Peacock and Minister for Home Affairs (Migration)
[2019] AATA 5532
•20 December 2019
Peacock and Minister for Home Affairs (Migration) [2019] AATA 5532 (20 December 2019)
Division:GENERAL DIVISION
File Number: 2019/6544
Re:Kenneth Rex Peacock
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member T Eteuati
Date:20 December 2019
Place:Brisbane
The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.
..............................[Sgd]..........................................
Member T Eteuati
CATCHWORDS
MIGRATION - Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa - Applicant does not pass character test - whether there is another reason why the mandatory cancellation of the Applicant's visa should be revoked - consideration and application of Ministerial Direction No 79 - decision under review set aside and a decision in substitution made revoking the original visa cancellation decision
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member T Eteuati
20 December 2019
BACKGROUND
This is an application by Kenneth Rex Peacock (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent’) on 7 October 2019 to refuse to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“TY 444 visa”).
The Applicant first arrived in Australia on 25 August 2010 at the age of 22.
While a TY 444 visa is technically a temporary visa, it allows its holder to remain indefinitely in Australia. When the holder of a TY 444 visa departs Australia, the visa ceases but, subject to a person continuing to meet the visa criteria, they are granted a new TY 444 visa when they re-enter Australia.
The Applicant was last granted a TY 444 visa on his last arrival in Australia on 16 January 2013 after he had departed Australia on 30 December 2012. It was this visa that was cancelled under section 501(3A) of the Act by the Minister’s delegate on 23 October 2018.
On 4 September 2018, the Applicant was convicted of enter in dwelling and commit indictable offence - domestic violence offence. He was sentenced to 18 months imprisonment with a non-parole period of five months.
On 23 October 2018, the Applicant’s TY 444 visa was cancelled under section 501(3A) of the Act on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.
On 29 October 2018, the Applicant sought that the cancellation decision be revoked. He later provided the Department a completed personal circumstances form dated
30 January 2019.
On 7 October 2019, the Minister refused to revoke the cancellation of the Applicant’s TY 444 visa. The decision record was given to the Applicant by hand on 8 October 2019. On 11 October 2019, the Applicant applied to this Tribunal for review of that decision.
The matter was heard on 5 December 2019. For the reasons below, the Tribunal has decided to set aside the decision under review and for a decision in substitution to be made revoking the original visa cancellation decision. The Tribunal considers that this is the preferable decision in this case.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
(original emphasis)
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A3 and the documents tendered into evidence by the Respondent and marked as exhibits R1 and R2. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 39 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(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)); or
…
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission report for the Applicant dated 3
May 2019 records the Applicant as having the following disclosable court outcomes:[1]
[1] Exhibit G1, G Documents, G08, pages 53 – 55, Australian Criminal Intelligence Commission report, dated3 May 2019.
Court
Court Date
Offence
Court Result
Toowoomba Magistrates Court
12 Nov 2018
Breach of probation order imposed on 18/12/2017
For breach of order Conviction recorded
Not further punished
Orders revoked Resentenced for original offences
On all charges
Conviction recorded Sentenced 3 months imprisonment to be suspended for 18 months concurrent
Trespass (between 09/01/2018 and 19/01/2018)
Possessing dangerous drugs (on 4/06/2018)
On all charges
Conviction recorded
Not further punished
Toowoomba Magistrates Court
04 Sep 2018
Enter in dwelling and commit indictable offence - domestic violence offence (on 06/08/2017)
Conviction recorded Sentence imposed of
18 months imprisonment
5 month non-parole period
Toowoomba Magistrates Court
11 Jun 2018
Breach of bail condition (between 29/03/2018 and 7/04/2018)
Conviction recorded
Fined $350
Toowoomba Magistrates Court
18 Dec 2017
Breach of probation order imposed on 13/06/2016
For breach of order Conviction recorded
Not further punished
Orders revoked Resentenced for original offences as follows
Fail to stop motor vehicle conviction recorded fined $6307.50
2 counts of drive while relevant drug is present in blood or saliva
On all charges
Conviction recorded
Not further punished
Fail to leave licensed premises (on or about 20/08/2016)
No conviction recorded
Fined $200
Authority required to possess explosives (on 19/09/2017)
Contravention of domestic violence order (aggravated offence) (on 18/09/2017)
Breach of bail condition (on 18/09/2017)
Contravention of domestic violence order (on 26/11/2017)
No conviction recorded
On all charges
probation for 18 months
Toowoomba Magistrates Court
18 Oct 2017
Breach of bail condition (on 13/10/2017)
Breach of bail condition (on 16/10/2017)
No conviction recorded
Fined $300
Gatton Magistrates Court
13 Jun 2016
Fail to stop motor vehicle (on 06/02/2016)
Conviction recorded
24 months probation
MDL disqualified for two years
In addition, the Applicant has a number of traffic violations committed between 2012 and 2016 as detailed by the Queensland Police Service Traffic Record for the Applicant.
