Neal and Minister for Home Affairs (Migration)
[2019] AATA 4379
•28 October 2019
Neal and Minister for Home Affairs (Migration) [2019] AATA 4379 (28 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/4872
Re:Lorrie Neal
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:28 October 2019
Place:Sydney
(1) The decision of the Respondent dated 2 August 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside;
(2) In substitution, the cancellation of the Applicant’s Class BF transitional (permanent) visa under s 501(3A) is revoked under s 501CA(4).
...........................[sgd]........................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory visa cancellation – Class BF (transitional) visa – failure to pass the character test – substantial criminal record – whether another reason why cancellation decision should be revoked – Direction No. 79 – primary 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 from Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCFAC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
28 October 2019
Mr Lorrie Neal (‘the Applicant’), a citizen of the United Kingdom, was born in 1971.[1] He travelled to Australia by boat with his parents and two older sisters arriving at Port Fremantle in May 1974 when he was two years old.[2] Prior to its cancellation, the Applicant held a Class BF transitional (permanent) visa.[3]
[1] Exhibit R1, G13, 81.
[2] Exhibit R1, G14, 111.
[3] Exhibit R1, G12, 62.
On 19 April 2018, he was convicted in the Local Court of New South Wales at Coffs Harbour of Contravene prohibition/restriction in AVO (domestic).[4] The Applicant was sentenced to 12 months’ imprisonment, commencing on 19 June 2018, with a non-parole period of six months.[5] The sentence was confirmed on appeal by the District Court of New South Wales on 13 June 2019.[6]
[4] Exhibit R1, G3, 31.
[5] Exhibit R1, G5, 38-39.
[6] Exhibit R1, G4, 35-36.
On 26 October 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[7] On this date, the Applicant was serving a sentence of full-time imprisonment at Grafton Correctional Centre in New South Wales.
[7] Exhibit R1, G8, 46-49.
On 8 November 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[8]
[8] Exhibit R1, G13, 64-66.
On 2 August 2019, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[9]
[9] Exhibit R1, G2, 11-29.
On 12 August 2019, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of this decision.[10]
[10] Exhibit R1, G1, 1-3.
The matter was heard by the Tribunal at a hearing in Sydney on 9 October 2019. The Applicant attended the hearing in person and was self-represented.
The following persons gave oral evidence at the hearing:
·the Applicant;
·Mrs Patricia Neal (the Applicant’s mother);
·Mr Ron Neal (the Applicant’s father).
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 20 September 2019;
·G documents (G1 to G34 pages 1 – 257) – Exhibit R1;
·Extracts from summons material (pages 1 –114) – Exhibit R2.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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) …; 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.
Paragraph 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Subsection 501CA(4) provides:
(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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter provide the framework within which the considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
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.
The following Principles are set out in paragraph 6.3:
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 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.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(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.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens 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.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The Other considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties [to Australia];
(c) Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that “[b]oth primary and other considerations may weigh in favour of, or against … cancellation of the visa.” Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[11] the Full Court of the Federal Court of Australia made the following observations in relation to s 501CA(4):
... 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 ...[12]
[11] [2018] FCAFC 151.
[12] 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).
The issues for determination are whether:
a)the Applicant passes the character test; and
b)there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Arrival in Australia and background
The Applicant arrived in Australia with his parents and two older sisters in May 1974. They travelled from England by boat arriving at Port Fremantle and were granted entry permits on arrival.[13] The Applicant’s father worked as a coal miner in South Australia and Western Australia. The family moved to New South Wales where his parents managed a caravan park in Camden for one year before his father resumed working in coalmines in Lithgow, Appin, Oakdale and Tahmoor Colliery.[14]
[13] Exhibit R1, G14, 111.
[14] Exhibit R1, G17, 164
The Applicant’s parents bought a house in Oakdale where the Applicant attended primary school. He attended Camden High School and left school at the age of 16 years to start an apprenticeship as a boilermaker at Nepean Engineering at Narellan where he worked from 1987 to 1991. He moved back to Oakdale and had a fabrication and welding business from 1991 to 2000.[15] He worked at boilermaker workshops around Western Sydney, including at P.L Wood Engineering in Camden from 2000 to 2006. He moved to Newcastle where he worked as a welder from 2006 to 2008. From 2008 to 2015 he worked as a boilermaker at T.E. Engineering Qld.[16]
[15] Exhibit R1, G17, 164.
[16] Exhibit R1, G14, 105.
In 1989 the Applicant was involved in a car accident in which he sustained a serious head injury and was in a coma.[17] He had rehabilitation for a period of 12 months at Parramatta/Westmead Hospital,[18] following which he returned to work in his own business.[19]
[17] Exhibit R1, G15, 118-121.
[18] Exhibit R1, G15, 123-151.
[19] Exhibit R1, G17, 164.
The Applicant married his first wife, Jodie Neal when he was aged 19 years.[20] They were married for 17 years and had two children, a son and a daughter, born in 1992 and 1994 respectively.
[20] Exhibit R1, G17, 162.
In September 2012 the Applicant married his second wife, Laura Neal.[21] Their son was born in 2014.[22] When he was three months’ old, he was taken into care by the Department of Community Services (DOCS).[23] He is now residing with his foster mother in Queensland,[24] and is under the guardianship of Child Safety until the age of 18 years.[25]
[21] Exhibit R1, G13, 82.
[22] Exhibit R1, G13, 83.
[23] Exhibit R1, G17, 160.
[24] Transcript p37.
[25] Exhibit R1, G30, 220.
The Applicant’s parents became Australian citizens in March 2007.[26] They currently reside on a two and a half acre property in Emerald Beach, Coffs Harbour.[27]
[26] Exhibit R1, G14, 112-113.
[27] Exhibit R1, G17, 171.
Criminal History
A Nationally Coordinated Criminal History Check dated 8 October 2018[28] issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.
[28] Exhibit R1, G3, 30-34.
Early offending
In June 1989 the Applicant was convicted in the Minda Local Court of a driving offence, Manner dangerous and was fined.[29]
[29] Exhibit R1, G3, 34.
