Paewai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2978
•11 September 2023
Paewai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2978 (11 September 2023)
Division:GENERAL DIVISION
File Number:2023/4395
Re:Kingi Hoani Paewai
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member S Burford
Date:11 September 2023
Place:Perth
The decision of the delegate of the Respondent dated 15 June 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.
................[Sgd]........................................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor child – expectations of the Australian community – extent of impediments if removed –– extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 15, 46(1)(d), 189, 196, 197C, 198, 499, 499(1), 499 (2A), 500(1)(b), 500(1)(ba), 500(6B), 500(6H), 500(6J), 501, 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F, 501E, 501E(2), 501G(1), 501G(2), 501G(4), 503
Migration Regulations 1994 (Cth) reg 2.12AA
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1487
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1913
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(5), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2(3)(c), 8.2(3)(d), 8.3, 8.4, 8.4(4), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9.1(3), 9.1.2(2), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Senior Member S Burford
11 September 2023
THE APPLICATION
1. The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 15 June 2023 not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
2. The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
3. The Applicant is a 42-year-old citizen of New Zealand. He first arrived in Australia on 7 September 2007 and has not departed since.[1]
[1] R1, G11.
4. On 19 January 2021, the Applicant was convicted in the District Court of Western Australia of ‘Assault Occasioning Bodily Harm’, two counts of ‘Unlawfully assault and thereby did bodily harm with circumstances of aggravation’ and two counts of ‘Deprivation of Liberty’. He was sentenced to two years imprisonment on each count. Four of the sentences were to be served concurrently and one cumulatively, bringing the total effective sentence to four years imprisonment, commencing on 8 May 2019.[2]
[2] R1, G4, pages 41-42; R2, TB1, pages 2-3.
5. The Applicant is currently at Yongah Hill Immigration Detention Centre.
6. On 18 March 2021 the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[3] The Applicant signed acknowledging receipt of that notice on 19 March 2021.[4]
[3] R1, G13, pages 179-186.
[4] R1, G13, page 187.
7. The Applicant signed the form requesting revocation of the Cancellation Decision on 18 March 2021.[5] On 4 April 2021 the Applicant signed a personal circumstances form providing information in response to the Cancellation Decision.[6] The representations were received on 7 April 2021.[7]
[5] R1, G17, pages 199-200.
[6] R1, G17-G19 and additional material G20-G43 (submitted at various times to the Department).
[7] R1, G3, page 20.
8. By letter dated 25 May 2021, the Minister informed the Applicant that Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA had been revoked and replaced with Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (8 March 2021) (Direction No 90). The letter indicated a copy of the new direction was enclosed. The Applicant was invited to provided information addressing the new direction.[8]
[8] R1, G14.
9. By letter dated 8 September 2021, the Applicant was invited to comment on additional information including sentencing remarks from 2016, 2017 and 2021, a New Zealand Police Criminal History Report dated 16 April 2021, showing criminal convictions in New Zealand, and the Applicant’s incoming passenger cards dated 7 September 2007 noting the Applicant did not declare his criminal convictions.[9]
[9] R1, G15.
10. By letter dated 7 March 2023, the Minister informed the Applicant that Direction No 90 had been revoked and replaced with Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99). The letter indicated a copy of the new direction was enclosed. The Applicant was invited to provided information addressing the new direction.[10]
[10] R1, G16.
11. The Applicant provided additional information and supportive statements in response to these invitations. This included a further Statutory Declaration from the Applicant dated 5 April 2023.[11]
[11] G20-G43.
12. On 15 June 2023, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[12] This is the reviewable decision before the Tribunal.
[12] R1, G3.
13. The Applicant was notified by hand of the Non-Revocation Decision on 19 June 2023.[13] He signed acknowledging receipt of the notification on the same day.[14] The G-Documents before the Tribunal included a copy of Direction No 90. The Minister confirmed that the notice to the Applicant had included a copy of Direction No 90 not Direction No 99, though the Non-Revocation Decision referred to Direction No 99.[15] This issue is considered further below.
[13] R1, G3.
[14] R1, G45.
[15] Transcript, page 6-16.
14. The Applicant lodged his application for review of the Non-Revocation Decision on 22 June 2023. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.
ISSUES
15. The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
16. For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be affirmed.
THE HEARING AND THE EVIDENCE
17. The hearing was held on 22 and 23 August 2023 at the Tribunal’s Perth Registry. The Applicant attended the hearing in person. He was not represented in relation to his application. The Minister was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
18. At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from the Applicant’s partner, Ms Huhana Tira Falwasser and Ms Darrylin Brain, Practice Leader of Linkt Supported Recovery, a residential rehabilitation program. The Tribunal notes that a number of the Applicant’s family members attended the hearing, including his two adult children and his youngest child. They did not give oral evidence before the Tribunal.
19. The following documents were marked as exhibits:
·Applicant's Statutory Declaration dated 9 August 2023 (Exhibit A1);
·Letter of support from Huhana Tira Falwasser dated 10 August 2023 (Exhibit A2);
·Letter From Darrylin Brain from Linkt Supported Recovery dated 13 August 2023 (Exhibit A3);
·Set of Attendance and Participation Forms from Smart Australia, consisting of 5 pages (Exhibit A4);
·Certificates of Course Completion for Anger Management and Drug and Alcohol Abuse 101 by Universal Class (Exhibit A5);
·Online Attendance Request Printout from Smart Recovery (Exhibit A6);
·International Health and Medical Service (IHMS) Health Records of Applicant, consisting of 86 pages (Exhibit A7);
·G Documents labelled G1-G44, costing of pages 1-348 (Exhibit R1);
·Respondent’s Tender Bundle, labelled TB1-TB7, consisting of pages 1-342 (Exhibit R2); and
·Respondent submitted Ministerial Direction No 99 on 6 July 2023 (Marked for Identification).
20. The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 7 August 2023 prior to the hearing.
21. The Tribunal notes the Applicant did not file a Statement of Facts, Issues and Contentions or additional evidence prior to the hearing. A directions hearing was held on 29 June 2023 to program the matter for hearing during which the Tribunal discussed with the parties the provision of evidence and the restrictions imposed by ss 500(6H) [oral evidence] and s 500(6J) [documents] of the Migration Act. At the directions hearing, the Tribunal explained the matters arising for consideration under Direction No 99 to the Applicant. The Tribunal encouraged the Applicant at the directions hearing to look at the issues raised in the delegate’s decision record and to consider whether there was evidence, including from witnesses which might be able to address issues raised in the decision or in the matters listed for consideration in Direction No 99. With the agreement of the parties, the Tribunal also directed that the Respondent file their RSFIC first to assist the Applicant to understand the points at issue and to prepare submissions and evidence in response.
22. The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Respondent in written submissions and in oral closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction No 99. The Tribunal considered the Applicant was provided with a fair opportunity to give evidence and present arguments in support of the application and to respond to issues raised by the Respondent.
LEGISLATIVE FRAMEWORK
Migration Act
23. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
24. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
25. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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)); …
(Original emphasis.)
26. A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(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; …
(Original emphasis.)
27. Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
28. Additionally, under s 501(3A) of the Migration Act, the person must be 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.
29. If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[16] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[17]
[16] Migration Act s 501CA(3).
[17] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
30. The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[18] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[18] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
31. On 23 January 2023, the Minister made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90.[19]
[19] Direction No 99 paras 2-3.
32. An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[20] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[21]
[20] Direction No 99 para 5.1(4).
[21] Direction No 99 para 6.
33. Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker 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 fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
34. Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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)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.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [22](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[22] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
35. Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[23]
[23] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
36. In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[24]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[24] Direction No 99 para 8.
37. The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[25]
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) impact on Australian business interests.
[25] Direction No 99 para 9.
38. Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
JURISDICTION ISSUE
39. As noted above, the G Documents submitted by the Minister (R1) included a copy of Direction No 90 though Direction No 99 was in force at the time the Non-Revocation Decision was made. The Minister confirmed at the commencement of the hearing that the copy of the documents served on the Applicant with the notice of the Non-Revocation Decision was Direction No 90. The Applicant had been provided with a copy since more recently and during the delegate’s consideration of the request for revocation, he had been provided a copy of Direction No 99 and invited to comment on it.[26] The delegate’s decision was made applying Direction No 99.[27]
[26] R1, G16.
[27] R1, G3.
40. The Tribunal raised with the Respondent if the inclusion of the wrong Ministerial Direction in the material presented an issue with respect to the validity of the notice and the Tribunal’s jurisdiction. The Respondent took the issue on notice to receive instructions and addressed the matter of jurisdiction at the commencement of the second day of the hearing. The Tribunal explained the issue to the Applicant and invited him to make submissions. He did not seek to make any submissions and the Tribunal accepts the legal issues being discussed were complex.
