Piec and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1238
•27 April 2022
Piec and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1238 (27 April 2022)
Division:GENERAL DIVISION
File Number: 2022/0857
Re:Janusz PIEC
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:27 April 2022
Date of written reasons: 16 May 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 3 February 2022 that refused to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant’s Class BS Subclass 801 Partner visa is revoked.
.......................................[sgd].................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor child – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ahori and Minister for Immigration and Border Protection (2017) AATA 61
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29
Falzon v Minister for Immigration and Border Protection (2018) HCA 2; 351 ALR 61
FYBR v Minister for Home Affairs [2019] FCAFC 185
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
16 May 2022
The Applicant seeks review of a decision of a delegate of the Respondent (‘the Minister’) made on 3 February 2022 (‘the decision under review’) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) to revoke the original decision made under s 501(3A) of the Act, on 22 February 2021, to cancel the Applicant’s Class BS Subclass 801 Partner visa (‘the visa’) (‘the original decision’).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
On 16 March 2021, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision).
On 3 February 2022, a delegate of the Minister decided not to revoke the original decision (that is, the decision under review). On 6 February 2022 the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 11 and 12 April 2022 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’ or ‘Direction 90’).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia 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.
2Non-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.
3The 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 measurable risk of causing physical harm to the Australian community.
4Australia 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. However, Australia may 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.
5Decision-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 type of conduct or suspected conduct mentioned in paragraph 8.4(2) (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 measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration A’);
(b)whether the conduct engaged in constituted family violence (‘Primary Consideration B’);
(c)best interests of minor children in Australia (‘Primary Consideration C’); and
(d)expectations of the Australian community (‘Primary Consideration D’).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
FACTS
The Applicant, who is 37 years of age, was born in Poland on 28 December 1984. The Applicant is a citizen of Poland.
EVIDENCE
Statements
The Tribunal has had regard to the various character references and statements before it, namely:
(a) Applicant’s statutory declaration subscribed on 3 November 2021 and a further signed statutory declaration of the Applicant dated 2 April 2022; and a signed form of statutory declaration dated 5 April 2022; photographs of the Applicant with his family and children.
(b) Signed statutory declaration of Annie Khina dated 1 April 2022, wife of Applicant;
(c) letter dated 15 March 2021 of Annie Khina;
(d) copy of statutory declaration by Annie Khina dated 5 November 2021; and a further form of statutory declaration signed by her on 4 April 2022;
(e)statutory declaration of Arsho Khina; mother of Annie Khina; dated 1 April 2022;
(f) reference from Miroslaw Chwastek dated 17 September 2021;
(g) reference from Roman Zygmunt (undated);
(h) statutory declaration of Adam Rafal Chelminsky dated 24 March 2022, friend of Applicant; and
(i) letter of Mateusz Jedrusek dated 14 February 2021, cousin of Applicant and statutory declaration of Mateusz Jedrusek dated 28 March 2022.
Oral evidence
The Tribunal heard oral evidence from the Applicant, from the Applicant’s former wife and mother-in-law; Mateusz Jedruzek (Applicant’s first cousin); and from Adam Chelminski (Applicant’s friend).
Other witness’s evidence
Letter addressed to the Presiding Judge, District Court of New South Wales by Mateusz Jedruszek (first cousin of the Applicant) on the letterhead of Perfect Contracting, dated 14 February 2021.
(a) Letter addressed to the Presiding Judge, District Court of New South Wales by Mateusz Jedruszek (first cousin of the Applicant) on the letterhead of Perfect Contracting, dated 14 February 2021; and
(b) Sample invoices and list of clients of Applicant’s business.
Medical evidence
(a) Report of Woods Psychologists dated 25 August 2020;
(b) translations of medical certificates from the Polish language into the Australian language relating to certain implant treatment undergone by the Applicant for alcohol abuse;
(c)literature concerning the Anti-Alcohol Antabuse Implant used in Eastern Europe.
