Pizarro and Minister for Home Affairs (Migration)

[2018] AATA 3517

Pizarro and Minister for Home Affairs (Migration) [2018] AATA 3517 (18 September 2018)

Division:General Division

File Number:           2018/3646

Re:Julio Cesar Pizarro

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:18 September 2018

Place:Melbourne

The Tribunal decides to:

(1)set aside the decision of a delegate of the respondent dated 27 June 2018 and made under s 501CA(4) of the Migration Act 1958 refusing to revoke the cancellation of the applicant’s Class BF Transitional (permanent) visa under s 501(3A); and

(2)substitute a decision that the decision dated 21 February 2017 cancelling Mr Pizarro’s visa under s 501(3A) of the Migration Act is revoked; and

the Tribunal notes that:

by virtue of s 501CA(5) of the Migration Act 1958, the decision dated 21 February 2017 is taken not to have been made.

[sgd]

S A FORGIE
Deputy President

MIGRATION – revocation of cancellation of visa – exercise of discretion – decision set aside.

Legislation

Migration Act 1958, ss 197A, 499, 499(1), 499(2), 499(2A), 501, 501(3A), 501(3A)(a)(i), 501(3A)(b), 501CA, 501CA(1), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501CA(5), 501(6), 501(6)(c), 501(7), 501(7)(c) and 501(7)(d)

Family Violence Protection Act 2008 ss 1, 2(a), 2(b), 4, 5(1), 6 to 10, 26, 53(a), 53(b), 53(c), 54(a), 54(b), 53 (1C), 74, 76, 78, 78(1) and 78(1)(a)(i)

Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999

Secondary Materials

Direction No.65 made under s 499 of the Migration Act 1958

REASONS FOR DECISION

Deputy President S A Forgie

1.On 21 February 2017, Mr Julio Cesar Pizarro’s Class BF Transitional (permanent) visa was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). A delegate of the then Minister for Home Affairs (Minister) invited him to make representations as to why the Minister should revoke the cancellation decision under s 501CA(4). Mr Pizarro made representations but another delegate decided on 27 June 2018 not to revoke the cancellation decision. As a consequence, Mr Pizarro does not hold a visa authorising him to travel to, enter or remain in Australia. I have decided to set aside the decision dated 27 June 2018 and to substitute a decision that the decision dated 21 February 2017 cancelling Mr Pizarro’s visa under s 501(3A) of the Migration Act is revoked. By virtue of s 501CA(5), that means that the decision dated 21 February 2017 is taken not to have been made.

LEGISLATIVE BACKGROUND

2.In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which Mr Pizarro’s visa has been cancelled by operation of the law set out in the Migration Act. They also provide the basis on which I must consider his request for revocation of the decision.

Cancellation of Visa under s 501(3A)

3.Section 501(3A) of the Migration Act provides that:

“The Minister must cancel a visa that has been granted to a person if:

(a)the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)…; and

(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”

4.Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(c) are relevant for the purposes of s 501(3A). Those circumstances are that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, s 501(7)(d) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. 

5.Mr Pizarro has been sentenced to a term of imprisonment 12 months and another of 15 months. That means that he does not pass the character test as defined in s 501(6) because he has a “substantial criminal record” as defined by s 501(7)(c). In light of that, the terms of s 501(3A)(a)(i) obliged the Minister to cancel Mr Pizarro’s visa. As Mr Pizarro was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of Victoria, The Minister was also required to cancel Mr Pizarro’s visa under s 501(3A)(b).

6.Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[1] Section 501CA(4) provides that:

[1] Migration Act; s 501CA(1)

“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.”

7.In the circumstances of this case, Mr Pizarro cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7). That follows from the fact that he had been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.”  The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[2]

[2] [2016] FCA 1166

“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation.  If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[3]

[3] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.

8.Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[4]  Those directions must not be inconsistent with the Act or the Regulations made under it.[5]  The person or body to whom the directions are given must comply with them.[6]

[4] Migration Act; s 499(1)

[5] Migration Act; s 499(2)

[6] Migration Act; s 499(2A)

9.The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Pizarro.  I will come back to Direction No. 65 and to the particular directions which it sets out and to which I must have regard.

BACKGROUND

10.In this section of my reasons, I will set out those matters that were not the subject of disagreement between the parties.

