NHRV and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 692
•6 June 2025
NHRV and Minister for Immigration and Citizenship (Migration) [2025] ARTA 692 (6 June 2025)
Applicant/s: NHRV
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/2864
Tribunal:Senior Member A. George
Place:Darwin
Date:6 June 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 06 June 2025 at 3:15pm
........................................................................
Catchwords
MIGRATION – cancellation of Applicant’s Class BC Subclass 100 Partner visa – very serious offending – family violence – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
In September 2021, NHRV was convicted of Sexual Intercourse without consent after offending against his niece. NHRV was sentenced to six years’ imprisonment, with a non-parole period of four years and two months. An appeal against conviction was dismissed by the Court of Criminal Appeal of the Northern Territory in 2022.[1] NHRV remains in prison.
[1] The citation is not provided as a pseudonym order has been made in this matter to minimise the risk of the identification of the Victim.
NHRV was born in Zimbabwe and is aged 41 years. He arrived in Australia in October 2017. Shortly thereafter, in January 2018, NHRV commenced his criminal offending. NHRV’s Class BC Subclass 100 Partner visa was cancelled in October 2021.
In November 2021, NHRV made representations to a delegate of the Respondent to revoke the cancellation of his visa. In March 2025, the delegate was not satisfied that NHRV passed the character test nor was the delegate satisfied that there was another reason to revoke the cancelation decision under s 501CA(4) of the Migration Act 1958. This is the decision under review.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that NHRV has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more. NHRV does not pass the character test.
The issue for the Tribunal is whether it is satisfied that there is another reason, considering Direction No. 110, to revoke the cancellation. For the following reasons, the Tribunal has decided to affirm the decision under review.
BACKGROUND AND OFFENDING
NHRV was born in Zimbabwe in February 1984 and his daughter, Miss MRG (aged 16 years), was born in Zimbabwe in June 2008. NHRV moved to South Africa in 2009. His relationship with Miss MRG’s mother ended in the years that followed, and NHRV and Miss MRG returned to Zimbabwe.
In March 2017, Master MAG (aged 8 years) was born in Perth with Ms SM listed as the mother. Master MAG’s paternity is not stated on his birth certificate, although the chronology in Exhibit R3 accepts that NHRV is Master MAG’s father. NHRV was later granted a Partner (Provisional) (class UF) Partner (Provisional) (subclass 309) visa in August 2017 and migrated to Australia in October 2017.
Four months after arriving in Australia, in January 2018, NHRV had sexual intercourse without consent with his niece.
It is unnecessary to repeat the details of NHRV’s offending. It is sufficient to summarise the Supreme Court sentencing remarks as follows:
(a)NHRV was aged 33 years at the time of the offending and his Victim was aged 22 years.
(b)The Victim was very drunk at the time of the offence.
(c)The Victim told NHRV to stop the assault.
(d)NHRV penetrated the Victim’s vagina with his penis, and she kept telling him to stop.
(e)NHRV’s crime was objectively serious, sitting “at the lower end of the mid-range of seriousness for this kind of offending”.
(f)The Victim trusted NHRV and that breach of trust is a ‘taboo’ in Zimbabwean culture.
(g)Offending of this kind is degrading to women.
(h)The Court needs to protect the community from NHRV’s actions, “and the risk that you might re-offend in a similar way in the future”.
(i)NHRV has a good work history, abided by his bail conditions, and has a reasonable prospect of rehabilitation.
(j)NHRV was sentenced to a period of imprisonment for six years, backdated to 20 August 2021. The non-parole period was set at four years and two months.
The findings of the Court of Criminal Appeal do not derogate from the summary above.
The relationship between NHRV and Ms SM broke down after NHRV’s offending. NHRV was granted a Class BC Subclass 100 Partner visa in June 2018. In June 2021, in the High Court of Zimbabwe at Bulawayo, Ms SM and NHRV were granted a divorce. Ms SM was granted custody with reasonable rights of access granted to NHRV. NHRV was ordered to pay maintenance of US$150 per month for the upkeep of Master MAG. In his letter of 12 February 2025, NHRV notes that Master MAG now lives in the United Kingdom.
Since November 2018, NHRV has been in a relationship with Ms M. They have a son, Master MMG (aged 4 years), who was born in June 2020 prior to NHRV being taken into custody in August 2021.
NHRV gave evidence at the hearing about his family in Zimbabwe and his life in Zimbabwe and South Africa, prior to arriving in Australia. He attended school and obtained a qualification in business studies. NHRV no longer maintains contact with his mother in Zimbabwe or several siblings in Australia due to his offending against his niece.
