Olaman and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1276
•19 May 2023
Olaman and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1276 (19 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/1351
Re:Troy Olaman
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Raif
Date:19 May 2023
Place:Sydney
The Tribunal sets aside the decision not to revoke the cancellation of the Applicant’s Class TY Special Category Subclass 444 visa and in substitution, decides that the cancellation of the visa is revoked.
...............[SGD]...............
Senior Member K Raif
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – crimes of a violent nature against women and children – constituted family violence – risk of reoffending – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength, nature, and duration of ties to Australia – impediments to removal – other considerations – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Raif
19 May 2023
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the cancellation of a Class TY Special Category Subclass 444 visa (the ‘visa’) previously held by the Applicant.
The Applicant is a national of New Zealand, born in February 1986. He travelled to Australia in July 1995 and had made a number of trips to Australia since that time. The Applicant was granted the Special Category visa on each arrival.
In March 2022 the Applicant was convicted of the offences described below and was sentenced to 12 months imprisonment. On 5 May 2022, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) because it was determined that the Applicant had a substantial criminal record and did not pass the character test. The Applicant was invited to make representations about the revocation of the decision to cancel his visa and did so in June 2021. On 24 February 2023, a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation decision. The Applicant is seeking review of that decision.
For the following reasons, the Tribunal has concluded that the decision dated 24 February 2023 not to revoke the cancellation of the Applicant’s visa should be set aside. The Tribunal substitutes the decision not to cancel the visa previously held by the Applicant.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(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.
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Respondent must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(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.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 23 January 2023, Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 99’) was signed, coming into effect on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at paragraph 5.2(2) of Direction 99 states that:
(2) ‘Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The primary considerations which are set out in clause 8 of Part 2 of Direction 99 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 99:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[1]
‘Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply’”[2]
[1] [2018] FCA 594.
[2] [2018] FCA 594, [23].
In this case, it is not in dispute that the Applicant has made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Information before the Tribunal indicates that on 23 March 2022 the Applicant was convicted in the NSW Local Court of ‘assault occasioning actual bodily harm (DV)’ and he was sentenced to 12 months imprisonment. The Criminal Intelligence Commission report sets out the Applicant’s past convictions as follows:
23/03/22
Assault occasioning actual bodily harm (confirmed on appeal by Albury District Court in April 2022)
Imprisonment: 12 months
10/08/20
· Destroy or damage property (DV) <=$2000
· Assault occasioning actual bodily harm (DV)
· Contravene prohibition / restriction in AVO (Domestic)
· Licenced driver, high range PCA sit next to learner (2nd offence)
Fine: $100, compensation: $228
Imprisonment: 5 months
Fine: $500
Fine: $1000, disqualification: 3 months
12/11/18
· Assault occasioning actual bodily harm (call up)
· Destroy or damage property <=$2000
Community correction order: 2 years
Fine: $850, Community Corrections Order
12/09/17
Assault occasioning actual bodily harm
S9 bond: 2 years (call up in November 2018)
07/03/14
Drive vehicle, illicit drug present (2nd offence)
Community service order: 150 hours, disqualification: 12 months
23/03/11
Drive with middle range PCA
Disqualification: 18 months
10/12/10
Drive with middle range PCA
Fine: $1200, s9 bond: 18 months, disqualification: 3 years
02/02/09
Drive with illicit drug present in blood
Fine: $200, disqualification: 6 months
08/02/08
Destroy or damage property
Fine: $300
20/11/06
· Pedestrian fail keep to far left of road
· Drunk in a public place
Fine: $250
Convicted and discharged
12/04/05
· Behave in offence manner in / near public place / school
· Destroy or damage property <=$2000
Fine: $400
S9 Bond: 12 months
The Tribunal finds that in March 2022 the Applicant had been sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test (and the Applicant concedes that he does not pass the character test). The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When making the application for review, the Applicant stated that he does not feel that he is a risk to the community. He refers to having a young first nation’s child in Australia and to having spent all of his adult life in Australia. The Applicant states in his application that his entire family resides in Australia and he has nobody in New Zealand, where he will be homeless. The Applicant refers to his Australian qualifications. The Applicant repeats these claims in his declaration and other evidence to the Tribunal.
