NWLH and Minister for Home Affairs (Migration)
[2019] AATA 2198
•23 July 2019
NWLH and Minister for Home Affairs (Migration) [2019] AATA 2198 (23 July 2019)
Division:GENERAL DIVISION
File Number(s): 2017/4784
Re:NWLH
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:23 July 2019
Place:Sydney
The reviewable decision made 10 August 2017, being the decision of a delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa, is affirmed.
.......................[sgd].......................................
J W Constance
Deputy PresidentCATCHWORDS
MIGRATION - mandatory cancellation of visa - failure to pass character test - substantial criminal record - whether discretion to revoke mandatory cancellation should be exercised - Direction No. 79 - primary considerations - protection of Australian community from criminal or other serious conduct - nature and seriousness of conduct - risk to Australian community - best interests of minor children - expectations of Australian community - other considerations - strength, nature and duration of ties to Australia - impediments if removed from Australia - risk to Australian community unacceptable - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 20 December 2018
REASONS FOR DECISION
Deputy President J W Constance
23 July 2019
A: Introduction [1] B: Background [6] C: Relevant Legislation [17] D: Direction No. 79 [22] E: The Issue for Determination [31] F: Reasoning [34] Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct [34] Primary Consideration 2: Best interests of minor children in Australia affected by the decision [91] Primary Consideration 3: Expectations of the Australian community [103] Other considerations [110] G: The Balancing Exercise [136] H: Conclusion [148] A: INTRODUCTION
The Applicant is a 42-year-old citizen of Tonga. He first entered Australia in August 1992, with his parents and three siblings, at the age of 15. Since his arrival he has lived in Australia as the holder of several Class BB Subclass 155 (Five Year Resident Return) visas.[1]
[1] Exhibit RR01 at 109.
On 28 November 2016, the Applicant was convicted and sentenced to imprisonment for 13 months for an assault occasioning actual bodily harm committed on 29 July 2016.[2] By reason of this sentence, on 11 April 2017 the Applicant’s visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[3] I will refer to this decision as the “mandatory cancellation”.
[2] Exhibit RR01 at 30-33.
[3] Exhibit RR01 at 96.
On 10 August 2017, a delegate of the Minister for Immigration and Border Protection decided not to revoke the mandatory cancellation.[4] This decision was made on the basis that the delegate was satisfied that the Applicant did not pass the character test set out in the Act and that there was no other reason why the mandatory cancellation should be revoked. The decision of 10 August 2017, referred to as the “reviewable decision”, is the subject of this application for review.
[4] Exhibit RR01 at 15.
At the time of the hearing of the application, the Applicant was being held in immigration detention.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Unless otherwise stated, the following findings of fact are based on the evidence of the Applicant.
The Applicant completed his secondary education in Australia and obtained the Higher School Certificate. In 2012 he completed a basic certificate in scaffolding. He completed courses in heavy machinery operation in 2015, and forklift operation and dogging in 2017.
On completion of his secondary schooling, the Applicant worked in various jobs including labouring, working in warehouses and operating machinery. He has always worked hard to support his family.
The Applicant first married in 1999. There are three children of this marriage, the youngest of whom is 14 years old. The other children are over 18 years of age.
The Applicant and his first wife divorced in 2008.
The Applicant’s relationship with his second wife began in 2009. There are two children of this marriage, aged five and six.
The Applicant’s parents and his siblings live in Australia with their families.
The Applicant’s criminal record
The Applicant’s adult criminal record is as follows:
Offence date Court date Offence Penalty/Sentence 25/04/2004 27/04/2004 Destroy or damage property ≤ $2000 $250 fine Common assault 12 month good behaviour bond – to fully comply with terms of AVO 01/03/2005 21/03/2005 Shoplifting value ≤ $2000 $75 fine 24/07/2006 22/08/2006 Assault occasioning actual bodily harm Community service order 200 hours 14/08/2006 06/12/2006 Use offensive language in/near public place/school $500 fine Intimidate police officer in execution of duty $800 fine 26/12/2006
19/06/2007 Assault occasioning actual bodily harm 12 months’ imprisonment commencing 05/03/2007 26/12/2006
Destroy or damage property ≤ $2000
4 months’ imprisonment commencing 05/03/2007
21/01/2007
Contravene ADVO
3 months’ imprisonment commencing 04/03/2008 04/03/2007
Contravene ADVO
6 months’ imprisonment commencing 03/06/2007 04/03/2007
Use offensive weapon to prevent lawful detention 16 months’ imprisonment commencing 03/06/2008, 9 months’ non-parole 04/03/2007
Escape police custody 16 months’ imprisonment commencing 03/06/2008, 9 months’ non-parole 04/03/2007 Assault police officer in execution of duty cause actual bodily harm (2 counts) 16 months’ imprisonment commencing 03/06/2008, 9 month’s non-parole 24/07/2006 02/11/2007 Assault occasioning actual bodily harm (Call up) 3 months’ imprisonment commencing 02/11/2007 10/08/2009 09/09/2009 Contravene prohibition/restriction in ADVO 6 months’ imprisonment commencing 10/08/2009 Unknown 13/04/2012 Common assault 18 months’ recognisance, 12 months’ probation 29/07/2016 28/11/2016 Common assault 7 months’ imprisonment commencing 28/11/2016 Excluded person re-enter/attempt to re-enter premises $220 fine Destroy or damage property 9 month good behaviour bond Common assault 7 months’ imprisonment commencing 28/11/2016 Assault occasioning actual bodily harm 13 months’ imprisonment commencing 28/11/2016, 8 months’ non-parole
Warning as to risk of visa cancellation
On 14 December 2007, an officer of the Department of Immigration and Citizenship wrote to the Applicant warning him that should he be convicted of any further offences falling within the provisions of the Act, it could result in consideration of the cancellation of his visa.[5] The Applicant was imprisoned at the time.
[5] Exhibit RR01 at 94.
The Applicant says that he did not receive this letter. As the Minister was unable to produce a signed acknowledgement of its receipt (it is usual practice for an acknowledgement of receipt to be obtained from inmates receiving mail), I am not satisfied that the Applicant did receive the letter. I have not had regard to the warning contained therein.
Failure to pass the character test
It is not in dispute that, by reason of his criminal record, the Applicant does not pass the “character test” set out in the Act.[6]
[6] Applicant’s Outline of Submissions dated 11 January 2019 at [5]; Respondent’s Statement of Facts, Issues and Contentions dated 25 January 2019 at [5].
C: THE RELEVANT LEGISLATION
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This mandatory cancellation decision is referred to later in the Act as “the original decision”.
Subsection 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more …
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
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.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.
D: DIRECTION NO. 79
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction), which commenced on 28 February 2019. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 6.1(3) of the Direction provides, in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 provides general guidance and directs that the “factors that must be considered in making a revocation decision are identified in Part C of this Direction”.
Under the heading General Guidance, subparagraph (1) provides:
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.
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of the Applicant’s visa will be revoked. A copy of Part C is “Annexure A” to these reasons.
In paragraph 6.3, the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[7] Primary considerations should generally be given greater weight than the other considerations.[8]
[7] Direction No. 79 at [6.2(3)] and [8(1)].
[8] Direction No. 79 at [8(4)].