In May 1997 the Applicant was convicted in the Camden Local Court of Possession of prohibited drug and was fined.[30]
[30] Exhibit R1, G3, 34.
In June 2009 the Applicant was convicted of three weapon related offences, including Possess unregistered firearm for which he was fined.[31] In his oral evidence the Applicant told the Tribunal that this offence related to him being in possession of a slug gun.[32]
[31] Exhibit R1, G3, 34.
[32] Transcript p61.
In September 2012 the Applicant appeared in the Southport Magistrates Court in relation to drug possession charges. No conviction was recorded and he was fined $400.[33]
[33] Exhibit R1, G3, 34.
Domestic violence offences and contravention of domestic violence/apprehended violence orders
In November 2009 the Applicant was convicted by the Coffs Harbour Local Court for Contravene AVO (Domestic) in relation to his first wife, Jodie Neal. At the time of the contravention, he was subject to a 12 month bond imposed following an earlier contravention of an AVO (domestic) in July 2009.[34] The Applicant was required to submit to all reasonable directions of probation and parole, particularly in relation to counselling relationships, anger management and domestic abuse programs.[35]
[34] Exhibit R1, G3, 34.
[35] Exhibit R1, G3, 34.
On 8 May 2013 a Domestic and Family Violence order was issued in the Southport Magistrates Court between the Applicant and his second wife, Laura Neal. It was ordered that the Applicant be of good behaviour towards her, that he not commit domestic violence against her, and that he not expose her children to domestic violence. At the time the couple were separated but residing together.[36]
[36] Exhibit R2, 42.
The circumstances surrounding the issuing of the Domestic and Family Violence order were that the victim arrived home at 8pm and the Applicant asked her to return his mobile phone which he had loaned her earlier. He noticed she had deleted items from the phone and they began to argue. The victim became scared and proceeded to call 000 but did not speak. The Queensland Police Service Court Brief details what then occurred:
The respondent has then walked up to the aggrieved, slapped her in the face before punching the aggrieved in the right leg. As the aggrieved believed police were on the way she attempted to calm the situation before proceeding to her room. The respondent then requested that the aggrieved hand over her phone, to which she replied she did not wish to anger the respondent further. Approximately 10 minutes later the respondent said to the aggrieved, ‘I want to show you a new trick’, before pouring lighter fluid into a vase and setting it on fire. This scared the aggrieved, as she believed he was going to throw it at her. The aggrieved attempted to run out the front door, which the respondent blocked and the aggrieved left via the back door, retreating to her neighbour’s house where police were called.[37]
[37] Exhibit R2, 42.
The Applicant was asked about this incident during cross-examination. He said that at the time he and his wife were both using ice. He agreed that his wife was pregnant at the time.[38]
[38] Transcript p28.
On 11 January 2014 the Applicant was charged with Contravention of domestic violence order made on 8 May 2013. The Queensland Police Service Court Brief records the circumstances surrounding the offence. The Applicant and the victim (Laura Neal) were engaged in a heated argument. The Applicant threw the victim’s clothing on the ground and then threatened to light the clothing after pouring some type of accelerant on it. At the time of the threat he was holding a box of matches and a match. The victim begged the Applicant not to set the clothing alight. She then crawled out of a window of the house and ran to a neighbour to ask them to call the Police. During the altercation the Applicant made numerous threats and repeatedly insulted the victim.[39]
[39] Exhibit R2, 1.
On 16 January 2014, the Applicant appeared before the Southport Magistrates Court in relation to the contravention of the domestic violence order. While no conviction was recorded he was subject to probation for 12 months.[40]
[40] Exhibit R1, G3, 34.
The Applicant was questioned about this charge during cross-examination. He told the Tribunal that he did not throw accelerant on the clothing and claimed it was water. He agreed that at the time of the offence his wife was nine months’ pregnant with their son.[41]
[41] Transcript p 28-29.
In July 2015 the Applicant was found by the Southport Magistrates Court to have breached the January 2014 probation order, and he was admonished and discharged with a conviction recorded.[42]
[42] Exhibit R1, G3, 34.
In September 2015 the Applicant appeared before the Southport Magistrates Court for a fraud offence and a breach of bail. No conviction was recorded but he was ordered to undertake 200 hours of community service.[43] He appeared in the Byron Bay Local Court on 1 October 2015 on a drug offence and was fined $400.[44]
[43] Exhibit R1, G3, 33.
[44] Exhibit R1, G3, 33
In February 2016, the Applicant was convicted of common assault in relation to a domestic violence offence and was sentenced to four months’ imprisonment suspended for two years. He was also found guilty of breaching the community service order imposed in relation to the fraud offence, and was sentenced to one month’s imprisonment suspended for two years. At the same time he was also convicted of three contravention of AVOs and assault or obstruct police. He was convicted and sentenced to two months’ imprisonment suspended for two years.[45]
[45] Exhibit R1, G3, 33.
The Applicant appeared before the Southport Magistrates Court again in May 2016 for offences, which included four breaches of bail and two contraventions of domestic violence orders. He was convicted and sentenced to one and two months’ imprisonment suspended for two years, and fines were imposed.[46] He appeared before the Southport Magistrates Court again in July 2016 on four charges, including drug possession and contraventions of domestic violence orders. He was sentenced to one month’s imprisonment.[47]
[46] Exhibit R1, G3, 33
[47] Exhibit R1, G3, 32.
The circumstances surrounding the May 2016 conviction are detailed in a New South Wales Police Facts Sheet.[48] On 8 April 2016 the Applicant and the victim, Laura Neal, were inside their caravan and became involved in an argument. The Applicant hit the victim on her leg and she picked up an empty container and threw it at him. She proceeded to leave the caravan, and the Applicant grabbed her and forcibly placed both his hands around her neck in a choking motion. She attempted to remove his hands from her throat and grabbed her phone and called 000. The call was answered and screaming was heard by the operator before the Applicant grabbed the phone and hung up. He let go of the victim and she yelled for help and ran from the caravan. The Applicant was arrested for domestic assault on the victim and was placed on bail conditions and an AVO was granted. On 24 April 2016 he was arrested for breaching the AVO and a breach of bail.[49]
[48] Exhibit R2, 49.