The Respondent submits that the Applicant does not pass the character test. The Respondent acknowledges that some factors weigh in favour of the revocation but submits that other considerations should be given greater weight. The Respondent submits that the Applicant had taken some steps towards rehabilitation, but these are insufficient. The Respondent submits that considerations that favour the non-revocation outweigh other considerations.
The Tribunal’s considerations are set out below with regard to Direction 99.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 99 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind 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….
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Direction provides that violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets which pertain to the types of crimes or conduct listed above, and the sentencing remarks.
The Tribunal has considered the police facts sheet in relation to the 2021 offence of assault occasioning actual bodily harm. It is reported that the victim is a 3-year-old child with a disability and the offence was totally unprovoked. It is stated that during an afternoon in December 2021 the Applicant, his de facto partner and her three children were at their home. The Applicant became upset as the internet had been disconnected and was not able to watch Supercars. After the children were put to bed, the Applicant is said to have left the loungeroom and the child was heard crying. The Applicant then told his de facto partner that he had hit the child in the face. It is stated that the victim is a vulnerable child with significant language delays and the child was asleep prior to the assault occurring. In a police interview, the Applicant is recorded to have stated that he had consumed some alcohol that afternoon and was angry that the internet had been cut off by his ex-partner. It is reported that the Applicant denied that he had hit the child and said he thought the child might have hit himself in the face. The Applicant also denied having had an argument with the child’s mother.
There is before the Tribunal the Sentencing Assessment Report in relation to the assault occasioning actual bodily harm conviction. It is noted, with respect to the Applicant’s attitude, that he blamed his past offending on associating with the wrong crowd at a young age and engaging in illicit substances and while he claims to be disgusted in himself for his criminal history, he presents multiple justifications for his offending. The Applicant claimed that the offending was out of character as he is not normally a violent person. In oral evidence the Applicant also told the Tribunal that despite his past dealings with the criminal justice system and community corrections orders, he did not truly understand until his imprisonment and immigration detention that he had a problem with alcohol. The Tribunal is mindful that this contradicts the information in his pre-sentencing reports which indicate that the Applicant had expressed regret for his actions.
The Tribunal has also had regard to the circumstances of the earlier offences. The Applicant described these in his oral evidence to the Tribunal, claiming that he was affected by drugs or alcohol which led to his offending behaviour.
In his submission in response to the Notice of Intention to Consider Cancellation (‘NOICC’) of his visa, the Applicant stated that he has a history of addiction of narcotics to mask his childhood trauma, stress, and pain. He states that on the night of the offence, he had steroids and methamphetamines in his system, which he believes was the cause of his reacting in a behaviour which he holds in disgust, particularly as a hands-on father to his own son.
The Tribunal has had regard to the sentencing remarks of Magistrate Love made on 23 March 2022 in relation to the most recent offence of assault occasioning actual bodily harm. It is stated that the victim was a 3-year-old child and the Applicant admitted to the child’s mother to having hit him in the face. The police observed that the child had bruises under both eyes, a bruise on his forehead and bruising on top of his eye. Although it is recorded that the Applicant admitted to the mother of the child to having hit him, he recanted that admission when interviewed by the police and denied hitting the child. He initially pleaded not guilty, but subsequently changing his plea to guilty. His Honour refers to the Applicant’s use of drugs from a young age, stating that he stopped using drugs after his release from custody in April 2020 and relapse in September 2021. As noted above, the Applicant was given a 12-month custodial sentence with a 6 month non-parole period.
The Tribunal has considered the Police Facts sheet dated December 2019 in relation to the offences of common assault (DV), assault occasioning actual bodily harm (DV) and destroy or damage property. It is stated that the Applicant was living at the time with his then de facto partner and her children. It is stated that on 2 December 2019 the Applicant’s de facto partner had just disciplined her son who threw a tantrum. The Applicant became involved and pretend to stomp on the child with his foot. The Applicant’s partner told him to leave her son alone and she told her son not to be scared. It is reported that the Applicant grabbed his partner with his arms, in a bear hug, and squeezed tightly. He dragged the victim to their bedroom. The Applicant began to hit himself and then picked up the victim by her hair and lifted her of the ground. It is stated that the children were visibly shaken as the Applicant left the house. The victim called the police. The Applicant returned to the house after about 15 minutes and forced the door open. He was trying to say sorry to the victim. It is reported that he then dragged the victim to her bedroom by holding her in a bear hug and squeezing her tight, causing the victim of be short of breath. He was apologising to his partner and the children. It is stated that the Applicant pushed his partner to the ground and hit her head on the floor.