I am satisfied the Applicant has a substantial criminal record for the purposes of section 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of more than 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses
The following is a summary of the evidence before the Tribunal including evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant is an un-partnered, 31-year-old man. The Applicant was born in 1988 in New Zealand. The Applicant first arrived in Australia on 25 August 2010 at the age of 22. The Applicant’s ‘Movement History’ indicates that he has travelled overseas for just over two weeks between 30 December 2012 and 16 January 2013.
The Applicant met his former partner in 2012 and they had a son together. He born in July 2014 and is currently five-years-old. There were problems in the couple’s relationship and they separated in late 2016. The couple attended counselling sessions together in the attempt to restore the relationship. The Applicant told the Tribunal that his former partner had given him a key to the garage door of her home so that he could access the home. He said that after they separated, his partner retained custody of their child. However, he said that he would visit the child at his former partner’s home quite regularly.
The Applicant said that in late July 2017, when he was visiting his child at his former partner’s home, a man named Ben arrived unannounced at the house. The Applicant indicated that this surprised him and he advised Ben that he was not happy with Ben visiting the house unannounced as his young child lived in house. The Applicant’s former partner told the Applicant that Ben was an old friend.
The Applicant indicated that although the couple had separated and were living in different houses, the Applicant and his former partner continued to be intimate and have sexual relations with each other. At the time of his serious offending on 6 August 2017 the Applicant said that he considered that he was in a relationship with his former partner.
At about 3:30AM on 6 August 2017 the Applicant entered his former partner’s home using the garage key that he said that she had given him for that purpose. He said that he discovered his former partner in her bed with Ben. The Applicant said that he was very drunk when he arrived at his former partner’s house. The Applicant indicated that he was shocked and surprised by finding his former partner in bed with another man and reacted violently by hitting the man a number of times and physically removing him from his former partner’s home. The Applicant indicated that he was jealous and angry at finding another man with his former partner. He indicated that he was also concerned that a man was present in the house with his young child.
In sentencing the Applicant on 4 September 2018 the sentencing judge described the offending as follows:
“… on the 5th of August, you assaulted [victim’s name redacted] inside your ex-partner’s house, where she was living with some other adults and your son. During the assault, you punched [victim’s name redacted] with closed fists on a number of occasions. It was only after [victim’s name redacted] bit down on your finger which was in his mouth that you got off him and the bed. At one stage you held [victim’s name redacted] around his neck and dragged him out of the house and told him, in no uncertain terms, to leave. He asked for his belongings, which you collected and threw them onto the bonnet of his car. You then left and spoke to your ex-partner at about 5:30 am that morning, where you made admissions to assaulting [victim’s name redacted], because you did not want your son around him.