Paragraph 13(2) provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
PART E: THE ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 20). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. It is, therefore, necessary to decide whether “there is another reason [i.e. other than the Applicant passing the character test] why the original decision should be revoked.”[9]
[9] Migration Act 1958 (Cth), s 501CA(4)(b)(ii).
If I am satisfied of all the relevant requirements of subsection 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[10]
[10] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].
F: REASONING
F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
I must have regard to matters set out in paragraph 13.1, which include:
othe 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;
o[t]he nature and seriousness of the non-citizen’s conduct to date;
o[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[11]
[11] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
F1.1: The nature and seriousness of the Applicant’s conduct to date
The Applicant does not dispute the entries contained in the National Police Certificate dated 14 June 2017.[12]
[12] Exhibit RR01 at 26-29.
The Applicant’s conduct to date must be regarded as extremely serious. In the period from 2004 to 2016, the Applicant has at least ten convictions for offences involving actual or threatened harm to others. Three of these convictions were of crimes of violence against women.[13] In June 2007 he was convicted of two counts of assaulting a police officer in the execution of duty causing actual bodily harm.[14] These considerations alone add to the seriousness of his offending.
[13] Direction No. 79 at [13.1.1(1)(b)].
[14] Direction No. 79 at [13.1.1(1)(c)].
Assault committed 25 April 2004
The offence of common assault committed by the Applicant on 25 April 2004 was an assault upon his former wife from whom he was separated at the time. When he gave evidence before me, the Applicant agreed that the following extract from a NSW Police Facts Sheet was an accurate statement of what occurred:
The victim and accussed are married however according to the victim they have been sepearted for the last three years.
About 6.30am on Sunday the 25th of April, 2004 the victim has been with a friend of hers at [an] address. The victim’s friend recevied several phonecalls from the accused. The victim briefly spoke with the accused however she claims he became abusive and she terminated the call. The victim’s friend has informed the accused where the victim was.
The victim has waited for the accused to arrive. The accused was driven to the location by the witness. The accused has alighted from the vehicle and approached the victim. He has grabbed her arm and pushed her up against a nearby vehicle and grabbed her chin.
The victim not wanting to cause a scene has persueded the accused to return to the vehicle. The witness remained in the vehicle during this time. As the witness was driving the accused has continued shouting at the victim. He has then turned around and punched the victim a number of times from the front passenger seat.
The witness has stopped the vehicle and the victim has tried to alight from the vehicle. The accused has jumped into the back seat and pulled the victim back into the vehicle. He has then continued to punch the victim with both hands to the head region. The victim has held her hands up to protect herself. During this time the victim has pleaded with the accused to stop and asked the witness for assistance.
The victim has attempted to contact police using her mobile phone. The accsued has prevented her from doing this by grabbing the phone from her and throwing it out of the car window. The witness has intervened and distracted the accused so the victim has again tried to leave. The accused has chased after the victim and forced her to the ground. Police have arrived shortly afterwards and the victim was seen to be visibly distressed. Am abulance was requested and the victim was conveyed to the hospital for furthermedical treatment.
The accused was placed under arrest and conveyed to [a] Police Station. He participated in an electronic record of interview. He made full admissions to the offence claiming he assaulted the victim on a number of occasions. He also stated that he was angry at the time and wanted to hurt the victim.[15]
(Identifying information removed; errors in original.)
[15] Exhibit RR02.
Assault committed 24 July 2006
This assault was committed on the uncle of the Applicant’s wife. At the hearing the Applicant reluctantly admitted that the following statement prepared by the police was accurate:
About 6:00pm on Monday the 24th of July 2006 the victim [redacted] was at [a] shopping centre with his step niece [redacted]. A short time after this the victim sat down on a chair outside Woolworthes, while [his step niece] just went to buy something.
While the victim was waiting for [his step niece] he was reading with his head faced down. At this stage the accused [redacted] has come from behind. The accused has grabbed hold of the victims hair with one hand and in the other hand punched the victim in the top of his right eye. The accused has thrown another punch and the victim moved away. The victim face was covered with blood and the victim ran away from the accused. [The victim’s step niece] has witnessed the incident.
The accused has approached and had a short conversation with [the victim’s step niece] asking her to go with him. [She] refused. By this stage a number of people had surrounded getting in between the accused the victim and [the victim’s step niece]. The accused went outside and the victim and [his step niece] stayed inside. Shortly after the victim passed out.
Police and Ambulance were called. The accused left the scene. Police attended some time later and escorted the Ambulance and the victim to [a] Hospital.
…
The Victim suffered a cut to his right eye that required four stitches and also suffered concusion as a result of the incident.[16]
(Identifying information removed; errors in original.)
[16] Exhibit RR03.
Assault committed 26 December 2006
The Applicant again assaulted his former wife on 26 December 2006. The circumstances of this assault are set out in the following extract from a record prepared by New South Wales Police:
The victim states that when she was showering her child entered the bathroom. The victim called out for her sister to collect him which she did. The victim did not realise that when the sister walked out the accused had walked in. Once inside the accused has with a clenched fist and with one single punch king hit the victim to the back of the head. The instantly fell to thethe bottom of the bath. It is a shower bath combination. The victim looked up and saw the accused pulling on the shower curtain. Unable to get up the victim placed her arms around her head to protect herself. The victim was repeatedly punched to the head area. Victim unable to say how many times other than many. As the accusedwas punching the victim he was yelling at her, “Get up” along with some name calling but the victim couldnt make sense of the names. The whole time the victim was screaming. Once the accused stopped punching the victim he has grabbed at her hair and physically lifted her up from the floor. Once the victim was in the air the accused has let go of her hair and the victim has dropped to the floor. The victim cannot recall how long this type of assault took place but stated more than once. Victim states that she then saw the male known as [redacted] enter the bathroom she recalls this person saying to the accused to leave her alone to stop and for them to go. This assault ceased and the accused left. The victim was still on the floor and the sister went to assist her by turning off the water and giving her a towel as she was naked. As the victim was placing the towel around her the accused entered the bathroom for a second time. The victim saw the accuses was holding the child. The accused walked up to the victim and with one hand victim stating she thinks it was the accused right he has began to assault her by punching her with his hand about her head. Victim states her head was just bouncing everywhere and she again started to scream. The victims sister tried to take the child from the accused however was unsuccessful and the accused left with the child. The accused has told the victim that if she reports what happened then he would be back to kill her. The accused left … The victim was able to make it into her bedroom where she remained until Ambulance Officers attended. The victim was treated at the scene for a large cut to the back of her head. Victim was conveyed to Hospital which is not to be disclosed to the accused. The victim underwent x-rays and a head scan. These were clear. However the victim did receive 3 sutures to the back of her head and was to remain in hospital for observation period due to the hard hit to ensure concussion does not occur. Police saw the following injuries upon the victim. Cut to back of head, red marks and bruising to both arms and legs. It appears that if not both at least one eye being the victims left will turn black. The victim also complained of aches in her jaw.[17]
[17] Exhibit RR04 at 35-36.
Following this incident an apprehended violence order was made against the Applicant restraining him from approaching his wife.
Assaults committed 4 March 2007
Having considered the evidence of the Applicant given at the hearing, I am satisfied that the following statement prepared by the police is an accurate record of the events which took place on this occasion. At the time the Applicant was the subject of the apprehended violence order that he not approach his wife.