41. As noted above, the document usually provided as evidencing the date of the service of notification of a decision under s 501CA(4), is a form acknowledging/confirming the receipt of the notice of decision and other documents. In the Applicant’s case a signed version was included in the G Documents.[28]
[28] R1, G45.
42. The form provides for the officer who handed the notification of decision and other documents to the prisoner or detainee to confirm that “the documents referred to above were received by the above named person”. The “documents referred to above” are described in the first paragraph of the form as the notice of the decision not to revoke the cancellation “and a copy of the documents pertaining to the decision to not revoke the cancellation of the visa…”. The prisoner’s or detainee’s acknowledgement is also of the receipt of documents so described.
43. As noted by Deputy President Boyle in Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Dinh) [29] in considering the notice provisions, the form does not separately acknowledge receipt of documents by the prisoner or detainee. Further, the acknowledgment of receipt of documents by the prisoner or detainee, and the confirmation by the officer, refer to “a copy of the documents pertaining to the decision”. There is no identification of the documents themselves.
[29] Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1487 (20 May 2021) at [6]- [9]; cf. Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1913 (30 June 2023).
44. Section 501G(1) of the Migration Act provides that
If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person; or
(ba) not revoke a decision to cancel a visa that has been granted to a person;
the Minster must give the person notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non-disclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
(ii) states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv) states where the application for review can be made; and
(v) in a case where the decision relates to a person in the migration zone--sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi) sets out such additional information (if any) as is prescribed.
45. Section 501G(2) of the Migration Act goes on to provide that:
If the decision referred to in subsection (1):
(a) was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and
(b) is reviewable by the Administrative Appeals Tribunal; and
(c) relates to a person in the migration zone;
the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:
(d) is in the delegate's possession or under the delegate's control; and
(e) was relevant to the making of the decision; and
(f) does not contain non-disclosable information.
46. Subsection 501G(4) of the Act provides that a failure to comply with that section in relation to a decision does not affect the validity of the decision. The issue for the Tribunal, however, is that s 500(6B) of the Migration Act provides:
If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
47. As Deputy President Boyle noted in Dinh:[30]
If one takes the word “within” to prescribe both a starting point and an end point for the making of an application for review, the starting point under s 500(6B) is the “day on which the person was notified of the decision in accordance with subsection 501G(1)” and the finishing point is nine days thereafter. Section 501G(1) requires the Minister to give the person a written notice which sets out the things required by sub-ss 501G(1)(c)–(f). The obligation to provide documents with that written notice arises separately under s 501G(2). Section 500(6B), in prescribing the commencement of the nine-day period for calculation of the date by which an application to the Tribunal must be made, firstly refers only to notification of the decision and, secondly, refers only to s 501G(1), not to s 501G(2). Accordingly, service of the documents required by s 501G(2) is not a condition to the right to make an application to the Tribunal for review, or the commencement of the nine-day period by which such an application under s 500(6B) must be made.
[30] Dinh at [9], also referring to the discussion in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 at [10]-[25] of whether the term “within 9 days” in s 500(6B) defines a starting date before which an application cannot be made as well as an end date for the making of an application, or just an end date after which an application cannot be made.
48. A different view was adopted in Kumar and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1913 (Kumar) where the Tribunal held s 501G(2) of the Migration Act ‘clearly and obviously is related to, and otherwise conditionalizes, the operative effect of s 501G(1) of the Act.’[31] The Tribunal held that this position was further supported by s 501G(3) of the Migration Act which states that notice under s 501G(1) of the Migration Act ‘must be given in the prescribed manner’, and that this would include the requirements in s 501G(2) of the Migration Act. Accordingly, the Tribunal held that compliance with s 501G(2) of the Migration Act is required to give effect to the ‘proper notification’ of the Refusal Decision pursuant to s 501G(1) of the Migration Act.
[31] Kumar at [20].
49. Respectfully, the Tribunal agrees with the approach adopted in Dinh. In the Tribunal’s view the reference in s 500(6B) should not be regarded as accidental. There is a clear distinction between the matters referred to for notice to be given in s 501G(1) and the requirement to provide documents in s 501G(2). The provisions in s 501G(1) ensure a visa holder who is subject to a decision under s 501 is aware of their rights to seek review and provided with information regarding how to seek such a review. Section 501G(2) provides them with information relevant to the decision which was made and while this may assist them to prepare arguments to make on review, it does not relate to the machinery of seeking a review. Accordingly, there appears a logical reason s 500(6B) would refer only to s 501G(1) and why compliance with s 501G(1) effects notification of the decision.
50. In any event, even if effective notification includes compliance with s 501(2), the question arises as to whether a failure to provide a copy of the relevant direction within the requirements of s 501(2) had not been met. In Kumar the Tribunal found that the relevant Ministerial Direction is a document in the decision maker’s possession and control and as such is caught by the requirements of s 501G(2).
51. The Tribunal respectfully disagrees. In the Tribunal’s view, s 501(2) is clearly directed not towards legislative instruments but to information particularly to the Applicant’s case which is before the delegate and relevant to making the decision. A Ministerial Direction issued under the Migration Act is not information before the delegate but rather part of the legal framework which must be applied in making the decision. In this respect, Ministerial Directions made under s 499 of the Migration Act are similar to the provisions of the Migration Act and Migration Regulations 1994 (Cth) (Regulations), publicly available and legally binding on a decision maker.
52. While the provision of the relevant Ministerial Direction to a visa-holder is no doubt beneficial in terms of affording an Applicant a better understanding of the legal framework within which the decision is made, in the Tribunal’s view it is not a kin to ‘information’ relevant to the decision.
53. The Tribunal considers the provision of a copy of the relevant Ministerial Direction is not a requirement of s 501G(2) and that, as such, even if compliance with s 501(2) is necessary for valid notification to be given, the provision of Direction No 90, rather than Direction No 99 in this instance did not render the notice to the Applicant invalid.
54. The Tribunal is satisfied that the decision comes within s 500(1)(ba) of the Migration Act which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa. The Tribunal is also satisfied that the application for review was made within the time prescribed by s 500(6B) of the Migration Act. Therefore, the Tribunal is satisfied that it has jurisdiction to review the decision.
THE APPLICANT’S CONDUCT AND OFFENDING
55. The Applicant’s record of criminal offending in Australia commenced in 2009. A detailed table of his offending history is at Annexure A.
56. The Applicant has been convicted of a number of offences including:
·violence or violence related and weapons offences: assault occasioning bodily harm, unlawfully assault and thereby did bodily harm with circumstances of aggravation (two offences), common assault, common assault in circumstances of aggravation or racial aggravation, deprivation of liberty (two offences), and possessing a controlled weapon;
·driving and traffic related offences: reckless speeding, driving while suspended (eight offences), stealing a motor vehicle, using an unlicenced vehicle (three offences) and dangerous driving;
·drug offences: possess a prohibited drug (cannabis), possessing drug paraphernalia in or on which there was a prohibited drug or plant; and
·offences involving public officers, police orders and court orders or sentences: breaching community-based orders (five offences), breaching a violence restraining order, breaching bail undertakings (three offences), escaping from lawful custody, providing a false name and address and failing to obey an order given by an officer.
57. The Applicant has received terms of imprisonment (served and suspended), fines, suspensions and disqualifications, and community-based orders for his offences. He has been sentenced to a total of more than 12 years imprisonment for these offences in Australia. He has also been the subject of violence restraining orders for the protection of several of his partners.[32]
[32] R2, TB1, pages 70-77.
58. The Applicant has a criminal record in New Zealand for offences committed between 1998 and 2006, prior to his arrival in Australia. Annexure B also includes a detailed table of the Applicant’s offending history in New Zealand. His New Zealand offending history includes convictions for a range of offences including dangerous driving, driving whilst suspended, possessing an offensive weapon, wilful damage (two offences), escaping lawful custody, burglary (two offences), breaching periodic detention, breaching bail and assaulting a woman.
59. Before the Tribunal he accepted that some of his offences in New Zealand were against former partners, including the mother of his now-adult son who lives in New Zealand.[33] He was also the subject of violence restraining orders with respect to these women and was ordered to undertake family violence rehabilitation courses twice while in New Zealand.[34]
[33] Transcript, page 23.
[34] Transcript, 26-27.
60. The Applicant had served two terms of imprisonment (three months and 21 days respectively) in New Zealand, prior to his arrival in Australia. He was also received fines, community supervision, periodic detention and community work hours.
61. The nature and seriousness of the Applicant’s offending and other conduct is considered further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
62. As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[35][35] Migration Act s 501(7)(c).
63. As noted above, on 19 January 2021, the Applicant was convicted in the District Court of Western Australia of ‘Assault Occasioning Bodily Harm’, two counts of ‘Unlawfully assault and thereby did bodily harm with circumstances of aggravation’ and two counts of ‘Deprivation of Liberty’. He was sentenced to two years imprisonment on each count. Four of the sentences were to be served concurrently and one cumulatively, bringing the total effective sentence to four years imprisonment, commencing on 8 May 2019.[36]
[36] R1, G4, pages 41-42; R2, TB1, pages 2-3.