Fortunately, the injuries suffered by the complainant were not the most serious. However, they did amount to a laceration to his lip, requiring internal sutures, bruising to his left cheekbone, right ear and eye and tender swelling to his hand and over his right kneecap. He also suffered pain in his knee. You did make contact with the police on 7th August and advised you wished to hand yourself in. I have read a victim impact statement provided by the complainant. He has suffered some adverse impact, including difficulty sleeping. He suffered financially, due to not going to work for two weeks after the incident and he says he still has some pain in his knee.”
The Applicant turned himself into police the day after the offence took place. A Domestic Violence Order (DVO) was issued against the Applicant and he was released on bail. The DVO prevented the Applicant from contacting his former partner and his child. Both the Applicant and his former partner indicated that the DVO allowed for contact to be made if permitted by the Applicant’s former partner for the purposes of communication between the Applicant and his son.
Both the Applicant and his former partner indicated that despite the DVO the Applicant and his former partner maintained contact by telephone and text messages. On
18 September 2017, the Applicant sent his former partner photographs of a shotgun and shotgun shells with text messages saying words to the effect that he was playing with his new toy and indicating that the shotgun and the shells were real. The Applicant indicated that the gun and the shells were brought to his home by friends of his who were about to embark on a hunting trip. He said he had been showing off and had not sent the photographs as a threat. He said that he now realised that it was stupid of him to send those photographs only a month after he had beaten the man at his former partner’s home.
The Applicant’s former partner gave evidence that she did not feel threatened by the photographs as the Applicant had never harmed her. She said that she had spoken with the Applicant by telephone earlier that day and knew that he was drunk. She said that she was concerned for the Applicant’s safety and that he was breaching the law by possessing a firearm without a license. She said that this is why she alerted the police about the photographs. The Applicant was found guilty of possessing the shotgun shells without authority, contravening the DVO and breaching a bail condition for sending the photographs to his former partner.
On 18 October 2017, the Applicant was convicted on two counts of breaching bail by failing to report. No conviction was recorded in he was fined $300.
On 26 November 2017, the Applicant sent two abusive text messages to his former partner. The Applicant indicated that he was frustrated at not being able to see his son. He said that in the text messages he accused his former partner of being heartless and asked that he be allowed to see his son. He said that he called his partner a “mole”. This was consistent with the evidence given by the Applicant’s former partner during the hearing. The Applicant was found guilty of contravening the DVO by sending these text messages.
On 18 December 2017, the Applicant was dealt with for these text message related offences. No conviction was recorded and the Applicant was subjected to probation for 18 months. Because of these offences the Applicant breached a previous traffic related probation order. On 13 June 2016, the Applicant had been convicted of failed to stop motor vehicle, was subjected to a 24 month probation order and disqualified from driving for two years. On 18 December 2017, that probation order was revoked and the Applicant was fined $6307.50 for the original offence. On the same day the Applicant was found guilty of failing to leave a nightclub when asked in 2016, no conviction was recorded and the Applicant was fined $200.
On 11 June 2018, the Applicant was convicted of breaching a bail condition by failing to report and fined $350.
On 4 September 2018, the Applicant was convicted and sentenced to 18 months imprisonment for enter in dwelling and commit indictable offence. This was in relation to beating the man at his former partner’s home. The Applicant was given a five month non-parole period and was eligible for release on 4 February 2019. While he was in prison for that offence, on 12 November 2018, the Applicant was convicted of trespass and possessing dangerous drugs. The trespass offence occurred in January 2018. The Applicant entered the grounds of a school without permission and used the swimming pool. The drug possession offence occurred in June 2018 and involved the Applicant being found with a small amount of methamphetamine on his person. Convictions were recorded for these offences but no further punishment was ordered. However, the convictions resulted in the Applicant being in breach of the probation order imposed on
18 December 2017. Therefore, the probation order was revoked and the Applicant was resentenced for the original offences. He was sentenced to three months imprisonment to be suspended for 18 months.
