCTION AND BACKGROUND
Mr Jeremaia Navugavuga (“the Applicant”) is a 31 year old citizen of Fiji.[1] Movement records indicate that the Applicant first arrived in Australia on 1 October 2010 and has left Australia on three occasions, with his most recent arrival date being 14 March 2018.[2] The most recent visa granted to him was a Class BS Subclass 801 (Partner) visa (“the visa”).[3]
[1] Exhibit 10, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [3].
[2] Exhibit 11, s 501 G-Documents, G15, page 63.
[3] Ibid, G3, page 11.
The Applicant has a lengthy criminal history in Australia, commencing on 11 July 2012.[4] Since then, he has been a frequent offender finding himself before the sentencing authorities in 2013, 2015, 2017 and 2018. These offences have resulted in convictions for:[5]
·common assault;
·domestic violence offending, including breach of a domestic violence order;
·drink driving;
·disqualified driving;
·stating a false name or home address;
·assault occasioning actual bodily harm;
·driving a motor vehicle while menacing another with intent; and
·stalking/intimidating conduct intended to communicate fear of physical harm.
[4] Ibid, G5, pages 24-28: Check Results Report produced by the Australian Criminal Intelligence Commission.
[5] Exhibit 10, Respondent’s SFIC, pages 2-4, paragraph [6].
His latest period of incarceration commenced during the period April – May 2018 upon his sentencing for criminal offending at the Central Local Court, New South Wales (“NSW”).[6]
[6] Exhibit 11, s 501 G-Documents, G5, page 26.
While serving this term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 19 September 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[7]
[7] Ibid, G4, page 12.
On 1 October 2018, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[8] On 12 August 2019[9] and 8 October 2019[10], the Applicant provided additional statements in support of his request for revocation. The delegate of the Minister decided on 27 November 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[11]
[8] Ibid.
[9] Ibid, G13, page 60.
[10] Ibid, G14, page 62.
[11] Ibid, G3, page 11.
The Applicant lodged an application with this Tribunal on 3 December 2019[12] seeking a review of the abovementioned decision dated 27 November 2019 not to revoke the cancellation of his visa. The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[13]
[12] Ibid, G1, page 1.
[13] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 30 January 2020 and received oral evidence from the Applicant. Prior to the hearing, the Applicant filed certain written statements. None of the makers of those written statements were called to give evidence on behalf of the Applicant. The complete suite of written material forming the exhibit record of this hearing is particularised in the Exhibit Annexure attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[14]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[16] I will address each of these grounds in turn.
[16] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 23 May 2018, the Applicant received convictions for a range of offences including, inter alia, assault occasioning actual bodily harm and sentenced to a term of imprisonment of 20 months.[17] Also on that date, the Applicant was sentenced to the following additional custodial terms:[18]
·driving motor vehicle during disqualification period: 20 months imprisonment;
·stalk/intimidate intend fear physical etc harm: 20 months imprisonment; and
·drive motor vehicle menaces another with intent: 20 months imprisonment.
[17] Exhibit 11, s 501 G-Documents, G5, page 26.
[18] Ibid, “Check Results Report”, from the Australian Criminal Intelligence Commission, G5, page 26.
On 15 March 2018, the Applicant received convictions for the following offences:[19]
·drive motor vehicle during disqualification period: 6 months imprisonment;
·drive motor vehicle during disqualification period: 6 months imprisonment;
·assault occasioning actual bodily harm: 12 months imprisonment; and
·drive motor vehicle during disqualification period: 6 months imprisonment.
[19] Ibid, page 27.
The Applicant has a lengthy criminal history which runs for five pages.[20] Taking into account the custodial terms he received for the offending described in the immediately preceding paragraph, even a cursory review of his criminal history indicates he has received additional custodial terms (expressed on a cumulative basis) for the totality of his offending amounting to approximately 119 months. This is a cumulative custodial period of almost 10 years.[21]
[20] Ibid, pages 24-28.
[21] Note: this calculation of 119 months is based on the cumulative total of custodial terms imposed on the Applicant up to the sentencing episode on 23 May 2018 at the Central Local Court, NSW. The Applicant appealed the convictions imposed upon him on that day to the Downing Centre District Court, which handed down its decision on those appeals on 6 August 2018. Obviously, to include the sentences confirmed or varied by the Downing Centre District Court on appeal would amount to double-counting and would be unfair to the Applicant.
In his written material, the Applicant did not deny his offending, and said “I do not pass the character test as per Australian law.”[22] At the hearing, the Applicant did not cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of “a substantial criminal record”.
[22] Exhibit 3, Applicant’s Statement, page 1.
The Applicant has been sentenced for a significant number of offences across some nine separate sentencing episodes running from 11 July 2012 until 23 May 2018. Some of those sentences involved the imposition of a bond, the suspension of the head term after a certain period, and a condition that some of the sentences be served concurrently. That said, I note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[23]
[23] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[24] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[25]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[24] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[25] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[26]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[26] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(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;
(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 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;
(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;
(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 be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents now before the Tribunal:
(a)his criminal history which appears in a document entitled “Check Results Report” from the Australian Criminal Intelligence Commission;[27]
[27] Exhibit 11, s 501 G-Documents, G5, pages 24-28.