Early life

11.Mr Pizarro’s evidence on the following matters was not challenged and I accept it.  He was born in Chile in 1973 and came to Australia with his parents later that year when he less than one year of age.  The family left Chile as a consequence of the 1973 coup d'état.  His brother was born in Australia in the following year.  Mr Pizarro’s father drank heavily during his sons’ early lives.  He was physically abusive towards his wife and sons.  That continued until Mr Pizarro was aged about 6 or 7 years when his mother took and brother moved away from the family home.  In the years that followed, Mr Pizarro attended seven different primary schools before starting high school.  When he was about 15 or 16 years, Mr Pizarro’s mother and father rekindled their marriage.  His father no longer abused his mother but he continued to abuse his sons. 

12.The family travelled to Chile for a three month holiday in 1988 when Mr Pizarro was 15.  He could not recall much about it but thought that they might have visited one or two uncles and an aunt.  He could not recall who they were or where he saw them.  Mr Pizarro had already started using drugs and drinking alcohol by that time.  His parents told him and his brother that they had taken them to Chile to show them where they grew up and the poverty they had left behind.

13.After returning home from Chile, Mr Pizarro continued to live with his family but left home at the age of 17 years.  Mr Pizarro has lived for the most part in Melbourne but he has also lived for short periods in Perth, South Australia and Sydney.  He started working in the construction industry from a young age.  That work was not always regular but it “kept …. [him] going”.  He has held various tickets qualifying him to work with scaffolding, as a fork lift driver, on elevated work platforms and at heights as well achieving a First Aid Level 2 qualification.  Mr Pizarro said that he would like to do a refresher course on working at heights as well as First Aid Level 2.  In addition, he has done a lot of administrative work.  Over the years, Mr Pizarro has worked in the construction industry and undertaken general labouring work and concreting.

14.Mr Pizarro has drunk alcohol and used drugs since he was a very young age.  He probably started to drink alcohol when he was 13 or 14 years of age and started using drugs when he was 15 or 16 years of age.  He continued taking drugs until 2015 but has not taken any since.  He stopped when his brother died because he did not want to go down his path and he wanted to be here for his niece and nephew.  He was able to maintain his drug free‑state when he was in custody awaiting sentencing in approximately November 2016 and then imprisoned in December 2016.  My finding on this matter is supported by his returning only negative urine samples while he was in prison despite drugs being available to him in that environment.  He avoided them by not mixing with those people who had access to them and by avoiding any politics.  Urine tests were conducted on numerous occasions.  I accept his evidence that he has avoided drugs since then but also note that he has been in immigration detention since his release from prison after serving his sentence. 

15.Mr Pizarro met his first partner when he was 16 years of age.  They were in a relationship for almost ten years and had a daughter together.  Their daughter, whom I will call “his eldest child”, is now 20 years of age and lives in Perth.  Mr Pizarro was in touch with her but he stopped contacting her when he started to go to gaol.  He has resumed contact and has tried contacting her four or five times.  Mr Pizarro said that he is always the one who makes contact and it seems to him that his daughter is a little bit upset with him at the moment because he did not give her a reason when he stopped contacting her.

16.Mr Pizarro was single for four or five years after the relationship came to an end.  He then met his second partner, whom I will call “SP”.  When they met, SP had a daughter, whom I will call “Second Daughter”, aged approximately 18 months from a previous relationship.  His Second Daughter’s birth father had died from a heroin overdose and Mr Pizarro resolved to bring her up as his own daughter.  When SPD was four years of age, SP and Mr Pizarro became parents to their son, whom I will call “PSPS”.  PSPS was born in 2006 with a cleft palate and needed regular hospitalisation and operations to correct issues relating to his nose, mouth and to the missing roof of his mouth.  Mr Pizarro and SP did all they could for their son and ensured they followed the doctor’s directions.

17.In 2011, Mr Pizarro and SP separated.  It was a very bitter breakup.  At the same time, Mr Pizarro’s brother died from a heroin overdose.  His brother was separated from his partner at the time.  Both were drug users.  His brother’s former partner could not manage their two children, who were placed in foster care.  The children have been in foster care ever since.  Mr Pizarro has been in touch with his nephew through Facebook and he now has a telephone number for him.  His only contact with his niece, who is a couple of years older, is through his nephew but his niece does have contact with Mr Pizarro’s father.  The last time that Mr Pizarro and his nephew had communicated took place on the Saturday before the hearing.  His nephew, who is now aged 14, had wanted to attend the hearing to be with his uncle but Mr Pizarro said that he told him not to come.  It was more important that he focused on his school work. 