The victim in respect of this matter is … She has been previously been married to the accused for a period of 5 years. About 3 years ago the marriage ended … In December, 2006, an Apprehended Violence Order was granted at [a] Local Court and served upon the accused … As a result of the telephone call from the victim to the Police, Police attended the premises of … Once at the premises, the victim denied that the accused was present and that she lied regarding his whereabouts in the premises. The victim later explained to Police in a statement, that she did this because she was scared of the accused for reporting him to the Police for breaching the Apprehended Violence Order. Police entered the premises to investigate the matter. Police searched the premises and located the accused under a bed. The Police announced their presence and requested he come oput from underneath the bed. The accused complied with their request. As the accused began to stand up, the Police placed his hand in the middle of his back and informed him he was under arrest for breaching the AVO. The accused was instructed to place his hands behind his back indicating to him he was going to handcuffed. The accused lay on his stomach and the Police grabbed his left wrist and applied the handcuffs. The accused was instructedto put his right arms behind his back to which the accused stated, “Why are you handcuffing me? Are you scared?” As the Police attempted to place his left arm behind his back the accused state, “Do you want to do this the hard way.” The accused pulled his left arm from the Police and began to push himself up from the floor. Whilst doing this, … attempted to push him back to the floor. In doing so, the accused has punched … to her face causing … to fall on the bed. The accused at this time had the handcuffs on his left wrist. The accused approached … whilst she was on the bed … has kicked out at the accused forcing him backwards in order to defend herself. The accused approached … again. Fearing for her safety, … kicked out again as the accused was swinging his arms at her with the handcuffs attached to his left wrist. Whilst the accused was swinging his arms at …, the accused has hit … to her jaw area … felt a tooth break as a result … kicked him in the stomach in order to get herself off the bed. Whilst the accused was having this altercation with …, … was attempting to pull the accused from … The accused threw … onto the bed, throwing punches in the process, knocking a portable radio from …’s utility belt. … picked up the portable radio and called for urgent assistance. Whilst doing this, the accused has punched … to the right side of the face. The accused then ran from the bedroom and out the back door of the premiseds. The Police gave chase and located the accused a short distance away in a street which adjoins the rear yard of the premises. When Police confrontedthe accused, he ‘shaped up’, with fists clinches, … held his extandable baton in his hand. The accused approached … to which … responded with a strike of his baton to the accused’s leg. In response the accused punched … to the facial area. The accused then ran back inside the premises at …. … and … stood at the front and rear doors respectively awaiting for further Police assistance. Police assistance arrived a short time later and the accused exited the premises where he was arrested.[18]
(Errors in original.)
[18] Exhibit RR04 at 30-31.
The Applicant was sentenced to various terms of imprisonment for these offences, the longest being 16 months with a non-parole period of nine months. The Applicant was incarcerated for the non-parole period.
Conduct while imprisoned 2007-2009
Records of the NSW Department of Corrective Services show that on 9 October 2007 and 1 November 2007 the Applicant was involved in fights with other inmates.[19] On the second occasion the Applicant was disciplined by prison authorities.[20]
[19] Exhibit RR04 at 53-54.
[20] Exhibit RR04 at 54.
Conduct while on parole in 2009
The applicant was released on parole on 2 March 2009. He was subject to supervision by a parole officer and was assisted in addressing his alcohol abuse and anger management problems.
On 10 August 2009, the Applicant breached a domestic violence order by attending the premises occupied by his former wife and his children. As a result, on 9 September 2009 he was sentenced to six months’ imprisonment commencing on 10 August 2009.[21]
[21] Exhibit RR01 at 27.
Conduct while imprisoned August 2009-February 2010
Prison records show that on 3 October 2009 the Applicant engaged in serious verbal abuse of a female correctional officer.[22] When questioned as to this record, the Applicant said he did not recall the incident but that it was possible it did occur. I am satisfied on the balance of probabilities that the Applicant was abusive to the officer on this occasion. At the hearing the Applicant said that such conduct was “a normal way of life” in prison.[23]
[22] Exhibit RR04 at 133.
[23] Transcript, 6 February 2019.
On 18 January 2010, a prison officer observed the Applicant holding another inmate and punching him in the face.[24]
[24] Exhibit RR04 at 127.
On 25 January 2010, the Applicant was subject to a segregation direction by reason of his assault on another inmate.[25]
[25] Exhibit RR04 at 89.
Upon his release from prison in February 2010 the Applicant attended further counselling concerning alcohol abuse. He does not remember for how long.
Assault committed on 26 June 2011
The Applicant also acknowledged the accuracy of the following police record of an incident in which he assaulted a woman unknown to him. When he gave evidence before me he said that she attacked him. There is no reference to this claim in the statement of facts. The Applicant was convicted of common assault.
About 05:50am on Sunday 26 June 2011, [the victim] was standing in line at the taxi rank located on the corner of [two streets] in the Australian Capital Territory (ACT).
At this time, [the victim] was approached by a male person known to the Police as [the Applicant], hereinafter referred to as the defendant. [The victim] and the defendant became involved in a short conversation whilst waiting in line.
…
[The victim] became offended by a sexual comment made by the defendant and flicked her cigarette in the direction of the defendant.
The defendant then pushed [the victim] causing her to fall to the ground and as a result [the victim] struck her head against a taxi.
The defendant then moved towards [the victim].
[The victim] stood up, but cannot recall whether she did so unassisted or with the assistance of members of the public.
The defendant again pushed [the victim] forcing her rearwards onto the road.
…
As a result of the assault [the victim] sustained minor scrapes and lacerations to her elbows.[26]
(Identifying information removed.)
[26] Exhibit RR05.
Assaults committed 29 July 2016
The Applicant committed further serious physical assaults in July 2016. Again, he accepted the facts as set forth in the NSW Police Facts Sheet presented to the Court, save that he denied he was aggressive or threatening to the licensee and the security guard when initially asked to leave the premises.
The Facts Sheet describes the incident as follows:
The victims in this matter is [the security guard], [the patron] and [the licensee].
About 7:15pm on Friday, the 29th July, 2016, [the licensee] was working at [the hotel] in his role as licensee. At the time [the licensee] was seated having a conversation with a few local patrons near the electronic betting terminal near the sports tab. At this time [the licensee] saw two male patrons wearing fluorescent shirts having a beer adjacent to the table that [the licensee] was seated at. The two had the same building company written on the back … The two men were Polynesian in appearance and not regular patrons of the hotel. [The licensee] noticed that both person were swearing and the accused, [the Applicant], when he stood had trouble with his balance as he walked toward the bar area. [The licensee] formed the opinion that the male patrons had enough to drink. [The licensee] estimated that there arrival was between 4 and 4:30pm on the 29th July 2016 and they had been in the venue for about 2 and a half hours. [The licensee] spoke to [the security guard] and told that both the accused and co-accused appeared to be intoxicated and that [the security guard] was to inform both the accused and co-accused would be no longer getting any more liquor and were to start exiting the hotel and were told to leave the hotel by [the security guard].
A short time later [the licensee] spoke to [the security guard] and [the security guard] told him that he had spoken to the accused and co-accused and they had been informed that they had been cut off from the bar.
[The licensee] was then walking past the table were the accused and co-accused were seated and the accused, [the Applicant] said to [the licensee] “What are fucking doing telling us that we have had enough?” [The licensee] said, “You have had enough this afternoon boys and it is time to go home.”
The accused, [the Applicant] said, “Why.”
[The licensee] said, “I identified you earlier and told the security guard to tell you that it was time to go.”