(b)the Tender Bundle (comprising pages numbered 1-184)[28] which contains:
(i)excerpts of documents produced under summons by Downing Centre District Court;
(ii)excerpts of documents produced under summons by Blacktown Local Court;
(iii)excerpts of documents produced under summons by the NSW Police;
(iv)excerpts of documents produced under summons by the Department of Justice;
(v)detention visitor cards;
(vi)documents relevant to protection visa application.
(c)the Further Tender Bundle (comprising pages numbered 185-221)[29] which contains excerpts of documents produced under summons by the Parramatta Local Court;
[28] Exhibit 12, Tender Bundle.
[29] Exhibit 13, Further Tender Bundle.
As mentioned earlier, the material discloses that between July 2012 and May 2018, the Applicant came before the courts for sentencing on approximately nine occasions[30] and that he was convicted of some 18 offences broadly capable of categorisation as (1) offences against the person; (2) domestic violence offending; and (3) a range of drunk driving, unlicensed, and disqualified driving offences.
[30] Not including the return date (6 August 2018) for the appeal heard by the Downing Centre District Court.
Further, the Applicant is responsible for serious violent conduct, committed on a relatively frequent basis. There is also repeated reference in the material to him refusing to follow the dictates of lawful authority, including during his time in criminal custody.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant gave oral evidence at the hearing. When he was taken to specific offending episodes, he appeared, in the main, to concede (1) commission of the offence or offences, and (2) the significant level of seriousness of those offences. The Applicant also purported to explain at least some of the circumstances of his offending, often unconvincingly so.
The Respondent’s contention is therefore, to my mind, correct: upon an application of the relevant sub-paragraphs in paragraph 13.1.1(1) of the Direction, the nature and seriousness of the Applicant’s offending is capable of no other categorisation than “very serious”.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or offices due to the position they hold, or in the performance of their duties, are serious;
d)Subject to paragraph (b) above, the sentence imposed by the Court 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...;
i)….
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
There are multiple examples of the Applicant’s violent offending apparent in his history. First, on 2 April 2013, he was convicted of common assault in the context of a domestic setting. He was sentenced to a good behaviour bond of 12 months duration. This offending involved contravention of an existing domestic violence order and a breach of a previously entered into bond. This bond had been issued on 11 July 2012 consequent upon the Applicant physically reprimanding his wife during a domestic argument when she sought to reproach him about his drinking.
Of even greater concern is the reality that this violent attack upon the wife occurred at a time when she was five months pregnant. There was a preceding argument between the Applicant and his wife on 12 March 2013 where she apparently reprimanded him about staying out late the night before. During this particular exchange, the Applicant deliberately slammed a door closed in a very loud fashion after he had been advised not to do so by his wife so as not to wake their child. The Applicant’s defiance of his wife’s reasonable request then morphed into him verbally abusing her, pushing her around and then pushing her into a wall.
Second, on 15 March 2018, the Applicant was convicted of assault occasioning actual bodily harm. For this offending, he was sentenced to 12 months imprisonment. Even though he appealed the severity of this sentence, the Downing Centre District Court, on 6 August 2018, did not disturb the 12 month sentence originally imposed on the Applicant. This offending was not in a domestic context but, instead, involved the Applicant seriously assaulting a work colleague. The sentencing remarks of Acting Judge Hosking SC of the District Court of NSW make for sobering reading:[31]
“HIS HONOUR: Which involved the appellant approaching a victim at work in Rozelle in the course of their work with a paving company. The victim is said to have been packing the work truck when he was approached by the appellant, who said to him “Where have you been, Ali has been looking for you?” The victim then returned to the work truck and continued to load tools into it when the appellant walked around to the rear of the truck, approached the victim from behind, raised his left hand with a closed fist, punched the victim in the left side of his face. The force of that blow caused the victim to lose consciousness and fall to the ground. In losing consciousness the victim was unable to break his fall, as a result he landed on his arm causing a fracture of his forearm. In addition, as a result of the blow he sustained bruising to the left side of his jaw and a cut to his bottom lip. There is nothing in any way untoward about a sentence of 12 months with a six month non-parole period for that offence, because in my view it is the top of the range offence, because in an unprovoked attack the victim sustained a broken arm which is in truth grievous bodily harm rather than simple actual bodily harm.”
[my underlining and emphasis]
[31] Exhibit 11, s 501 G-Documents, G7, pages 36-37.
Third, the Applicant’s violent offending also came before the sentencing authorities of 23 May 2018. This offending was again committed against his wife in a domestic context. Concerningly, this offending drew children into its orbit. The circumstances of the offending involved the Applicant driving a motor vehicle while, at the same time, exhibiting menacing behaviour towards his wife “…with intent, stalk/intimidate intend fear physical etc. harm (domestic) and assault occasioning actual bodily harm (domestic violence).”[32] For this offending, the Applicant was sentenced to a custodial term of 20 months. To properly apply these sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction, one must have regard to the actual criminal history. While the following sentences were ordered to be served concurrently, it should be noted that, for the “assault occasioning actual bodily harm” component of this offending, the Applicant received a custodial term of 20 months. Further, for the “stalk/intimidate intend fear physical etc. harm (domestic)” he also received a custodial term of 20 months.
[32] Ibid, see Check Results Report, G5, respective entries for 23 May 2018, Central Local Court, page 26.