[49] Exhibit R2, 46.
In July 2016, the Applicant was also convicted by the Southport Magistrates Court of contravention of domestic violence orders, breach of bail and common assault (domestic violence). He was sentenced to terms of imprisonment of one and eight months to be served concurrently.[50]
[50] Exhibit R1, G3, 32.
The circumstances surrounding these offences are detailed in a Queensland Corrective Services Report.[51] The Applicant was attending court and the victim, Laura Neal, accompanied him. She went to move her car and was sitting in the vehicle when the Applicant approached her asking her what she was doing. Her phone rang and he grabbed it and said it was another male calling her. He became angry and slammed the door shut on her causing her pain and making her cry. He yelled at her for taking too long to return to court. He accused her of not being supportive, and as she tried to walk away he followed her and made her feel intimidated. He kept following her and verbally abused and swore at her.
[51] Exhibit R2, 63.
In November 2016, the Applicant was convicted by the Southport Magistrates Court of two contraventions of domestic violence orders and was sentenced to terms of imprisonment of one and two months to be served concurrently.[52]
[52] Exhibit R1, G3, 32.
In October 2017, the Applicant was convicted in the Coffs Harbour Local Court of three offences being Resist officer in execution of duty, Assault occasioning actual bodily harm, and Contravene prohibition/restriction in AVO (domestic). He was fined and given a bond of two years of supervision, including anger management counselling.[53]
[53] Exhibit R1, G3, 31.
April 2018 convictions
On 19 April 2018, the Applicant was convicted in the Coffs Harbour Local Court of the offences detailed below, for which he received a total sentence of 14 months’ imprisonment, commencing on 19 April 2018 and concluding on 18 June 2019, with a parole release date on 18 December 2018.[54] The sentences were confirmed on appeal at the District Court of New South Wales on 13 June 2018.
- Contravene prohibition/restriction in AVO (Domestic) − 12 months’ imprisonment, from 19 June 2018 to 18 June 2019, with non−parole period of six months;
- (Call up) Assault occasioning actual bodily harm (DV) — six months’ imprisonment, from 19 April 2018 to 18 October 2018;
- (Call up) Contravene prohibition/restriction in AVO (Domestic) — three months’ imprisonment, from 19 July 2018 to 18 October 2018;
- (Call up) Resist officer in execution of duty − one month imprisonment, from 19 April 2018 to 18 May 2018.
[54] Exhibit R1, G3, 31.
The sentencing remarks of Magistrate Gibson of the Coffs Harbour Local Court indicate that the Applicant pleaded guilty to Contravene AVO (domestic).[55] The Magistrate noted that the offence was ‘only one incident’, was ‘unplanned’, appeared to be ‘opportunistic’, and was a breach of a non-contact provision rather than involving any violence. The Magistrate remarked that the offence was aggravated by the fact that it was committed whilst the Applicant was on conditional liberty, breaching two s 9 bonds imposed on 13 October 2017.[56] These bonds related to offences of Assault occasioning actual bodily harm and Contravene AVO, committed on 8 and 24 April 2016 respectively against his wife, Laura Neal.
[55] Exhibit R1, G5, 37.
[56] Exhibit R1, G5, 37.
The Magistrate noted the Applicant’s poor compliance history, and also the repeat nature of his offending which was relevant to the issue of deterrence in relation to sentencing. While the Magistrate noted that the incident that resulted in the contravention involved no actual violence, due to the history between the Applicant and the victim, it caused the victim ‘considerable fear’.[57] The Magistrate further noted the Applicant’s 'lengthy history of domestic violence offences and contraventions’, including periods of custody in Queensland.[58]
[57] Exhibit R1, G5, 37.
[58] Exhibit R1, G5, 37.
The Magistrate further noted that when subject to a community service order, the Applicant’s compliance was ‘poor’ and he completed only 17 hours out of a 200 hour allocation.[59] It was also noted that the Applicant had a ‘poor response’ to past supervision and because of this the recommendation of community corrections was that it was unlikely the Applicant would benefit from any supervision.[60]
[59] Exhibit R1, G5, 37.
[60] Exhibit R1, G5, 37-38.
The Magistrate stated that there was 'a real need for specific deterrence', and that 'full−time custody is the only alternative', given the Applicant’s continual offending of domestic violence and breaches of orders, which 'clearly shows no regard for court orders'.[61]
[61] Exhibit R1, G5, 38.
On 13 June 2018, the District Court of New South Wales dismissed the Applicant’s appeal against the sentence.[62] In dismissing the appeal, Judge Payne observed that the Applicant had quite continuous offending against the same victim, as well as offending against another victim of domestic violence in 2009. While the Judge noted the Applicant’s parents were supportive and concerned about him, ‘[i]t just seems that there is a misunderstanding of the significance of domestic violence.’[63] The Judge considered the original sentences 'entirely appropriate'. [64]
[62] Exhibit R1, G4, 35-36.
[63] Exhibit R1, G4, 35.
[64] Exhibit R1, G4, 36.
During cross-examination the Applicant was asked about his statement in a letter dated 5 March 2019 to the National Character Cancellation Consideration Unit in which he stated:
I’m in here because I did do a crime a crime of no violence, death or theft. I am here through an argument with my wife. I done my time in gaol and now doing more time for the same crime.[65]
[65] Exhibit R1, G21, 192.
The Applicant told the Tribunal:
Well, that’s what it was because there was no hurting, no theft, no arguments, no violence. It was literally all the arguments I’ve had have been arguments. It’s not as if I walk over to her …
…
What I think I’ve done wrong? I haven’t turned around, I haven’t walked away, I’ve stayed there and pushed the argument. She’s pressed my buttons and I’ve followed through with it. And instead of turning around and walking the other way, which I should have done, I’ve stayed there with her. I should have just turned around and walked the other way. Which is what I’d do now…[66]
[66] Transcript p21.