The Applicant said that if he were allowed to remain in Australia that he would not reoffend. He said that his offending in the past was mainly attributable to alcohol abuse. The Applicant indicated that his father had been an abusive alcoholic. The Applicant said that he was abused by another family member when he was young. He said that his older brother had died in a car accident when he was young and that his mother had passed away when he was 21. The Applicant said that he abused alcohol to deal with the trauma of the loss of his family members. The Applicant said that he relocated to Australia when he was 22 for a fresh start so that he could put his traumatic past behind him.
The Applicant indicated that he had been attending Alcoholics Anonymous since November 2018. This was confirmed by a letter from his Alcoholics Anonymous sponsor. The Tribunal also had a letter from Pacific Connect & Support, an organisation which provide support to inmates. That letter indicated that the Applicant is committed to rehabilitation and that the organisation would continue to provide the Applicant with support if he was released into the community.
The Applicant has indicated that he has also undertaken a domestic violence prevention course, a drug and alcohol rehabilitation course, and an anger management course. The Applicant received a letter from the Correctional Centre where he was imprisoned indicating that the Applicant had been well-behaved during his incarceration.
Prior to his imprisonment the Applicant attended counselling sessions for alcohol abuse issues with Lives Lived Well on 1 September 2017, 13 December 2017 and 15 December 2017. The Applicant failed to attend two sessions in November 2017. This information from Lives Lived Well is contrary to that reported to the court in a Court Report for the Applicant from June 2018 which recommended revoking probation on the basis that the Applicant had only attended Lives Lived Well on one occasion after being directed to attend in August 2017, and that he had failed to report for probation on three occasions. The Tribunal accepts the information provided by Lives Lived Well that the Applicant attended three counselling sessions with that organisation.
That the Court Report contained erroneous information in relation to rehabilitation sessions which the Applicant attended is very concerning. Presumably relying upon the erroneous Court Report, the sentencing judge, in formulating a sentence for his violent offence, stated:
“… it appears that you have made no genuine attempts to rehabilitate. And it seems to be that you are resistant, or perhaps lack an understanding of how important it is that you do something about this rage and jealousy that you feel, if you are not to commit further offences in the future.”
However, the Tribunal accepts that the Applicant did not fully engage with rehabilitative sessions as directed.
The Applicant indicated that apart from his serious offence, he has never committed any acts of violence. The Applicant said that the reason that that offence occurred was that he was shocked and angry at finding his former partner in bed with another man and he had been very intoxicated at the time. The Applicant said that he would not reoffend in a similar way as he has been free of drugs and alcohol for over a year, has completed drug and alcohol courses, is continuing to engage with Alcoholics Anonymous, has come to terms that his relationship with his former partner has ended and desperately wishes to remain in Australia so that he may have in person contact with his son.
Apart from his relationship with his son the Applicant also has a brother in Australia and two nieces aged eight and four. He claimed that he was known as their favourite uncle. The Applicant also indicated that he had always maintained employment in Australia, had a number of close friends here and had been an active member of the community. He said that he had played rugby league and cricket for various clubs. The Applicant indicated that he had been asked by a friend to be the ‘MC’ and best man at his friend’s wedding next year.
The Applicant indicated that he had been diagnosed with clinical depression and post-traumatic stress disorder (“PTSD”). This was confirmed by medical reports.
The Applicant’s former partner
The Applicant’s former partner provided statements to the Department and the Tribunal in support of the Applicant and appeared before the Tribunal to give evidence.
The Applicant’s former partner indicated that she met the Applicant in 2012. She said that their son was born in 2014. She indicated that the Applicant had previously had a problem with alcohol abuse and that this contributed to the breakdown of their relationship in 2016. The Applicant’s former partner indicated that the couple attended relationship counselling for about six months. She said that they reconciled only to split again in 2017.
The Applicant’s former partner said that the Applicant had never been violent towards her or her son. She said that they had had arguments in the past which had involved them shouting at each other and pushing each other but nothing more than that.