18.Before he started going to gaol, Mr Pizarro said, he would see his younger children whenever SP told him to come and pick them up.  That all stopped when he told her that the money that he had previously paid over and above the child care payments would stop.  The last time that he saw SPD and PSPS was in approximately 2011.  The children have never tried to be in touch with him.  There is a court order in place preventing him from getting in touch with him.

19.His mother had died ten years earlier in 2000 from pancreatic cancer.  Mr Pizarro’s father continues to live in Melbourne and they see each other from time to time.  Mr Pizarro did not ask his father to attend the hearing because he did not want to worry him as he is aged about 78 years and is elderly.  He did not want to put more pressure on him.  If he is not allowed to remain in Australia, Mr Pizarro said, it would have an impact on his father’s life.  He used to mow his lawns and do upkeep on his house.  His father has no other children who can help him.  He has not touched alcohol for almost 20 years.

20.When he was not in prison, Mr Pizarro would undertake voluntary work at his local bowls club.  He would mow and move rubbish and did that for two reasons.  One was that he wanted to give back to the community.  The other was that he found being at home an isolating experience and his voluntary work gave him an opportunity to meet people. 

Convictions

21.In this section, I set out the offences of which Mr Pizarro has been convicted.  Interspersed among the convictions listed are further details that he gave about those offences when giving evidence.  I did not ask him for his explanation regarding each conviction with him so the record is incomplete from that point of view.  The record is also incomplete in so far as I have not been able to find the date on which each of the offences for which Mr Pizarro was convicted was committed.  The dates that I have found have, for the most part, been located in the Certified Extracts from the records of the Magistrates’ Court of Victoria showing details of the charges and the Court’s order.  In some instances, the information is taken from the records of Victoria Police but, except in one instance which I put to Mr Pizarro, I have not referred to them in the table.  I find that the tenor of those reports is reflected in the material that I have included.

22.I have used green, yellow and blue colours to highlight those instances in which Mr Pizarro has been in breach of a Community Based Order or an Intensive Corrections Order and that has led to his coming before the court again.  In each instance, I have referred to the original offences, including breaches of Intervention Orders[7] (IVOs) of which he was convicted in the first instance, but the second and third entries are simply a repetition of the statement of the original offences.  Further offences are not highlighted.

[7] IVOs are also known as Family Violence Protection Orders when made in relation to those in the position of Mr Pizarro, SP and their children.