Children including minor son born 2014
The Applicant has a son and a daughter born in 1992 and 1994 respectively.[67] He told the Tribunal that he has contact with them through Messenger and Facebook and often phone calls.[68] His son is very unhappy with him because he told the Applicant not to marry his second wife. His daughter lives in Queensland and his son lives in country NSW with his mother. Neither of them have children. He last saw his daughter a few months ago in Villawood and he last saw his son before he went to gaol in 2018.[69]
[67] Exhibit R1, G12, 73.
[68] Transcript p11.
[69] Transcript p12.
The Applicant’s youngest son was born in 2014. The Applicant told the Tribunal his son was taken into care by DOCS when he was three months’ old,[70] due to the arguments he was having with his wife,[71] and because of their abuse of ice.[72] He last saw his son in early 2018 before he went to gaol. He had supervised contact with his son in the presence of DOCS staff on a fortnightly basis.[73]
[70] Transcript p36.
[71] Transcript p36.
[72] Transcript p28
[73] Transcript p37.
The Applicant told the Tribunal that his son has been with a series of foster parents since he was taken into care.[74] He has been with the same foster mother who lives in in Queensland for four years and he is doing very well and performing well at school.[75] The Applicant said that once a month he is telephoned by a DOCS staff member and he speaks to his son. He has been doing this for about the past six months since he has been in Villawood. He did not speak to his son while he was in gaol.[76] They speak on the phone for about half an hour and the Applicant asks him about school.[77] His parents go to visit his son on a regular basis.
[74] Transcript p37-38.
[75] Transcript p38.
[76] Transcript p38-39.
[77] Transcript p39.
During cross-examination, the Applicant was asked about claims he made that he and his wife are working together for the return of their son from care.[78] He told the Tribunal that his son is fostered until the age of 18 years and neither he nor his ex-wife are able to re-gain custody of him.[79] If he were to remain in Australia, he would like to re-establish supervised contact with his son. Initially this would be on a monthly basis increasing to fortnightly and then weekly.[80] He said that his son is doing very well in his new family and is better off without him for now.[81]
[78] Exhibit R1, G17, 163.
[79] Transcript p43.
[80] Transcript p35.
[81] Transcript p36.
Time in prison and immigration detention
The Applicant was involved in two incidents while in immigration detention that involved verbal confrontations with staff members. On 22 February 2019, the Applicant displayed abusive and aggressive behaviour towards Serco staff. The Applicant told the Tribunal that this incident involved staff placing his birth certificate in property safe keeping, and him being accused of filming them with his mobile phone.[82] He thought he could keep the certificate with him, and during the conversation with staff his phone sounded and he held it up to read the message, not to film the staff.[83] The Applicant claims that he was making a joke when he offered to watch pornography on his phone to 'just to stop the argueing [sic]’.[84]
[82] Transcript p21.
[83] Exhibit R1, G30, 217
[84] Exhibit R1, G30, 217.
The second incident on 10 May 2019 involving him abusing and swearing at a Serco Officer, when the Applicant was refused a razor to shave, as he was one minute late. The Applicant admits there was a verbal argument and that he did remove the window from its runner to stop the staff closing it on him, however he did put it straight back and walked away. The Applicant said that he was very upset that day as he had heard that his former wife was sexually abused the night before.[85] When he calmed down he went and apologised to the Serco officer.[86]
[85] Transcript p21.
[86] Exhibit R1, G30, 218.
Remorse for offending
At the hearing the Applicant told the Tribunal:
Well I do take blame for what I’ve done. I do feel sorry for it, and do feel I shouldn’t have done it.
…
Pretty much everything I’ve done wrong in the past. The AVOs, the drugs, and that gun was not a gun, it was a slug gun.
…
But being in detention, being in gaol, has made me think about what I’m losing and what I’ve lost over the time that I’ve done wrong. And it’s - that’s the worst thing about the things that I’ve lost, and just losing still, yes.[87]
[87] Transcript p61.
The Applicant was asked what makes him think his behaviour will change if he is back in the Australian community. He told the Tribunal:
Well, I know what damage will happen to me if I ever do it again. I know what detention does to you. Everybody says, you know, it makes you think but that’s all you got to do, all you got to do is just think. You get enough about think time in there. And what you should have done, why did you do it, I should have done this. That’s all you’re mainly just thinking about, the mistakes you made, the reason you’re in there.[88]
[88] Transcript p22.
Rehabilitation from drug use
The Applicant told the Tribunal that he and his wife used ice throughout their marriage and it was the cause of most of their problems.[89] He no longer takes drugs, including ice, and does not drink alcohol. He stopped using ice just prior to going to gaol, nearly two years ago. He has not used drugs since he has been in gaol or detention.[90]
[89] Transcript p13.
[90] Transcript p28.
Programs and certificates completed
The Applicant completed a six month domestic violence course from 17 April to 18 December 2014. The Facilitator’s Summary from the course stated the Applicant:
… failed to demonstrate a commitment to complying with [the] conditions of the program by being absent on eleven occasions, only one of which was approved by his Probation and Parole Officer … Mr Neal arrived late to the program on the three occasions, and attended the program under the influence of alcohol on 6 November 2014 …
During his time on the program Mr Neal colluded heavily with other participants around negative gendered beliefs about women and his perception of being victimized by the Department of Child Safety. Throughout his time on the program he minimised his domestic violence and blamed his partner for conflict in their relationship … [H]e did acknowledge that he had used verbal, emotional and economic abuse (and coercion and intimidation) in his relationship and at times articulated some safety strategies he reported to be using in his relationship.
It is noted that he reported his partner left him seeking safe accommodation on two occasions during his participation on the program, and on one of these occasions he followed her and used the very concerning behaviour of disabling her car. He also drove around and located the motel she was staying at, and convinced her to return to the relationship. Additionally, police attended his house due to concerns raised about conflict heard at his residence. For these reasons he was assessed as a future High Risk of reoffending in terms of domestic violence offences at the time of exiting from the [program]. It was noted that Mr Neal was assessed by facilitators as High Risk for each of the 24 sessions he attended of the program.[91]
[91] Exhibit R2, 15.