APPLICANT’S CRIMINAL HISTORY
The Applicant has been convicted of 12 separate convictions during the 17 ½ years of residing in Australia. The Applicant’s offending has principally related to breaches of apprehended violence orders. For example, he was arrested on 19 July 2020 for breach of an order; he was granted bail on 3 September 2020 but on 9 September 2020 breached the terms of his bail. He was arrested on 11 September 2020 where he remained in prison until 7 June 2021 when he was released to Villawood Detention Centre. The criminal offences are recorded on the dates set out in the schedule hereunder as set out in the schedule as follows:
Date
Offence
Outcome
28 February 2012
Drive with mid-range PCA
Fine: $600
Section 9 Bond: 8 months
Licence disqualification: 8 months
5 July 2012
Contravene prohibition/ restriction in AVO (Domestic)
Section 10 Bond: 18 months
28 June 2013
Common assault (DV)
Section 9 Bond: 12 months (appealed, confirmed on 4 December 2013)
16 September 2015
Drive with high-range PCA
Intensive corrections order (ICO): 12 months
Licence disqualification: 9 months
Alcohol interlock program: 48 months
16 September 2015
Drive with high-range PCA
ICO: 15 months
8 September 2016
Contravene prohibition/ restriction in AVO (Domestic)
Section 10 bond: 12 months
13 November 2019
Possess prohibited drug
Fine: $110
23 December 2020
Use carriage service to menace/ harass/ offend
9 months’ imprisonment (appealed, confirmed on 15 February 2021)
23 December 2020
Contravene prohibition/ restriction in AVO (Domestic)
18 months’ imprisonment with a 9 month non-parole period (appealed, confirmed on 15 February 2021)
23 December 2020
Stalk/ intimidate intend fear physical etc harm (Domestic) (2 counts)
18 months’ imprisonment with a 9 month non-parole period (appealed, confirmed on 15 February 2021)
23 December 2020
Use carriage service to threaten to kill (2 counts)
9 months’ imprisonment (appealed, confirmed on 15 February 2021)
Sentencing observations
The Tribunal has considered the only available sentencing observations in relation to the convictions, namely those of Magistrate Huntsman made on 23 December 2020 in respect of stalking the mother of his former partner. Each charge carried a maximum five year gaol term. In addition, the Applicant was sentenced for using a carriage service with a threat to kill Lauren. The Applicant had forwarded 85 messages to his former partner. The sentencing remarks contain the following:
The hallmark of domestic violence offending is the attempt to control a former partner, whether by threats of harm or by threats of self-harm, or by refusing to accept that you are to keep away. These text messages that constitute the breach of the AVO have all of those hallmarks. There is making her responsible for his state of mind, making threats of self-harm at the same time as blaming her. “What you did to my kids. Remember me to the end of your life”. All of these things are controlling behaviour, and a refusal to stop contacting the former partner whilst on an AVO and bail conditions. It is most concerning.