The Applicant’s former partner indicated that the Applicant had always been employed during the relationship and had always been a good provider and a good father. She said that their five-year-old son had been greatly negatively affected as a result of being separated from the Applicant. She said that he sometimes cries for his father and was more demanding of her. She said that when they had been together she was able to be a stay-at-home mother as the Applicant provided for the family financially. Since being apart from the Applicant she has had to work to support herself and her son.
The Applicant’s former partner indicated that if the Applicant had to return to New Zealand she did not currently have the financial means to pay for their son to visit the Applicant in New Zealand. She indicated that the Applicant and her son would have to maintain contact by telephone and other electronic means. The Applicant’s former partner indicated that she hoped that their son would be able to visit the Applicant once the Applicant found employment in New Zealand and was in a position to help pay for visits.
The Applicant’s former partner indicated that if the Applicant were allowed to remain in Australia she planned for the Applicant to have custody of their son half of the time. She said that this would assist her in that she would be able to work more frequently and would not have to pay for child care when their son was with the Applicant. She said that she would be better off financially if the Applicant was able to remain in Australia.
The Applicant’s former partner indicated that she had no fear that the Applicant would harm her of their child. She said that he had never harmed either of them. She indicated that she believed that the attack on the man in her house was out of character and arose because the Applicant was drunk. She said that the victim was not badly injured and was able to walk away after being checked by ambulance officers.
The Applicant’s former partner indicated that she was not concerned that the Applicant would ever harm any future partner of hers. She said that the Applicant now understood that their relationship was over. She said that the Applicant had met a subsequent partner of hers and that they had got along well with each other.
The Applicant’s former partner said that she did not feel threatened by the photographs of the gun and the shells that the Applicant had sent her. She said that she had spoken with the Applicant by telephone earlier that day and knew that he was drunk. She said that she was concerned for the Applicant’s safety and that he was breaching the law by possessing a firearm without a license. She said that this is why she alerted the police about the photographs.
The Applicant’s partner indicated that the two other text messages which the Applicant had sent her were abusive but not threatening. She agreed that the text messages expressed that the Applicant wished to see his son and that the Applicant had used abusive language.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The offences committed by the Applicant cannot be described as sexual crimes.
The Applicant’s most serious crime of ‘enter in dwelling and commit indictable offence’ was a violent crime. It involved the Applicant finding his former partner in bed with another man and hitting the man a number of times and removing him from his former partner’s home. It could be said that the man was vulnerable as he was asleep in the home of the Applicant’s former partner. The Applicant was sentenced to 18 months imprisonment with a non-parole period of five months. There is no question that this offence was very serious.
The Applicant’s other offences were, by comparison, far less serious. The Applicant failed to stop his motor vehicle in 2016 and was subjected to probation for 24 months. He failed to leave a nightclub in 2016, no conviction was recorded and he was fined $200. After committing the serious crime he was released on bail. He beached the conditions of his bail on three occasions by failing to report. There was some evidence that suggested that the Applicant may have failed to report as he could not afford to take time off work. There is also a letter from a medical doctor which indicated that the Applicant was suffering from clinical depression and that “this will have affected his ability to attend appointments and courses under the terms of his probation”. While these matters do not excuse the breaches, they provide some explanation for them.
The Applicant was then convicted of breaching probation, contravening a DVO, breaching bail and possessing ammunition without authority. These charges all related to the text messages and photographs the Applicant sent to his former partner. Finally, the Applicant was convicted of trespass for swimming in the school pool without permission and possessing a small amount of prohibited drugs. Those offences resulted in a breach of a previous probation order. The Applicant also has a number of traffic violations.
Contrary to the Respondent’s written submissions, the Applicant’s serious offence did not occur while he was on probation for breaching a domestic violence order. The breaches of the domestic violence orders occurred after the serious offence took place but before he was convicted and sentenced for the serious offence. In addition, contrary to the Respondent’s written submissions the Applicant’s offending has not increased in seriousness over time. Indeed, most of his offences occurred after he committed his most serious offence.