64. As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
65. Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[37]
[37] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
66. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
67. The Applicant submitted, in summary that:
·He accepts that his offending was serious, is remorseful and regrets his actions and the impact his anti-social behaviour has had on the community;[38]
[38] A1.
·He has made efforts to change his past behaviour and engaged in multiple rehabilitation programs to address anti-social behaviour;[39]
[39] A1.
·From the programs he has undertaken, he has learnt about addiction, parenting strategies, family violence (noting he had been both a victim and an abuser in the past), consequential thinking and negative peer associations. He has had treatment for anti-social offending behaviour and substance abuse (Pathways program), anger management, drug and alcohol abuse and is participating in SMART recovery online meetings. He is attending mental health counselling and addiction support and will continue with this in the community;[40]
[40] A1
·He has arranged to attend a residential recovery program on release for a minimum of one year which will include ongoing treatment of complex post-traumatic stress disorder (PTSD) and addiction, as underlying causes of his offending;[41]
[41] A1
·His offending was in part caused by previously undiagnosed mental health problems (complex PTSD)[42] which he is being treated for and for which he would continue treatment on release;[43]
·Sending him back to New Zealand will ruin his family as his children do not know any other home and they do not have the means to relocate to New Zealand;[44]
·Returning to New Zealand would put his recovery and rehabilitation at risk as he has no family support there and may resume contact with anti-social connections. He is concerned that people he was previously associated with may pursue him for money. He does not come from a good family background and there are a lot of unresolved gang related issues that will put him in danger if he returns home;[45]
·He is no longer taking drugs and has been drug-free since he entered prison in 2019;[46]
·He has a strong employment history and an offer of employment and mentoring on release from a recruitment company;[47]
·His ties to Australia through his partner, children and extended family are strong and they will be seriously impacted if he is returned to New Zealand. He has worked while in Australia and has helped homeless and disadvantaged kids around Perth. Those kids see him as a father figure and would be ‘extremely sad’ if he was returned to New Zealand;[48]
·He has a close relationship with his older children who need him in their lives. He sees his younger child regularly and if he is removed, she wants to live with him, and so this would deny her the opportunity to grow up in Australia. Removal would also mean loss of employment for his partner;[49]
·He has maintained daily contact with his family while in prison and detention. His youngest daughter’s best interests are that he remains in Australia;[50]
·He is concerned that if he returns to New Zealand he will fall back in with an anti-social crowd;[51] and
·The considerations weighing in favour of revoking cancellation of his visa, including the best interests of his daughter, his ties to Australia through his older children and family and extent of impediments if he is removed, outweigh those against revocation are provide ‘another reason’ why the Cancellation Decision should be revoked.
[42] A8, page 23.
[43] A1.
[44] R1, G18, page 205.
[45] R1, G18, page 205, 214, 216; Transcript, page 54.
[46] Transcript, page 52.
[47] R1, G18, page 205.
[48] R1, G19, page 215.
[49] R1, G19, pages 212-213; G23, pages 274-275; Transcript, page 54.
[50] R1, G19, pages 212-213; G23, pages 274-275; Transcript, page 60-61.
[51] R1, G18 page 205; G19, page 214.
68. The Minister submitted, in summary, that:
·The Applicant’s offending should be viewed as very serious having regard to his history of violent offending including family violence, multiple terms of imprisonment and the frequency and trend of increasing seriousness of his offending. He also made a false declaration to the Department of Home Affairs (Department) regarding his offending history in New Zealand which included a substantial criminal record. This was conduct which should be regarded as serious.[52]
·The Applicant presents an unacceptable risk of reoffending having regard to his criminal history and the fact that repeated periods of imprisonment and previous courses for domestic violence had not curbed his offending behaviour. Further, he had demonstrated limited insight into his offending and if he were to reoffend, the harm which would be caused would be very serious.[53]
·The Applicant had engaged in serious and frequent family violence offending and previous rehabilitation has been ineffective.[54]
·The Applicant has lived in Australia for a considerable period of time and has ties to Australia including through his children, partner and extended family members. However, these ties should be given less weight where the Applicant failed to disclose criminal convictions in New Zealand on his arrival in Australia and has not made any substantial contribution to the community.[55]
·The Applicant has had long periods of absence from his youngest daughter’s life due to his imprisonment. She lives with her mother who has been caring for and financially supporting her. It is unclear if the Applicant would play a positive parental role given his past drug use and history of family violence including against the child’s mother.[56]
·The Applicant has been convicted of serious and violent crimes and the community expectation would be that he would not hold a visa.[57]
·The Applicant grew up in New Zealand and a number of his family members remain there. He is in good physical health and there was no evidence he would not have access to the same services available to other citizens. The Tribunal can infer New Zealand’s social, medical and economic support systems are of an equivalent quality to those available in Australia[58] and there is little impediment to the Applicant maintaining basic living standards in New Zealand;[59] and
·The considerations weighing against revocation outweigh any considerations weighing in favour of revocation.
[52] RSFIC, pages 7-8.
[53] RSFIC, pages 8-9.
[54] RSFIC, page 10.
[55] RSFIC, pages 10-11.
[56] RSFIC, pages 11-12; Transcript, page 95.
[57] RSFIC, page 12.
[58] Citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69].
[59] RSFIC, page 13.
Protection of the Australian Community
69. The first primary consideration, para 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or 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.[60]
[60] See also Direction No 99 para 8(1).
70. Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
71. The Applicant submitted that if the Cancellation Decision was revoked, he would not reoffend and the protection of the Australian community did not require that his visa remain cancelled..
72. The Respondent contended that the protection of the Australian community weighed very heavily against revocation of the Cancellation Decision.
Nature and seriousness of the conduct
73. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, para 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to:[61]
[61] See also Direction No 99 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
74. The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’. Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered to be very serious.
75. The Applicant’s most recent offences were against his former partner, Ms D. As noted above, on 19 January 2021, the Applicant was convicted of two instances of ‘Unlawfully assault and thereby did bodily harm with circumstances of aggravation’, the victim was his former partner, Ms D. Those offences occurred on 21 April 2019. A further conviction on 19 January 2021 for assault occasioning bodily harm, involved an incident on 6 April 2019, where Ms D was the victim. Further, the Applicant’s two convictions for depravation of liberty on 19 January 2021 involved two separate offences against Ms D, on 21 April 2019 and the other on 25 April 2019, where she was forcibly detained by the Applicant and subjected to the assaults for which he was also convicted. In sentencing the Applicant to two years imprisonment for each of the five offences (with a total effective sentence of four years) the sentencing Judge noted the Applicant was in a family relationship with Ms D, the victim, and described the facts of the offences as follows:[62]
[62] R1, G9, pages 67-68.
Now, the facts, of course, are well known to me because I sat as the trial judge. And briefly, those facts are that between 6 April 2019 and 15 April 2019 you and the victim were at her home ... You became angry with her and you struck her three times to her legs with the blunt edge of a tomahawk. It caused bruising and welts to her leg.
The victim managed to escape to her friend and complained to her neighbour, … who also observed the bruising. She did not report the incident to police at the time but she took some photographs of the bruises to her legs, which, of course, I have seen.
Now, on the night of 20 April 2019, and this relates to counts 2 and 3 on the indictment, you went to her home … in a white Holden Commodore. You didn’t stay there that night but the next day you went back and once inside, you spoke to her about going to get milk from the service station and you managed to persuade her to go with you to the service station to buy milk.
But instead you started driving around the [suburb name redacted] area. According to her evidence you became agitated and behaving in a strange manner. During the drive you struck her across the face with the back of your hand.
You then grabbed her mobile phone at one stage and hit her on the face, just above her left eye, causing a laceration which continued to bleed. You continued to assault her and again, although she did not report the incident to police, she did take a photograph of the injury to her eye which showed the bruising to her left eye.
On 21 April 2019 she went to stay at a refuge. She tried to report the matter to police on 24 April 2019 but there was no police officer then available to take a statement. Now, the customer service officer, whose statement was read into evidence at the trial, observed that she had a huge, black eye.
Counts 4 and 5 relate to the incidents of 25 April 2019. On that occasion she had been walking around … and heading from the refuge, where she was staying, to her friend, [name redacted] house.
You were driving along the same road and then persuaded her to get in your vehicle. Rather than taking her to [her friend’s] house you drove her to an area where people go crabbing and there you detained her by holding the strap of her seatbelt in place.