The Tribunal has considered the Police Facts sheet in relation to the August 2017 offence of assault occasioning actual bodily harm. The victim is identified as the Applicant’s then partner (the mother of his child). It is stated that on 1 August 2018 the Applicant and his partner were in his car and the Applicant was driving. They had an argument, and the victim asked the Applicant to stop the vehicle so she could get out. He stopped the vehicle and as the victim opened the car door, the Applicant is said to have pushed the victim with force out of the front passenger side door. This resulted in the victim landing on her head on the ground and the impact caused a lump on her head with a minor laceration, bleeding, and bruising. The Applicant then drove off leaving the victim on the side of the street. When interviewed by the police, the Applicant’s partner is reported to have stated that she is fearful of the Applicant and wished to apply for an AVO for her protection against the Applicant. When interviewed by the police, it is recorded that the Applicant had made a partial admission to the offence. He stated that his partner had taken off her seatbelt and was kicking and carrying on. He opened the door and pushed against her until she fell out of the car.
The Tribunal finds that the offending involved violence against women and violence in the context of domestic relationships. Significantly, some of the offending involved violence in relation to minor children, who could be said to be in the care of the Applicant’s, given his relationships with the mothers of the children. As noted above, the Direction provides that violent crimes against women and children are to be viewed very seriously. The Tribunal has thus formed the view that the offending was very serious, as it involved violence or threats of violence towards others, including women and children.
The primary decision record also indicates that the Applicant had failed to declare his convictions on the Incoming Passenger Cards (‘IPCs’). This indicates the Applicant’s non-compliance with migration laws (for example, a breach of section 102 of the Act). The Applicant refers to his poor literacy and claims that he believed the question related to his convictions overseas, but the Tribunal is mindful that the question on the IPC does not distinguish between the convictions that occurred in Australia and those that were recorded overseas.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
In this case, the offending involved violent conduct towards the Applicant’s partners and a vulnerable child in his care. It is also recorded that the children were present and observed the offensive behaviour towards their mother during the indent. The Tribunal is of the view that there would be significant harm to women experiencing family violence and significant harm to children who are either victims of such violence, or who observe violence perpetrated against their parents. The Tribunal finds that, should the Applicant engage in further criminal or other serious conduct of the same nature, the harm to others could be significant.
Paragraph 8.1.1(1)(g) states that it is relevant whether the non-citizen has reoffended since being formally warned or otherwise being made aware about consequences of further offending in terms of the non-citizen’s migration status. The Tribunal gives significant weight to the fact that, according to the information in the primary decision record, the Applicant had previously been warned that his criminal behaviour would be taken into consideration in any future consideration of his visa status. It is stated that the Applicant was issued with a warning in September 2020 and although it related to a different section of the Act, the Applicant was put on notice that further offending may lead to the review of his immigration status.
The Tribunal has considered the risk of the Applicant reoffending and the evidence of rehabilitation achieved.
In his submission to the delegate the Applicant states that he has acknowledged his offending, pleaded guilty and has taken responsibility for his actions. The Applicant states that he is extremely remorseful for the pain he caused to others and has apologised. The Applicant states that he wants to be present and continue to engage in active parenting of his son and he refers to the damage that his absence would cause to his son’s emotional state and development. The Applicant refers to his ongoing relationship, his employment (stating he is a valued member of the team) and the time he has spent in Australia. the Applicant states that there is nothing for him in New Zealand.
In his declaration to the Tribunal the Applicant states that being in detention has given him more time and opportunity to reflect on his actions and the people he has hurt, including his Australian citizen son. In his evidence to the Tribunal the Applicant states that his experience in the immigration detention has been very positive because it has given him the opportunity to reflect and to engage in programs that were not otherwise available to him. The Applicant submits that he has had time to reflect on his past behaviour and the pain he had caused to others. The Applicant states that, his situation is now different to what it was before, because he has learned to ask for help, and if released, he intends to continue with counselling.