It does not appear that the Applicant has provided false or misleading information to the Department such as to justify any significant increase in an assessment of the seriousness of the offending or its nature.
The factors in paragraphs 13.1.1(1)(h) and (i) are not relevant in this matter.
For the reasons mentioned above the Tribunal considers that the Applicant’s offence of ‘enter in dwelling and commit indictable offence’ was very serious and involved the Applicant entering his former partner’s home and beating the man that he found in bed with his former partner by hitting a number of times. The remainder of the Applicant’s offending is far less serious as is evident from the penalties which he received for those other offences.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal finds that if the Applicant were to re-engage in criminal conduct similar to his offence of ‘enter in dwelling and commit indictable offence’, it is likely that the nature of the harm to victims would be that they may suffer from serious physical injury and psychological distress.
If the Applicant were to re-engage in the other crimes for which he has been convicted or found guilty, the consequences are potentially much less serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In this matter and there is no expert assessment of the likelihood that the Applicant will reoffend.
The Tribunal considers that the Applicant is very unlikely to ever commit an offence similar to his serious offence of ‘enter in dwelling and commit indictable offence’. The circumstances surrounding that offence were quite particular and unlikely to re-occur. The Applicant believed that he was still in a relationship of sorts with his former partner. He arrived at her home at 3:30AM and entered the house with a garage key that he had been given by his former partner. Both the Applicant and his partner indicated that the Applicant was very drunk when he arrived at the house. The Applicant found another man in bed with his former partner. He said that he was shocked, angry and jealous and was also concerned for the safety of his young son. It was in those circumstances that he reacted as he did by hitting the man a number of times. The Applicant’s former partner said that this was the only time that she has observed him being violent in this manner. She said that he had never hit her or their son. She said that he now realises that their relationship is over, and indeed that he has met, and got along well with, her subsequent partner.
The Tribunal has also taken into account that the Applicant’s criminal history does not indicate that the Applicant has any propensity for, or tendency towards, violence more generally. It appears that much of his offending, involved acts of stupidity engaged in after the Applicant becoming intoxicated. Those offences included sending offensive text messages and photos, failing to leave a nightclub when asked and trespassing in a school swimming pool.
The Tribunal has taken into account that the Applicant has undertaken a number of rehabilitative courses. The Tribunal is particularly impressed by the fact that the Applicant has ceased using drugs and alcohol and continues to engage regularly with Alcoholics Anonymous. This is particularly important given that many of the Applicant’s offences were said to have occurred after the Applicant became intoxicated.
The Tribunal has also taken into account that the Applicant will continue to be supported in the community by Pacific Connect & Support.
The Applicant has a strong employment history the Tribunal considers that it is likely that he would find employment quite soon after he re-enters the community.
The Tribunal has some concerns about the Applicant’s repeated breaches of probation orders and bail conditions, and that he has committed a number of traffic violations. These things tend to indicate a certain level of disregard for the law.
The Tribunal has taken into account that the Applicant is now well aware that any further offending could lead to his removal from Australia and permanent separation from his five-year-old son.
After considering all these matters the Tribunal is of the view that there is a very low risk that the Applicant will commit violent crimes and a low risk that he will commit any further crimes.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s offence of ‘enter in dwelling and commit indictable offence’ was very serious and involved the Applicant entering into his former partner’s home and beating the man that he found in bed with his former partner by hitting the man a number of times. The remainder of the Applicant’s offending is far less serious as is evident from the penalties which he received for those other offences.
The Tribunal finds that if the Applicant were to re-engage in criminal conduct similar to his offence of ‘enter in dwelling and commit indictable offence’, it is likely that the nature of the harm to victims would be that they may suffer from serious physical injury and psychological distress.
If the Applicant were to re-engage in the other crimes for which he has been convicted or found guilty, the consequences are potentially much less serious.