You then drove … and she asked to stop to go to the toilet, which she did, by the open car door. Once you left the truck stop you continued to assault her by elbowing her in the arms and body and punching her hard in the face. All the while, you continued to hold on to the strap of her seatbelt so she could not leave and this resulted in bruising to her arms, face and upper body.
76. Her Honour went on to note that the Applicant plead not guilty to the offending and that he made a ‘baseless claim’ that someone else was responsible for the bruising inflicted upon Ms D. The sentencing Judge noted in this respect that he ‘really showed no mercy or remorse’ for the victim. Her Honour went on to note the Applicant appeared genuinely remorseful in a letter submitted for sentencing (which was not before the Tribunal) and that he seemed ‘to be developing some insight’ into his past conduct and to have accepted some responsibility for it. However, her Honour went on to describe the Applicant’s behaviour as ‘despicable’ noting also that the offending was ‘very serious indeed’ involving an abuse of trust in the context of a domestic relationship. The sentencing Judge noted that the Applicant’s offences were also aggravated by the use of a weapon to assault the victim in one instance and a hard object in the other, observing the risk of serious injury carried by the use of a weapon.
77. With respect to the injuries inflicted on the victim the sentencing Judge found that:[63]
On the three occasions the subject of this indictment, that you assaulted your victim, you caused her injuries which included bruising to her face, her body and a laceration to the eye which relates to count 3.
The injury to the victim’s eye was painful for days and affected her vision. Again, I find that there was the potential for more serious injury to have occurred. You assaulted her to a vulnerable part of her body - that is, her head - and the reality is, is that she was lucky to have not suffered more serious injury.
Count 5 involved repeated punching and pulling of her hair and you punched her so hard that on two occasions she saw bright flashes and felt that she might pass out. Count 5 involved a prolonged assault inside the vehicle which caused bruising and swelling of the face and welts and bruises to her arms as well as chunks of hair being pulled from her scalp. So the force that you used was significant and I find that these were serious examples of assault occasioning bodily harm.
[63] R1, G9, page 69.
78. Her Honour observed that the offending was premeditated, persistent and sustained. Her Honour noted that a pre-sentencing report (which is not before the Tribunal) recorded that the Applicant was using methylamphetamine daily at the time of the offending but that this was not a mitigating factor. He also noted that the Applicant was attending Narcotics Anonymous in prison and was taking steps to change his behaviour. He noted the need for ongoing rehabilitation and treatment for substance abuse. A lifetime restraining order was put in place for the protection of Ms D.
79. The Applicant also had prior recorded convictions for offences against his long-term partner, Ms Falwasser. On 13 September 2016 he was convicted of common assault where the aggravating circumstance was again that he was in a relationship with the victim, Ms Falwasser.[64] On the date that offence occurred, 17 February 2016, he also breached a violence restraining order in place for the protection of Ms Falwasser.
[64] R1, G7.
80. The Applicant plead guilty to the offences and according to the Statements of Material Facts for those offences, which the Applicant accepted at the hearing, the breach of the restraining order occurred on the morning on of 17 February 2016 when Ms Falwasser awoke to find the Applicant in her home. Later that day, Ms Falwasser was walking on the beach when she saw the Applicant in a beach car park and a verbal argument broke out. The Applicant punched the victim in the eye and threw a cigarette lighter at her, hitting her in the mouth. At the time of these offences a restraining order was in place for the protection of Ms Falwasser (made on 18 June 2015).[65]
[65] R2, TB1, page 33 and 73.
81. The Judge made a 12-month community-based order including 100 hours of community service, vocational guidance counselling, domestic violence counselling and drug counselling.[66] He was sentenced at the same time to eight months imprisonment suspended for 12 months for driving without authority (his fifth offence). On 16 February 2017 he was convicted of breaching the community-based orders following his convictions for dangerous driving, no authority to drive, using an unlicenced vehicle and failing to correctly affix and display a number plate. Those convictions arose from an incident on 27 October 2016 when he was identified by police driving an unlicenced motorbike. According to the Statement of Material Facts, police attempted to stop the Applicant, activating their emergency lights and sirens at an intersection when the Applicant speed away, colliding with two police vehicles. In sentencing the Applicant with respect to that offence his Honour noted:[67]
So really the issue today is, taking into account the dangerous driving charge must be viewed as significant, given it involved a collision with a police car. … it seems to me that you put yourself in those circumstances, and you clearly know that probably the person most at risk in that incident was you, given that you were on a motorbike.
[66] R1, G7, page 51.
[67] R1, G8, page 57.
82. In resentencing the Applicant for the 13 September 2016 offences, the sentencing Judge observed in relation to the assault offence that ‘I never heard and never will, I suspect, an excuse for hitting a woman’ and sentenced the Applicant to six months imprisonment for that offence. He regarded the breach of the restraining order as being ‘towards the lower end’ of seriousness on the basis the victim had come across the Applicant in the beach area, imposing a one-month imprisonment sentence for that offence.
83. An additional assault conviction was recorded in New Zealand on 3 February 2006 where Ms Falwasser was the victim. That offence was committed on 11 September 2005.[68] According to the police records of that event, which the Applicant accepted in cross-examination before the Tribunal, the Applicant and Ms Falwasser were in an argument and the Applicant assaulted Ms Falwasser. The records indicate he admitted to slapping her though she claimed to have been hit several times and kneed and ‘she has injuries of a bruise/lump on her head and a cut lip which appears to be from a punch’. The Applicant received nine months supervision and 100 hours community work for that offence and was referred to domestic violence counselling.
[68] R2, TB7, page 304.
84. In addition to those offences against Ms Falwasser, there were police incident reports, which the Applicant was taken to and accepted, which recorded further instances of physical violence against Ms Falwasser in New Zealand and an incident against his first partner, Ms C.[69]
[69] R2, TB7, 299; Transcript, page 23.
85. The Tribunal regards the Applicant’s most recent offences to be very serious. Those were repeated offences of violence against a domestic partner, the consequences of which could have been very serious. Further, those offences form part of a sustained record of violence against women who were in family relationships with the Applicant. In the Tribunal’s view though the individual instances of violence in some cases might be regarded as being at the lower end of seriousness, the sustained and persistent nature of that offending and conduct is serious.
86. The Tribunal notes the requirement to take into account that offences against Government representatives performing their duties[70] is to be considered ‘serious’.[71] Noting the Applicant’s dangerous driving offence involved hitting two police cars in the performance of their duties, a factor noted to be ‘significant’ by the sentencing Judge, the Tribunal considers that offence to be serious, in particular in the disregard it displayed for the personal safety of those officers and the important role they play in law enforcement and road safety.
[70] Direction No 99 para 8.1.1(1)(b)(ii).
[71] Direction No 99 para 8.1.1(1)(b)(ii).
87. In assessing the nature and seriousness of the Applicant’s conduct, the Tribunal must also have regard to the sentences imposed by the Courts, the frequency of the offending and/or whether there is any trend of increasing seriousness and the cumulative effect of repeat offending.[72]
[72] Direction No 99 para 8.1.1(1)(c)-(e).
88. The Respondent contended that the Applicant’s family violence offending had increased in seriousness over time. The Tribunal accepts that his most recent offences were his most serious, reflected in the significant custodial sentences imposed and in the observations of the sentencing Judge. While there were some periods when the Applicant’s offending was less frequent, including when he first arrived in Australia, the Tribunal considers his offending history is lengthy. The Tribunal considers the cumulative effect of the offending contributes to its seriousness.
89. The Applicant did not contend that his offending was not serious. However, he submitted that his offending had arisen from his substance abuse, volatile relationships, and own history of exposure to family violence and anti-social behaviour. These factors were noted in some of the sentencing remarks and in reports of rehabilitation programs undertaken by the Applicant in prison. The Tribunal accepts the Applicant was engaging in illicit substance use, including methamphetamine, and alcohol use during the period he was offending and that this was a factor in some of his offending. The Tribunal does not consider this mitigates the seriousness of his offending and notes that it was not clear that substance use was the only factor in his offending given his claim to have commenced using methamphetamine sometime after his offending commenced in Australia,[73] by which time he already had a history of numerous offences in Australia and New Zealand.
[73] Transcript, page 23.
90. Relevantly in the Applicant’s case, where offences or conduct were committed in another country, the Tribunal must consider whether that offence or conduct is classified as an offence in Australia.[74] Neither the Applicant nor the Respondent made any representations with respect to this part of the considerations. The Tribunal notes that the evidence indicates the Applicant was convicted in New Zealand of dangerous driving, driving whilst suspended, possessing an offensive weapon, wilful damage, escaping lawful custody, burglary (twice), breaching periodic detention, breaching bail and assaulting a woman. These are all activities which would be classified as offences in Australia in particular circumstances and as such they would appear appropriate to include when considering the Applicant’s conduct and offending overall. The Applicant was questioned about his offending in New Zealand. He accepted he had engaged in family violence offending there and did not challenge any of the convictions listed on his record. While some of those offences might be considered to be relatively minor in nature, he was sentenced to imprisonment on two occasions and was ordered to undertake community service and supervision. The Tribunal considers that the Applicant’s history of offending in New Zealand adds to the overall assessment of his offending as serious, in particular as it adds to the length of his offending history and the assessment of his offending as frequent and persistent.