Once again, the Applicant sought to appeal the severity of those sentences at the Downing Centre District Court, NSW. The appeal came before Acting Judge Hosking SC in the District Court of NSW on 6 August 2018, who noted the following circumstances of the offending:[33]
“… Then there are a series of matters, described as sequence H ending 052, they consist of an offence of stalking or intimidation, assault occasioning actual bodily harm of his wife, driving his vehicle with menaces and driving on the road whilst disqualified. The facts of those incidents were in short:
That on 16 September 2017 the appellant entered the bedroom where his wife and children were and after a conversation the appellant punched his wife to her face causing her, what is described, immediate and immense pain. She opened her eyes to see the appellant standing over her with a closed fist and cocked fist. When photos were taken a day later they showed bruising to her face from the appellant’s punch. Three days or four days after the punch the appellant was in a vehicle being driven by his wife, the complainant, and as the appellant’s wife was driving he asked her if she was seeing somebody else, and in the course of doing so grabbed the steering wheel of the vehicle, pulled it towards him causing the vehicle to veer into the next lane. The appellant then said to his wife “If I can’t have you no one else can, I am going to kill you right now.” His wife said “Just think of our son.” The appellant responded “I don’t care I’ll kill all of us, I don’t have a choice.” Fortunately she was able to pull into the emergency lane of the M4 motorway.
In relation to those charges, including a further charge of driving a vehicle on the road whilst disqualified the learned magistrate imposed on the appellant a sentence of 20 months’ imprisonment with a non-parole period of 15 months. Having heard the prosecutor outline the appellant’s criminal record and his long history of driving whilst disqualified in my view they were appropriate sentences. I alter them only in relation to the commencement and end dates to make them tally with the commencing dates of the other sentences, in the result the appellant will serve approximately 15 months in custody, which, in my view, having regard to the seriousness of the offences and having regard to the appellant’s criminal record, are reasonable sentences.”
[my underlining]
[33] Ibid, G7, pages 37-38.
Having regard to the circumstances of the Applicant’s violent attacks against his work colleague and his domestic spouse, and his propensity to place no boundaries around that offending such that it can draw children into its orbit is, to my mind, can only confirm a finding that (1) his offences against his female domestic spouse and work colleague are, indeed, of a violent nature; and (2) an application of both sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction clearly militates in favour of a finding that the nature of the Applicant’s offending conduct is indeed very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction stipulates that crimes committed against vulnerable members of the community and government officials or representatives are serious. I cannot glean from the Applicant’s criminal history any offending against vulnerable members of the community as defined in this sub-paragraph (c). That said, I refer to certain conduct of the Applicant while in criminal custody which I discuss later in these reasons with reference to the “other conduct” provision in the chapeau to the factors at paragraph 13.1.1 of the Direction.[34]
[34] See [73]-[75] (inclusive) of the Reasons.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
As mentioned earlier, the Applicant initially arrived in Australia on 1 October 2010. His Movement Details can be summarised as follows:
·arrive 1 October 2010;
·depart 15 October 2010;
·arrive 13 July 2011;
·depart 8 August 2017;
·arrive 11 August 2017;
·depart 8 December 2017; and
·arrive 14 March 2018.
The Applicant’s absences between 1 October 2010 and 14 March 2018 amount to a period of little over a year. He was taken into criminal custody in mid-2018. This means he has been a member of the mainstream Australian community for an approximate period of seven years. His criminal history starts in mid-2012. That criminal history clearly indicates that the custodial terms imposed upon him during his seven years in the mainstream Australian community have dominated his time here and therefore militate in favour of a finding that his offending to date has been very serious.
His offending history runs from July 2012 until May 2018. He is now 31 years of age. His offending history commenced on or about him being 25 years of age. It cannot be said that his offending is the result of the vagaries of youth or “falling in with the wrong crowd”. On the contrary, his violent offending has been committed in the workplace and in the context of his domestic relationship. That offending is so significant and so concentrated across his six year period of offending that it is not unreasonable to say that it has dominated his life in this country. The purpose of my outlining his abovementioned Movement History is to demonstrate that although he first came here as a 23 year old in 2010, and may have spent just over a year absent from Australia until mid-2018, a predominant theme of his life in Australia since July 2012 has involved him dealing with the consequences of breaking the law.
The offending history involves some nine sentencing episodes that dealt with at least 18 individual offences. As I outlined earlier, this offending history has yielded sentences with a cumulative total of approximately 119 months which equates to a custodial period of nearly ten years. This sub-paragraph (d) militates for no other finding than that this Applicant’s offending is indeed of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
First, with reference to the frequency of his offending, the Applicant has been in Australia since October 2010 and part of the mainstream Australian community until mid-2018. His seven year offending history has caused him to offend for nearly every year of his life in this country. His conduct has been the subject of review and sentencing between 2012 and 2018 as follows:
·July 2012 – one sentencing episode;
·April 2013 – one sentencing episode;
·September 2013 – one sentencing episode;
·August 2015 – one sentencing episode;
·May 2017 – one sentencing episode;
·July 2017 – one sentencing episode;
·August 2017 – one sentencing episode;
·January 2018 – one sentencing episode;
·March 2018 – one sentencing episode;
·May 2018 – one sentencing episode; and
·August 2018 (appeal of sentences imposed in March and May 2018).