The remarks continue:
I also note he has an alcohol and substance use disorder. He has previously been on an intensive corrections order to address high range drink driving, and he has already had a warning of the impact of alcohol on his life and the way it leads him to breach the law. In terms the need for treatment, I accept there is a significant need for treatment for [the applicant]. I also accept that he is previously a person who engaged will (sic) in the community. I note the concerns with the Covid shutdown for his employees, and that he has been running a successful business, so there is some potential for rehabilitation. I need to promote rehabilitation in my sentence.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
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. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, 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. Decision-makers should also 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant were convicted include: driving with mid-range and high range PCA and possessing prohibited drug; contravening prohibition/restriction in AVO; using a carriage service to menace (two occasions) two counts of stalk/intimidate, intend fear physical harm; common assault. Several of the crimes related to domestic violence and were committed against a woman in a domestic violence context. There is no doubt that such conduct is serious.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the repetitive nature of the Applicant’s offending when under the influence of alcohol;
(b)Failing to abide by the provisions of an AVO;
(c)Failing to disclose previous criminal offences on his arrival cards into Australia on repeated occasions.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. Whilst the Applicant’s criminal history provides a basis for the respondent’s determination that the Applicant is not of good character, there are explanations for such conduct which are considered more fully later in this decision. Those explanations, whilst not providing an excuse for such conduct, do provide insight into the reason for the offending and the nature of the offending. The offending has largely been confined to conduct in breach of apprehended violence orders in breach of bail conditions in respect of offences concerning the Applicant’s former wife (hereafter referred to as victim 1). The charge of assault committed against the Applicant’s former wife was not, when properly considered, serious. There are some offences relating to a third party (referred to hereafter as victim 2) and her mother, and PCA offences. There is no suggestion that apart from these events, the Applicant has committed offences against the Australian community generally. Unusually, following the issue of some of the AVOs in favour of the former Applicant’s wife, she would then invite him to visit her home and she requested the AVO be cancelled on the same day as it was issued.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
The conduct of the Applicant has shown violence towards victim 1, his former short-term partner (victim 2) and the mother of victim 2 by threats and intimidation.
The Applicant arrived in Australia on 28 September 2004 and in 2006 after meeting victim 1, they resided together at a house in Eastlakes owned by victim 1’s parents until their marriage on 2 February 2013. They then cohabited at another house in East Lakes between 2014 and 2020. The Applicant was granted a Partner (Subclass 801) Visa on the basis of his marriage to his wife who was an Australian citizen. The Applicant and his wife separated in 2018 and divorced on 8 August 2020. The parties later reconciled in September 2020. The history of domestic violence orders, so far as the Tribunal can determine from the evidence, is as follows:
First apprehended violence order (AVO)
An AVO was issued against the Applicant in June 2012. Such order required the defendant to refrain from assaulting, molesting, harassing and threatening or otherwise interfering with victim 1 and amongst other requirements, prohibited the Applicant from proceeding within 50m of the premises of victim number 1. The Applicant breached such order by sending numerous text messages to victim 1. He was convicted on 5 July 2012 for sending more than 50 text messages. The Applicant was severely affected by alcohol at the time and was given a section 10 bond to be of good behaviour for 18 months. The Applicant stated that he needed help with his alcohol addiction but did not believe that he could address it.
Second AVO
A second AVO was issued on or about 15 January 2013. The Applicant had been drinking at home.
Third AVO
This AVO was issued on 28 March 2016 because the Applicant visited the home of victim 1 who then drove the Applicant in her car To Maroubra Police Station. As they were exiting the police station, the Applicant grabbed hold of victim number one by the arm, making her distressed. It was this conduct that led to the conviction for assault against victim 1.
The Applicant was convicted of contravening such order on 5 July 2012. On 28 June 2013 he was convicted of common assault which comprised grabbing his former wife’s arm. According to the police record, at the time the Applicant:
seemed unsteady on his feet and was swaying side to side. The applicant kept saying “I love her, I love her”.
The Applicant admitted that he had been drinking.
Third AVO
A further AVO was issued on 7 April 2016. The Applicant was ordered not to assault, molest, harass, threaten or otherwise interfere with the protected person, nor stalk such person namely his former wife (the victim). Further, the Applicant was ordered not to approach his former wife within 12 hours of consuming intoxicating liquor or illicit drugs nor destroy or deliberately damage or interfere with the property of his former wife.
However, at about 9:00am on 10 June 2016 the accused visited the victim’s house. Police observed that the Applicant appeared to be ‘well affected by alcohol, as he was unsteady on his feet and unable to stand up properly’. Later on the same day, the Applicant was found lying face down about 10:30am in a street in nearby. The Applicant was found to be slurring his speech, his eyes were glazed over and he was unable to stand up steadily. The Applicant smelled strongly of alcohol and was unaware of his location. The Applicant was charged with breaching condition 10 of the AVO. On 8 September 2016 at Waverley Local Court, the Applicant was sentenced to a 12 month unsupervised section 10 Good Behaviour Bond. Thereafter the Applicant did not drink for several months.