[74] Direction No 99 para 8.1.1(1)(h).
91. The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing his prior criminal offending.[75] The Respondent drew the Tribunal’s attention to copies of the Applicant’s passenger entry card where, on arrival in Australia he declared that he had no criminal convictions.[76] The Applicant had been invited to comment on this material prior to the Non-Revocation Decision being made.
[75] Direction No 99 para 8.1.1(1)(f).
[76] R1, G12, page 178.
92. The passenger movement card included a question as follows:
If you are NOT an Australian citizen:
…
Do you have any criminal conviction/s?
(Original emphasis.)
It invites the declarant to tick ‘Yes’ or ‘No’. The Applicant placed a cross next to the answer ‘No’, notwithstanding his criminal history (detailed at Annexure B) which included sentences of imprisonment.
93. The form includes the following declaration which the Applicant signed:[77]
The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.
[77] R1, G12, page 178.
94. In his responses to the delegate and during cross-examination, the Applicant stated that he answered ‘No’ to the question because he was told by family or friends that he would be denied entry if he declared his convictions and he was wanted to reunite with Ms Falwasser and his children who had already relocated to Australia. He said he wanted to get away from New Zealand and make a fresh start with his family. This was consistent with responses he had provided to the Department when the issue of his passenger card declarations was put to him prior to the Non-Revocation Decision being made.[78]
[78] R1, G23, page 276.
95. Having regard to the evidence and the Applicant’s explanation for the incorrect or misleading declarations made on his passenger cards, the Tribunal finds that he knowingly provided misleading information to the Department. Given the extent of his criminal history in New Zealand at that time, the Tribunal considers that conduct was serious and that it reflects poorly on the Applicant’s appreciation of the importance of complying with laws of Australia, including those regulating immigration and entry.
96. Overall, the Tribunal considers that making false statements to border officials in the context of entry to Australia is a matter of significant importance to the management and effective functioning of our immigration and border security system and is not something to be treated lightly. This is reflected in Direction No 99. The Tribunal regards that this conduct weighs against the Applicant in the overall assessment of his conduct and given the nature of his offences in New Zealand, and the fact he continued to offend in a similar manner after arriving in Australia, contributes to the assessment of his offending and other conduct as serious.
97. While the Respondent suggested that comments in the February 2017 sentencing remarks constituted a warning to the Applicant of the immigration consequences of his offending,[79] the Tribunal did not consider this characterisation was fair to the Applicant. The remarks were an exchange between counsel and the Court at the end of the sentencing hearing and the Tribunal considers the Applicant was unlikely to be focussed on these comments, given the context. The Tribunal notes the Applicant conceded he was aware offending could impact his immigration status, particularly as he had failed to disclose his prior offending in New Zealand due to concerns it would impact his entry. The Tribunal considers, however, that this is different to a formal warning from the Government that his visa may be cancelled and considers that his understanding of the potential link between offending and his visa status did not add to the overall assessment of his conduct or offending as serious.
[79] Direction No 99 para 8.1.1(1)(g).
98. The Applicant’s more serious offending was preceded by what might individually be considered to be less serious offences, predominantly driving offences. For these offences, the Applicant received fines and suspensions. While the offences were generally less serious, the persistent nature of the Applicant’s driving offences, and in particular his repeated conduct driving without a licence and while suspended, was serious.
99. There was also material in the documents before the delegate relating to gang membership and organised crime.[80] It was put to the Applicant for comment by the delegate that there was information he was associated with an Outlaw Motorcycle Gang.[81] The Applicant responded that:[82]
I have grown up with many family and friends who over the years, may have been associated to gangs. I distance myself as much as possible from these people for the safety and well being of my family. I will never have any direct association to gangs, but my association may be incidental due to this.
[80] R1, G10, pages 73-176.
[81] R1, G15; see Criminal Law (Unlawful Consorting and Prohibited Insignia) Act (WA) 2021, Schedule 2.
[82] R1, G24, page 277.
100. The delegate was not satisfied there was evidence to establish that the Applicant was a member or associate of an outlaw motorcycle gang.[83] However, the delegate considered that were he to reconnect with individuals connected to gangs, his risk of reoffending would be heightened.
[83] R1, G3, page 24.
101. Before the Tribunal, the Applicant admitted he had been a member of a gang, the East Side Scorpions, in New Zealand from when he was 15 or 16 until he left New Zealand at 27 years old.[84] He also admitted that during his imprisonment in 2016 he had become ‘known as a Rebel’ which information on the file suggests is a reference to the Rebel’s motorcycle gang.[85] He said he had family members outside Australia who were (Red) Rebels and was ‘surrounded by them in jail’ but denied being a member of that group.[86] He testified that around 2019 when he was again in prison, he asked to be a member of another gang - the Mogrel Mob.[87] He said he had friends who were in this gang. When asked what being a member entailed, he said it was a mistake. He said he wasn’t thinking, and he just needed their comfort.[88] He said he told them he didn’t want anything more to do with the gang around October 2021.[89] The Respondent did not make any submissions with respect to the Applicant’s past gang membership or past or current familial gang connections. No submissions were made with respect to the material relating to Outlaw Motorcycle Gangs. As there was no reference in the sentencing remarks for the Applicant’s more significant convictions which connected them to gang membership and there is no record of the Applicant having been charged or convicted of having been a member of an Outlaw Motorcycle Gang, the Tribunal places no weight on that material in the Applicant’s case. Nor does the Tribunal consider the Applicant’s admitted association with family members and friends who are in gangs, to be conduct which contributes to the overall assessment of the nature and seriousness of his conduct and offending.
[84] Transcript, page 48.
[85] Transcript, page 49; see Criminal Law (Unlawful Consorting and Prohibited Insignia) Act (WA) 2021, Schedule 2.
[86] Transcript, page 47-48.
[87] Transcript, page 49.
[88] Ibid.
[89] Transcript, page 48.
102. However, there are references in the Pathways program report to the Applicant’s anti-social peers as an ‘identified treatment need’[90] and the Tribunal considers evidence that he has been associated with a number of gangs, or with persons who are members of gangs, to be relevant to the assessment of his risk of reoffending. In this regard, the Tribunal notes the Applicant has acknowledged the risk of these associations in terms of his rehabilitation and, in particular, in the context of his return to New Zealand, where he identified a risk of further involvement with gangs.
[90] R2, TB2, page 235.
103. The Tribunal also notes the Applicant was taken to police records relating to other alleged incidents involving Ms D or her property. There was no information the Applicant had been charged in relation to those matters. When it became evident the Applicant was being asked questions relating to matters which might be the subject of further legal action against him, albeit unlikely, the Tribunal made the Applicant aware he was not required to answer questions where the answers might tend to incrimination him. The Applicant elected to answer the question but denied the offending.[91] Accordingly, the Tribunal does not consider those allegations contribute to an assessment of his conduct and offending.
[91] Administrative Appeals Tribunal Act 1975 (Cth), s 62(4);Transcript, pages 35-40.
104. Overall, the Tribunal finds the Applicant has engaged in a range of offending which, applying Direction No 99, is serious or very serious. He has a lengthy record going back to his years in New Zealand and has committed repeated offences of violence against domestic partners. His offences have escalated in seriousness and frequency with his most recent offending.
105. Taking the Applicant’s record as a whole, the Tribunal considers the Applicant’s offending and conduct to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
106. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 99 states, in part:[92]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[92] See also Direction No 99 para 8.1(2)(b).
107. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[93] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[94]
[93] Direction No 99 para 8.1.2(2)(a).
[94] Direction No 99 para 8.1.2(2)(b).
108. There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[95]
[95] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
109. The Applicant contends that he is not a risk to the community and will not reoffend. In this regard he relied on:
·His commitment to maintaining a drug-free and prosocial lifestyle, which is demonstrated by the 14 months he spent in home detention prior to his sentencing;[96]
·He is remorseful and committed to making changes to his life, including undertaking family violence and drug and alcohol rehabilitation courses, attending counselling and staying away from anti-social peers. This includes a commitment to undertaking residential rehabilitation on release from detention;[97]
·He has an offer of employment and the support of his partner and family;[98] and
·He is committed to supporting his partner and children and working on his relationships to prevent further family violence offending.[99]
[96] A1.
[97] A1.
[98] A1.
[99] Transcript, pages 56, 102-103.