NHRV explained that his offending was regarded as a ‘taboo’ and “the worst of the worst” in Zimbabwe. NHRV expressed a concern that he feared for his life if returned to Zimbabwe and that he would suffer stigma. NHRV also gave evidence of the poor economic conditions in Zimbabwe, in particular unemployment and inflation.
NHRV was on bail prior to being taken into custody, with alcohol and weekly reporting conditions. During the hearing, and in his letter of 12 February 2025, NHRV made a point that he had not breached his bail conditions. This is consistent with the sentencing remarks and multiple bail compliance reports. During this time, NHRV maintained his employment including at Woolworths Group.
Two letters, one dated 26 August 2021 and the other 30 September 2021, show that NHRV was employed as a Store Team Member and Apprentice Baker. Woolworths invested in training NHRV and the Tribunal is reasonably satisfied from the evidence that NHRV was a productive and valued employee.
Mr N, the manager of a Woolworths bakery during NHRV’s employment, wrote in a letter dated 7 November 2021 that NHRV was a dedicated employee with a future in baking industries. In a letter from a colleague dated 30 October 2021, Mr B, a colleague, described NHRV as one of the best apprentices with whom he has worked. Both Mr N and Mr B regarded NHRV as being remorseful for his offending, although it is unclear what facts they had of the offending.
Mr S has provided a letter in support of NHRV, dated 4 November 2021. Mr S worked with NHRV at a service station, where Mr S is an Assistant Manager. Mr S describes NHRV in terms of being a hardworking and dedicated employee.
NHRV’s incarceration has had a financial impact upon him. In October 2021, he was issued a notice of default on his motor vehicle and his credit card repayments were overdue. Correspondence from Medicare and Centrelink in September 2021 indicate that NHRV’s family is eligible for benefits.
NHRV has given evidence that he would like to resume his apprenticeship if he is released back into the Australian community. NHRV believes that his skills are in demand, particularly as he has also obtained a Certificate IV in Training and Assessment whilst imprisoned.
NHRV has a licence to perform high risk work that is current until March 2027 and obtained a licence to operate a forklift truck in February 2022. He has numerous other certificates and qualifications. These include a Statement of Attainment in ‘Electrical Safety Testing of Electrical Cord Equipment and Cord Assemblies Skill Set’ from Charles Darwin University and participated in a Certificate I in Retail Services classes. NHRV has also received Certificates I and II in Workplace Skills, and statements of attainment in food handling and safe work in the construction industry from the Batchelor Institute.
Whilst imprisoned, NHRV has been employed in food services and the kitchen. In an undated letter to the Revocations Section of the Department of Home Affairs, NHRV described his work in Alice Springs Correctional Centre. He was working in the prison kitchen as a Veggie Bench Foreman and leading a team of four. Both in Alice Springs and in Darwin, NHRV’s prison employment has involved trust.
The Tribunal has numerous corrections documents in evidence before it, including offender management plans. NHRV’s security classification has reduced from ‘Medium’ on 26 November 2021 to ‘Low-Restricted’ on 25 May 2023. This classification was maintained on 23 November 2023, 23 May 2024, 21 November 2024. In this most recent plan, NHRV’s medical health has been described as ‘MEC 1’ with latent tuberculosis and no mental health history. NHRV is not taking regular medication.
Prison visit history records demonstrate that NHRV was frequently visited by Ms M when he was incarcerated in Alice Springs Correctional Centre. Prison telephone records indicate that NHRV has been in regular contact with his daughter, Miss MRG, and his current partner, Ms M. In his letter of 12 February 2025, NHRV’s refers to speaking with his son and daughter on the phone and how they miss him.
Ms M did not provide evidence at the hearing, however she did provide a statement dated 1 November 2021. Ms M was born in Zimbabwe and is a naturalised Australian citizen. She has lived in Alice Springs since 2007. In her statement, Ms M describes the development of her friendship with NHRV from their first meeting in December 2017 through to commencing a relationship by November 2018. Ms M’s statement contains evidence of her shock and anger in hearing of NHRV’s criminal charges, prompting her to consider leaving the relationship.
Ms M describes NHRV’s relationship with his daughter, Miss MRG, after she came into his custody in March 2019. This is a healthy relationship and NHRV materially provided for his daughter and met her health needs. Ms M describes Miss MRG as being happy with her father. Miss MRG returned to live with her mother after NHRV went into custody.