Date of Conviction	Court	Date of Offence(s)	Offence (counts)	Result
30/09/1987	Melbourne Children’s Court	Theft of a bicycle	Adjourned for 12 months on $50 good behaviour bond, to attend counselling as directed.
Mr Pizarro said that he was 14 years of age when he realised that children received presents for their birthdays.  He had never been given a present but he very much hoped that he would be given a bicycle for his 14th birthday.  When he was not given a present, let alone a bicycle, he stole one for himself.
21/09/1988	Melbourne Children’s Court	Theft	Without conviction fined $80. Default 4 days Youth Training Centre.
21/11/1988	Werribee Children’s Court	Minor Consume Liquor Minor Possess Liquor	Without conviction $25. Default 1 day Youth Training Centre on each charge.
03/04/1992	Sunshine Magistrates’ Court	15/01/1992[8]	Theft Unlawfully on premises/precinct	Fined $250 on each charge.
23/08/1993	Broadmeadows Magistrates’ Court	Unlawful Assault	1 month sentence suspended for 2 years under section 27 of Sentencing Act.
Use threatening words in public place	Convicted and fined $250.
Mr Pizarro said that the charge related to his spitting on a person.  He had not intended to spit but some saliva had come out of his mouth with his words.  He was probably affected by alcohol as he had started drinking at the age of 14 years.
07/07/1994	Broadmeadows Magistrates’ Court	25/02/1994[9]	Use threatening words in public place	Convicted and fined $200.
02/09/1996	Broadmeadows Magistrates’ Court	Possess Cannabis Use Cannabis	Both charges without conviction. Adjourned for 12 months. To pay $350 Court Fund. Drugs forfeited.
17/12/1999	Sunshine Magistrates’ Court	28/09/1999[10]	Recklessly cause Injury Assault by Kicking	Aggregate 4 months imprisonment. Concurrent. To be served by way of an Intensive Correction Order. Conditions of this order are that the Defendant is required to attend at Sunshine Community Corrections Centre by 21/12/1999 by 4:00PM. All core conditions under s. 20 of the Sentencing Act 1991 apply.
NOTE: On 16 March 2000, the Sunshine Magistrates’ Court varied the order so that the sentence of imprisonment was to be served by way of an Intensive Correction Order under s 19 of the Sentencing Act 1991. The Offender was required to attend at the Sunshine Corrections Centre by 21/12/1999 by 04:00PM. All core conditions of s 20 of the Sentencing Act 1991 apply.  Order varied to dispense with any further requirement to do community work.[11]
06/02/2002	Sunshine Magistrates’ Court	Drive at Speed Over Speed Limit (76 KPH in 60 KPH zone)	Convicted. Fined $125.00. Stay to 06/05/2002.
Mr Pizarro said that he was struggling in 2002.  There was no reason why he was speeding at the time and had no reason for driving while his licence was suspended, which led to the next conviction.
25/06/2002	Sunshine Magistrates’ Court	Drive Whilst Authorisation Suspended	1 month imprisonment. Concurrent. Sentence is wholly suspended under s 27 of the Sentencing Act 1991 for nine months. Licence cancelled and disqualified for 3 months.  Order on licence effective from 25/06/2002.
Mr Pizarro did not offend during this period because he had met SP.  He said of her: “… She kept me on the straight and narrow.  She is a good woman,”
29/07/2009	Melbourne Magistrates’ Court	Criminal Damage (Intent Damage/Destroy	Convicted and a Community Based Order for 6 months.  The Defendant is required to attend the Broadmeadows Community Correction Centre by 31/07/2009 by 04:00PM. The order commences on 29/07/2009 with the following conditions: To perform 50 hours of unpaid community work over 6 months. All core Community Based Order conditions to apply. Pay compensation $1886.14.
30/03/2009[12]	Unlawful Assault (2)	Convicted and a Community Based Order for 6 months.  The Defendant is required to attend the Broadmeadows Community Correction Centre by 31/07/2009 by 04:00PM The order commences on 29/07/2009 with the following conditions: To perform 50 hours of unpaid community work over 6 months. All core Community Based Order conditions to apply.
Mr Pizarro said that he committed this offence when he and SP had an argument.  He retaliated by kicking the car door and damaging it.  Mr Pizarro said that he paid for the door to be repaired.
The relationship between Mr Pizarro and SP had concluded by this time.  Mr Pizarro’s brother died at or about this time.  When his brother died, Mr Pizarro said, he started making wrong decisions.  Although he had used drugs most of his life, he started using a large quantity of ice at about this time.  He was seeing things and seeing shadows.  All the time, he was sweating and not eating properly.  He would go for up to two weeks without sleep.
NOTE: On 21 March 2011, the Broadmeadows’ Magistrates’ Court granted a Family Violence Application made by Mr Pizarro’s former partner naming her and their two children as affected persons.  The court ordered Mr Pizarro not to commit family violence against the three protected persons and set out what was meant by “family violence”.  It also ordered him not to go to or remain within the boundary of a property identified in the order or any other place where a protected person lived, worked or attended school.
24/11/2011	Broadmeadows Magistrates’ Court	Contravene Family Violence Intervention Order Intentionally Damage Property	Convicted and a Community Based Order for 12 months. The Offender is required to attend the Werribee Community Correction Centre by 26/11/2011 by 04:00PM. The order commences on 24/11/2011 with the following conditions: To perform 150 hours of unpaid community work over 12 months. All core Community Based Order conditions to apply.