110. The Minister submitted that:
·There was evidence the Applicant had unmet criminogenic treatment needs with respect to family violence and substance abuse;
·His commitment to rehabilitation was untested in the community and previous rehabilitation efforts had not been effective in curbing the Applicant’s offending;
·His plans for further rehabilitation on release relied on his personal commitment which was untested;
·The protective factors for the Applicant such as family, accommodation and employment are not substantially different to those present at the time of the offending and were not sufficient to prevent the Applicant from offending; and
·He has a history of association with anti-social peers including gang membership which presents a risk of reoffending.
Nature of the harm
111. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[100]
[100] Direction No 99 para 8.1.2(2)(a).
112. The Applicant has engaged in repeated instances of family violence against his former and current partners including breaching a family violence order. He has committed assaults against his most recent partner, including with a weapon, which the sentencing Judge noted could have resulted in very serious injury to her.[101] The Tribunal considers that were the Applicant to reoffend against a current or future partner, very serious psychological and physical harm would result. In that regard, the Tribunal notes the observations of the sentencing Judge with respect to the 2019 offences, including the abuse of trust involved in domestic violence[102] and the dangers associated with the use of a weapon or hard object in the assaults.[103] Further, the Australian community would bear the financial and resourcing costs of repeated police, court and community corrections service interventions caused by repeat offending, breaches of restraining and community-based orders. The Tribunal considers the cumulative harm caused by such offending to be serious.
[101] R1, G9, page 69.
[102] R1, G9, page 71.
[103] R1, G9, page 69.
113. The Applicant has also committed repeated driving offences, included repeatedly driving while suspended and dangerous driving. If the Applicant was to commit further driving offences, the consequences would be potentially serious. The Tribunal notes that serious harm, such as injury or death, can be inflicted on road users as a result of such offences. In one instance of the Applicant’s offences those road users were police carrying out their responsibilities for protecting the community from unregistered vehicles and unlicenced drivers. Were the Applicant to reoffend in a similar manner in the future, members of the public would suffer serious harm as a result. Law enforcement officers would also suffer harm in the course of discharging their duties.
[179] Migration Act s 501F.
[180] Migration Act s 15.
[181] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful: at [112]-[122].
209. Under s 501E of the Migration Act, a person cannot apply for another visa while they remain in Australia if:
·They have been subject to a visa refusal or cancellation under s 501; and
·The decision has not been set aside or revoked prior to their making the visa application.
Such an application is not a valid application for a visa.[182] The only exceptions are an application for a protection visa or a visa specified in the Regulations (i.e. reg 2.12AA).[183] There are limited visas specified under those Regulations.
[182] Migration Act s 46(1)(d).
[183] Migration Act s 501E(2).
210. Certain visas are subject to Special Return Criteria (SRC). For the visa subclasses to which SRCs apply, the SRC is prescribed in Schedule 2 to the Regulations as a criterion for visa grant. SRC 5001(c) provides for permanent exclusion if the visa applicant has previously had a visa cancelled under s 501 and there was no revocation of the decision under s 501CA. There is no provision for a visa applicant to whom SRC 5001 applies to request a waiver of the permanent exclusion.
211. While Special Category (subclass 444) visas are not subject to SRC 5001, they are subject to other criteria, including that an applicant:
·Not have been sentenced to a term of imprisonment (or two or more terms of imprisonment) totalling 12 months or more; and
·Must not have previously been removed or deported from Australia or any other country.
212. As the legal consequence of a decision not to revoke the cancellation of the Applicant’s visa under s 501 of the Act is that he would be liable for removal from Australia, a further consequence of that removal would be that he would be ineligible to meet the criteria for a further Special Category visa to enter Australia. Any other visa application would also be unlikely to be successful by operation of SRC 5001 or due to character criteria.
213. The parties did not make representations with respect to the broader legal consequences of the decision. However, submissions with respect to other considerations, including on the extent of impediments to removal, proceeded on the basis that the Applicant’s removal from Australia would be permanent, reflecting the legal consequences of cancellation under s 501.
214. The Respondent accepted that the legal consequence of the decision would be that the Applicant would likely be removed and would be unlikely to be able to obtain a further visa to re-enter Australia. Acknowledging the impact this would have on the Applicant, the Tribunal affords the consideration slight weight in favour of revoking the cancellation of the Applicant’s visa.
Extent of impediments if removed
215. Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of New Zealand. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
216. The Applicant submitted that he faces substantial impediments if removed, predominantly with respect to his lack of social supports in New Zealand, his risk of reoffending and his separation from his family. His concerns regarding return to New Zealand were detailed above (see paragraphs [200] and [201]).
217. The Applicant accepted he would have access to the same services and supports as are available to citizens of New Zealand on return there. He submitted he may have difficulty finding employment because he did not have significant experience working in New Zealand. He also submitted his mental health would suffer if he returned to New Zealand and was separated from his partner and children. He submitted that his family could not support him and that his family background was ‘not good’. He was concerned he would be exposed to or reconnected with gangs there and that this association would lead to him reoffending.
218. The Minister submitted that the Applicant was in good physical health and while he may require mental health support in New Zealand, there is no suggestion he would not have access to the same level of health care as other New Zealand citizens. The Minister submitted that the Applicant would not face any difficulty re-establishing himself in New Zealand and that there were no language or cultural barriers facing him on return there. The Minister submitted that the Tribunal could infer that the social, medical and economic supports available to him in New Zealand are of an equivalent quality to those available in Australia, such that there would be little impediment to maintaining basic living standards in New Zealand.
219. The Tribunal asked the Applicant about his family circumstances in New Zealand. He said his oldest child, mother, stepfather, older brother and stepsister remained living there. He does not have contact with his father. His mother lives in Hamilton and the Applicant is in contact with her, but not with his siblings in New Zealand. His mother provided a supporting statement noting his remorse and her confidence that he could make a positive contribution to the Australian community were he allowed to remain here.[184] He is also in contact with his son who is 23 years old.
[184] R1, G35
220. His partner’s mother, father and siblings also remain in New Zealand. They had been living in Hamilton when Ms Falwasser and the children returned there to live around the time of Ms M’s birth, but Ms Falwasser’s evidence was that they had since moved.[185]
[185] Transcript, pages 69-70.
221. The Tribunal accepts that the Applicant will suffer emotional distress as a result of deportation and separation from his family, if Ms Falwasser and Ms M do not relocate with him. He expressed the view that he doesn’t think that will be a good option for them in any event. He has been receiving support for PTSD, and on the evidence before it the Tribunal, accepts he would have ongoing needs for mental health support in New Zealand. The Tribunal accepts that the Applicant’s PTSD may worsen as a result of his return and separation from his family. However, there is no evidence that mental health supports would not be available to the Applicant in New Zealand, and while the Tribunal accepts he may suffer emotional distress as a result of his removal, the Tribunal does not consider this impediment to be insurmountable in the Applicant’s circumstances, given he would have access to health services in New Zealand, should he choose to engage with such services.
222. The Tribunal considers there is nothing in the information available to it to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in New Zealand, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances, including mature age, work experience and lack of language or cultural barriers in New Zealand. There was no evidence the Applicant would suffer any significant cultural barriers on return to New Zealand, having spent his formative years in New Zealand. However, the Tribunal acknowledges the Applicant’s concerns regarding his background and social peers in New Zealand and the risk this presents for him reoffending in New Zealand.
223. The Tribunal accepts the Applicant has a history of gang association in New Zealand and that those associations would likely not be a prosocial support or protective factor against reoffending. However, the Tribunal considers that if the Applicant has the insight into his offending, which he now claims to have gained from rehabilitation, will make him better able to navigate and avoid anti-social associations in New Zealand, should he choose to do so. In any event, the Tribunal does not place significant weight on the risk the Applicant might reoffend in New Zealand to be an impediment to his return.
224. The Tribunal also notes the Applicant has immediate family in New Zealand. While his evidence raised concerns about whether that family network would provide a prosocial environment, it is likely his mother with whom he remains in contact, would offer him some emotional support on return.
225. The Tribunal accepts the Respondent’s submission that the Applicant would have access to Government supports in the form of social, medical and economic supports in New Zealand and infers these would be of an equivalent quality to those available in Australia.[186] While the Tribunal accepts the Applicant may face some initial challenges establishing access to such services and employment, the Tribunal notes he has experience as a scaffolder and claims good prospects of employment in Australia. The Tribunal does not accept this presents a significant impediment to his return having regard to all of his circumstances.
[186] Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
226. The Tribunal accepts that the Applicant is likely to face significant emotional hardship with respect to his separation from family members if returned to New Zealand. Although there was some uncertainty as to the potential for Ms Falwasser and Ms M to relocate, the Tribunal accepts that were they to do so, there would be financial and emotional hardship for the family involved in such a move and it would involve separation from the older children, which would place stress on the Applicant and the other family members. The Tribunal also accepts that the Applicant would suffer emotionally as a result of separation from his Australian family members and finds that this would make his resettlement in New Zealand more difficult.