Fourth AVO
This AVO was issued on 3 May 2017.
Fifth AVO
This AVO was issued on 29 January 2018. It was varied at the request of the former wife on 2 February 2018 and again on 14 February 2018.
It appears that the Applicant’s former wife sought a further variation on 18 April 2018 to allow phone contact by the Applicant. On 20 March 2018 victim 1 received a telephone call from the Applicant in which the Applicant accused victim number one of sleeping with other people. On 21 March 2018, he then traced victim 1 to a café at St Leonards and approached victim 1. Thereafter the Applicant placed 12 phone calls to victim 1. On Friday, 23 March 2000 and the victim received a further 4 telephone calls. Victim 1 found such conduct annoying. According to the police record, victim 1 told Mascot Police that she did not feel threatened and did not wish for police to investigate or take action and was only reporting it to have her conditions change that the Applicant would no longer be able to contact her. In oral evidence victim 1 disputed such record, claiming that she did not wish to terminate his contact. Irrespective, on 18 April 2018 a variation was made of the existing AVO. Victim 1 states that she attended at the Downing Centre in Sydney to arrange for a variation of the AVO to enable contact to be made by the Applicant.
SIXTH AVO Issued at the request of victim 2
The Applicant formed an intimate relationship for about three months in approximately April 2020 with victim 2. Victim 2 sent a message to the Applicant on 16 July 2020 ending their relationship and blocked the mobile phone number belonging to the Applicant. Thereafter victim 2 received 12 missed calls and on 17 July 2020, the Applicant sent a message saying words to the effect: ‘I’m going to come to your house at [redacted] and burn it down’. The Applicant also made telephone calls to victim 2’s mother stating that he was going to ‘put a bullet in her head’. Similar messages followed. Police became involved and an AVO was taken out against the Applicant. The order prohibited the Applicant from approaching victim 2 or from contacting her in any way unless such contact was through a lawyer and the Applicant was ordered not to go within 100m of any place where victim 2 lived or worked.
Despite the AVO, the Applicant again made multiple telephone calls to victim 2 and her mother and [victim 1]. The Applicant threatened to drown both victim 2 and her mother. The Applicant also stated:
I’m coming for you tomorrow, with a big fucking gun, and I’m going to shoot you right in the head.
On 19 July 2020 the Applicant was arrested. He acknowledged he made such comments but stated that he was drunk at the time that such statements were made.
On 9 September 2020 victim 2 received approximately 85 messages via the ‘Whatsapp’ application to her mobile phone sent by the Applicant. The messages were not of a threatening nature. On 11 September 2020 the Applicant visited a police station and was placed under arrest and cautioned.
Such history shows that the Applicant has engaged in violent conduct, has made threats and has ignored lawful orders prohibiting him from approaching or making contact with victim 1, victim 2 and the mother of victim 2.
The Applicant maintained, and it was not disputed, that his conduct leading to both the issue of the AVOs and his subsequent convictions for breaching such orders were the result of the fact that he was heavily intoxicated.
Finding on Primary Consideration B
The Tribunal finds that this consideration weighs against the Applicant, despite the extent to which the Applicant accepts responsibility for his conduct, understands the impact of his behaviour, and his rehabilitative efforts to address that behaviour. The Applicant’s conduct constitutes family violence as defined in clause 4.1 of Direction 90. Whilst the assault in relation to victim 1 may be regarded as not a serious assault, the conduct of the Applicant in ignoring the AVO orders as recorded in the schedule above, is most concerning.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has two children of his former marriage, namely two sons, one of which is now seven years of age and the other is six years of age. Such children resided with the Applicant and his former wife at their home in East Lakes until the separation and divorce in 2020.