28/03/2012	Melbourne Magistrates’ Court	From 25/02/2012 to 11 March 2012 inclusive[13] 10/03/2012[14] From 23/02/2012 to 11/03/2012 inclusive[15]	Contravene Family Violence Intervention Order (18) Unlawful Assault Stalk Another Person (Crimes Act)	Aggregate 240 days imprisonment. Concurrent. Sentence is partially suspended under s 27 of the Sentencing Act 1991. Term to be served is 18 days. Time held in custody, 18 days, reckoned as a period of imprisonment already served under this sentence.
Appeal to County Court against sentence abandoned before Registrar and struck out on 12 July 2012.[16]
02/04/2012	Melbourne Magistrates’ Court	25/09/2011[17]	Drive Whilst Authorisation Suspended	1 month imprisonment. Concurrent. Sentence is wholly suspended under s 27 of the Sentencing Act 1991.  Operational period is 6 months.
18/06/2012	Melbourne Magistrates’ Court	From 08/04/2012 to 14/04/2012[18]	Contravene Family Violence Intervention Order (26)	Aggregate 5 months imprisonment. Concurrent. Sentence is partially suspended under s 27 of the Sentencing Act 1991. Term to be served is 3 months. Operational period is 12 months. Effective total State term imposed is 3 months. Time held in custody, 64 days, reckoned as a period of imprisonment already served under this sentence. Custody Management Issues. The accused may be at risk due to the following: Risk of self harm. Other: Recommended all reasonable assessment and supervision to ensure safe custody.
31/10/2012	Sunshine Magistrates’ Court	25/05/2011[19] 25/05/2011[20]	Failure to comply with CBO Breach re 24/11/2011 Contravene Family Violence Intervention Order Intentionally Damage Property	Proven. Original order has been varied. Convicted and a Community Based Order for 12 months. The Offender is required to attend the Werribee Community Correction Centre by 26/11/2011 by 04:00PM. The order commences on 24/11/2011 with the following conditions: To perform 150 hours of unpaid community work over 12 months. All core Community Based Order conditions to apply.
Mr Pizarro said that he had damaged SP’s car.  It had done so when they were having a heated argument.  His recollection was that SP had pushed him back and he had hit her car mirror.  The report that SP made to the police described events as follows: “… On 25th May 2011, … [SP] was at the … Tennis Clubrooms on …  when Pizarro arrived and said, ‘Right, now I am going to smash the absolute shit out of your car, you slut.’  When … [SP] returned to her car and once she got into her car she realised the whole driver’s side mirror had been pushed back towards the car and all the glass was shattered.  When … [SP] returned home she received a phone call from Pizarro and he said, ‘From now on your fucked.’ …”[21] Mr Pizarro said at the hearing that he had to admit the offence.  He had been charged and convicted and he could not recall what he had said to SP.
31/10/2012	Sunshine Magistrates’ Court	31/10/2012[22] From 21/07/2012 to 11/08/2012[23]	Contravene Suspended Sentence Order re 18/06/2012 Contravene Family Violence Intervention Order (26)	Proven. Suspended sentence wholly restored.  The restored term to be served is 2 months. Effective total State term imposed is 2 months. Time held in custody, 60 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with State sentences presently being served and imposed prior to this day. Concurrent with other State offences imposed this day. Custody Management Issues. The accused may be at risk due to the following: Risk of self harm. Other: Depression/Suicidal Ideation. Major Depressive Disorder. Recommended all reasonable assessment and supervision to ensure safe custody.
31/10/2012	Sunshine Magistrates’ Court	21/07/2012 to 04/08/2012[24]	Stalk Another Person (Crimes Act)	75 days imprisonment. Concurrent. Effective total State term imposed is 75 days. Time held in custody, 75 days, reckoned as a period of imprisonment already served under this sentence.
From 21/07/2012 to 11/08/2012[25] From 21/07/2012 to 11/08/2012[26]	Contravene Family Violence Intervention Order Contravene Family Violence Final Intervention Order (2)	Convicted and a Community Correction Order for 24 months. The Offender is required to attend the Werribee Community Correction Centre by 02/11/2012 by 04:00PM. The order commences on 31/10/2012 with the following conditions: Supervision by the Secretary.  This condition starts on 31/10/2012 and goes for 24 months. Treatment and Rehabilitation Undergo the following treatment and rehabilitation: - Assessment and treatment (including testing) for drug abuse or dependency as directed. - Assessment and treatment (including testing) for alcohol abuse or dependency as directed - Any other treatment and rehabilitation as directed: MEN’S BEHAVIOURAL CHANGE AND OFFENDING BEHAVIOUR PROGRAMS, ANGER MANAGEMENT PROGRAM This condition starts on 31/10/2012 and goes for 24 months.
Mr Pizarro said that all of the convictions between 2011 and 2012 for breach of an IVO related to his sending SP text messages.  He never physically assaulted her and never has.  She would ask him for money and he would reply that he was paying child support.  From his point of view, their relationship deteriorated further when he no longer paid her money in addition to child support.  Until then, he and she had been talking.  Since then, SP has been telling lies and he felt that she became very vindictive and bitter when she did not get what she wanted i.e. the additional money. He says that he tended to say things that he did not mean when he was on drugs. Mr Pizarro said that all breaches were by way means of text messages he sent to SP.