The Applicant was asked about this report during cross-examination.[92] He said that this was a long time ago, and back then he didn’t take the blame but now he does.[93] He agreed that he re-offended after completing this course and that he ‘didn’t take in fully’ what he was taught during the program.
[92] Transcript p23-25.
[93] Transcript p24.
The Applicant provided a letter of attendance for a domestic abuse course he completed at Grafton Correctional Centre.[94] He told the Tribunal this course was for four or five days for a couple of hours per day. He continued:
It was a bunch of gaol people in a little gaol cell, there was about eight of us with a teacher who didn’t really care. All he had to do was do that but that’s what it was all about. It was about what not to do, how to walk away from it and if anything happens to you do the same back to them in return.[95]
[94] Exhibit A1.
[95] Transcript p26.
He told the Tribunal what he learned during the course:
What I learnt in that course was to literally turn and walk and put a DV back on her again, back on the person that’s put an AVO on you put one back on them. That’s what we were taught in gaol. Because the reason is if you put an AVO and non-contact what - I’m not saying ladies but what the other person or the applicant tries to do is get in contact with you, so you answer. As soon as you answer that’s a breach. So what we were told to do is if someone puts one on you put one back on them. And what to do and what not to do, what not to - not to start the fights, to turn away from fights. Yes, it was mainly learn to turn away, not stay there if anything happened.[96]
[96] Transcript p22.
The Applicant completed the following courses in gaol:[97]
·Chainsaw use and safety course;
·First aid course;
·National forklift licence to perform high risk work.
[97] Exhibit R1, G17, 161.
Plans for the future
The Applicant told the Tribunal that if his visa is reinstated he will live with his parents in a caravan under the carport of their house.[98]
[98] Transcript p34-35.
He was questioned about his claim that he will become the carer for his parents.[99] He said that they are now getting very old and they need help with the maintenance of their property. In the past he has cut the grass, cleaned the gutters and helped his mother with cooking and his father with his jobs.[100] He was asked whether he would apply through Centrelink to be their blue card carer. He said that would depend on whether he was working full or part-time. If they need him as their carer he would work only part-time.[101] His two older sisters are unable to care for his parents because they live in Camden and Wagga respectively.[102] His nephews have recently assisted his parents with some of the household tasks including the guttering.[103]
[99] Exhibit R1, G28, 212.
[100] Transcript at 31.
[101] Transcript at 32.
[102] Transcript at 32.
[103] Transcript at 33.
The Applicant told the Tribunal that his parents have organised a job for him at Tyreright when he is released from detention. They know the owner of the business and he is willing to offer the Applicant a full-time job.[104] He would eventually like to return to his trade as a boilermaker.
[104] Transcript at 31; Exhibit R1, G24, 202.
The Applicant told the Tribunal he has a new girlfriend who has provided him with support in gaol and detention.[105] She has not met his son and has her own daughter who is 11 years old. He does not plan to live with them as they live in Surfers Paradise. If things work out between them she has said she will move down to Coffs Harbour.[106]
[105] Transcript at 9.
[106] Transcript at 43.
Relationship with Laura Neal
The Applicant is not in contact with his wife Laura Neal, and does not know where she is living. They are separated but not divorced, and he will sign the divorce papers when he receives them from her.[107] In a letter addressed to the National Character Consideration Centre dated 23 May 2019 she wrote:[108]
Lorrie is no threat to any member of the Australian Community and is definitely of no threat to our son …
Although there is a history of Domestic Violence between myself and my husband I truly believe that Lorrie has served his sentence for his offences and obtained the required counselling to rehabilitate himself back into the Community.
During the past incidences of Domestic Violence, the Department of Community Services have always allowed Lorrie to remain in contact with his son in supervised visits at the department’s service centre.
If Lorrie were to have his visa revoked he would be leaving behind a wife, two adult children and his five year old son as well as his elderly parents, one of which is unwell.
Lorrie has been a permanent resident of Australia since he was 3 years of age and has held a steady job since he left school age 15.
Lorrie is a loyal caring man who will always lend a hand to those in need and I am positive that once he is released back into the community that he will be able to obtain employment and start to rebuild his life effectively.
[107] Transcript p6-7.
[108] Exhibit R1, G30, 220.
Ties to Australia and impediments on return to United Kingdom
In the statement supporting his request for revocation, the Applicant wrote:
Since (sic) been in Australia…I have absorbed the Australian way of life. I am as Aussie as meat pies, football, kangaroos and Holden cars. Have travelled around Australia and have friends all over this country. Australian (sic) is the only way of life I know.[109]
[109] Exhibit R1, G19, 188.
In this statement, he said he has no close relatives or friends in the United Kingdom.[110]
[110] Exhibit R1, G17, 166.
The Tribunal asked the Applicant what he thought would be the impediments he will face if returned to the United Kingdom. He stated:
Well I don’t - I don’t know anybody. I’d be on my own. Over in Australia here, I’ve got mum and dad and friends that’d help me out. In England, I’ve got nobody. I don’t know - literally I’m a British citizen, but I don’t know their way of life. I don’t know about money, about - I’ve heard that jobs, you’ve got to have three jobs to keep going over there, that things are dear. I mean I’m not sure, but that’s what I’ve heard.[111]
[111] Transcript p62.
Evidence of Applicant’s mother – Mrs Patricia Neal
The Applicant’s mother confirmed that if the Applicant is released he will come and live with her and her husband. She said that she can no longer drive due to health issues and she is taking medication and has memory loss. They have a large property and they do not want to move yet. They would love to have their son home as he would be a great help to them.[112] Her husband has recently been recognised by Centrelink as her carer.[113]
[112] Transcript p46.
[113] Transcript p47.