The accused, [the Applicant], “Identify, you bet to look that up in the dictionary boy as you don’t know what that means.”
[The licensee] said “This is my hotel and my rules and its time to go, so finish that beer up and go.”
At this time [the security guard] walked over to [the licensee] and the accused, [the Applicant] said “I am going to give it to you two guys so lets take this outside.”
[The licensee] said, “Look mate it is time to go, this is not personal it is just the rules of the hotel so there will be no issues. If you go without issues then you can always come back tomorrow.”
The accused, [the Applicant] said, “I don’t give a fuck, I am going to fuck you up.”
The accused, co-accused walked out to the front veranda of the hotel where other patrons were drinking. [The licensee] and [the security guard] followed the accused and co-accused out of the hotel in order to make sure that the accused and co-accused did not re-enter the hotel.
At this time the accused, [the Applicant] grabbed [the security guard]’s arm in order to try and pull him to the carpark in order to try and fight [the security guard]. The accused, [the Applicant] said: “Let’s take this to the car park boy.”
…
OFFENCE 3: Assault occasioning actual bodily harm.
[The security guard] continued to refuse the request to fight and kept moving his arm to break the grip of the accused [the Applicant]. At this time the accused, [the Applicant] without warning hit [the security guard] with a closed fist hitting the right side of [the security guard]’s face which struck his nose area. This caused [the security guard]’s nose to bleed immediately with blood starting to stream from his nose causing blood to cover his shirt and the path on the veranda. This caused [the security guard] immediate pain.
[The licensee] moved in to get between [the security guard] and the accused, [the Applicant], in order to assist [the security guard]. At this time the co-accused, who was standing near the group lunged towards [the patron] and punched [the patron] with a closed fist and hit his face.
OFFENCE 4 - Common Assault.
The accused, [the Applicant], then continued to punch [the security guard] in the head at least 5 times in the back of the head. This has further cause pain to the back of [the security guard]’s head. As a result [the security guard] tried to get away and also protect himself by moving his arms up over his head. Another patron has also come to assist and has tried to pull the accused [the Applicant] away from [the security guard].
During the scuffle, and while [the licensee] was trying to get the accused, [the Applicant], away from [the security guard], the co-accused has also been in the scuffle and has struck [the licensee] in the face making contact with an open hand to the right side of the face.
[The licensee] and [the security guard] then moved inside the hotel in order to get away from the accused and co-accused.
Offence 5 - Common Assault
While they were inside [the patron] and [another patron] were assisting by trying to get the accused and co-accused away from the veranda. The accused, [the Applicant] then continued to hit [the patron] in the face and body, however [the patron] moved away from the accused, [the Applicant].
…
Police also obtained the CCTV footage of the incident which clearly shows the offences taking place at the accused and co-accused arguing and assaulting the security guard, licensee and patron.
The accused and co-accused were asked to leave on no less then three occasions and [the licensee] had to stand at the door in order to stop the accused and co-accused from entering the hotel after being told to leave.[27]
(Identifying information removed; errors in original.)
[27] Exhibit RR06.
The Applicant was sentenced to 13 months’ imprisonment in respect of the charge of assault occasioning actual bodily harm (non-parole period of 8 months) and 7 months’ imprisonment in respect of each of the two charges of common assault.[28]
[28] Exhibit RR01 at 26.
Applicant’s conduct while in immigration detention
The Applicant assaulted another detainee in the detention centre in which he was being held on 15 April 2018. CCTV footage[29] shows the Applicant hitting, punching and pushing the other detainee with sufficient force to cause him to fall backwards against a wall and onto the floor. The Applicant then grabbed the detainee by the hair and said to him “Don’t ever do that again, it’s disrespectful.” I accept that the Applicant’s conduct on this occasion was in response to extremely provocative statements directed by the victim of the assault towards the Applicant. However, the provocation does not excuse the manner in which the Applicant responded.
[29] Exhibit RR19.
On 29 August 2018, the Applicant took part in an incident involving other detainees and security staff. This incident was also recorded on CCTV.[30]
[30] Exhibit RR20.
On this occasion the Applicant and other detainees pushed through a door into an area where a detainee was being restrained by centre guards. The Applicant forcefully pushed one of the guards, apparently in an attempt to reach the restrained detainee. On two occasions the Applicant pointed at another guard. His evidence was that he said to the guard “it was you that started all of this” and “are you happy now?”[31] The Applicant had not witnessed any untoward behaviour by guards towards the restrained detainee. He said that he joined others in entering the area where the guards were because “the group” had decided to do so.
[31] Transcript, 7 February 2019.
The Applicant gave evidence that he became angry during this confrontation and that he was verbally aggressive towards the guards.
F1.2: The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that I must have regard to the following considerations cumulatively:
(a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[32]
[32] Direction No. 79 at [13.1.2(1)].
The nature of future harm
Should the Applicant further engage in conduct similar to that in which he has previously engaged, there would be a significant risk of serious physical and/or psychological harm to members of the community, including members of his own family.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant’s evidence
In his statement made on 13 October 2017 while he was in immigration detention, the Applicant said, in part:
49. Most of my offences are related to my alcohol abuse. I have come to realise that I am sincerely remorseful towards the various victims of my crimes. I have attended Anger Management courses to address my behaviour, however my rehabilitation toward alcohol abuse is ongoing but I am determined to continue my rehabilitation and I believe I am well on my way.
50. While in Jail I prayed and fasting once a month asking the Big man above, to forgive me and help me turned my life around. Make me a better person and learn from my mistakes. What I’ve experienced I can help others not to make the same mistakes and also make sure that we’re in a safe community.
51. I have made a promise to myself if given another chance I won’t be drink alcohol anymore. Not only for my own good but for my family’s and everyone in my community + country. It’s obviously not good for me and I now realise that and that I just cannot drink any alcohol.
…
95. I want to be a good father and provider to my wife and kids. I want to be a good husband. I want to lead by example at home to my family, friends and the community. I don’t want to drink alcohol and misbehave any more, it has got me into too much trouble and I have learnt my lesson. I just cannot drink and commit offences against innocent people.[33]
(Errors in original.)
[33] Exhibit AA01.
In his more recent statement made on 12 December 2018,[34] the Applicant said, in part:
9. I have come to realise alcohol has made myself think in a negative way and my actions have proved it. I have made the decision by myself to stop drinking and focus on my family. I have decided not to drink alcohol again. I regret the things I’ve done in the past and my kids are the innocent victims of my crimes …
[34] Exhibit AA02.
In that statement the Applicant said that he would undertake the treatment plan recommended by Mr Jones, Forensic Psychologist, and that arrangements were in place for the treatment to be provided. I will refer to the plan later in these reasons.
Report of Mr Watson-Munro, Consultant Forensic Psychologist
Mr Watson-Munro assessed the Applicant in September 2017 at a detention centre. He provided a report dated 27 September 2017. He did not give evidence at the hearing.
In relation to the assaults committed by the Applicant in 2016, Mr Watson-Munro reported:
His treatment has been minimal. He stated that he has undertaken some anger management in prison, although at best this would appear to be palliative rather than concerted and detailed. He has not seen a Psychologist in the community but recognises that if he is given the opportunity to remain in the country that ongoing treatment is essential. Discussions with his wife confirm his motivation and sincerity for help.