The Tribunal has found the likelihood that the Applicant will commit violent crimes is very low and that the likelihood that he will commit any further crimes is low.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
Given that the Applicant is unlikely to reoffend, the Tribunal attributes low weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has a five-year-old son in Australia. The Applicant played a parental role in relation to his son prior to his incarceration. The Applicant is very close with his son. The Applicant’s former partner indicated that the Applicant and her son speak with each other almost every day. The Applicant’s son has been severely negatively affected by the Applicant’s absence while he has been incarcerated and in immigration detention. The boy’s mother indicated that he regularly tells her that he misses his father, often cries for him and has become more demanding of her as a result of the Applicant’s absence.
The Applicant’s mother gave evidence that at present she did not have the financial means to allow her son to visit the Applicant in New Zealand. She said that the Applicant and her son would maintain contact by telephone and other electronic means.
The Tribunal accepts the Applicant’s former partner’s evidence that she will be financially better off if the Applicant is allowed to remain in Australia. The Tribunal considers that this would benefit the Applicant’s child.
As the Tribunal has found that it is unlikely that the Applicant will reoffend, the Tribunal finds that if the Applicant is allowed to remain in Australia he will play a positive parental role in the child’s life. The Tribunal accepts the Applicant’s former partner’s evidence that the child will spend half of his time in the custody of the Applicant.
The Tribunal accepts the evidence of the Applicant’s former partner that the child dearly wishes for his father, the Applicant, to remain in Australia.
The Tribunal accepts the evidence of the Applicant’s former partner that the Applicant has never harmed the child. It appears that the child has suffered emotionally from the effects of separation from his father.
The Tribunal considers that it is in the best interests of the Applicant’s five-year-old child for the Tribunal to revoke the cancellation of the Applicants visa so that he can grow up with his father in Australia. The Tribunal considers that the best interests of the Applicant’s child weigh heavily in favour of revocation of the cancellation decision.
The Applicant also has two nieces aged eight and four who live in Australia. They are the daughters of the Applicant’s brother. The Applicant said that he is known as their favourite uncle.
The Tribunal does not have any evidence from his nieces as to whether it is in their interests that the Applicant be able to remain in Australia. There is no evidence that the Applicant has ever abused his nieces in any way. There is no evidence of the nieces suffering any trauma arising from the Applicant’s conduct.
The purposes of this decision, the Tribunal is willing to accept that it is in the best interests of each of the Applicant’s nieces for the Tribunal to revoke the cancellation of the Applicants visa. However, the Tribunal places only low weight in the Applicant’s favour on this consideration as it relates to the applicant’s nieces.
Conclusion: Primary Consideration B
Overall, the Tribunal accepts that it is in the best interests of each of the children mentioned above for the Tribunal to revoke the cancellation of the Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
Paragraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
The decisions of Uelese v Minister for Immigration and Border Protection[2016] FCA 348; Afu v Minister for Home Affairs[2018] FCA 1311; YNQY v Minister for Immigration and Border Protection[2017] FCA 1466 and FYBR v Minister for Home Affairs[2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
These principles were confirmed very recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in paragraph 6.3(5) and paragraph 6.3(7) of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached by the Applicant’s breaches of the law. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. In the present matter, the Government has acted in accordance with that expectation as was required by section 501(3A) of the Act.
The Tribunal considers that the Applicant’s violent offence was very serious and the Direction provides that the Australian community considers that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that some weight should be placed, in the Applicant’s favour, on the negative consequences of non-revocation on the Applicant’s family members in Australia, especially his son. The Tribunal has also attributed weight to the fact that the Applicant has contributed positively to the community for some time through his employment and community engagement through sport.
Conclusion: Primary Consideration C
The Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
However, given the severe negative consequences for the Applicant’s child and his former partner if the Applicant is removed to New Zealand, and given that the Applicant has contributed positively to the community for some time, the Tribunal places low weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under paragraph 14(1):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
(a) International non-refoulement obligations
Neither party has raised any issue about non-refoulement obligations regarding the Applicant, and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2010 as a 22-year-old. The Applicant was born and raised in New Zealand. For most of his adult life, the Applicant has been contributing to the Australian community through paid employment and engaging with the community through sport. The Applicant’s first criminal offence occurred in 2016, some six years after he first arrived in Australia. His traffic violations began in 2012.