The Applicant claims in his evidence to the delegate that his offending had involved drugs and / or alcohol. He states that when he left Junee Correctional facility in 2020, he was drug free and had passed drug testing on the job but nine months later he had a serious work accident and commenced prescription medication to ease his pain but the pain was so severe he turned to illegal drugs. The Applicant states that this had caused him to lose control and he ended up in jail, which he deeply regrets. The Applicant states that he makes bad decisions when he takes drugs and immediately regrets his actions. He states that at the time of his last offending he was off work due to injury but if his time is occupied, he is too busy to seek drugs. The Applicant told the Tribunal that he had not taken any drugs while in detention, despite drugs being available.
With respect to the risk of his reoffending, the Applicant submits that he is committed to undertake any courses or programs to ensure he does not reoffend (noting that he was unable to do courses due to COVID-19, but he also provided to the delegate evidence of having completed some courses while in detention). He states that he has a committed relationship, a job to go back to, and a loving relationship with his son. The Tribunal acknowledges that evidence but is mindful that many or all of these protective factors were also present at the time of the Applicant’s earlier offending, and these did not prevent his offending in the past. It is notable, in the Tribunal’s view, that the Applicant had stable employment, family support and a relationship with his son in the past, yet his offending has occurred over a number of years despite these factors.
The Applicant states that he is remorseful for his offending and for the victims affected by his actions. The Applicant states that he has spent time thinking about the effects and takes full responsibility for his actions. The Applicant states that if given a chance to remain in Australia, he will not repeat the mistakes of the past. The Tribunal acknowledges that evidence, but the Tribunal also places significant weight on the fact that the Applicant had made the same claims previously. The pre-sentencing reports and sentencing remarks indicate that the Applicant did express some remorse for his actions in the past and did make undertakings not to repeat his conduct. Yet, he continued to reoffend. The Tribunal is of the view that the Applicant’s expression of remorse and his undertaking not to repeat his conduct are unpersuasive, given the Applicant’s past continued history of offending despite the same promises being made.
The Applicant states that due to the pandemic, he was limited in being able to access supports but since being in the detention centre, he has requested assistance from the Mental Health Nurse and the Drug and Alcohol counsellor where he attends weekly appointment. The Applicant states that despite having access to drugs while in jail and the detention centre, he has not used drugs. The Applicant states that rehabilitation from drugs will remain his main priority when he leaves the detention centre. The Applicant refers to the family and community support that will be available to him in Australia. He could return to the town of Leeton or live with a friend in Sydney. The Applicant refers to his work commitments and states that he has learned from his mistakes.
In his evidence to the Tribunal the Applicant refers to the various courses he had completed while in detention and he provided to the Tribunal evidence of course completion. He states that he has learned to ask for help, has written to his family to express his remorse and completed counselling sessions while in detention. In oral evidence both the Applicant’s mother Ms Olaman and Ms Rozzi expressed the view that the Applicant’s circumstances at present are different to what they were in the past. In particular, they refer to the courses completed by the Applicant while he was in detention and his rehabilitation. Ms Olaman told the Tribunal that the support that the Applicant has now has not been available to him in the past, although both the Applicant and his mother gave evidence that the Applicant did undertake some, albeit limited, counselling previously.
The Tribunal accepts that the Applicant has completed a number of courses and the Tribunal is prepared to accept that the Applicant genuinely believes he had learned from his mistakes, learned to ask for help and acquired some skills that he did not have in the past. The Tribunal is also prepared to accept, in the absence of any evidence to the contrary, that the Applicant had abstained from drugs while in detention. However, the Tribunal is also mindful that the Applicant has not lived in the community where he is likely to be subjected to a variety of stressors and challenges that are not necessarily present in detention, including challenges associated with maintaining relationships. His ability to address those challenges without turning to drugs or violence has not been tested and while the Applicant believes he will be able to deal with situations without turning to drugs, that is not apparent from the Applicant’s past history.