…
It is clear that he has a poor capacity to cope with pressure and in the absence of requisite skills to deal with stress when it arises, he has in the past resorted to alcohol as a means of self-medicating. This in turn has impacted upon his judgment, consequential thinking and impulse control at a level of significance. He stated however in relation to the most recent offence that he in fact was in a positive mood however as his boss was shouting drinks, he consumed in excess of 10 schooners of beer. It is clear that treatment needs to address his binge drinking in terms of regulating his consumption. Ideally this man should not consume alcohol at all.[35]
[35] Exhibit AA20 at 6.
As to the prospects of the Applicant re-offending if he remains in Australia, Mr Watson-Munro expressed the opinion that:
[The Applicant]’s offending behaviour has occurred primarily in the context of alcohol abuse. His dependence on alcohol as a means of self-medication derives from longstanding and hitherto untreated symptoms of depression, anxiety and low self-esteem. There have been periods of remission when he has not offended or abused alcohol and in this regard it is clear that his wife [redacted] has had a strong influence in terms of moderating his behaviour.
…
He has now been free of alcohol for a significant period of time due to his incarceration and in this context is in a state of remission. In association with this, his judgment and thinking are clearer. I have discussed treatment options with his wife and it is apparent that she is highly motivated to ensure that he complies with treatment. I gather that [the Applicant] has put his name down to see a Psychologist at [the detention centre] , although in my respectful view treatment can be more effective and comprehensive in a community setting where he enjoys the love, support and guidance of his wife and family.[36]
(Identifying information removed.)
[36] Exhibit AA20 at 15-16.
Evidence of Mr Jones, Forensic Psychologist
The Applicant was assessed by Mr Jones on 22 November 2018. Mr Jones provided reports dated 9 December 2018[37] and 31 January 2019[38] and gave evidence at the hearing.
[37] Exhibit AA04.
[38] Exhibit RR21.
Mr Jones diagnosed the Applicant as suffering “Alcohol Use Disorder, moderate severity, in full remission, in a controlled environment”.[39]
[39] Exhibit AA04 at 9.
In relation to the Applicant’s offending behaviour and the risk of his re-offending, Mr Jones reported:
[The Applicant]’s offending history appears to have a direct association and causal effect from his alcohol use/abuse. He reported having engaged in alcohol use during his mid teenage years and by late teenage years was a heavy drinking [sic] of alcohol. His social activities during adulthood are such that alcohol use/abuse is a common social activity. This encourages and supports alcohol abuse that has resulted in violent offending.
Prior assessments conducted by probation and parole services also identify alcohol use/abuse as a causal factor in his offending. [The Applicant] has previously engaged in an alcohol abuse program that they have had some short to medium term success in limiting his alcohol use. However subsequent re-engagement in alcohol abuse resulted in violence toward people he had no prior interaction or relationship with.
…
Based on the comprehensive assessment, it is my opinion that [the Applicant] currently poses a low risk for [sic] committing violent offences. Areas of specific attention with regards to risk for further offending include his alcohol abuse behaviour. This risk assessment is prior to any recommended treatment plan he may choose to engage in. If [the Applicant] engages in the recommended treatment plan his risk of recidivism would be expected to reduce.
A treatment plan, as detailed below, has been developed to specifically address [the Applicant]’s clinical and identified risk management factors identified during this assessment, and is designed to reduce his risk of recidivism.
Having spoken with [the Applicant]’s wife, [redacted], and daughter, [redacted], I am of the opinion he has strong support from both women in assisting him to successfully engage in the recommended treatment plan. Familial support is a protective factor in reducing recidivism and aid in his successful rehabilitation.
…
To manage and decrease his risk of recidivism I believe it would be in [the Applicant]’s interests for him to obtain treatment that includes:
a) Alcohol abstinence;
b) Attendance at continuing alcohol abuse counselling programs;
c) Completion of an anger management program;
d) Vocational education and social skills training;
e) Stress management/emotion coping skills training and Psycho education in relation to more appropriate ways of managing (dis)stress;
f) Communication and Relationship Training;
g) Relaxation training.[40]
[40] Exhibit AA04 at 8-9.
In January 2019, Mr Jones reviewed additional documents provided to him by the Applicant’s solicitors. These included:
oclinical records maintained by International Health and Medical Services in respect of the Applicant from 18 August 2017 to 24 October 2018 while he was in immigration detention;[41]
oreports of the incident which took place on 15 April 2018.
[41] Exhibit RR17.
On 31 January 2019, having considered the additional material, Mr Jones reported, in part:
The IHMS records indicated [the Applicant] engaged in one-on-one consultations with mental health staff after requesting treatment for anger management, and from 11 April, 2018 engaged in group treatment sessions. Those sessions would appear to have included a variety of topics including anger management, mindfulness, moral dilemmas, communication, empathic listening, defence mechanisms, cultural rehabilitation, identity and other topics of therapy. In total the records indicate he attend [sic] twenty-three (23) group treatment sessions between the 11 April, 2018 and 24 October, 2018. Notations in [the Applicant]’s file suggest he engaged actively with the group sessions and was a productive member of the group sessions. His engagement in these group treatment programs would support my previous risk or recidivism assessment being that [the Applicant] posed a low risk of committing future violent offences.[42]
[42] Exhibit RR21 at 1-2.
Further, in relation to the risk of the Applicant repeating his past violent behaviour, Mr Jones reported:
Having received and reviewed these further documents which were not available to me in conducting my previous risk assessment, I opine my previous risk assessment is now not accurate. Whilst risk assessment measures often rely upon convictions for a violence offence or offences to assist in determining the risk of reoffending, other information can, when appropriate, be considered.
Having considered this new information, I have reviewed my previous assessment measures and now opine that [the Applicant]’s risk of engaging in future violent behaviour to be in the medium range.[43]
[43] Exhibit RR21 at 3-4.
When he gave evidence Mr Jones said that, in his opinion, the Applicant’s risk of re-offending remains in the low-medium range. However, the assaults committed by the Applicant while in immigration detention indicate that he can engage in aggressive behaviour without having consumed alcohol. The Applicant’s engagement in anger management counselling sessions in 2018 showed that he desired to change his behaviour.
Evidence of the Applicant’s wife, Ms E.
Ms E. provided statements dated 22 June 2017[44], 5 October 2017[45], and 12 December 2018[46].
[44] Exhibit RR01 at 36.
[45] Exhibit AA26.
[46] Exhibit AA27.
In her statement made on 22 June 2017 when the Applicant was still in prison, Ms E. referred to the close relationship between the Applicant and his children. In her opinion he was remorseful and if he “could turn back time, he would not make the same mistake”.[47]
[47] Exhibit RR01 at 41.
Ms E. provided the statement dated 5 October 2017 for the purposes of these proceedings. At that time she believed the Applicant had problems with alcohol use and anger but that “more importantly he has a problem with getting the appropriate help to assist him in managing these traumas”.[48]
[48] Exhibit AA26 at [83].
When she gave evidence at the hearing Ms E. was confident the Applicant would not re-offend as he would not want to cause her and the children further distress. She said that the Applicant’s experience of being in detention has had a great impact on him.
Evidence of the Applicant’s children
The Applicant’s two elder children, son A. and daughter B., provided statements.[49] They referred to the positive role their father plays within their family and the difficulties they and other family members will face if he is removed from Australia.
[49] Exhibits AA10, AA22 and AA23.