Note: The Australian Community Support Organisation (ACSO) and Community Offender Advice and Treatment Service (COATS) assessed Mr Pizarro on 21 November 2012 and referred him to Voyage ISIS for counselling, consultancy and continuing care.  He attended two sessions of Drug & Alcohol counselling before his arrest on 22 February 2013.  His Drug and Alcohol counsellor reported that he was doing well at abstaining from all substance abuse and learning relapse prevention strategies. Mr Pizarro’s doctor completed a Mental Health Care Plan on 17 November 2012 and referred him to New View where he attended four sessions of counselling.  A report prepared for the Heidelberg Magistrates’ Court, which would hear charges on 14 May 2013, noted that: “… The Psychologist, Ms Marita Mercer, reported that at his third and fourth sessions, Mr Pizarro indicated that he intended making contact with his ex-partner after his IVO expired in March 2013 and became ‘worked up’ at the suggestion that his ex-wife may have re-partnered.  The Writer did not have an opportunity to discuss Mr Pizarro’s behaviour with him before his arrest.”[27] Mr Pizarro had been referred to the Men’s Behaviour Change Program with Relationships Australia and was on the waiting list.  He also attended Lifeworks’ Men’s Behaviour Program for assessment but did not proceed with the program as he could not afford the fee.  There had been no opportunity to refer Mr Pizarro to another program before his arrest.[28]
14/05/2013	Heidelberg Magistrates’ Court	19/11/2011 and 22/11/2011[29]	Contravene Community Correction Order Re 31/10/2012	Proven
13/12/2012 to 13/02/2013[30]	Contravene Family Violence Intervention Order Contravene Family Violence Final Intervention Order (2)	Aggregate 3 months imprisonment. Concurrent. Effective total State term imposed is 3 months Concurrent with State sentences presently being served and imposed prior to this day. Concurrent with other State sentences imposed this day.
14/05/2013	Heidelberg Magistrates’ Court	19/11/2011[31]	Make Threat to Kill Threat to Inflict Serious Injury Contravene Family Violence Intervention Order (3)	Aggregate 12 months imprisonment. Concurrent. Effective total State time is 1 year. Time held in custody, 81 days, reckoned as a period of imprisonment already served under this sentence. Non-parole period fixed at 6 months.
Mr Pizarro said that the contraventions again involved solely text messages  In cross examination, Mr Pizarro agreed with Mr Cunynghame that he had made threats to kill SP but said that he had not acted on those threats.  .   He tended to say things that he did not mean when he was using drugs.  Mr Pizarro said that he had probably threatened to kill SP a dozen times.
In a letter dated 2 October 2013, a delegate of the Minister wrote to Mr Pizarro while he was in prison.  The delegate informed him that the Minister had decided not to cancel his visa on this occasion.  Therefore, his current Class BF Transitional (permanent) visa would continue to provide him with permission to remain in Australia but he was given the following “formal warning” “Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future.  Disregard of this warning will weigh heavily against you if your case is reconsidered.”[32] On 4 October 2013, Mr Pizarro signed an acknowledgment that had had received the notice of decision not to cancel his visa under s 501(2) of the Migration Act and also made the following acknowledgment: “… I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”[33] Mr Pizarro said that he recalled receiving the letter while he was in prison.  Although he was aware of its contents, he did not take them that seriously but now understands that they are very serious.
02/12/2014	Melbourne Magistrates’ Court	07/10/2014[34]	Cultivate Narcotic Plant – Cannabis Possess Cannabis Possess Amphetamine Possess Drug of Dependence (Not Named) (2) Possess Ecstacy (MDMA/MDA/MDEA/MDA’s)	On each charge: With conviction, fined an aggregate of $750. Forfeiture order made without consent. Order all Drugs/Instruments seized be forfeited and destroyed.
Possess Cartridge Ammunition w/o Lic/Permit	With conviction, fined and aggregate of $750.00. Forfeiture order made without consent. Order all Property/s seized be forfeited and destroyed.
Mr Pizarro said that the police raided his house.  They found the drugs and the ammunition in his friend’s room.  His “so-called friend” was not at home at the time and he had to “put … up [his] hand” because they were found in his house.  He had not known that his friend had them.
04/12/2014	Melbourne Magistrates’ Court	26/05/2014[35] 19/08/2014[36]	Persist Contra Family Violence NTC/Order	Convicted and a Community Correction Order for 6 months. The Offender is required to attend the Werribee Community Correction Centre by 05/01/2015 by 04:00PM. The order commences on 4/12/2014 with the following conditions: Unpaid Community Work Perform 100 hours of community work. This condition starts on 4/12/2014 and goes on for 6 months. Supervision. Be supervised by the Secretary.  This condition starts on 4/12/2014 and goes for 6 months. Treatment and Rehabilitation Undergo the following treatment and rehabilitation: - Assessment and treatment (including testing) for drug abuse or dependency as directed. - Assessment and treatment (including testing) for alcohol abuse or dependency as directed - Mental Health assessment and treatment as directed. - Any other treatment and rehabilitation as directed: PROGRAMS TO REDUCE OFFENDING It is ordered that 50 hours undertaken for treatment and rehabilitation will be treated as hours of unpaid community work for this Community Correction Order. This condition starts on 4/12/2014 and goes for 6 months.