The Applicant presented character references, including a statement from his former employer who has offered a job to the Applicant upon his release from detention. The Tribunal has had regard to the statement from Ms BM, the mother of the child who is identified as a victim of the Applicant’s offending. She refers to the Applicant’s support for her family and children and the remorse he had expressed for his actions. There are also letters of support from Ms Rozzi, who states that offending against a child was out of character. Ms Rozzi refers to the Applicant’s rehabilitation since his detention and his remorse. Ms Rozzi has expressed the view that at present, the risk of reoffending would be lower than the medium risk that was identified in the sentencing assessment in March 2022. Ms Rozzi also gave oral evidence to the Tribunal, indicating her awareness of the Applicant’s past offending. She states that she has observed genuine changes in the Applicant’s appreciation of his behaviour and his increased awareness of his emotions and his remorse. Ms Rozzi has expressed the view that the Applicant’s behaviour in the future would be different than what it was in the past.
As noted above, the Tribunal accepts that the Applicant and those around him may genuinely hold the view that the Applicant is now changed and that he now has the skills that he did not have before. The Tribunal is also prepared to accept that the Applicant has a genuine desire to change. However, as noted above, the Tribunal is concerned that the Applicant had expressed the same desire in the past but was not able to, for whatever reason, to abstain from criminal conduct. The Applicant’s ability to do so now is uncertain, given that he has not been subjected to the same stressors while in detention, as he might experience in the community.
The Applicant claims that at the time he did not appreciate that he had to deal with his childhood trauma and had not identified that he had problems with drugs. However, given the Applicant’s multiple convictions that had occurred prior to the warning, as well as past counselling, the Tribunal does not accept that the Applicant did not appreciate that he had to deal with the causes of his criminal conduct. The Applicant also repeatedly told the Tribunal that he was naïve and did not know how to seek help but, as noted above, the Tribunal cannot be certain that the Applicant has acquired these skills now.
The 2022 report refers to the risk of the Applicant reoffending being a medium risk. The Tribunal accepts that the risk may have been lowered somewhat as a result of the Applicant having completed several programs while in detention. However, having regard to the Applicant’s past history of repeated offending, his previous unsuccessful attempt to remain drug-free and his past undertakings that have not been complied with, the Tribunal has formed the view that the risk of reoffending remains and that risk is a real risk. It is not an insignificant risk.
Having regard to the nature and frequency of the Applicant’s past offending, involving violence against women and children, and the Tribunal’s view that there remains a real risk of reoffending, the Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
The Applicant had been convicted of assault in the context of domestic violence. He had previously been convicted of other offences involving family violence and was the subject of an AVO and was found to have breached the AVO. The Tribunal finds that the conduct engaged in constitutes family violence. This factor also weighs heavily against the revocation.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
In his response to the NOICC the Applicant states that he has been living in Australia for the last 19 years of his life, having moved here at the age of 17 in 2003. He states that he had visited New Zealand on four occasions in 19 years and these visits were short holidays. The Applicant states that he has lost connection with the family he has in New Zealand, and he last visited in 2017. The Applicant states that his family and main supports are in Australia, and he has no understanding of community or society in New Zealand.
The Tribunal accepts that the Applicant has been residing in Australia for a lengthy period of approximately 20 years. The Tribunal accepts that the Applicant’s immediate family – including his mother, stepfather, and son – live in Australia. The Applicant referred to multiple previous relationships, but these all appear to have ended. However the Tribunal acknowledges that the Applicant appears to have an ongoing connection to his child’s mother.
The Tribunal acknowledges but does not accept the Respondent’s submission that less weight should be given to the Applicant’s ties in Australia since the Applicant had spent his formative years in New Zealand and started offending soon after his arrival in Australia. The Tribunal is of the view that the nature, duration, and extent of the Applicant’s ties are not diminished by the fact that the Applicant had engaged in criminal conduct upon his arrival in Australia.
The Tribunal has formed the view that this consideration weighs heavily in favour of revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant’s son was born in May 2015 and is an Australian citizen. The child is of Aboriginal heritage. The Applicant refers to having a good relationship with his son and to his interactions and ongoing support of the child. The Applicant describes the activities that he and his son had engaged in prior to the Applicant’s detention. In his written submission to the delegate the Applicant states that he was present at his son’s birth and has been a ‘hands-on’ father, attending his son’s sporting and school activities. The Applicant refers to the time he has spent with his son and states that he is an active and loving father and his son is the ‘most important thing’ in his life. The Applicant states that his son is in his formative years, and it would be devastating to the child not to have his father. The Applicant submits that it would not be in his son’s best interest to grow up with no physical contact. The Applicant provided a number of family photographs to the delegate.