Statement of Mr F., prospective employer
Mr F. provided a statement dated 10 December 2018.[50] Based on that statement I am satisfied that should the Applicant be released from detention and remain in Australia he will be employed and earn a reasonable income.
[50] Exhibit AA11.
Statement of the Applicant’s parents
The Applicant’s parents provided joint statements dated 10 October 2017 and 1 December 2018.[51]
[51] Exhibits AA12 and AA16.
In their statements the parents express their opinions that the Applicant understands that he has made mistakes and bad choices and that he is very remorseful for his past conduct. It is their belief that the Applicant will not repeat his past bad conduct and that he will make better choices in future as he has seen the hardship he has caused to his family.
Counselling in respect of alcohol abuse and anger management
The Applicant gave evidence that he was aware he had problems with alcohol use and anger management when he was released on parole in March 2009. His parole officer focussed on counselling him in relation to these problems until he was again imprisoned in August 2009.
When the Applicant was released from prison in February 2010 he again attended counselling for alcohol abuse. He does not remember for how long.
In May 2012, a Case Management Plan was prepared by ACT Corrective Services following the Applicant’s being made the subject of an 18 month good behaviour order as part of his sentence for the assault he committed earlier that year. At that time the Probation and Parole Officer noted:
[The Applicant] acknowledged alcohol abuse had been main factor with his offending history … [He] disclosed he has reduced his alcohol significantly since the offense [sic].
[The Applicant] appears to have reflected on his offending and is evaluating the risks and rewards of crime. He stated “can’t afford to return to jail and I’m very lucky to be out” as the experience of jail has also matured him …
… ADP counsellor reports no further intervention required as he has insight into his A&D use and strategies to avoid at risk situations …[52]
[52] Exhibit RR07.
An ACT Health Assessment Report dated 25 May 2012 records the Applicant as “[showing] good insight into alcohol use and associated risks, [and] has strategies to avoid future risk situations”.[53] At the time the Applicant was still subject to the good behaviour order.
[53] Exhibit AA21 at 240.
In October and November 2016, the Applicant attended private counselling sessions in which issues concerning awareness of, and strategies to manage, anger were discussed. It was reported that the Applicant “interacted positively during the sessions and adopted some anger management techniques”.[54]
[54] Exhibit RR1 at 64.
While the Applicant has been in immigration detention he has received counselling to assist him with anger management. He attended group sessions regularly between August 2017 and October 2018.[55] The sessions covered a wide range of topics, including the use of alcohol and anger management, but it does not appear that they were specifically targeted at these problems.
[55] Exhibit RR17.
The records also show that the Applicant received individual counselling sessions on anger management in September 2017, October 2017 and April 2018.[56] In September 2017 the counsellor assessed the risk of the Applicant causing harm to others as “low”.[57]
[56] Exhibit RR17.
[57] Exhibit RR17 at 181.
In January 2019 the Applicant completed online courses in anger management and drug and alcohol use. He did this on the recommendation of Mr Jones.
Ms Preston, the psychologist presently being consulted by Ms E., has agreed to provide the treatment recommended by Mr Jones (see paragraph 68 of these reasons) should the Applicant be able to, and wish to, attend.[58]
[58] Exhibit AA15.
Discussion
Having considered all of the evidence to which I have referred, and in particular the Applicant’s history of re-offending, I accept the evidence of Mr Jones that the likelihood of the Applicant engaging in further criminal or other serious conduct is in the low-medium range.
F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision
Based on the evidence of the Applicant, Ms E., the Applicant’s parents,[59] and the Applicant’s brother,[60] I am satisfied that the following minor children in Australia will be affected by a decision in relation to the cancellation of the Applicant’s visa:
·a son aged 14 years, who I will refer to as “X.”;
·a son aged six years, who I will refer to as “Y.”;
·a son aged five years, who I will refer to as “Z.”;
·three nieces and four nephews.[61]
[59] Exhibit AA12.
[60] Exhibit AA24.
[61] Exhibit AA1 at [5].
Evidence of Ms E.
Ms E. gave evidence that the three minor sons have been deeply affected by their father’s incarceration and detention, and that this situation will be worsened should he be removed from Australia.
Both Y. and Z. are very close to their father and show signs of anxiety when separated from either parent. Ms E. describes the boys as “very sensitive, anxious, emotional and sometimes angry”.[62] She has ensured that they have maintained contact with their father by visiting him in prison and in the detention centres and by speaking to the Applicant on the telephone. They believe that their father cannot come home by reason of his work.
[62] Exhibit AA27 at [56].
Evidence of Mr Jones, Forensic Psychologist
Mr Jones assessed Ms E., Y. and Z. on 22 November 2018. He was able to observe Ms E. and the two children in the presence of the Applicant. He provided a report of the assessment dated 6 December 2018.[63]
[63] Exhibit AA03.
In relation to Y. (the six-year-old son) Mr Jones reported, in part:
During the latter stage of the assessment [Y.] became increasingly personable and actively engaged with the author. This increased interaction was after he had observed his parents engaging in friendly interaction. It is from this interaction [Y.] felt secure in interacting with the author. Children understand the safety and danger of an environment based upon their parent or primary care givers’ reaction and response. Children with stable relationships with their parents will “follow the lead” of the parent and as such [Y.]’s engagement with the author is indicative of his attachment and close bond with his father and mother.[64]
[64] Exhibit AA03 at 12-13.
In part, Mr Jones’ report on Z. (the five-year-old son) read:
He engaged in very loving and affectionate behaviours with his father and was happy to sit on his father’s lap when it was located by his elder brother [Y.]. With his father he was very affectionate and loving and sought comfort and affection during the assessment. [Z.] interacted with some reluctance toward his father and deferred to his mother’s attention as is consistent with general theories of stable childhood development.[65]
[65] Exhibit AA03 at 13.
Referring to both boys, Mr Jones reported:
The currently relationship between [the Applicant] and his children [Y.] and [Z.] would also suggest a loving and stable attachment and bond together. Whilst his bond is different to the bond [A.] shares with his father, it is a bond consistent with the age of both sons.
…
Of particular relevance is the very real likelihood [A., Y. and Z.] may be separated from their father permanently. I understand [the Applicant]’s children may want to live with their father if he was deported, however I am particularly mindful of the conflict each child may experience in leaving their respective mother. It is very likely all children will experience significant emotional distress and conflict associated with their father being removed from Australia.
A separation from their father will negatively impact upon the children’s tendency to make strong affectionate bonds and their ability to understand and manage the various forms of emotional distress (anxiety, depression) that unwilling separation and loss give rise.
The effects of sudden separation from a parent have long been known to increase the likelihood of adverse effects on a child’s psychological well-being. Early experiences with interpersonal loss, including loss of attachment figure(s), whether actual or perceived, can increase risk for developing depression – particularly when such loss is perceived as uncontrollable. Indeed, the sudden and sustained loss of contact with significant others has the potential to cause great, if not permanent, harm to a child’s current and future relationships. It is reasonable to indicate the sudden and sustained cessation/loss of contact, including face-to-face and residential contact with [the Applicant] will result in [the Applicant]’s children suffering Separation Anxiety Disorder.
I can indicate with reasonable certainty that separation from [the Applicant] will most likely result in [his] children experiencing symptoms of depression and anxiety. It is reasonable to opine that on the balance of probabilities [the Applicant]’s children may become pervasively depressed and anxious. The separation is also likely to have enduring emotional and psychological impact that may only become evident during the adolescent years …[66]
[66] Exhibit AA03 at 14-15.