His offending has seen him before lawful authority on at least nine individual occasions. Many of those sentencing occasions involved sentencing for multiple offences. He has committed at least 18 individual offences over an offending history that runs for six years, which equates to the commission of more than two offences per year for every year the Applicant has spent in the mainstream Australian community. There can be no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
Second, having regard to any discernible trend of increasing seriousness in the Applicant’s offending history, what can be noted is that the themes of interference with the personal rights of others and a refusal to respect lawful authority are apparent from its outset. His offending in 2012-2015 primarily involves the themes of “common assault” together with a failure to respect the rules governing the operation of a motor vehicle. Those themes recur for the remainder of his offending history. The significant point is that this is not an offending history that begins with low-level offending in the form of misdemeanours such as public nuisance offending and minor shoplifting. Rather, the themes of (1) physical violence and (2) a stubborn, petulant refusal to respect and submit to the laws governing the use of a motor vehicle perpetuate throughout the history and, indeed, intensify in frequency and circumstantial seriousness.
To my mind, the clearly discernible “trend” in the seriousness of the Applicant’s offending from 2012 to 2018 can be gleaned from the sentencing remarks of Acting Judge Hosking SC, who reviewed the Applicant’s 2018 offending on appeal and very minimally, if at all, disturbed any of the previous sentences. It is surely a reliable gauge as to the trend of an offender’s offending if an appeal judge, at the tail end of the offending history, notes that the Applicant’s violent conduct, for example, “…is the top of the range…” in terms of seriousness of that given offence. It should also be noted that Acting Judge Hosking SC made his findings on appeal after “…having regard to the seriousness of the offences and having regard to the Mr NAVUGAVUGA’s criminal record,” and that His Honour thought most of the sentences imposed on the Applicant at first instance “…are reasonable sentences.”
Thus, an application of this sub-paragraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and the increasing level of its severity, is such as to attract a finding that it has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
This is an Applicant with a six year criminal history. He has received the benefit of good behaviour bonds, fines, community service orders, partially suspended custodial terms and concurrent sentences. It is clear from the sentencing regime in the Applicant’s criminal history that he has been afforded numerous opportunities to moderate and curb his impulsivity to offend. None of those measures have resulted in a reduction in the level of either consistency or seriousness of the Applicant’s offending. It starts in June 2012, and intensifies from April 2013 onwards from which time it became very serious.
The second observation about the cumulative effect of the Applicant’s offending is that it is demonstrative of a failure within him to develop any semblance of respect for lawful authority. He would have been present at each of the sentencing episodes. Even a cursory review of the sentencing remarks clearly indicates that sentencing judicial officers have given him respective “dressing-downs” for his conduct. He appears to have taken nothing from those urgings. He also does not respect the rules governing the operation of motor vehicles on Australian roads. He has convictions for a significant number of driving offences, which can be summarised as follows:
·September 2013: Drive with high range PCA;
·August 2015: Drive motor vehicle during disqualification period;
·May 2017: Drive motor vehicle during disqualification period;
·July 2017: Drive motor vehicle during disqualification period (x2 counts);
·August 2017: Drive motor vehicle during disqualification period;
·January 2018: Driver or rider state false name or home address;
·March 2018: Drive motor vehicle during disqualification period (x3 counts);
·May 2018: Drive motor vehicle menaces another with intent; and
·May 2018: Drive motor vehicle during disqualification period.
As noted by the learned Sentencing Magistrate when sentencing the Applicant for a domestic violence offence in April 2013:[35]
“HER HONOUR:
…
Why are you doing all this? Do you have a problem with anger management or not? You have got a baby together. Somehow you have to learn to live with each other without you slapping her around or pushing her around, because you look like you are pretty strong to me. I have not seen your partner. The baby is only young, but this offence carries consideration of a gaol sentence. That is how serious it is…”
[35] Ibid, G8, page 39, lines 49-50, and page 40, lines 1-3.
When hearing the Applicant’s appeals against the severity of his sentences for his offending in 2018, the learned Acting Judge Hosking SC made reference to the Applicant’s driving history and said this:[36]
“Then for one of the appellant’s innumerable drive whilst disqualified offences, and he has never held a license in New South Wales, he was, as I understand it, originally released on a good behaviour bond and ended up with a term of six months imprisonment. In my view there is nothing unreasonable about that sentence…”
[my underlining and emphasis]
[36] Ibid, G7, page 37.
The cumulative effect of the nature and extent of the Applicant’s repeated offending clearly attracts application of this sub-paragraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction asks a decision-maker to determine whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The material discloses two incoming passenger cards[37] completed by the Applicant. The first is dated 11 August 2017 and the second is dated 14 March 2018. There is a contention against the Applicant that he falsely completed those two incoming passenger cards upon his re-entry into Australia on those dates. In both of those cards, the Applicant was asked the following question “Do you have any criminal conviction/s?” and his response was “No”. By 11 August 2017, the date of the first incoming passenger card, the Applicant knew he had appeared before lawful authority for sentencing on at least six occasions involving the commission of eight offences. By 14 March 2018, the date of the second incoming passenger card, the Applicant knew he had appeared before lawful authority for sentencing on at least eight occasions for approximately ten offences.
[37] Ibid, G20, pages 81-82.
The incorrect completion of both incoming passenger cards was put to the Applicant in cross-examination. After accepting that he did complete the cards and that his signature in both of them was in fact his signature, the following exchange transpired:[38]
[38] Transcript, 30 January 2020, page 51, lines 19-45, page 52, lines 1-47 and page 53, lines 1-26.
“MS SCRIVA:[39] Now that’s a photocopy of an incoming passenger card. Is that your signature on the - about halfway down the page, underneath - it looks like it’s on one side of the card. It says your - - -
[39] Ms Melissa Scriva, Solicitor, Sparke Helmore Lawyers, representative of the Respondent.