In his submission to the Tribunal the Applicant states that his son has been impacted by the separation and his behaviour changed. The Applicant states that his son is showing signs of possible ADHD and a learning disability. The Applicant states that he is afraid that if he is deported, this will affect his son’s need for early intervention and make this process harder. The Applicant told the Tribunal that he wants the opportunity to raise his child and for his child to avoid the trauma of being raised by different parents and in different countries that he himself had experienced.
The Applicant also claims that when he was able to work, he provided financial support to his son. The Applicant states that the separation has affected his son’s behaviour and he claim that his son suffers from separation anxiety and anger and has been seeing a counsellor. The Applicant submits that if his visa is cancelled, it would prevent him from being present in his son’s life, which would adversely affect his son.
Ms Rozzi told the Tribunal that the Applicant’s son has behavioural concerns and a possible diagnosis of dyslexia and there are limited services available in Leeton where the child lives, so it would be better for him to move to Sydney, with the Applicant, to access the services that the child needs. The Applicant’s mother Ms Olaman spoke about the child’s ongoing treatment and therapies, stating that a formal diagnosis is pending. She also stated that the child will have the ability to access the services he needs if he moves to Sydney.
Ms Rozzi spoke about the disconnection that the child may feel if he is separated from his father and the need for the father’s presence for the child’s education. Ms Olaman told the Tribunal that the Applicant fully participates in the child’s life and if the Applicant was to be deported, his son would miss out on the connection with his father.
The Applicant refers to his son’s Aboriginal heritage, stating that separating him from the child would compound his son’s intergenerational trauma. There are a number of statements from support and social workers supporting the Applicant’s evidence and the Tribunal has had regard to the statement from Dolie Ufi, Community Programs Manager at Yenu Allowah Aboriginal Child and Family Centre which refers to the programs completed by the Applicant and the importance of the Applicant’s presence in the upbringing of his son.
The Tribunal accepts the evidence concerning the Applicant’s relationship with his son. In particular, the Tribunal accepts that the Applicant has a close relationship with his son. The Tribunal accepts the evidence that the son’s behaviour has been affected as a result of his separation from the Applicant. The Tribunal accepts that the Applicant’s departure from Australia will minimise the opportunity for close contact between the Applicant and his child and will also minimise the child’s opportunity to access the services that he may need. Overall, the Tribunal has formed the view that it is in the best interests of the Applicant’s child to maintain a close relationship and a physical proximity with the Applicant. The Tribunal accepts that it is in the best interests of the Applicant’s son if the cancellation of the Applicant’s visa is revoked.
However, the Tribunal also accepts the Respondent’s submission that the child’s best interests would be significantly reduced if the Applicant relapses into drug use and reoffends. The Tribunal is of the view that it would not be in the best interests of the child to observe domestic violence, nor to experience the trauma of his father being returned to jail. Both Ms Rozzi and Ms Olaman appear to support the contention that it is not in the best interests of the Applicant’s son if the Applicant was to remain in Australia and reoffend.
In his written evidence the Applicant refers to having a niece and nephew in Australia but he told the Tribunal he has not had opportunity to meet them yet. There is no evidence before the Tribunal to indicate that there is a relationship between the Applicant and these children. The evidence is that these children remain in the care of their parents who provide them with the parental support. On the limited evidence before it, the Tribunal is not satisfied that the best interests of these children would be adversely affected by the Applicant’s visa status.
Overall, the Tribunal acknowledges the Applicant’s undertaking not to reoffend and the Tribunal has formed the view that it is in the best interests of the Applicant’s son if the Applicant is able to remain in Australia and not reoffend. That consideration therefore weighs heavily in favour of the revocation.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
(1)‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[3] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]
[3] [2019] FCAFC 185 (‘FYBR’)
[4] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct, the community expectations would weigh heavily against the revocation.
Other considerations
Legal consequences of the decision
The Tribunal accepts that if the Applicant’s visa is cancelled, the Applicant will be precluded from making other visa applications and he would have very limited (if any) options of returning to Australia in the future. Until his departure from Australia, the Applicant is likely to remain in detention.