Mr Jones did not have the opportunity to meet X. who lives with his mother, the Applicant’s former wife.
Discussion
There can be no doubt that the Applicant’s three minor sons will be significantly affected should he be required to return to Tonga. I accept the evidence of Ms E. and Mr Jones in this regard. In particular, the children of his present marriage will lose the day-to-day companionship and care their father would be able to provide should he be free to return to live in the Australian community. There is considerable evidence in the many letters of support provided by family and friends of the Applicant that he has a keen interest in his children’s sporting activities and, in the past, he has been actively involved in those activities.
It is unlikely that the Applicant will be able to provide the same level of financial support for his children from Tonga as he could if he was to remain in Australia.
Although there is little evidence as to the effect on the Applicant’s nieces and nephews, I am satisfied that it is likely that they would feel some distress should their uncle be required to leave Australia. I accept the evidence of the Applicant that he is a member of a close-knit family.[67] I also take into account the statement of the Applicant’s sister-in-law that her daughter “adores” the Applicant.[68]
[67] Exhibit AA1.
[68] Exhibit AA19.
I am satisfied that the interests of the minor children weigh very heavily in favour of the revocation of the mandatory cancellation.
F3: Primary Consideration 3: Expectations of the Australian community
Paragraph 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian 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,[69] Mortimer J said at [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.
[69] [2017] FCA 1466.
Since the judgement in YNQY, the Federal Court handed down its judgement in DKXY v Minister for Home Affairs[70]. After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said at [29]-[31]:
29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …
31. As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
(Emphasis in original.)
[70] [2019] FCA 495.
After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[71] relied upon by the primary judge in YNQY in support of the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation because that is the intended operation of the consideration, Griffiths J continued at [33]:
33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[71] (2016) 248 FCR 296.
Having considered these judgements I have come to the conclusion that I should adopt and apply what has been described as “the broad approach”.[72] As is usually the case in matters such as this, the Tribunal has received little, if any, assistance by way of evidence to assist it in taking into account this primary consideration.
[72] [2019] FCA 495 at [34].
There can be little doubt that different individuals and groups within the Australian community will hold differing views as to the circumstances in which the cancellation of a visa should be revoked in a particular case; some, but not all, may support the Government’s view.
Taking into account all of the circumstances of this matter, I have come to the conclusion that the Australian community would expect that the cancellation of the Applicant’s visa not be revoked. Those circumstances include:
·the seriousness of the Applicant’s offending, particularly as it involved repeated acts of violence;
·that some of the worst of the Applicant’s violent offending was perpetrated against women and persons of authority in the performance of their duties;
·the risk of harm to members of the community should his offending behaviour be repeated;
·his offending in 2016 following two periods of incarceration;
·his limited counselling to address his abuse of alcohol and anger management issues.
F4: Other considerations set out in Direction No. 79
Paragraph 14 of the Direction provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
F4.1 International non-refoulement obligations
There are no non-refoulement obligations relevant to the determination of this matter.
F4.2 Strength, nature and duration of ties to Australia
Paragraph 14.2 of the Direction provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has resided in Australia since he was 15 years of age, a period of almost 27 years. His wife and five children are Australian citizens and reside permanently in Australia.
The parents of the Applicant also reside permanently in Australia, as do his three siblings and their families.[73] Two of his siblings are Australian citizens.[74]
[73] Exhibits AA12, AA16 and AA7.
[74] Exhibit AA1.
The effect on Ms E., the Applicant’s wife
Ms E. says that she has suffered “many, many dark moments”[75] arising from her husband’s incarceration and detention and the need to care for her two young children while working in a demanding full-time position. The Applicant’s 19-year-old son also resides with her and his younger brothers. She experiences the additional stress of providing for the family financially while the Applicant does not earn an income. As she is living away from her family she has little additional support available to her.
[75] Exhibit AA27 at [58].
Should the Applicant be removed from Australia, Ms E. will remain in Australia as the prospect of relocating to Tonga would be too traumatic for their two sons and herself. The children would not receive the same standard of education, health care and opportunities as are available to them in Australia. One of the children needs special health care which may not be readily available in Tonga.
When Mr Jones assessed Ms E. in November 2018, he diagnosed her as suffering from “Major Depressive Disorder with anxious distress, moderate severity”.[76]
[76] Exhibit AA03.
He reported, in part:
I am of the opinion that [Ms E.] will experience significant emotional, financial and psychological impact of [the Applicant]’s deportation. She is attempting to meet the emotional and parental needs of the children and is able to do so on a short-term basis. She lives a life day to day based upon an outcome of the Tribunal. She has not considered how she would survive if her husband was deported. I also note the impact to current life circumstance has upon her general functioning and in this regard acknowledge she is suffering a depressive disorder. She currently continues to receive treatment of her depression and remains compliant with her medicated treatment regimen. It is likely that deportation of her husband will cause significant emotional upset, distress and psychological deterioration upon a self and also upon her children.[77]
[77] Exhibit AA03 at 16.
The diagnosis made by Mr Jones is consistent with the diagnosis made by Mr Watson-Munro in September 2017. In his report of 27 September 2017,[78] Mr Watson-Munro noted that he had administered to Ms E. the Beck Depression Inventory. He reported that the testing confirmed his clinical impressions that Ms E. was suffering a Depressive Disorder.[79]
[78] Exhibit AA20.
[79] Exhibit AA20 at 11.
Since January 2018, Ms Preston, Clinical Psychologist, has been treating Ms E.. Therapeutic intervention has involved “the introduction of anxiety and stress-reducing strategies, as well as problem-solving in the context of the family situation.”[80]
[80] Exhibit AA14.
On 30 November 2018, Ms Preston reported:
At her initial assessment [Ms E.] reported low mood, and high levels of anxiety and stress. She reported fear of the future, and concern about the impact of the family situation on the children, and extended family. Her DASS21 (Depression, Anxiety and Stress Scale, Loviband and Loviband, 1994, a valid measure of emotional distress) score on the scales of Depression and Anxiety fell in the Extremely severe range. Her scores for Stress fell in the Severe – Extremely severe range …[81]
[81] Exhibit AA14.
The effect on other family members
I have before me statements by the Applicant’s:
·wife;[82]
·son, aged 19 years;[83]
·daughter, aged 18 years;[84]
·brother;[85]
·sister-in-law;[86] and
·parents.[87]
[82] Exhibits AA26 and AA27.
[83] Exhibits AA10 and AA22.
[84] Exhibit AA23.
[85] Exhibits AA07 and AA24.
[86] Exhibit AA08 and AA19.
[87] Exhibits AA12 and AA16.
These statements refer to the distress which would be caused to other family members should the Applicant be required to return to Tonga.
Mr Jones gave evidence as to the effect on the Applicant’s adult children should he be removed. In forming his opinion he reviewed statements from staff of the school attended by the Applicant’s eldest son.
In his report of 6 December 2018, Mr Jones expressed the opinion that the removal of the Applicant “will most likely result in [the Applicant]’s children experiencing symptoms of depression and anxiety … Given the relationship [the Applicant]’s elder children have with him in addition to the desire to retain a relationship with their biological mother deportation of [the Applicant] will have a significant direct impact upon the emotional and psychological development and stability of his adolescent children [A., B. and X.]”.[88]
[88] Exhibit AA03 at 15-16.