WITNESS: Sorry, ma’am, what number?
MS SCRIVA: Sorry, page 81.
WITNESS: Yes.
MS SCRIVA: It’s a copy of an incoming passenger card that you completed on 11 August 2017?
WITNESS: Yes, ma’am.
MS SCRIVA: That’s your signature there on that card?
WITNESS: Yes, ma’am.
MS SCRIVA: You accept that you ticked no to the question, ‘Do you have any criminal convictions?’ It’s on the left-hand side. It’s very difficult to read but there’s a question there above the word ‘declaration’?
WITNESS: Yes.
MS SCRIVA: It says, ‘Do you have any criminal convictions?’, and you ticked ‘No’ to that question?
WITNESS: Yes, ma’am.
MS SCRIVA: That wasn’t true, was it?
WITNESS: Can I explain to that?
MS SCRIVA: Just answer the question, that wasn’t true?
WITNESS: Because I couldn’t understand the question.
MS SCRIVA: You didn’t understand the question?
WITNESS: Yes.
MS SCRIVA: So the question said do you have any criminal convictions - - -
WITNESS: It’s been - after seven years I went back to Fiji, I thought my criminal record was already in the system. I wasn’t aware of anything regarding the - my criminal - - -
MS SCRIVA: So you weren’t aware that prior to August 2017 you had criminal convictions?
WITNESS: Yes, I thought it was already in the system so it was my mistake just to tick no. I wasn’t aware.
MS SCRIVA: So it was a mistake?
WITNESS: Yes.
MS SCRIVA: But do you accept now that that was the incorrect answer?
WITNESS: Yes, ma’am.
MS SCRIVA: But in any event you said you made a mistake on 11 August 2017. Over the page on page 82?
WITNESS: Yes.
MS SCRIVA: There’s a second incoming passenger card dated 14 March 2018.
WITNESS: Yes.
MS SCRIVA: That’s your signature on that card?
WITNESS: Yes.
MS SCRIVA: You were directed to answer the same question again, ‘Do you have any criminal convictions?’, and again you ticked ‘No’. Do you accept that?
WITNESS: Yes, ma’am.
MS SCRIVA: Again, that was incorrect, wasn’t it?
WITNESS: Yes, ma’am.
MS SCRIVA: What I’m suggesting to you Mr Navugavuga is that you knew at the time you had criminal convictions but that you lied on that incoming passenger card. Would you agree with that or not?
WITNESS: Then I - then I realised - then I realised I’m supposed to be - I tick ‘Yes’, instead of saying ‘No’. Because I thought my criminal record was already in the system.
MS SCRIVA: What do you mean when you say you thought it was already in the system?
WITNESS: Because that’s what I said, the first time I fill in the card so I was a bit confused coming back to Australia, so I had to say no.
INTERPRETER: He just - he didn’t understand the question, that’s why he put down no.”
I have difficulty in accepting the Applicant’s evidence about “being confused” about the question in the incoming passenger cards. I likewise have difficulty in accepting his evidence that he thought he did not have to report anything about criminal offending in the incoming passenger cards because “…my criminal record was already in the system…” As will be noted from the abovementioned quoted portion of the Transcript, the Applicant accepted that his answers on both cards were incorrect. While not determinative on the point, I also have difficulty in accepting the Applicant’s evidence in circumstances where both of the incoming passenger cards are extremely proximate to a date involving the Applicant’s appearance in court for sentencing.
The first card is dated 11 August 2017. The criminal history reveals that the Applicant was sentenced for “drive motor vehicle during disqualification period” in the Blacktown Local Court on the immediately preceding day, 10 August 2017. The second card is dated 14 March 2018. The criminal history also reveals that the Applicant was dealt with in the Central Local Court on the immediately following day, 15 March 2018, for four offences. In those circumstances, I find it very difficult to accept that when filling out either or both incoming passenger cards, the Applicant somehow thought his offending history had lapsed into some kind of irrelevance such that it did not have to be disclosed.
In my view, the Applicant’s conduct in providing false and misleading information about his criminal offending in the subject incoming passenger cards attracts the application of this sub-paragraph (g) in favour of a finding that his conduct is of a very serious nature.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction points a decision-maker to the question of 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 that non-citizen’s migration status. In the instant case, the Applicant has received such a warning.
By letter dated 10 August 2016, the Applicant received such a warning. A copy of the warning letter appears in the material.[40] The warning letter makes it abundantly clear that:[41]
“You were informed by a notice dated 27 May 2016 that the Minister for Immigration and Border Protection (the Minister) intended to consider whether to refuse your application for Partner (Temporary) (Class UK) visa lodged on 30 October 2013 under subsection 501(1) of the Migration Act 1958 (the Act), on character grounds.
…
On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act. However, you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you. A copy of section 501 of the Act is attached for your information.
It is important to note that if you ever make a future application for a visa or Australian citizenship, or complete an incoming passenger card when entering Australia, you are required by law to disclose any criminal convictions that you may have in that application or passenger card. The consequences of failing to disclose your convictions are serious.
…”
[emphasis in original, my underlining]
[40] Exhibit 11, s 501 G-Documents, G19, pages 79-80.
[41] Ibid, page 79.