Ms M acknowledges that NHRV has committed a “terrible offence” but believes that he would be more careful after being released from prison and “not be a problem to the Australian community”. Ms M mentions NHRV’s rehabilitation and his desire to abstain from alcohol if released. Ms M believes that NHRV would be a family man if released and she is happy to have him live with her. After Master MMG was born, NHRV was a materially supportive father to his son. Ms M now finds it exhausting to raise a child alone.
NHRV has given evidence of his attempts to advance his rehabilitation whilst in prison. He has tried self-educating by watching relevant television programs. Whilst at Alice Springs Correctional Centre, NHRV participated in a mutual support program for prisoners as a mentor and listener. NHRV’s Peer Educator Listener Scheme (‘PELS’) diary is at Exhibit R8. His oral evidence contained insights into family violence, violence against women, breaches of trust, and the trauma to families caused by his type of offending.
Exhibit R4 indicates that NHRV made a request to join the Family Violence Program and has been waitlisted. Exhibit R5 is a letter from July 2022 indicating that NHRV has been waitlisted for the Responsibility Safety Victims and Planning (‘RSVP’) program. Exhibit R6 indicates that NHRV had to transfer to Darwin Correctional Centre to undertake the RSVP program, which is what he has done. Exhibit R7 is a request for any programs, certifications, diplomas, or degrees on offer.
Exhibit R2 is a covering email dated May 2025 for a STATIC-99R clinical assessment. This covering email states that NHRV has been waitlisted for treatment and will be allocated that treatment in due course. The content of the STATIC-99R assessment of September 2021 was traversed during the hearing. At the time of that report, NHRV denied the offending. The assessor found that NHRV “does not accept responsibility for the offending and uses cognitive distortions to reduce his culpability”. The assessor found that a score of “below average risk” fairly represented the risk presented by NHRV at the time of the assessment.
NHRV has given evidence that he intends to seek counselling and other support if released into the Australian community. If possible, he seeks to give his Victim closure but would be guided by professional advice in this regard. The Tribunal notes that NHRV’s previous bail conditions included not contacting the Victim, however it may be legally and therapeutically permissible in the future depending on the views of the Victim. These views are unknown to the Tribunal.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to several factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction does not limit the range of conduct that may be considered very serious, violent and/or sexual crimes. However, it does make clear that crimes of a sexual nature against women, and acts of family violence, are viewed very seriously by the Australian Government and the Australian community.
NHRV has committed a crime of a sexual nature against his niece, which was an act of family violence within the meaning of paragraph 4(1)(b) of the Direction. Consistent with the sentencing remarks, the Tribunal considers NHRV’s criminal offending to be very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) 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;
(i) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(ii) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
In the circumstances where the Tribunal is already satisfied that NHRV’s offending is very serious, this sub-paragraph does not require further consideration
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant.
Agreeing with Pavey and Minister for Home Affairs [2019] AATA 4198, [44] (Senior Member Tavoularis), this Tribunal regards the imposition of a custodial term as a last resort and reflective of the objective seriousness of a given offence. Therefore, NHRV’s sentence of six years’ imprisonment for his sexual offending objectively reflects the very serious nature of his offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness. However, the current impact of NHRV’s offending on the Victim is unknown to the Tribunal. Therefore, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. As NHRV has only convicted one offence, there is no trend of increasing seriousness.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. However, this consideration is irrelevant as NHRV has not repeatedly offended.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. However, this consideration is irrelevant as NHRV has not provided false or misleading information to the Department.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. However, this consideration is irrelevant as NHRV has not re-offended.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia. However, this consideration is irrelevant as there is no evidence that NHRV has committed any offences in any other countries.
NHRV has committed an objectively very serious sexual offence involving family violence. The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against the revocation of the cancellation of NHRV’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
It is a feature of NHRV’s incarceration that he does not have the benefit of his liberty. Having heard NHRV’s oral evidence, and noted his extensive coursework, the Tribunal is reasonably satisfied that NHRV has taken meaningful steps towards rehabilitation whilst incarcerated.
He remains a prisoner on a ‘Low-Restricted’ security classification. It is unknown to the Tribunal what NHRV’s prospects of parole are, or what conditions would attach to any parole.
The Tribunal does not consider the STATIC-99R assessment as being a reliable representation of the risk that NHRV currently poses to the Australian community. Materially, NHRV denied his offending when that assessment was conducted. He now admits to it his offending. Little weight is therefore placed on the STATIC-99R assessment.