I accept the evidence I have referred to above and, on that basis, I am satisfied that the affirmation of the decision under review will seriously affect the health of Ms E. and the Applicant’s adult children. They are likely to experience depression as a result. In addition, they will lose at least some of the financial support the Applicant would have been able to provide had he been allowed to return to work in the Australian community. Ms E. will not have the Applicant’s day-to-day assistance in raising their young children.
Other members of the family will also be affected, both emotionally and financially. In particular, the Applicant’s parents will lose the benefit of close contact with their eldest son and the physical and financial assistance he has been able to provide for them in the past. I acknowledge the importance of the Applicant’s position as the eldest son in the family.
The Applicant has played an active role in his community, including his Church, when he has been free to do so. I have taken into account the many statements to this effect.
Discussion
Having considered all of the evidence, I am satisfied that the Applicant has very close and strong ties to his wife, children and extended family, all of whom are Australian citizens or permanent residents of Australia.
Understandably, Ms E. does not intend to relocate to Tonga to live with the Applicant should he be removed. This will mean that the family unit, as it existed prior to the Applicant’s imprisonment and detention, will come to an end. While the Applicant may be able to provide some financial support for his family while working in Tonga, it is reasonable to assume that this will not be to the same extent as he would be able to provide should he be employed in Australia. In addition, Ms E. will lose the companionship of the Applicant and the benefit of his day-to-day assistance in caring for his three minor children.
I am satisfied also that the Applicant’s adult children, his parents and extended family members will suffer emotionally, and probably to some extent financially, should the mandatory cancellation not be revoked.
I am satisfied that the Applicant’s ties to Australia are very strong and have existed ever since his arrival as a 15 year-old.
F4.3 Impact on Australian business interests
I am satisfied that a decision not to revoke the cancellation of the Applicant's visa will not have a relevant impact on Australian business interests.
F4.4 Impact on victims
I do not have sufficient evidence to enable me to make a finding as to the impact of a decision to revoke the mandatory cancellation on the Australian community, including the victims of the Applicant’s crimes and their families. The Minister did not call any evidence to assist me in this regard. I was not made aware of any reason why such evidence was not available.
F4.5 Extent of impediments the Applicant may face if he is removed from Australia
On the basis of the evidence before me, I am not satisfied that the Applicant would face any significant impediments if removed to Tonga, taking into account that:
·he is 42 years’ old and in good health;
·there are no substantial language or cultural barriers to his living in Tonga;
·as a citizen of Tonga the social, medical and/or economic support available to him would be the same as that available to other citizens of that country;
·the Applicant has some family members living in Tonga, but in view of the time he has lived in Australia, the extent of any emotional support they may be able to provide to assist him to establish himself is unknown.
PART G: THE BALANCING EXERCISE
I am satisfied that the interests of the Applicant’s minor children and the extent of his ties to Australia (including the effect on Ms E. and his other family members) weigh very heavily in favour of revoking the cancellation decision. In many cases, these considerations would determine the outcome of the application.
However, the seriousness of the offences of which the Applicant has been convicted increases the need to protect the Australian community from the risk of further criminal or other serious conduct by him, and therefore weighs very heavily against revocation. Added to this is the expectation of the Australian community that the cancellation of the Applicant’s visa not be revoked.
Having considered all of the evidence, I am satisfied that the risk of the Applicant re-offending is in the low-to-moderate range. In reaching this conclusion I accept that the Applicant genuinely intends not to re-offend and that he will have the support of Ms E., as well as professional support, if he was to return to live in the Australian community.
However, very sadly for his family, the seriousness of the Applicant’s past conduct combined with the risk of his re-offending outweighs all other considerations and brings me to the conclusion that the decision not to revoke the cancellation of his visa must be affirmed. The nature of the likely injury to innocent members of the community should the Applicant re-offend makes the risk unacceptable.
The Applicant has committed a number of serious physical assaults on defenceless victims. In colloquial terms, some of those assaults can be described as “king hits”. Such assaults may result in significant injury and at times death. Although the Applicant frequently refers to his problem with alcohol, some of the assaults (for instance the assault on the uncle of his former wife and assaults while in immigration detention) were committed when he was sober. In any event, his drunkenness does not excuse his behaviour.
The Applicant was also sober when he committed the offence of intimidating a police officer in 2006. On that occasion he subjected a police officer carrying out his duty to disgraceful verbal abuse.[89]
[89] Exhibit AA21 at 49.
Unfortunately, the Applicant has had only limited individual counselling to address his very serious problems with anger management and the abuse of alcohol. His resolve not to re-offend is untested in the community. Despite the counselling he did receive he committed the serious offences at the hotel in 2016. At that time, even the experience of two terms of imprisonment and separation from his young family did not deter him from re-offending.
In 2012, the Applicant claimed that he had reduced his alcohol consumption and that he could not afford to return to gaol. His counsellor was of the opinion that no further intervention was required by reason of the insight he had gained from his experiences. Unfortunately that confidence proved to be unfounded.
In September 2017, Mr Watson-Munro recognised the need for treatment to address the Applicant’s binge-drinking as he depended on alcohol as a means of self-medication. In November 2018, Mr Jones reported the need for the Applicant to obtain treatment to address a number of specific issues.
Although he has received some limited intervention in detention, it is clear that the Applicant would need considerable support to minimise the risk of his re-offending should he return to live in the Australian community. That said, I must assess the risk to the community based on the present situation, not the situation which may exist after further counselling. The Applicant’s past conduct, even after counselling, does not give rise to confidence that future counselling will be sufficient to ensure that he is able to control his abuse of alcohol or his anger when he is subject to the stressors of everyday life.
Further, notwithstanding the counselling received and the terms of imprisonment imposed on him, the Applicant’s conduct in detention has been aggressive at times.
I have also given consideration to the evidence the Applicant gave at the hearing. At times he appeared, even now, not to accept the seriousness of his conduct. He described a threat to a member of the catering staff at a detention centre that “I will fix you” as a “sarcastic” comment intended to “brighten up the place”. When questioned as to his assault on the security guard outside the hotel, the Applicant said the guard was “a big boy as well” and that the effect of the alcohol he consumed was that he had no control over what he was doing.[90]
[90] Transcript, 7 February 2019.
PART H: CONCLUSION
The reviewable decision made 10 August 2017, being the decision of a delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa, will be affirmed.
I certify that the preceding 148 (one hundred and forty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
........................................................................
Associate
Dated: 23 July 2019
Date(s) of hearing: 6 and 7 February 2019 Date final submissions received: 11 March 2019 Counsel for the Applicant: Ms T Baw Solicitors for the Applicant: Hunter Flood Lawyers Solicitors for the Respondent: Sparke Helmore Lawyers ANNEXURE A
PART C
13. Primary considerations - revocation requests
(1) Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A noncitizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c)Expectations of the Australian community.
13.1 Protection of the Australian community
(1)When considering protection of the Australian community, decisionmakers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. 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.
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen's conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
13..1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
13..2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a.The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b.The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or
non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian 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.
14. Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
14.1 International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
14.2 Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation 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).
14.3 Impact on Australian business interests
(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 of an important service in Australia.
14.4 Impact on victims
(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 afford procedural fairness.
14.5 Extent of impediments if removed
(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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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Jurisdiction
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