Despite this warning (received in August 2016) the Applicant proceeded to commit further offences that found him before lawful authority on:
·8 May 2017 – drive motor vehicle during disqualification period;
·10 July 2017 - drive motor vehicle during disqualification period (x2 counts);
·10 August 2017 - drive motor vehicle during disqualification period;
·9 January 2018 – drive or rider state false name or home address;
·15 March 2018 - drive motor vehicle during disqualification period (x3 counts);
·15 March 2018 – assault occasioning bodily harm;
·23 May 2018 - drive motor vehicle during disqualification period;
·23 May 2018 – assault occasioning actual bodily harm;
·23 May 2018 – stalk/intimidate intend fear physical etc. harm (domestic);
·23 May 2018 – drive motor vehicle menaces another with intent; and
·6 August 2018 – appeal for the Applicant’s 2018 offending.
This Applicant has received the benefit of a warning in August 2016 that his criminal conduct was placing his visa status in serious jeopardy. He ignored that warning. Further to that, his offending continued virtually unabated after that warning and seems to have intensified and expanded. There is, to my mind, little more the Respondent Minister can do in order to warn him about the extremely serious effect of his offending conduct on his visa status. The Applicant’s ignorance of the warning undoubtedly points to the very serious nature of his offending history in this country.
An additional point can be noted from the warning. The warning places the Applicant on notice to make sure he accurately completed any future incoming passenger cards. For reasons outlined earlier in relation to the discussion about sub-paragraph (g), the Applicant incorrectly completed two passenger cards respectively dated one and two years after the warning.
The chapeau to the factors at paragraph 13.1.1 of the Direction reads as follows:
“(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: …”
[My underlining]
There is one further aspect to the Applicant’s conduct which, although not directly captured by the nine factors at paragraph 13.1.1(1) of the Direction, nevertheless constitutes “other conduct” relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
That aspect involved the Applicant refusing to follow a lawful direction issued to him by one of his supervisors while in criminal custody. His overseer noted the following occurrence on 7 October 2018 while the Applicant was working in the food services section of the relevant correctional facility:[42]
“At Approximately 09:00am on 07th October 18 I was performing my duties as overseer at the DDL food services Kitchen Plating room, I saw Inmate known to me as NAVUGAVUGA, standing at the loading dock, I told NAVUGAVUGA to work in the plating room as we were short of inmates, I said to inmate NAVUGAVUGA ‘I AM SHORT OF INMATES IN THE PLATING ROOM SO COME WITH ME AND GIVE ME A HAND ON THE PLATING LINE.’ NAVUGAVUGA said ‘NO I DON’T WORK IN THE PLATE ROOM, GO AND FIND ANOTHER INMATE.’ I said ‘I NEED YOU TO WORK IN THE PLATING ROOM NOW, ARE YOU GOING TO TELL ME WHAT TO DO AND FIND ANOTHER INMATE SOMEWHERE ELS?’ NAVUGAVUGA said ‘NO NO NO, I DON’T WORK IN THERE.’ I said ‘NAVUGAVUGA, DIRECT ORDER, I WANT YOU TO GO WORK IN THE PLATE ROOM, NOW.’ NAVUGAVUGA said ‘NO. I AM NOT GOING IN THERE, I DON’T CARE, WHAT ABOUT OTHERS, GO GET OTHERS TO GO THERE.’ I said ‘I REPEAT, DIRECT ORDER, GO WORK IN THE PLATING LINE IN THE PLATE ROOM, ARE YOU REFUSING A DIRECT ORDER, I HAVE TO GIVE YOU DIRECTIVE TWICE NOW.’ NAVUGAVUGA said ‘YES I AM REFUSING, I DON’T CARE, I AM NOT GOING TO WORKING IN THE PLATE ROOM.’ I said ‘GO GET CHANGED YOU ARE GOING BACK TO THE WING.’ NAVUGAVUGA said ‘NO I WILL NOT GO BACK TO THE WING, I WILL WORK HERE ON THE LOADING DOCK AND NOT IN THE PLATTING ROOM, I WON’T GO BACK.’ I said ‘DIRECT ORDER, GET CHANGED AND GO BACK TO WING.’ NAVUGAVUGA said ‘NO I WILL NOT GO BACK, I WILL STAY HERE AND WORK ON THE LOADING DOCK, I REFUSE TO GO BACK.’ By now NAVUGAVUGA has refused 3 directives. At this point I had the radio in my hand to call for the first responding officers, I think he sensed it and decided to go back to the wing.
At no time was Inmate NAVUGAVUGA was given permission to refuse 3 directives form an officer, nor was inmate NAVUGAVUGA given a choice to work where he wants to and refuse to work as instructed by an officer…”
[errors in original]
[42] Exhibit 12, Tender Bundle, TB4, pages 111-112.
The Applicant pleaded “guilty” to this incident as is clear from the inmate discipline action form appearing in the material.[43] For this “offence in custody” the material discloses a “Offence In Custody – Result Notification” involving the relevant custodial facility depriving the Applicant of the following privilege: “Weekly buyups for a period of 14 days from 08/10/2018 to 22/10/2018”.[44]
[43] Ibid, page 115.
[44] Ibid, page 123.
While this conduct in criminal custody did not see the Applicant convicted for a “crime committed while the non-citizen was in immigration detention” pursuant to sub-paragraph (i) of the paragraph 13.1.1(1) of the Direction, I am of the view that this conduct while in criminal custody nevertheless falls under the abovementioned chapeau to the factors appearing at 13.1.1 and is indicative of the nature and seriousness of the Applicant’s offending conduct. I am therefore of the view that the totality of this particular aspect of his conduct in criminal custody is relevant to the determination of the instant application, and is captured by the reference to “other conduct” referred to in the abovementioned chapeau to paragraph 13.1.1(1) of the Direction.