The Applicant’s former wife states that the Applicant has been a very good father to both boys; he would take them to and from school. The family would usually have dinner together at the Applicant’s former wife’s parent’s home. The former wife has encouraged and continues to encourage, daily contact between the Applicant and the Applicant’s sons electronically for at least an hour a day to maintain a strong relationship.
Since the parties separated, the Applicant’s former wife states that the older son’s wellbeing has deteriorated: he has speech developmental issues. The Applicant’s former wife proposes that if the Applicant is permitted to remain in Australia, she and the Applicant plan to resume living together as a family. The Applicant’s former wife stated that she has a very responsible occupation which requires her to make frequent interstate visits and that she needs to have the support of the Applicant in the care and attention of the sons so that they can be driven to various places. The Applicant’s former wife seeks to have the Applicant attend events and other activities. She states that the Applicant has played a very positive and significant role in their lives. The sons continue to spend an hour a day in contact with their father throughout his period of detention.
The Applicant’s former wife states that his absence from his children has caused the Applicant great upset. She states that two domestic violence orders were four years apart and that the effects of family violence have not destroyed the family. The Applicant’s former wife states that she considers it would be in the best interest for the children to have their father remain with them.
The Applicant’s former wife held no concerns for her safety, nor of the safety of her children. She reiterated that the Applicant had been an excellent father, had participated in the development of the children, had taken them and collected them from school; and had participated as a family in weekend activities. Photographs provided to the Tribunal support the evidence of the former wife.
Finding on Primary Consideration C
The Tribunal considers that the best interests of the child weighs heavily in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is ‘in substance … adverse to any Applicant’: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The criminal conduct of the Applicant has resulted from his addiction to alcohol. The Applicant states that he has endeavoured to address his alcohol problem by trying to find his own solutions. The Applicant has visited Poland on three occasions to have surgical implants of a drug known as Disulfiram inserted into his buttocks. The first implant treatment was on 24 February 2018; the second on 25 November 2018 or early January 2019. The third implant treatment was in November 2019 at a different clinic in Poland, and according to both the Applicant and his former wife, the last treatment was unsatisfactory. The last treatment was of an incorrect dose and the Applicant states it was necessary for him to return to Poland only a week after its insertion for a correct dose at the clinic which he usually had attended. He has also made reference to a different type of treatment, namely a 12 month period of a continuous, automatic Antabuse which did not require him to rely upon his willpower to cease consuming alcohol.
The Applicant states that the effectiveness of the implant weakens over time, with the consequence that its effectiveness is thereby reduced. The Applicant has provided literature concerning such treatment.
The material provided to the Tribunal relating to the treatment to which the Applicant has subjected himself shows that he has attempted to rehabilitate his consumption of alcohol. The implants are intended to make the consumer ill if alcohol is consumed. The treatments are not available in Australia and are not recognised as being appropriate treatments. The information establishes that the implants are not intended to be a cure for alcoholism and the dangers associated with their use are significant.
The Applicant has also participated in Alcoholics Anonymous; attended sessions at the Langton Clinic during 2015 and 2016 where assistance is provided to those addicted to alcohol; and detoxed twice at Sydney Hospital for approximately five days. He states that this has provided insight into his conduct. The Tribunal accepts that the Applicant has endeavoured to overcome his addiction.
Finding on Primary Consideration D
In this case, the Tribunal accepts that the Australian community’s expectations would prima facie weigh in favour of the Applicant. The Applicant has demonstrated that he is endeavouring to overcome his addiction to alcohol. His criminal offending, when considered against his alcohol addiction, does not appear to be as serious since there is no calculated criminal intent which is evident.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter.
Extent of impediments to the Applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen 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, being 37 years of age, and apart from his alcoholism, having no known health issues, would be able to assimilate back to Poland. There will be no cultural language barriers. The social, medical and/or economic support in that country should be available to him of a similar standard to that in Australia
The Tribunal finds that this consideration weighs minimally in favour of revocation of the decision.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 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.