Similarly, the Tribunal does not regard NHRV’s historic bail conditions as being relevant to a circumstance where the cancellation of his Class BC Subclass 100 Partner visa is revoked. This Tribunal does not have the jurisdiction to impose conditions on visa holders that are akin to bail, or parole, conditions.
Noting that Ms M did not present for cross-examination, but nevertheless taking her evidence at its highest point, the Tribunal does not place weight on her belief that NHRV will “not be a problem to the Australian community” if released into it. The basis for this opinion does not consider all the material before the Tribunal and is, quite understandably, weighted towards NHRV’s ability to provide for his family.
NHRV had his liberty in the Australian community for a mere four months before he committed a very serious crime. In sentencing NHRV, the Court was mindful of the need to protect the community from NHRV’s actions and the risk that he might re-offend in a similar way in the future.
The nature of the harm to individuals or the Australian community should NHRV engage in further criminal or other serious conduct weighs heavily in the Tribunal’s considerations. Indeed, the Tribunal’s tolerance for any risk of future harm is low given the seriousness of the potential harm were NHRV to reoffend.
For NHRV, rehabilitation is a process that takes time. The Tribunal is not satisfied that NHRV has sufficiently rehabilitated to be returned into the Australian community.
The sub-paragraphs of paragraph 8.1.2 of the Direction, in their totality, therefore, weigh very heavily against the revocation of the cancellation of NHRV’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against the revocation of the cancellation of NHRV’s visa, although this consideration is not of itself determinative.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
“Family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful. Sexual assault is an example of family violence, under paragraph 4(1)(b).
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.
NHRV has committed a single very serious criminal act of family violence. There is no trend of increasing seriousness.
Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence. However, this consideration is not relevant as NHRV has not committed repeated acts of family violence.
Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
NHRV has taken steps towards rehabilitation whilst imprisoned, as previously outlined, although the Tribunal is not reasonably satisfied that his rehabilitation is complete. NHRV now accepts the facts of his offending. He has demonstrated insights into family violence, violence against women, and breaches of trust. It is clear from his evidence that he understands the trauma to families caused by his type of offending.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. However, this consideration is not relevant as NHRV has not re-offended
The Tribunal has a serious concern about conferring the privilege of remaining in Australia on NHRV, given his very serious family violence. Despite his developing insights into his offending and steps towards rehabilitation, this Primary Consideration, in its totality, weighs heavily against the revocation of the cancellation of NHRV’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs heavily against the revocation of the cancellation of NHRV’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
NHRV began offending four months after arriving in the Australian community as a mature aged man. Despite the time he spent positively employed, he was nevertheless on bail for much of this.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider 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.
The Tribunal notes the work and social references contained in the evidence. As traversed during the hearing, NHRV’s social links have been necessarily curtailed due to his incarceration.
NHRV’s personal circumstances form indicates wide family connections in Australia, however these are constrained due to the nature of offending and the trauma caused to his family. In practicality, NHRV’s family is now Ms M and Master MMG in Alice Springs and Miss MRG in Perth. Master MAG resides in the United Kingdom.
Noting NHRV’s lengthy period on bail, and despite his incarceration in Alice Springs and Darwin, the Tribunal is reasonably satisfied NHRV has maintained strong links with these members of his family. His links with Master MMG and Ms M seem to be stronger than with Miss MRG at present, but the evidence does not allow the Tribunal to distinguish between these links with any precision. For the purposes of this sub-paragraph, therefore, these links are each apportioned equal and moderate weight.
In totality, this Primary Consideration weighs moderately in favour of the revocation of the cancellation of NHRV’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs moderately in favour of the revocation of the cancellation of NHRV’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Given the breakdown in relationships between NHRV and wider family following his sexual offending against his niece, the relevant children that require consideration are Miss MRG, Master MAG, and Master MMG.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
Miss MRG is aged 16 years but did not give evidence, and her views are unknown to the Tribunal. The evidence nevertheless suggests that NHRV has been a caring father and met her material needs until he was incarcerated. Prison records indicate telephone contact. Hence, the Tribunal infers that NHRV has attempted to make himself available to continue to meet Miss MRG’s needs.
The evidence is unclear as to what, if any, meaningful role NHRV has recently played in Master MAG’s life. Given his age of 8 years, and the duration of the absence between father in prison and son in the United Kingdom, the Tribunal is not reasonably satisfied of a current parental relationship.