Having regard to (1) the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c) (d), (e), (f), (g) and (h) of paragraph 13.1.1(1) of the Direction are relevant, and (2) the “other conduct” arising from the Applicant’s conduct in criminal custody, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that:[45]
“The nature of the harm if the Applicant were to reoffend is very serious and is likely to involve significant physical, psychological harm to members of the Australian community such that any risk of reoffending is unacceptable.”
[45] Exhibit 10, Respondent’s SFIC, page 9, paragraph [26].
In my view, the contention is well founded, especially when one has regard to the provisions of paragraph 6.3(4) of the Direction, which stipulates that decision-makers should be guided by the principle that criminal offending 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. Having regard to (1) the provisions of paragraph 6.3(4) of the Direction and (2) the nature of the Applicant’s offending to date, the Respondent’s abovementioned contention is correct.
The Applicant’s criminal history runs from 2012 to 2018. I have previously summarised, both in general terms and with particularity, the very serious nature of his offending. I have also attempted to profile his offending from the perspective of its frequency and level of seriousness during its six year span. It cannot be denied that the Applicant has significant difficulty with accepting the dictates of lawful authority governing the Australian community to which he seeks to be readmitted. His offending has seen him removed from the mainstream of the Australian community for a constant period since August 2018. The theme of petulantly and stubbornly refusing to follow lawful authority is evident from his above-described conduct in criminal custody in October 2018.
There is little or nothing in the material to suggest the Applicant has overcome his predisposition towards violent resolutions to overcome perceived difficulties. Accordingly, the weight of the evidence suggests that, were he to re-offend if returned to that Australian community, the consequences would be very serious and would, quite conceivably, involve significant, and potentially catastrophic physical, financial and psychological harm to members of that community, particularly to women and unsuspecting people brought into the orbit of his offending, such as children.
It cannot be ignored that the Applicant has continued to offend – extensively so – since receiving a warning from the Respondent Minister in 2016 that continued offending would, most likely, adversely affect his visa status in this country. All too often, Applicants such as the individual presently before the Tribunal, complain about or raise the spectre of “not understanding” the law or regulations governing the status of visas. In my view, there is nothing complicated about the Respondent Minister’s abovementioned warning in 2016. All the Applicant had to do after receiving that warning was to stop offending. He failed to do so, and continued to offend on an increasingly serious basis. Indeed, his stubborn refusal to submit to lawful authority seems to have found its way into the relatively closed confines of criminal custody.
It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community – especially women and children drawn into the orbit of the offending - would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[65]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[65] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
In Afu v Minister for Home Affairs (“Afu”),[66] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[66] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[67] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[68] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [69]
[My underlining]
[67] [2019] FCA 500.
[68] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[69] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[70]
[70] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[71]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[72]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[73]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[74]
[71] Afu at paragraph [85].
[72] FYBR at paragraph [42].
[73] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[74] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a work history in this country. He speaks of an involvement in the Australian workforce as follows:[75]
“From 2011 to 2015 – Labourer – [Name of business redacted]
From 2016 to 2017– Carpentor [sic] – [Name of business redacted]”
[75] Exhibit 11, s 501 G-Documents, G12, page 57.
In his written material there is evidence of the Applicant obtaining respective qualifications in the areas of food safety/food handling[76] and barbering/grooming.[77] He gave evidence of wanting to find work in either of these fields were he to be returned to the Australian community. In particular, he spoke of one day commencing his own barbershop.
[76] Exhibit 6(a), Applicant’s Certificates.
[77] Exhibit 8, Applicant’s Barbering Workshop Certificate.
In his “Personal Circumstances Form”, the Applicant says “I will endevour [sic] when I’am [sic] released to always work hard for the Australian community.”[78]
[78] Exhibit 11, s 501 G Documents, G12, page 57.
This Applicant’s very serious unlawful conduct and resulting extensive criminal history – across just six years in this country - has surely breached the expectations of the Australian community. His offending has been consistent and often very serious. It is clearly demonstrative of his failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the Applicant has made minimal positive contributions to the Australian community;[79]
(ii)the Applicant has lived in mainstream Australian community for approximately eight years;[80]
(iii)the removal of the Applicant may have an adverse impact on his two minor biological children;[81]
(iv)the very serious nature of the Applicant’s offending to date to other people in the community, most notably his former domestic spouse;
(v)the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority, the personal rights of others, and a refusal to follow the rules governing Australian public roads;
(vi)the lack of current, independent and expert evidence (1) addressing the factors giving rise to his propensity to offend, and (2) measuring the level of the Applicant’s insight into the nature and severity of his offending;
(vii)my finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[79] The Direction, paragraph 6.3(7).
[80] The Direction, paragraph 6.3(5).
[81] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to Fiji. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent: “To the extent this consideration weighs in the applicant’s favour, it does not outweigh the Primary Considerations against revocation.”[82]
[82] Exhibit 10, Respondent’s SFIC, page 143, paragraph [42].