In relation to her son’s criminal offending, she stated:
… he’s a good lad. He’s just made a few mistakes. He’s always been a good lad, good love to us. He’s never (indistinct) his dad and have a blowout and everything. It’s just silliness what happens sometimes, and things have to be done to rehabilitate …[114]
…
We just - as I say, yes, he’s been silly. I could have kicked him up the bum, you know, a few times. But there’s nobody perfect on this earth …[115]
…
… I always understood - as I say, I was never - you know, I only went to normal schools and everything, and - where we were brought up in England. But criminal, to me, to - I am not really good with words, but criminal, to me, means a bad person, right? That’s my thoughts of a criminal. A criminal goes and thieves and stabs and is awful.[116]
…
He is not a criminal. He has been a very silly lad for what he has done … Silly in being - too much of this heart, a giver, a doer and that. And yes, he’s made mistakes. Good lord, we all make mistakes. And that - but he has never physically, to my knowledge, has hurt anybody physically. Probably - you know, when people (indistinct) fallouts, which I’ll tell you what, if anybody doesn’t do that, they’re saints. We all do this from time to time. But he’s got a good heart.[117]
[114] Transcript p46
[115] Transcript p47.
[116] Transcript p47.
[117] Transcript p48.
Mrs Neal was asked about the impact it will have on her and her husband if her son is removed from Australia. She stated:
It would kill us if he - because we won’t be going back to England anymore. Not at our - and especially our health …[118]
…
We’re just a normal family, but we’ve got a part of it missing, and it has been for a few months. But we know that if he goes over there, it will be permanent and it will - it would kill me …[119]
…
And Dad needs his lad here. He wants him. But the time we’ve got, you know, I mean, Dad’s 81. I’m 79. I mean, good lord, I mean, I pray every night we’ll get to one hundred, but I know we shan’t. And in this last - it could be two years, it could be three years, I don’t know. But at least I want him here until that time. Because then we’ll be gone, and that’s it …[120]
[118] Transcript p47.
[119] Transcript p48
[120] Transcript p50.
Mrs Neal told the Tribunal that she and her husband visit their grandson on the first Sunday of every month.[121] They drive from Coffs Harbour to Queensland and they meet their grandson for a DOCS supervised visit at McDonalds and spend a few hours with him. He knows them as Nan and Pop and they tell him about his Dad. When he asks about his Dad they tell him ‘he hasn’t come back from holidays yet.’[122]
[121] Transcript p50.
[122] Transcript p52.
Evidence of Applicant’s father – Mr Ron Neal
The Applicant’s father confirmed that the Applicant would live with them if his visa were reinstated. He told the Tribunal he has many health issues. He has osteoarthritis and he had prostrate cancer which has now cleared and is having treatment for bladder cancer.[123]
[123] Transcript p54.
Mr Neal told the Tribunal that he needs help from his son with the maintenance of their property including mowing and clearing the trees from the roof.[124]
[124] Transcript p54-55.
He told the Tribunal it is a five hour drive to travel to see their grandson which they do once a month. They stay with him for an hour or two or three and then drive back home. He looks forward to seeing them and they look forward to seeing him.[125] He is doing well at school and can now read and write.[126]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[125] Transcript p55.
[126] Transcript p55.
Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 19 April 2018 the Applicant was convicted in the Coffs Harbour Local Court of four offences and sentenced to fourteen months’ imprisonment. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a), as he has “a substantial criminal record” as defined in s 501(7)(c). The Tribunal is also satisfied for the purposes of s 501(3A)(b) of the Act, the Applicant was serving a sentence of imprisonment, on a full time basis, in a custodial institution, for an offence against a law of the State of New South Wales.
For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.
Is there ‘another reason’ why the Mandatory Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
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 non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that 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.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(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) …
(h) …
(i) …
(a) Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality and the risk posed should he commit further offences, the Tribunal notes that the Applicant has a lengthy criminal history. His offending has included fraud offences, possession of drugs and drug utensils, driving offences, firearm offences, resisting arrest, and a number of domestic violence offences including common assault and assault occasioning bodily harm. There have been numerous occasions on which the Applicant has been the subject of an apprehended violence order and he has breached its terms. He also has breached bail conditions numerous times.
The Applicant’s criminal offending when viewed as a whole indicates the very serious nature of his conduct. In making this finding, the Tribunal has had regard to paragraph 13.1.1(1)(b) of the Direction which provides that crime of a violent nature against women are viewed very seriously, regardless of the sentence imposed. The two assaults, which both involved a level of violence against his former wife, Laura Neal, should be viewed very seriously. So too should be the numerous breaches of domestic violence orders, which were for the protection of both the Applicant’s former wives. They demonstrate a pattern of violent behaviour towards and unacceptable disrespect for women. The offending has been sustained and increasing in its frequency and seriousness. In addition, the Applicant has demonstrated an ongoing failure to comply with judicial orders, thereby showing a repetitive disregard for Australian law and institutions.
In finding that the Applicant’s criminal offending is very serious, the Tribunal has also had regard to paragraph 13.1.1(1)(c) of the Direction which provides that crimes committed against vulnerable members of the community are serious. The Applicant admitted in his evidence that the offences he committed in May 2013 and January 2014 against his former wife were at a time when she was pregnant, including when she was only weeks from giving birth to their son.
Taking into account the Applicant's criminal behavior, particularly the violent offences against his partners over an extended period, the Applicant was treated leniently by the judicial system both in NSW and Queensland, receiving only short terms of imprisonment prior to the longer custodial sentence imposed on him in 2018. The Tribunal has had regard to the sentences imposed by the courts as provided in paragraph 13.1.1(1)(d) of the Direction and finds that whereas these are not substantial, they do not detract from the serious nature of the Applicant’s criminal offending.
The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal behavior was frequent and repetitive, particularly during his marriage with Laura Neal between 2012 and 2018. During this period the Applicant engaged regularly in violent and intimidating conduct against his former wife, which included physical and verbal assaults and numerous breaches of AVOs. The cumulative effect of this repeated offending on the Applicant’s victim, and the fear it instilled in her, as noted by the sentencing judge, is a significant factor supporting the finding that the Applicant’s conduct is very serious.