There is no evidence, and the Applicant does not claim, that non-refoulement obligations arise in this case. The Tribunal has formed the view that this consideration is neutral.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 37 years of age. In his submission to the delegate, he states that he has anxiety but has not been medically diagnosed. He also refers to chronic back pain. The Tribunal has been provided with, and had regard to, the Applicant’s IHMS records.
There would be no substantial language or cultural barriers if the Applicant was to live in New Zealand, where he lived until the age of 17 when he migrated to Australia.
The Applicant claims that he has no family and no support in New Zealand and that he would have nowhere to live. The Applicant claims that he has lost contact with his family in New Zealand, which includes his father, grandparent, uncle, and cousins. The Applicant states that he would have to live away from his father due to his father’s health condition and he claims that his family would not provide him with any support until he has been able to ‘prove himself’. The Applicant submits in his evidence to the Tribunal that he would be homeless in New Zealand and residing in a shelter, surrounded by offenders and other addicts and the risk of him reoffending would be high.
The Applicant told the Tribunal, with considerable hesitation, that he is trying to mend his relationship with his father, although it is not his priority. The Applicant concedes that he has other family members in New Zealand. The Respondent notes that even if the Applicant has minimal or no support from his family in New Zealand, he would have some ‘familiar faces’.
The Tribunal is prepared to accept that the Applicant may not have significant family support available to him in the longer term and very limited support at best upon his arrival in New Zealand. However, as a New Zealand national, the Applicant would be entitled to the economic, social and medical support that is available to the nationals of that country. The Applicant does not claim that he would be precluded from accessing such support. He would also be able to seek gainful employment to support himself financially and the Tribunal is mindful that the Applicant has extensive work experience in Australia.
Generally, the Tribunal has formed the view that there will be some impediment to the Applicant if he is removed from Australia, most notably, the very limited opportunities he would have of having meaningful contact and interactions with his son and other family members in Australia, limiting the social support that would be available to the applicant in New Zealand. The Tribunal does not consider that the Applicant has any language or cultural barriers and does not consider that his age and health would contribute to the impediment. The Tribunal acknowledges that the Applicant may have limited family support in New Zealand but is of the view that he would be able to access community and government support services that are available to other New Zealand nationals.
The Tribunal has formed the view that this factor weighs somewhat in favour of the revocation.
Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant’s former partner provided a statement in which she expresses her support for the Applicant and the hope that their child will grow up in the presence of his father. The mother of the three-year-old victim of the applicant’s most recent offence also provided a statement in which she states that the child has not shown any signs of being emotionally or physically affected by the incident and the child often wants to speak to the applicant. There is no other evidence before the Tribunal regarding the impact on victims.
The Tribunal accepts that the decision not to revoke the cancellation of the Applicant’s visa may have an adverse effect on the Applicant’s former partner (the mother of his child), who is one of his victims. The Applicant’s removal from Australia would increase her caring responsibilities in relation to the child. This consideration weighs somewhat in favour of the revocation.
Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
(1)‘Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
The Applicant refers to his past employment and he presented to the delegate evidence of his past study in Australia. While the Tribunal accepts that the Applicant was previously employed and may have employment opportunities if released into the community, there is no evidence of any negative impact on Australian businesses if the Applicant is not allowed to remain in Australia. In particular, there is no evidence that the Applicant’s absence from Australia would significantly compromise the delivery of major project or of an important service in Australia.
Other considerations
The Applicant states in his response to the NOICC that his parents separated when he was 7 years old and that had impacted his childhood and ‘snowballed’ into his adulthood as he turned to the drug use. The Applicant states that he experienced extreme loss due to losing two of his siblings, having lost his sister to SIDS when he was 5 and another sister to suicide when he was 15. The Applicant states that his mother has already lost two of her children and if he is to go to New Zealand, this would cause further grief to her.
The Applicant refers to the impact that his removal from Australia would have on his own son, who is already subjected to the generational trauma faced by the indigenous Australians. This issue has been considered more fully above.
The Applicant states that his mental health would be affected if he was to leave for New Zealand. He would have no employment opportunities, no informal support network, limited understanding of services and supports in New Zealand and he would be homeless, which would pose a risk of relapsing into old behaviours and affect his son.