04/12/2014	Melbourne Magistrates’ Court	24/07/2014[37]	Persist Contra Family Violence NTC/Order	3 months imprisonment. Concurrent. Effective total State term imposed is 3 months. Time held in custody, 59 days, reckoned as a period of imprisonment already served under this sentence.
Between February and June 2015, Mr Pizarro attended 13 sessions with ISIS Primary Care, Alcohol and Drug Services. He attended a further 11 sessions between August and 9 November 2016. I refer to Ms Jodie Armstrong’s report to the Magistrates’ Court on these sessions at [24]-[25] below. On 15 July 2015, the Broadmeadows Magistrates’ Court granted a Final Intervention Order. That order protected his ex-partner and their two children from Mr Pizarro. The order contained full family violence order conditions, including that he not communicate with his ex-partner or their two children, not be within 200 metres of their home address and not have any person breach the order on his behalf. Mr Pizarro was served with the order on 15 July 2015.[38]
10/11/2016	Melbourne Magistrates’ Court	Persist Contra Family Violence NTC/Order	Imprisonment for 12 months concurrent with other State offences.  Effective total State term: 1 year.
13/12/2016	Melbourne County Court	19/12/2015 to 16/01/2016 and 21/12/2015[39]	Persist Contra Family Violence NTC/Order Contra-Fam Violence Final Intervention Order	Aggregate 15 months. Total 1 year, 3 months. Non-parole period of 9 months. (Declare a period of 33 days have already been served by way of pre-sentence detention). Order pursuant to s 464ZF Crimes Act for the taking of intimate sample.
Mr Pizarro said that he breached the IVOs because he wanted sort out access to his children.  Most of the offences, he said, occurred during the Christmas period.  Christmas means family to him and he just wanted a little bit of family if only for five minutes.  He was aware that he was prevented from doing that but agreed that he did so regardless of the prohibition.
Mr Pizarro agreed that the statement made by the Informant in the Preliminary Brief gave a fair summary of events between 19 December 2015 and 17 January 2016.   “The AFM, ▬ and the RESP, Julio PIZARRO, are ex-partners, who have a sixteen year old daughter and a 12 year old son together.  On the 15th July 2015, the Broadmeadows Magistrates Court granted a Final Intervention Order, protecting ▬ and the two children from PIZARRO.  The order contained full family violence order conditions, including not to communicate with the ▬, not to be within 200 meters of the ▬’s home address, ▬▬ and not to have any person breach the order on his behalf.  later the same day, PIZARRO was served with the order by Senior Constable … At 10:12 p.m., 19th December 2015, ▬ received on her mobile phone a voice message, converted to text message.  ▬ please talk to me please.  Bye.  See you.’ (Photograph 2) At 11:16 p.m. 21st December 2015, ▬ received on her mobile phone two pictures messages.  (Photograph 1) At 6:16 p.m., 22 December 2015, ▬ received on her mobile phone a voice message, converted to text message. ‘You’re a fucking skunk slut.  You’re fuck cunt.’ (Photograph 2) ▬’s mobile number is ▬.  The phone number test text message were sent from was ….  The sending number was unknown her.  Phone checks show the phone number is registered to PIZARRO’s … [Acquaintance].  Police have been attempted by have been unsuccessful in contacting … [Friend} in relation to this incident. At 11:11 p.m., 25th December 2015, ▬ received on her mobile phone a picture message from mobile number … ▬’s knows this number to be that of PIZARRO.  (Photograph 3) At 5:23 p.m.. 29tj December 2015, ▬ received on her mobile phone five pictures message from PIZARRO’s mobile (Photograph 3, 4 & 5) At 12:28 a.m., 1st January 2016, ▬ received on her mobile phone a text message from PIZARRO’s mobile.   ‘Happy new year, all the best to you and family. (Photograph 5) At 12:30 p.m. 5th January 2016, ▬ received on her mobile phone a picture message from PIZARRO’s mobile (Photograph 5) At 12:31 p.m., 8th January 2016, ▬ received on her mobile phone a text message from PIZARRO’s mobile informing her that ‘There’s a parcel at your door’. (Photograph 6).  The AFM later that day check the front door of her property and discovered a green bag containing Christmas presents, addressed to AFM as ‘Victim S’ and the two children by their name. At 10:30 p.m., 16th January 2016, ▬ received on her mobile phone two pictures message from PIZARRO’s mobile (Photograph 6) The series of pictures messages sent to ▬ graphically portray disturbing images, finding these messages ‘confronting, some are threatening to me.  They are vastly inappropriate … It is extremely uncomfortable when one of these messages at work or at home … It leaves me with an upset feeling for the rest of the day’. On 17th January 2016, the AFM attended the Brunswick Police Station to report the breaches of the Intervention Order.  The AFM showed First Constable … her mobile phone containing the series of messages she had received.  First Constable … took screen shots of the messages. On 26th April 2016, PIZARRO was arrested by appointment at the Altona North Police Station by Leading Senior Constable … … and Senior Constable ….  In interview, PIZARRO made full admissions to sending all of the above mentioned text messages from both … [Friend’s] phone and his own personal phone.  PIZARRO also stated he organised for an anonymous friend to deliver Christmas presents to ▬ home address on his behalf.  The accused was released pending summons.