This consideration is relevant in respect of the Applicant’s conduct towards his former wife, his former partner (victim 2) and her mother. The Applicant’s former wife has provided a statement which is very supportive of the Applicant being permitted to remain in Australia and she has provided oral evidence strongly in favour of him being allowed to remain in Australia. The Applicant’s former wife has no fear of the Applicant, stating that he is essentially a good person who needs to overcome his alcohol addiction.
There is no suggestion of any physical harm having been caused to the Applicant’s former wife in respect of the assault upon her by the Applicant which, as already noted, appear to be of a non-serious nature. There is no evidence of any ongoing psychological disability having been sustained by the former wife.
There is no evidence from victim 2, nor from her mother concerning the aggressive threats which were made by the Applicant towards them in breach of the AVO. There is no evidence of any physical harm being caused to either victim 2 or her mother. The threats made by the Applicant to victim 2 were made whilst he was under the influence of alcohol.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for 18 years and his former wife and infant children reside in Australia. Despite the fact that it was necessary for the Applicant’s former wife to obtain AVOs against the Applicant, she has stated that she hopes that the Applicant and herself can resume living together as a family. Her statement shows that the Applicant displayed a very positive and significant role in the lives of their sons.
The mother of the former wife who is an Australian citizen states that following the marriage of the Applicant and his former wife in February 2013, the couple resided with her and her husband. She states that if the Applicant is not permitted to remain in Australia, it would be very difficult for her daughter to cope bringing up the children as both the mother and her husband are elderly. The mother of the former wife provided oral evidence which is wholly consistent with her written statement.
The Tribunal notes that the Applicant retains ties to Poland. He has visited that there frequently and both his mother, sister and brother reside in Poland.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh strongly in favour of the revocation of the original decision.
Impact on Australian business interests
The Applicant has established a very successful business in Australia involving installation of joinery materials and fittings, cabinet making, kitchen, foyer and workstation installations and related building work to residential and commercial construction and supply of labour for such projects. The clients for whom the business has provided services include public institutions, major development companies and the list of clientele provided to the Tribunal suggests that the business is highly regarded. The Applicant initiated this business in Australia and although its operations have been suspended whilst he has been in detention, it is most likely that the Applicant will be able to recommence its operations.
In his oral evidence the Applicant stated that the business, which was established in 2018 as a labour hire and supplier of tradesmen specialising in joinery, had developed a turnover of approximately $7 million per annum. Following the arrest of the Applicant, his first cousin attempted to operate the business but it became impractical to do so and it is now moribund.
Except with the provision of invoices, no financial data was made available concerning the financial position of the company. However, the Tribunal accepts, on the basis of the references provided, and the list of clientele, the business was a very viable operation in providing a valuable service to the Australian community.
The Tribunal considers that this is a very positive factor in favour of revocation of the decision.
Other Considerations
The Applicant submits that the penalties imposed for his various offences have been lenient. The Tribunal agrees to such submission. The Tribunal also notes that the family violence, whilst such conduct constitutes a serious offence (see Ahori and Minister for Immigration and Border Protection (2017) AATA 61 at 53), does not appear to have caused any long-term harm to the Applicant’s former wife against whom the majority of the conduct was directed, nor against victim 2 and her mother. Significantly, the Applicant has not been violent or engaged in violent conduct towards any other member of the public.
In assessing the gravity of the conduct, the Tribunal is required to form an ‘understanding of the actual circumstances involved in the various offences and their sentences’: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [202] and at [207]; see also Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91] where North J referred to the fact that engaging the seriousness of an offence it is necessary to know the informative details of the actual circumstances involved. When the facts involved in the present offending is considered, alcohol has always been the cause.
The Tribunal notes that his conduct has included driving whilst having in his blood the prescribed concentration of alcohol. It can be assumed that such conduct has exposed members of the Australian community to potential harm. There is no evidence of any actual harm. The Tribunal notes that the Applicant has from time to time taken drugs such as Zoloft and Lexapro to assist him.