The Applicant refers to the links he has in Australia, including his immediate and extended family, his former partner and child and friends. There are before the Tribunal statements from the Applicant’s close family members, including his mother, siblings, and former partner, who refer to the Applicant’s background. His mother notes that the Applicant had always struggled with reading and writing and had only recently asked for assistance. This is supported by Ms Jenny Borg, a teacher at Villawood Immigration Detention Centre Statements from the Applicant’s mother and former partner refer to the hardship that they would experience if they were to be separated from the Applicant.
The Tribunal acknowledges that the Applicant’s former partner has indicated that she would be ‘very upset’ if the Applicant and their child could not ‘continue to grow together as father and son’. There are also statements from a number of support workers, who refers to the adverse impact that the separation from the Applicant may have on his son and the Tribunal accepts that if the visa is cancelled, it may adversely affect the Applicant’s immediate family in Australia including his son.
The Applicant states that if he is to leave Australia, this would cause him to be separated from his son and the Tribunal accepts that would be the case. The Tribunal also accepts that the cancellation of his visa would result in the Applicant being separated from his family in Australia. The Tribunal accepts that these circumstances may cause a degree of hardship to the Applicant and his family in Australia. The Tribunal gives these factors some weight in favour of the revocation.
In his submission to the delegate the Applicant refers to his relationship with his most recent partner Ms BM, stating that if his visa is cancelled, they would miss each other, and she would not have the financial means of visiting him in New Zealand. The Applicant’s subsequent evidence is that this relationship has ended so the Tribunal does not consider that his relationship with Ms BM contributes to an impediment if the Applicant is removed.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant has committed serious offences, being repeated offending against women in the context of family violence, a breach of the AVO and an offence against a vulnerable child. The Applicant had also been convicted of driving under the influence and such offending has the potential of causing significant harm to other road users. The nature of his past offending is such that the Applicant’s conduct is against the expectations of the Australian community.
Despite the Applicant’s claims that he is now rehabilitated, the Tribunal cannot be satisfied that is the case. The Tribunal places some weight on the fact that the Applicant had previously undertaken counselling, had claimed to have insight into his conduct and claimed to be abstaining from drugs, yet the Applicant resumed his drug use and offending behaviour. The Tribunal also places weight on the fact that the Applicant had been warned in 2020 of the possibility of his visa being cancelled and despite that he reoffended. The Tribunal has found that there remains a real risk of reoffending.
The Tribunal has formed the view that the protection of the Australian community and the expectations of the Australian community weigh heavily against the revocation. The fact that the Applicant had engaged in family violence also weighs strongly in favour of the revocation.
The Tribunal places significant weight on the best interests of the Applicant’s minor son. The Tribunal acknowledges the child’s special needs and accepts that the Applicant has a close relationship with his son. The Tribunal accepts that it is in the best interests of the Applicant’s son if the cancellation of the Applicant’s visa is revoked. That weighs strongly in favour of the revocation.
Another factor that weighs in favour of the revocation is the extent of the Applicant’s ties to Australia. The Applicant’s immediate family lives in Australia, including his mother and his minor child, as well as other relatives. The Applicant has been living in Australia for about 20 years and has formed social and employment ties. The Tribunal has formed the view that the extent and duration of the Applicant’s ties to Australia weigh strongly in favour of the revocation. Similarly, the Tribunal has formed the view that the extent of impediment if removed also weighs in favour of the revocation, albeit in a limited way.
Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of the best interest of the Applicant’s child and the strength of the Applicant’s ties to Australia and to the other consideration of extent of impediment if removed. In the Tribunal’s view, these considerations outweigh other considerations that favour the cancellation.
The Tribunal has decided that the decision under review should be set aside. The Tribunal acknowledges that should the Applicant commit further offences, his visa may again be cancelled.
DECISION
The Tribunal sets aside the decision not to revoke the cancellation of the Applicant’s Class TY Special Category Subclass 444 visa and in substitution, decides that the cancellation of the visa is revoked.
I certify that the preceding 110 (one hundred and ten paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif
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Associate
Dated: 19 May 2023
Date(s) of hearing: 9 MAY 2023 Applicant: In person Solicitors for the Respondent: Ms Mia Donald, Sparke Helmore Lawyers
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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Procedural Fairness
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Statutory Construction
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Natural Justice
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Remedies
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