227. Overall, the Tribunal finds that the Applicant may encounter some difficulty establishing himself if he were to return to New Zealand, but does not regard these difficulties as insurmountable impediments.
228. Overall, the Tribunal finds that the extent of impediments if removed, weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims
229. Paragraph 9.3 of Direction No 99 states:
(1)Decision-makers must consider 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.
230. As noted above, Ms Falwasser, the Applicant’s partner, was a victim of his offending and provided several statements to the Department in support of the request for revocation. She also provided a statement to the Tribunal and testified at the hearing.
231. The Respondent submitted that the Tribunal should approach her statements with caution, noting the complex nature of relationships where family violence is present and the fact the Stopping Family Violence report identifies an ongoing risk of family violence, including of fatality within a relationship. On this basis, the Respondent submitted less weight should be placed on Ms Falwasser’s support for the Applicant remaining in Australia.
232. The Tribunal acknowledges the complex nature of relationships where there is a history of family violence. However, there was no evidence before the Tribunal to suggest Ms Falwasser was not capable of speaking to the impact the decision under s 501CA has on her and her children. Further, the Tribunal took evidence from Ms Falwasser and considered her to be a credible witness who acknowledged the history of violence within the relationship. In the past she has distanced herself and the children from the Applicant due to his offending and she expressed to doing so again if he did not address his offending behaviour. The Tribunal considered Ms Falwasser clearly articulated the negative impact the decision to cancel the Applicant’s visa had on her and the children and her desire for the family to remain together in Australia.
233. The evidence before the Tribunal suggests that the Applicant remaining in Australia presents a degree of risk to Ms Falwasser, linked to his risk of reoffending. As noted above, given the serious nature of harm that could be caused if that risk is realised, the Tribunal does not discount the risk. However, the Tribunal considered that Ms Falwasser’s assessment that the Applicant had changed, and that he did not represent an appreciable risk to her going forward, was a considered assessment from her individual perspective. In this regard, the Tribunal notes that it considered Ms Falwasser was capable of assessing her own interests and to form the view that her interests and those of her children are best served by the Applicant remaining Australia.
234. As noted above, Ms Falwasser states that she will be negatively impacted if the Applicant’s visa cancellation is not revoked as she wants the family to remain together, and while she would consider relocating to New Zealand with their youngest child, her adult children want to remain in Australia. This would mean her family will be split between the two countries. In addition, she has employment here and may struggle to obtain an equivalent role in New Zealand.
235. While the Tribunal considers there remains a risk of family violence from the Applicant toward Ms Falwasser, accepting Ms Falwasser’s desire for the relationship to continue, the Tribunal places weight on her view that non-revocation would have an ongoing negative impact on her and her family. The Tribunal accepts the Respondent’s submission that its task goes beyond merely accepting the victim’s view of their interest. However, to the extent that assessing the impact that the decision would have on Ms Falwasser in terms of her personal safety, the Tribunal notes that given it is open to Ms Falwasser to relocate to New Zealand with the Applicant (as she is a citizen of that country), and she has not ruled out doing so, her level of risk of further family violence will be driven in part by her own judgment and choices. As such, the Tribunal considers that the impact of a decision under s 501 on her will be that she would have to make difficult choices about her commitment to the relationship, her own safety and that of her children. Those will be decisions for Ms Falwasser to make.
236. There is no information before the Tribunal regarding the impact of the decision on any other victims of the Applicant’s offending or on other members of the Australian community outside those impacts considered elsewhere in this decision.
237. On balance the Tribunal considers the decision not to revoke the cancellation of the Applicant’s visa would negatively impact Ms Falwasser and that this consideration weighs slightly in favour of revoking the cancellation of the visa.
Impact on Australian business interests
238. Paragraph 9.4 of Direction No 99 states:
(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.
239. The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests.
240. The Applicant testified he has an offer of employment on his release from detention with Macforce.[187] Mr MacShane’s letter confirms this offer.[188] However, neither the Applicant, nor Mr MacShane, suggested that the business would be impacted if the Applicant were not available to take up that general offer of employment, due to not being allowed to remain in Australia.
[187] R1, G18, page 205.
[188] R1, G28, 306.
241. The Tribunal considers this consideration is neutral in the Applicant’s case.
CONCLUSION
242. The Applicant does not pass the character test under s 501 of the Migration Act.
243. The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
244. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
245. There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99).[189] Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[190] While the Court was considering Direction No 90, it’s observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[191]
[189] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[190] [2023] FCAFC 138.
[191] At [35].
246. In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction No 99 and explained the basis upon which it has assessed the weight to be given to each consideration.
247. The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
248. The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs very strongly against revocation of the cancellation of the Applicant’s visa.
249. The consideration of family violence also weighs very strongly against revocation of the Cancellation Decision in the Applicant’s circumstances.
250. The strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revoking the Cancellation Decision.
251. The best interests of Ms M, as the child identified as being impacted by the decision, are that her father remains in Australia and this weighs strongly in favour of revocation of the cancellation of the Applicant’s visa.
252. The expectations of the Australian community, weigh strongly against the revocation of the cancellation of the Applicant’s visa.
253. In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that the legal consequences of the decision weigh slightly in favour of revocation. The extent of impediments if removed weighs slightly in favour of revoking the cancellation of the Applicant’s visa. The impact on the victims weighs slightly in favour of revocation. The Tribunal has found that the impact on Australian businesses weighs neutrally in the Applicant’s circumstances.
254. The Applicant has committed a range of offences including repeated family violence offending. His most recent family violence offences are very serious. The community’s tolerance for violent offending of this type is low because of the unacceptable risk it presents of serious harm to the community, including to victims and to their families. The Applicant also failed to declare a history of offending in New Zealand, which included conduct he continued to engage in, in Australia. The Applicant has acknowledged the impacts of his offending and expressed remorse. He has committed to rehabilitation and made significant efforts to progress his rehabilitation during his current term of imprisonment and in detention. However, he has a long history of offending and the Tribunal has found there is a risk he will reoffend, particularly with respect to family violence. Given the seriousness of his offending, including family violence, the Australian community would expect his visa would remain cancelled.
255. Balanced against this, the Applicant has lived in Australia for an extended period. He has made a life in Australia with his partner and children. His children have been raised in Australia among their extended family here. Two of his children are adults who permanently reside in Australia and wish to continue to do so, and he has other family members and friends from whom he would be separated if he is removed. His ties to the community through his family are strong. The Applicant is committed to building a relationship with his youngest child and supporting her financially and emotionally in Australia. Her parents wish to raise her in Australia with her older siblings and family members here. It is in her best interests that the cancellation be revoked. There are some impediments if the Applicant is removed to New Zealand, including the impact on his mental health, the potentially extended separation from his partner and children, and a history with anti-social peers there, though the Tribunal assessed those impediments were not insurmountable. The Tribunal also assessed that a decision not to revoke the cancellation would, on balance, impact negatively on Ms Falwasser as a victim of his offending, and that the legal consequences of the decision would be that the Applicant would likely be removed permanently from Australia.
256. Paragraph 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. Nothing has been presented which would cause the Tribunal to find that that general principle should not apply in the present case. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations weighing against revocation of the Cancellation Decision, being the primary considerations of the protection of the Australian community, family violence committed by the Applicant and the expectations of the Australian community, outweigh those in favour being the strength, nature and duration of ties to Australia and the best interests of minor children, together with the other considerations of the legal consequences of the decision, the extent of impediments if removed and the impact on a victim of the offences.
257. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is that the Non-Revocation Decision be affirmed.
DECISION
258. The decision of the delegate of the Respondent dated 15 June 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.
I certify that the preceding 258 (two hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford
...............[Sgd].........................................................
Associate
Dated: 11 September 2023
Date of hearing: 22 and 23 August 2023 Applicant: In person Solicitors for the Respondent: Mr A Burgess, Sparke Helmore Lawyers ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ run on 5 May 2021[192] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 16 August 2023.[193]
[192] G4.
[193] TB1.