It is unlikely that Master MMG has any memories of his father in the home environment, given he is aged 4 years. Nevertheless, Ms M’s evidence is to the effect that NHRV is an integral member of their family unit, and this is accepted by the Tribunal. The Tribunal also accepts NHRV’s evidence that he wishes to care for Master MMG, which would relieve the burden on Ms M.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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.
There is no guarantee that NHRV will be granted parole, or that any parole would allow him to leave the Northern Territory to visit Miss MRG in Perth. However, even if this were possible then the Tribunal is cognisant that Miss MRG would almost be an adult. Therefore, the Tribunal is not reasonably satisfied that NHRV will play a positive parental role in Miss MRG’s life before the age of 18 above what he is currently doing remotely.
There is no substantive evidence that NHRV will play a positive role in Master MAG’s life before he turns 18 years, noting Ms SM’s custody and his residence in the United Kingdom. However, if NHRV were released into the Australian community then he would be better placed to pay maintenance.
Master MMG has practical needs that can be met by NHRV. Were NHRV released into the Australian community, and resided crime-free with Ms M and Master MMG as he intends, there may be substantial benefits for Master MMG until he is an adult. These are material as NHRV would contribute to the family income and allow Ms M to advance her career. The Tribunal also infers that there would be emotional benefits to Master MMG too of having a household with both parents.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of 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.
There is no evidence before the Tribunal that Miss MRG, Master MAG or Master MMG have been impacted by NHRV’s prior conduct, or that they will be so impacted in the future.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
In the absence of evidence from Miss MRG, the Tribunal is reluctant to make positive findings as to the effect of separation on her. It may be that the effect is negligible, as she is in Perth and NHRV is imprisoned in Darwin. Nevertheless, the Tribunal is reasonably satisfied that NHRV could continue to communicate by telephone with Miss MRG if he were removed to Zimbabwe.
There is no evidence before the Tribunal that allows it to be reasonably satisfied that Master MAG would be affected if NHRV were removed to Zimbabwe.
Given Master MMG’s age, and the duration of NHRV’s absence in prison, the Tribunal cannot be reasonably satisfied of any likely effect of any further separation of Master MMG from NHRV. This is particularly so as NHRV is currently imprisoned in Darwin and Master MMG resides with Ms M in Alice Springs.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
The evidence is clear that different women already fulfill the primary parental role for each of Miss MRG, Master MAG, and Master MMG.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
There is no direct evidence from Miss MRG, Master MAG, and Master MMG, or neutral specialist reports. The views of the children are not known sufficiently for the Tribunal to attribute any weight to them.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally. However, this consideration is not relevant as there is no evidence of any minor children being exposed to, or at risk of, violence, abuse or neglect from NHRV.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. However, this consideration is not relevant as there is no evidence before the Tribunal that any minor child has suffered or experienced any physical or emotional trauma arising from NHRV’s conduct.
Considering all the evidence before it under this Primary Consideration, and placing weight on the best interests of Master MMG, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision weigh heavily in favour of the revocation of cancellation of NHRV’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily in favour of the revocation of cancellation of NHRV’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. NHRV has breached this expectation through his criminal conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
The Direction makes clear the Australian community’s expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states that consideration is concerns the “expectations of the Australian community as a whole”. The Tribunal should proceed on the basis of the Government’s views as articulated in the Direction, “without independently assessing the community’s expectations in the particular case”. It is well established that paragraph 8.5(4) is consistent with FYBR v Minister for Home Affairs [2019] FCAFC 185.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the fact that NHRV has engaged in sexual intercourse without consent with his niece. This was both an act of family violence and a very serious crime against a woman.
Despite his steps towards rehabilitation whilst incarcerated, NHRV’s offending raises very serious concerns regarding his character. It is unnecessary to repeat a summary of the sentencing remarks.
Upon consideration of the evidence before it, the Tribunal is reasonably satisfied that the expectations of the Australian community as a whole weigh very heavily against the revocation of the cancellation of NHRV’s visa
Conclusion: Primary Consideration 5
On balance, Primary Consideration 5 weighs very heavily against the revocation of the cancellation of NHRV’s visa
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
Prior to the hearing, NHRV had not made claims that required assessment in relation to Australia’s non-refoulement obligations. During the hearing, however, NHRV expressed a fear for his life if he were removed to Zimbabwe due to the nature of his offending. This offending is a ‘taboo’ and is regarded as “the worst of the worst”.