On the basis of the evidence before it and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct has been consistent over many years, has been violent and directed against women, and is therefore very serious.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
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 the rehabilitative courses to be undertaken).
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the evidence of his family members and those who provided letters of support.[127]
[127] Exhibit R1, G11, 220.
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend as required by paragraph 13.1.2, the Tribunal finds that any future re-offending by the Applicant is likely to involve physical and psychological harm to members of the Australian community, including women. Whereas the Tribunal accepts that the Applicant is no longer in a relationship with his wife Laura Neal, it notes that he has formed a new relationship with a woman who has a young child.
In relation to the risk of the Applicant re-offending, the Tribunal notes that the vast majority of the Applicant’s serious criminal offending occurred between the period 2012 and 2018 when he was using ice on a regular basis. The Applicant’s evidence is that he has not used drugs, including alcohol, since he has been in gaol and that he is now fully aware of the detrimental effects of drugs on his behaviour. The Tribunal finds that the Applicant’s abstinence from drug use reduces the degree of likelihood he will continue his criminal offending if his visa is reinstated. In making an assessment of the prospects of the Applicant continuing his drug-taking, it notes that there is no evidence that during his incarceration in gaol or immigration detention from April 2018 to the present time the Applicant was found to have failed any tests for the detection of drug or alcohol use.
The Applicant has undertaken counselling and completed courses and programs both inside and outside of gaol to understand the significance of domestic violence and to learn techniques to deal with circumstances which may trigger him to engage in violent conduct towards women. The Tribunal notes with concern the summary findings of the Facilitator of the six month program the Applicant completed in 2014, particularly the finding that the Applicant remained at a high risk of re-offending, a prediction which proved to be accurate. Since this time, the Applicant has only attended a short course in domestic abuse whilst incarcerated in gaol in 2018. The Tribunal notes with concern that the only lesson the Applicant appears to have learned from this course is that ‘if a person puts an AVO on you, you should put one back on them.’ The Tribunal also has had regard to the statements by the Applicant that his offences against his former wife were merely ‘arguments’ and did not involve violence and that his actions were a response to her ‘pushing his buttons’. These statements indicate that the Applicant still lacks insight into the seriousness of his offending and suggests that there is a real risk of him re-offending in future.
There is no evidence before the Tribunal that the Applicant has arranged or is seeking the professional support and/or treatment he will need to ensure that he does not continue to engage in criminal offending against women. In the absence of such evidence the Tribunal cannot be satisfied that the Applicant will take the steps necessary to ensure he does not continue to cause harm to women, including a future partner.
The evidence of the Applicant’s parents is that they will provide the Applicant with assistance and support upon his release, including providing him with accommodation. The Applicant’s evidence is that he has already secured an offer of employment that he will take up if his visa is reinstated. The Tribunal finds that while family support and employment are essential to the Applicant not re-offending, the Applicant has had the benefit of his parents’ support and paid employment in the past, but this did not prevent him from continuing to engage in criminal offending.
The Tribunal has had regard to the Applicant’s statements that he has learned that when put in a situation which may trigger him to act in a violent manner, he should ‘walk away’. It also has taken into his account his evidence that his time in gaol and in detention has made him fully aware of the effect of his harmful actions, not only against his victims but also on his parents for whom he cares deeply, and that he wishes to be ‘a respectable male, adult, father, son’ and ‘the person [he] used to be’.[128]
[128] Transcript p63.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the low to middle end of the scale.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
In considering the best interests of the child, paragraph 13.2(4) provides:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) nature and the 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 the 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.
Having regard to the factors outlined in paragraph 13.2(4), the evidence before the Tribunal is that the Applicant has a son, born in 2014 who is an Australian citizen and resides with his foster mother.
The Respondent does not dispute that this factor weighs in favour of revoking the visa cancellation.
Having regard to the guidance in paragraph 13.2(4)(a) of the Direction, the Tribunal notes that the Applicant has a limited existing relationship which his son who was taken into care at the age of three months in early 2014. For the next four years before he went to gaol, the Applicant had only supervised contact with his son on a monthly basis. Since he has been in gaol and detention this contact has inevitably diminished and is now limited to monthly phone calls between them. The Applicant is unable to regain custody of his son, and therefore his relationship with him will remain limited at least until he reaches the age of 18.
In relation to the factors in paragraph 13.2(4)(b), the evidence before the Tribunal is that there is a history of domestic violence by the Applicant against his son’s mother and the Applicant threatened and assaulted her at a time when there was an AVO in place for her protection, and when she was pregnant with their son. In light of this evidence, the Tribunal cannot be satisfied that the Applicant would play a positive parenting role in the future for his son, even if he were able to obtain access to him.
Having regard to paragraphs 13.2(4)(c), 13.2(4)(d) and 13.2(3)(f), there is no evidence as to the impact of the Applicant’s history of criminal offending on his son, or the impact the separation from his father has had on him, nor is there any evidence of the Applicant’s son’s views as to how he would be affected by the Applicant’s removal from Australia. The fact that the Applicant has had such limited contact with his son means that his criminal offending is unlikely to have had a negative impact on him, and he would be unaffected by his removal from Australia.
Having regard to paragraph 13.2.4(e) of the Direction, the evidence before the Tribunal is that the Applicant’s son resides with his foster mother and she plays the primary parental role in his life, including by providing him with emotional and financial support and attending to his daily needs. The Applicant has only a limited parental role in his son’s life and this will not change if his visa is reinstated.
Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that this Primary Consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it would be in the Applicant’s son’s best interests to have his father in his life. Whereas the contact the Applicant will have with his son if he were to re-enter the community would be limited supervised contact, his son would at least have the opportunity to form a bond with his father and to then decide for himself whether he wishes to maintain this relationship when he is an adult.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) states:
1) The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Justice Mortimer observed in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311, Justice Bromwich said at [85]:
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.
This year, the Federal Court has delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
FYBR is authority in support of what has been termed the ‘narrow’ approach[129] to the determination of the expectations of the Australian community. As observed by Justice Perry:
It follows, in line with the authorities, that cl 11.3 of Direction 65 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 ...[130]
[129] DKXY at [22].