Conviction Date Court Offence Offence Date(s) Court Result 1. 19 February 2021 Mandurah Magistrates Court Reckless speed 45 km/h or more
26 April 2019 $1400 fine; Mdl Disqualified: 6 months - concurrent 2. 19 February 2021 Mandurah Magistrates Court No authority to drive (suspended) 26 April 2019 6 months imprisonment concurrent; Mdl Disqualified: 9 months - cumulative 3. 19 January 2021 Perth District Court of Western
Australia
Assault Occasioning Bodily Harm 6 April 2019 2 years imprisonment concurrent from 8 May 2019 4. 19 January 2021 Perth District Court of Western
Australia
Deprivation of Liberty 25 April 2019 2 years imprisonment concurrent from 8 May 2019 5. 19 January 2021 Perth District Court of Western
Australia
Deprivation of Liberty 21 April 2019 2 years imprisonment cumulative from 8 May 2019 6. 19 January 2021 Perth District Court of Western
Australia
Unlawfully assault and thereby did
bodily harm with circumstances of
aggravation
25 April 2019 2 years imprisonment concurrent from 8 May 2019 7. 19 January 2021 Perth District Court of Western
Australia
Unlawfully assault and thereby did
bodily harm with circumstances of
aggravation[194]
21 April 2019 2 years imprisonment concurrent from 8 May 2019 8. 25 June 2019 Mandurah Magistrates Court Steal Motor Vehicle 26 February 2019 $1000 fine 9. 18 December 2018 Mandurah Magistrates Court Possess a Prohibited Drug
(Cannabis)
16 November 2018 $400 fine 10. 16 February 2017 Perth Magistrates Court Breach of Community Based Order 17 February 2016 1 month imprisonment concurrent 11. 16 February 2017 Perth Magistrates Court Breach of Community Based Order 26 June 2016 3 months imprisonment concurrent 12. 16 February 2017 Perth Magistrates Court Breach of Community Based Order 17 February 2016 6 months imprisonment concurrent 13. 16 February 2017 Perth Magistrates Court Breach of Community Based Order 27 June 2016 1 month imprisonment concurrent 14. 16 February 2017 Perth Magistrates Court Breach of Community Based Order 14 June 2015 2 months imprisonment concurrent 15. 16 February 2017 Perth Magistrates Court No authority to drive (Suspended) 27 October 2016 5 months imprisonment concurrent; Mdl Disqualified: 9 months – cumulative 16. 16 February 2017 Perth Magistrates Court Failed to correctly affix and display a number plate 27 October 2016 $50 fine 17. 16 February 2017 Perth Magistrates Court Used an unlicensed vehicle 27 October 2016 $250 fine 18. 16 February 2017 Perth Magistrates Court Dangerous Driving 27 October 2016 $400 fine 19. 13 September 2016 Mandurah Magistrates Court Breach of Bail Undertaking 17 July 2015 $300 fine 20. 13 September 2016 Mandurah Magistrates Court Breach of Bail Undertaking 26 February 2016 $300 fine 21. 13 September 2016 Mandurah Magistrates Court Breach of Violence Restraining
Order
17 February 2016 12 month community based order concurrent 22. 13 September 2016 Mandurah Magistrates Court Common Assault in Circumstances of Aggravation or racial Aggravation 17 February 2016 12 month community based order concurrent 23. 13 September 2016 Mandurah Magistrates Court Escaping from lawful custody 26 June 2016 12 month community based order concurrent 24. 13 September 2016 Mandurah Magistrates Court Final hearing following pre-sentence order, from appearance on 24 April 2015 16 January 2015 $100 fine 25. 13 September 2016 Mandurah Magistrates Court Possessed a controlled weapon 14 June 2015 12 month community based order concurrent 26. 13 September 2016 Mandurah Magistrates Court Possessed drug paraphernalia in or on
which there was a prohibited drug or
plant
27June 2016 12 month community based order concurrent 27. 24 April 2015 Mandurah Magistrates Court Breach of Bail Undertaking 16 January 2015 6 month pre-sentence order (PSO) 28. 24 April 2015 Mandurah Magistrates Court No Authority to Drive (Suspended) 05 October 2014 8 months imprisonment concurrent; Mdl disqualified: 9 months – cumulative. 29. 24 April 2015 Mandurah Magistrates Court False Name and Address 05 October 2014 $250 fine; Mdl disqualified 12 months cumulative 30. 30 April 2014 Mandurah Magistrates Court No Authority to Drive (Suspended) 30 October 2013 Mdl Disqualified: 12 months - cumulative 31. 30 April 2014 Mandurah Magistrates Court Unlicensed Vehicle (Owner/Driver) 30 October 2013 $150 fine 32. 31 July 2013 Mandurah Magistrates Court No Authority to Drive (Suspended) 25 July 2013 $1000 fine; Mdl Disqualified: 9 months - cumulative 33. 27 May 2013 Joondalup Magistrates Court No Authority to Drive (Suspended) 7 January 2013 $400 fine; Mdl Disqualified: 9 months - Cumulative 34. 18 February 2013 Rockingham Magistrates Court No Authority to Drive (Suspended) 2 January 2013 $500 fine; Mdl Disqualified: 9 months - cumulative 35. 1 August 2011 Bunbury Magistrates Court Common Assault 4 December 2010 $750 fine 36. 27 April 2011 Mandurah Magistrates Court Unlicensed Vehicle (Owner/Driver) 18 March 2011 $75 fine 37. 1 September 2010 Mandurah Magistrates Court No Authority to Drive (Fines
Suspended)
7 August 2010 $200 fine 38. 27 May 2009 Collie Magistrates Court Fail to Obey Order Given by an
Officer
23 May 2009 No punish S.46; spent conviction S45 SA [194] Records indicate two separate offences of unlawful assault occasioning bodily harm on the 21 April 2019.
ANNEXURE B - TABLE OF THE APPLICANT’S OFFENDING HISTORY IN NEW ZEALAND
Offending table details drawn from a report titled “New Zealand Police in Confidence” detailing the Applicant’s offences committed in New Zealand, produced on 15 April 2021.[195]
[195] G4.
| Conviction Date | State Jurisdiction | Offence | Offence Date(s) | Court Result | |
| 1. | 5 March 2007 | Hamilton DC | Breach Of Local Liquor Ban | 3 December 2006 | $200 fine; $130 court costs |
| 2. | 5 March 2007 | Hamilton DC | Escape Lawful Custody | 3 December 2006 | 40 hours community work |
| 3. | 5 March 2007 | Hamilton DC | Wilful Damage | 3 September 2006 | $300 reparation; 50 hours community work |
| 4. | 3 February 2006 | Hamilton DC | Failure To Answer District Court Bail | 25 October 2005 | 9 months supervision; 100 hours community work |
| 5. | 3 February 2006 | Hamilton DC | Male Assaults Female (Manually) | 11 September 2005 | 9 months supervision; 100 hours community work |
| 6. | 1 June 2005 | Hamilton DC | Drove While Licence Suspended or Revoked | 12 March 2005 | $200 fine; $130 court costs; 6 month disqualification from driving |
| 7. | 6 August 2004 | Hamilton DC | Drove A Motor Vehicle In a Dangerous Manner | 10 February 2004 | $250 fine; $130 court costs |
| 8. | 19 May 2003 | Hamilton DC | Unlicenced Get Into/Upon Motor Vehicle- Motor Cycle | 28 February 2003 | 150 hours community work |
| 9. | 4 November 2002 | Hamilton DC | Failure To Answer District Court Bail | 16 September 2002 | To Come Up For Sentence If Called Upon - 04/11/2002 - 6 Months |
| 10. | 4 November 2002 | Hamilton DC | Possess Offensive Weapon (Other) | 7 August 2002 | To Come Up For Sentence If Called Upon - 04/11/2002 - 6 Months |
| 11. | 14 June 2001 | Hamilton DC | Obstruct/Pervert/Defeat Course of Justice | 17 March 2001 | 21 days imprisonment concurrent |
| 12. | 29 May 2001 | Hamilton DC | Failure To Answer Police Bail | 23 March 2001 | Convicted and discharged |
| 13. | 29 May 2001 | Hamilton DC | Disorderly Behaviour | 17 March 2001 | Convicted and discharged |
| 14. | 29 May 2001 | Hamilton DC | Resist Police | 17 March 2001 | 3 months imprisonment |
| 15. | 29 May 2001 | Hamilton DC | Failure To Answer District Court Bail | 2 November 2000 | Convicted and discharged |
| 16. | 20 October 2000 | Hamilton DC | Obstruct/Pervert/Defeat Course Of Justice | 2 March 2000 | 6 month community program |
| 17. | 20 October 2000 | Hamilton DC | Obstruct/Pervert/Defeat Course Of Justice | 6 February 2000 | 6 month community program |
| 18. | 20 October 2000 | Hamilton DC | Breach of Periodic Detention | 6 November 1999 | 6 month community program |
| 19. | 20 October 2000 | Hamilton DC | Burgles (Oth Prop)(Under $500) By Night | 15 July 1999 | 6 month community program |
| 20. | 5 November 1999 | Masterton DC | Burgles (Oth Prop) (Under $500) By Night | 11 July 1999 | $105 reparation; 3 months non- residential periodic detention |
| 21. | 11 January 1999 | Hamilton DC | Wilful Damage | 12 October 1998 | $200 reparation; 100 hours community service |
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