The Tribunal also notes that the Applicant has been found with illicit drugs for which he has been convicted. The Applicant acknowledges that he was introduced to cocaine and Valium which he consumed for a period of approximately three months. There is no evidence of continuing illicit drug use nor of any drug habit adopted by the Applicant. The Applicant stated that he took such drugs, as well as alcohol, to relieve his tension which is generated by the stress of operating his business.
Psychological evidence
The Applicant asserts that he has suffered from depression and attention deficit syndrome. There is no expert medical practitioner psychiatric evidence before the Tribunal which support such claim, nor is there any evidence of treatment sought by the Applicant for such condition. However, the Tribunal notes the report dated 25 August 2020 of Professor Stephen J Woods, Forensic Psychologist. His assessment confirms that the Applicant’s offending has resulted from his addiction to alcohol. Professor Woods considers that the diagnosis includes the following comorbid mental disorders:
1.Unresolved melancholic grief and reactive depression in response to a) the collapse of his marriage and b) separation from his young sons.
2.Alcohol Use Disorder (DSM – 5 303.90), binge-drinking, chronic and severe, now in early-stage remission since being entered into a controlled environment.
3.Substance Use Disorder (Cocaine and Valium) clinically moderate; now in early-stage remission since being entered into a controlled environment.
Professor Woods had been consulted by the Applicant in 2015. There is no report from that year. The Applicant also says he sought psychological help from others and was due to have a consultation with another psychologist on the day that he was apprehended and gaoled.
Professor Woods identifies the risks factors as continued dysfunctional use of alcohol and, in particular, ‘binge drinking’; resumed substance use; further deterioration in his mental health secondary to the impact of separation on his sons and the guilt and shame in relation to the welfare of his employees secondary to the suspension of his business. Also considered to be a fact is Covid 19 isolation from his social support, notably his sons and his former wife whilst in a correctional facility and the inability to obtain the level of treatment required whilst in the correctional facility. The report notes that the Applicant has, whilst in custody, reflected on and come to appreciate this extent of his dysfunctional relationship with the victim 2 and of his dysfunctional behaviour on his sons. The report concludes:
The consequences of his offending behaviour appear to have had profound effect on [the applicant] and arising from this the offence consequences have the potential to motivate him to genuinely address his substance (alcohol and illicit/prescription drugs) dependence.
The Tribunal must determine whether the continued presence of the Applicant ‘would be opposed to the safety and welfare of the nation…’: see Nettle J in Falzon v Minister for Immigration and Border Protection (2018) HCA 2; 351 ALR 61 at 94.
Taking into consideration the scope of those who have been the victims of the Applicant’s conduct, namely close contacts, and the fact that the Applicant is making genuine attempts to overcome his alcohol addiction, the Tribunal does not consider that his continued presence in Australia would prejudice the Australian community. Nor is the Australian community at risk. The task of the Tribunal is to consider future risks to the community. There is no element of punishment to be considered as the applicant has already received penalties for his past conduct.
The Tribunal notes that the Applicant, on repeated occasions, has failed to disclose his criminal convictions in Australia when re-entering the country after his visits to Poland. This is a serious matter. The Applicant could give no reason for his failure to provide truthful answers to the questions asked in the arrival card. However, taking into account the fact that other matters support his continued presence in Australia, the Applicant’s dishonest failure to record his prior convictions on the arrival cards is not sufficient to determine that he should no longer be permitted to remain in Australia.
Another reason
The Applicant does not satisfy the character test. Accordingly, it must determine whether there is ‘another reason’ why the original mandatory cancellation decision should be revoked. The evidentiary test is to be established on the balance of probabilities, and the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration andBorder Protection (2018) FCAFC 116; 162 ALD 13 per Colvin J at [64] states relevantly:
it is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the Visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a Visa cancellation.