The Applicant was born in 1988. He came to Australia in 2010. He has thus spent the majority of his life in Fiji. His offending history commenced under two years after his arrival in Australia, from October 2010 to July 2012. In accordance with paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances. As against that, there is some measure of evidence that he has made some, albeit relatively minor, contributions to Australia via his employment history (from 2011 to 2017). This would attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
Greater (but not determinative) weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). In Australia, in addition to his two biological children, the Applicant has an uncle and a cousin (“and their kids”)[83]. In Fiji, the Applicant has “my mum and dad, my two brothers…”[84] It is clear that his two infant children, his uncle, cousin and their children, would be impacted by the Applicant’s removal to Fiji. As against that, the Applicant does have both of his parents and both of his brothers in Fiji. At best, a slight measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
[83] Exhibit 11, s 501 G-Documents, G12, page 59.
[84] Ibid, page 55.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. No doubt, victims such as his former wife and his former work colleague, who have both been on the receiving end of the Applicant’s very serious violent conduct, may have had something to say about the impact of the Applicant’s continued presence in Australia upon them.
However, in the absence of such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact of the Applicant’s continued presence in Australia would have on those and any other of his victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s Visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant contends that:[85]
“In regards to the extent of impediments if removed from australia i would like to tell you that it will be very hard and near impossible for me to get a job back in fiji and that i will be in a very bad financial position. i will not be able to support my two kids here in australia, Also i will not be able to support my dad, mum and two brothers in Fiji and the rest if my family member. So it will be a total calamity for my family in australia and fiji, all of them will be affected.”
[errors in original]
[85] Ibid, page 59.
The Applicant is a man of 31 years of age. In response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[86] I accept that medical care and governmental social support in Fiji[87] may not be at the same level as that available to the Applicant in Australia. However, he will have access to those things in the context of what is generally available to other citizens of Fiji. Thus, the Applicant’s age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[86] Exhibit 11, s 501 G-Documents, G12, page 58; see also Section 14.5(1)(a) of the Direction.
[87] Section 14.5(1)(c) of the Direction.
I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Fiji.[88] It was clear at the hearing that the Applicant is fluent in his Fijian mother tongue.[89] As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Fiji.
[88] Section 14.5(1)(b) of the Direction.
[89] The Applicant had a Fijian interpreter at the hearing to assist with translation of certain parts of the hearing from English into Fijian and from Fijian into English.
In his material, the Applicant speaks of adverse outcomes were he to be returned to Fiji as follows:[90]
“Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘Yes’ box]
If yes, please describe your concerns and what you think will happen to you if you return.
As if I was returned to fiji I will not have any work to support my family and my kids in Australia or fiji. as in fiji it’s very hard and impossible to find jobs and my family will be in hardship.”
[errors in original]
[90] Exhibit 11, s 501 G-Documents, G12, page 58.
While I accept the Applicant may face some difficulty in re-establishing himself in Fiji, this factor would present as a short-term hardship and would not preclude his successful re-settlement there.
The Applicant also has an employment history in Australia. He has worked in the labouring and construction fields in this country (as well as obtaining certificates in food safety and barbering) and there is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in any of these fields upon his return to Fiji.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of slight weight to the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: limited weight;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: limited weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the very significant weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
170. I certify that the preceding one-hundred and sixty-nine (169) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...............................SGD.........................................
Associate
Dated: 12 February 2020
Date of hearing: 30 January 2020 Applicant: In person Solicitors for the Respondent: Ms Melissa Scriva
Sparke Helmore Lawyers“A”
EXHIBIT ANNEXURE
APPLICANT’S MATERIAL
No.
Description
Date of document
Date of filing
1
Applicant’s identification material:
(a) Republic of Fiji Leaner Permit
(b) Fiji Revenue & Customs Authority, Fiji National Provident Fund Identification Card;
(c) NSW Photo Identification;
(d) Republic of Fiji Provisional Licence; and
(e) Occupational Health and Safety Construction Induction Card
Undated
18 Jan 2020
2
Photographic Evidence of Children
Undated
18 Jan 2020
3
Applicant’s Statement
17 Jan 2020
18 Jan 2020
4
Statement of Applicant’s Father
6 Jan 2020
18 Jan 2020
5
Statement from the Dawn de Loas Correctional Centre, Education Services Coordinator
3 Oct 2018
18 Jan 2020
6
Applicant’s Certificates:
(a) Statement of Attainment in SITXFSA001 Use Hygienic Practices for Food Safety & SITXFSA002 Participate in Safe Food Handling Practices dated 3 October 2018
(b) Certificate of Participation in “Enough is Enough Anti Violence Movement” at Dawn De Loas Correctional Centre dated 8 May 2018; and
(c) Certificate of Acknowledgement of the Applicant’s Donation of a Christmas Hamper to the Homeless in 2019
Various
18 Jan 2020
7
Letter from the Applicant’s uncle
22 Jan 2020
23 Jan 2020
8
Applicant’s Barbering Workshop Certificate
25 June 2019
23 Jan 2020
9
Respondent’s Statement of Facts, Issues and Contentions
21 Jan 2020
21 Jan 2020
RESPONDENT’S MATERIAL
10
Section 501 G-Documents
Various
18 Dec 2019
11
Respondent’s Tender Bundle
Various
21 Jan 2020
12
Respondent’s Supplementary Tender Bundle
Various
23 Jan 2020
14
Family Court of Australia/Federal Circuit Court of Australia Child Dispute Services Fact Sheet: Exposure to Family Violence and its Effect on Children
1 Nov 2013
30 Jan 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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Remedies
0
12
0