Taking NHRV’s evidence at its highest point, and accepting that he is genuine in his fear for his life if returned to Zimbabwe, non-refoulement considerations are clearly raised. However, there is a dearth of evidence before the Tribunal for it to be satisfied that NHRV’s fears are reasonably placed. Similarly, it is unclear if NHRV could reside in South Africa.
NHRV has not made an application for a protection visa, but it is open to him to do so. This Tribunal presumes that any application by NHRV would be comprehensively assessed by a primary decision maker who would be better placed than the Tribunal to make further inquiries.
Considering Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the Tribunal chooses to proceed on the basis that if and when NHRV applies for a protection visa, any protection claims he has will be assessed before consideration is given to any character concerns associated with him. This includes non-refoulement considerations. The Tribunal also acknowledges that steps may be taken to remove NHRV from Australia if he does not apply for a protection visa.
Accordingly, the legal consequences of the Tribunal’s decision in this matter weighs neutrally.
(b) Extent of impediments if removed
Paragraph 9.2 of the Direction addresses the extent of impediments that an applicant may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards. The Tribunal must take into consideration:
(a)an applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to an applicant in that country.
NHRV is aged 41 years, and his prison records indicate that he is in good health. He would not suffer any substantial language barriers if returned to Zimbabwe, although the ‘taboo’ nature of his crime is a cultural barrier. NHRV has expressed a fear that he might be killed if returned to Zimbabwe because of his crime, or at least stigmatised. The Tribunal regards this as a cultural barrier of substance.
The Tribunal accepts NHRV’s evidence that he would not have family support if returned to Zimbabwe. There is also no evidence that Ms M would return to Zimbabwe with him to assist him re-establish himself.
Although the Tribunal does not have objective country information before it, it accepts NHRV’s evidence regarding high levels of unemployment and inflation in Zimbabwe. NHRV has demonstrated himself to be a skilled worker, but the Tribunal is reasonably satisfied that NHRV may financially struggle for a period if returned. He may do so in the absence of any meaningful economic support from the Zimbabwean government and in circumstances where he must continue to pay maintenance for the upkeep of Master MAG.
On balance, therefore, this consideration weighs moderately in favour of the revocation of the cancellation of NHRV’s visa.
(c) Impact on Australian business interests
Paragraph 9.3(1) of the Direction provides that the Tribunal must consider the impact on Australian business interests if an Applicant is not allowed to enter or remain in Australia. The Direction provides that an employment link would generally only be given weight where the Tribunal’s decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia”.
The Tribunal acknowledges NHRV’s qualifications and his stated intention to contribute to Australian businesses if returned to the community. Indeed, the Tribunal further acknowledges that NHRV’s skills in bakery and training and assessment may be particularly valuable in Alice Springs. However, the evidence before the Tribunal does not allow it to be reasonably satisfied that a removal of NHRV from Australia would compromise the delivery of any major project or an important service.
NHRV is currently imprisoned. He is not delivering any major projects or important services within the contemplation of the provisions paragraph 9.3(1). This would not change were NHRV removed from the Australian community.
Accordingly, this Other Consideration is not given weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of NHRV’s visa: either he must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, considering Direction 110, to revoke the cancellation. NHRV clearly does not pass the character test.
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against the revocation of the cancellation of NHRV’s visa, although this consideration is not of itself determinative.
(b)Primary Consideration 2 weighs heavily against the revocation of the cancellation of NHRV’s visa.
(c)Primary Consideration 3 weighs moderately in favour of the revocation of cancellation of NHRV’s visa.
(d)Primary Consideration 4 weighs heavily in favour of the revocation of cancellation of NHRV’s visa.
(e)Primary Consideration 5 weighs very heavily against the revocation of the cancellation of NHRV’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh moderately in favour of the revocation of the cancellation of NHRV’s visa.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greatest weight on Primary Consideration 1 and the protection of the Australian community. Furthermore, the Tribunal places greater weight on the Primary Considerations than the Other Considerations. The balance of these considerations, in their totality, heavily weigh against the revocation of the cancellation of NHRV’s visa.
Accordingly, the Tribunal is not satisfied that there is another reason why the cancellation of NHRV’s visa should be revoked.
The correct and preferable decision of the Tribunal is therefore to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 133 (one-hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
............................[Sgnd]...................................
Associate
Dates of hearing: 19-20 May 2025 Solicitors for the Applicant: Self-represented Solicitors for the Respondent: Ms Pappas, Australian Government Solicitor
0
3
0