The Tribunal considers that there are factors which do lead to the conclusion that there is ‘another reason’. Those factors are:
(a)The welfare of the Applicant’s infant children, with whom he has a very positive and involved role, it is a pivotal matter. The material provided to the Tribunal establishes that they have sent cards and notes to the Applicant expressing their love and affection during his imprisonment and during his detention. There is also evidence that his elder son has been engaging in antisocial conduct at school and is suffering from a speech impediment. Whether such conduct is related to the disrupted homelife in which she has been living or to the Applicant’s absence is unknown. However, the Tribunal is satisfied that the permanent separation of the Applicant from his family would be to the very great detriment of his 2 children;
(b)when analysed, the criminal conduct of the Applicant is attributed to his alcoholism, rather than to any criminal purpose;
(c)the Applicant now expresses remorse and a clear understanding of the need to ensure that he does not commit offences in the future if he wishes to remain in Australia;
(d)there is no evidence that the community at large have been exposed to the risk of harm, other than from driving offences relating to alcoholism;
(e)the Applicant is endeavouring to address his alcohol addiction.
(f)the Applicant can provide a worthwhile contribution to the Australian life as evidenced by his initiative in commencing his business.
(g)it is the expressed desire of his former wife that they resume cohabitation as a family.
(h)The Tribunal has heard evidence from the Applicant’s first cousin and from a close friend who have been closely associated with the Applicant from his arrival in Australia in 2004, and, with respect to the first cousin, since their boyhood in Poland. Each testified to the good character of the Applicant, whilst recognising that he has a problem with alcohol. His first cousin has offered to provide home for him if necessary and also employment if sought by the Applicant. The Tribunal was impressed by their oral testimony. The Tribunal is satisfied that, subject to the Applicant taking immediate steps to refrain from alcohol and to seek psychological counselling, he can become a worthwhile member of the Australian community.
CONCLUSION
In relation to the primary considerations required to be considered by the direction, the Tribunal has concluded that:
(a)the protection of the Australian community primary consideration weighs against exercising the discretion;
(b)the family violence primary consideration weighs slightly in favour of exercising the discretion;
(c)the primary consideration regarding the best interests of minor children weighs heavily in favour of exercising the discretion;
(d)the expectations of the Australian community primary considerations weigh in favour of exercising the discretion.
In relation to the other considerations, the Tribunal has concluded that:
(a)international non--refoulment obligations do not have any significant weight in this matter;
(b)there is no material before the Tribunal to suggest that the impact on victims should weigh significantly in this matter;
(c)the extent of impediments to the Applicant if he is removed from Australia weigh strongly in favour of exercising the discretion to revoke the cancellation of the Applicant’s Visa;
(d)the Applicant’s links to the Australian community, particularly the strength, nature and duration of ties to Australia as a result of his family connections, especially his former wife, parents-in-law and children weigh very strongly in favour of exercising the discretion to revoke the cancellation of the Applicant’s Visa; and
(e)the impact on Australian business interests weighs the decision to revoke the Applicant’s Visa in favour of cancelling.
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that, while protection of the Australian community and family violence considerations weigh in favour of exercising the discretion to cancel the Applicant’s visa, these considerations are outweighed by the other considerations of the Applicant’s links to the Australian community, the expectations of the Australian community and the extent of the impediments to the Applicant’s and the Applicant’s children if he is removed from Australia. Accordingly, it is considered that the reviewable decision should be set aside.
DECISION
The Tribunal finds that the correct and preferable decision is that the decision under review be set aside and in substitution a decision is made that the original decision to cancel the Applicant’s visa is revoked.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
....................................[sgd]....................................
Associate
Dated: 16 May 2022
Dates of hearing: 11 & 12 April 2022 Solicitors for the Applicant: Mr Adrian Joel, Adrian Joel & Co Solicitors Counsel for the Respondent: Mr Mark Cleary Solicitors for the Respondent: Mills Oakley Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Remedies
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