[130] FYBR at [42].
A broader approach to the determination of the expectations of the Australian community was adopted by Justice Griffiths in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:
(a) the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b) so must all other circumstances which are relevant in a particular case.[131]
[131] at [122].
On 24 October 2019, the Full Court of the Federal Court delivered its judgment in FYBR v Minister for Home Affairs [2019] FCFAC 185, being an appeal from Justice Perry’s judgment in FYBR. The Full Court dismissed the appeal which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, Flick, Charlesworth and Stewart JJ did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.
Justice Flick at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.
Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the government’s views as to the expectations of the Australian community and to this extent it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa. The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the government. As she stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.
Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek via this device ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are to be applied in every case but they are not expressed in relation to any case. He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.
Having regard to the expectation of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and judicial orders and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving domestic violence against women, which as recognised by Principles 2 and 3, should generally result in the cancellation of the non-citizen’s visa.
In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 which provides:
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.
It has also been informed by Principle 7 which provides:
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 evidence before the Tribunal is that the Applicant came to Australia at the age of two and a half, and he has spent the past 45 years in this country, including undertaking his schooling here and working for more than three decades in a range of employment roles as a tradesman and running his own business.
The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time. Whereas the Applicant first offended at a young age, his most serious offending began in 2009 after he had resided in Australia for more than three decades.
The Tribunal also finds that the length of time the Applicant spent making a positive contribution to the Australia community by way of his working for more than three decades as a tradesman and running his own business are relevant to determining the expectations of the Australian community in relation to whether he should continue to hold a visa despite his serious offending.
Also relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory cancellation on the Applicant’s minor son and his other family members, including his elderly parents. The evidence indicates that the impact on the Applicant’s son of the non-revocation and his removal from Australia will be detrimental and prevent him forming a meaningful bond with his father. It also demonstrates that the consequence for his parents of the Applicant being removed from Australia is that they are very unlikely to see him again.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘Other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Justice Colvin observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... 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.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this consideration is of neutral impact.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
1) 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 has 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).
Having regard to paragraph 14.2(1)(a) of the Direction, the Tribunal has given weight to the evidence before the Tribunal that the Applicant arrived in Australia as a two year old child and has resided in Australia for some 45 years. The Applicant considers Australia his home and himself an Australian, and he no longer has a connection to the United Kingdom where he spent only the very early years of his life of which he would likely have little or no memory.
Having regard to paragraph 14.2(1)(a)(ii), the evidence before the Tribunal is that the Applicant has spent considerable time contributing positively to the Australian community through his employment as a tradesman for more than 30 years which included running his own business.
Having regard to the considerations in paragraph 14.2(1)(b), the Tribunal finds that the evidence demonstrates that the Applicant has significant ties to Australia, particularly his three children, his elderly parents, two sisters and extended family members all of whom are Australian citizens. Whereas the Applicant does not have a close relationship with his two adult children and his relationship with his young son is necessarily limited, he wishes to have the opportunity to reconnect with his children and to have greater contact with them in the future and rebuild his relationship with them.
The Tribunal finds that whereas the Applicant claims he will be the primary carer for his elderly parents, the evidence before the Tribunal is that he would provide only limited assistance to them being primarily help with the maintenance of their property. However it is clear that they have a strong desire for him to remain in Australia and to be reunited with them and live with them at their property so he can provide them with assistance, care and emotional support in their remaining years.
On the basis of the evidence before it, particularly the length of time the Applicant has resided in Australia and his positive contributions to the community, as well as the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery an important service in Australia.
The Applicant’s employment prior to his incarceration was working as a tradesman and in his own business. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to the United Kingdom.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In relation to impact on victims, it is noted that the Applicant’s former wife, Laura Neal, provided a letter of support for him in which she states that she believes the Applicant ‘has served his sentence for his offences and obtained the required counseling to rehabilitate himself back into the community’.
The Tribunal notes that the Applicant and his former wife are separated and plan to divorce and that she is therefore unlikely to be a victim of any future re-offending by the Applicant.
On the evidence before the Tribunal, this consideration weighs neither in favour nor against revocation of the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
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.
Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 48 years and is generally in good health. Guided by paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, although it will take time for him to readjust to life in a country in which he has not lived for most of his life.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all British citizens including health care, welfare benefits and social services. The economic and employment opportunities in the United Kingdom are similar to those in Australia. The Applicant is an experienced tradesperson and should not have difficulties finding employment.
Having regard to the evidence before it, the Tribunal finds the Applicant will face hardship if he is required to establish himself in the United Kingdom, having not lived there since he was an infant. He has no friends or family in the United Kingdom and would struggle to find a home and re-establish his life.
The Respondent accepts that due to the significant length of time the Applicant has resided in Australia, he would face impediments to return and therefore this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
The Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, particularly those against his former wives, and the low to moderate risk of him committing future offences of domestic violence against women are such that the protection of the Australian community is best served by non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s minor son for him to remain in Australia.
Primary Consideration C weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as whereas the expectations of the Australian community are that the Applicant’s serious domestic violence offences against women should cause him to forfeit the privilege of remaining in Australia, the age at which he arrived in Australia, the duration of his residence in Australia, his positive contributions to the community, and the interests of his minor son, are such that the community would have greater tolerance for the Applicant.
In regard to the relevant Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision, as do the impediments he will face on return to the United Kingdom.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the decision to refuse to revoke the Mandatory Visa Cancellation Decision be set aside.
DECISION
(1) The decision of the Respondent dated 2 August 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside;
(2) In substitution, the cancellation of the Applicant’s Class BF transitional (permanent) visa under s 501(3A) is revoked under s 501CA(4).
I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.......................[sgd].............................................
Associate
Dated: 28 October 2019
Date(s) of hearing: 9 October 2019 Applicant: In person Solicitors for the Respondent: Ms B Griffin, Australian Government Solicitor
Key Legal Topics
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Immigration
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Administrative Law
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