The Tribunal has taken into account the Applicant’s statements and the statements provided by his former partner in support of him as being relevant to his ties to Australia.
The Tribunal has taken into account that the Applicant has a number of friends in Australia and the Tribunal accepts that those friends may feel deeply saddened at the Applicant’s departure from Australia.
The Tribunal has also taken into account under this consideration the hardship to the Applicant which will result if he must leave Australia. If it had not, the Tribunal would have considered this matter as a separate “other” consideration. The Tribunal accepts that the Applicant will be severely adversely affected if he has to relocate to New Zealand. The Applicant has no relatives in New Zealand with whom he is close and left New Zealand as a result of traumatic experiences which he had there. The Applicant would be deprived of raising his son in Australia and his son would be deprived of growing up with his father present.
Overall, the Tribunal finds that the Applicant has strong ties to Australia. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has raised any issue regarding this consideration, and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including victims. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen's age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant is 31 years of age who suffers from clinical depression and PTSD.
It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in New Zealand. As a citizen of New Zealand, the Applicant will be entitled to any social, medical and economic support available to New Zealand citizens in New Zealand. There is no evidence before the Tribunal that the Applicant would not be able to access appropriate medical treatment for his depression and PTSD in New Zealand.
The Applicant has always been gainfully employed in Australia and the Tribunal considers that this augurs well for his employment prospects in New Zealand.
The Tribunal finds that the Applicant will face difficulty in re-establishing himself in New Zealand and accepts that the Applicant may initially face difficulties in securing employment in New Zealand. The Tribunal accepts that the Applicant would be very upset if he were permanently removed from Australia especially as he will be separated from his son.
The Tribunal finds that this consideration weighs against non-revocation of the cancellation of the Applicant’s visa. The Tribunal attributes moderate weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs against revocation of visa cancellation and has attributed low weight to this consideration. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately against revocation of visa cancellation. The Tribunal has found that the Applicant’s violent crime was very serious, that there would be harm to Australian citizens and residents if he committed further violent crimes. The Tribunal has found that there is a very low risk that the Applicant will commit violent crimes and a low risk that he will commit any further crimes.
On the other hand, the Tribunal has found that the best interests of the Applicants five-year-old child and his two nieces, aged eight and four, favour revoking the cancellation of the Applicant’s visa and given significant weight to this consideration in the Applicant’s favour.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the Applicant, his family members and his friends in Australia will be adversely affected if the cancellation decision is not revoked.
Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary consideration of the best interests of minor children in Australia and the other considerations of the ‘strength nature and duration’ of the Applicant’s ties to Australia and the ‘extent of impediments if removed’ outweigh the two primary considerations of protection and expectations of the Australian community in this case. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is not unacceptable.
The Tribunal has found that the Applicant does not pass the character test but has found that there is another reason why the cancellation of the Applicant’s visa will should be revoked.
Therefore, the Tribunal has decided to set aside the decision under review and for a decision in substitution to be made revoking the cancellation decision. The Tribunal considers that this is the preferable decision in this matter.
DECISION
The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.
I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member T Eteuati
............................[Sgd].........................................
Associate
Dated: 20 December 2019
Date of hearing: 5 December 2019 Applicant: Self-represented, appeared by video-link Advocate for the Respondent: Mr Jake Kyranis Solicitors for the Respondent: Sparke Helmore ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
A1
Applicant’s submissions dated 4 November 2019
A2
Applicant’s statement of Facts, Issues and Contentions in Reply dated
28 November 2019A3
Statement of Kymberly Alicia Evans dated 1 November 2019
R1
Summons material received 25 November 2019
R2
Respondent’s Tender Bundle provided 5 December 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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Jurisdiction
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