Statement made by accused

The accused agreed that he had been served and explained the conditions of the a current intervention order, protecting the AFM and their two children.

The accused was aware of the conditions order when he could not communicate with the accused and have any other person breach the order on his behalf.

The accused was aware he could not be within a certain distance of the accused or her home address, but was unsure of the exact distances.  The accused was aware of the AFM’s home address in …  [Suburb].

The accused stated that he sent a series of pictures messages and text messages from both his own personal phone and from his … [Friend’s] phone, ….

The accused stated intended the message for the AFM and was aware that this was a breach of the intervention order.  The accused reason for sending the message was ‘I just wanted to see the kids.  I think the laws are unfair.  The bottom picture as you’ve shown, 21 men that commit suicide because of the unfairness of the family courts.  I wanted to make a point.

The accused stated that he had a friend deliver Christmas presents on his behalf to the AFM’s address, for both the AFM and their two children.”[40]

[8] Supplementary G documents; G1 at 22-23

[9] Supplementary G documents; G3 at 97

[10] Supplementary G documents; G1 at 18

[11] Supplementary G documents; G1 at 19-21

[12] Supplementary G documents; G5 at 319-320

[13] Supplementary G documents: G4 at 166-178 and 180-184

[14] Supplementary G documents; G4 at 166-179 and see also G3 at 84-85

[15] Supplementary G documents; G5 at 224-243

[16] Supplementary G documents; G4 at 137-145

[17] Supplementary G documents; G5 at 207

[18] Supplementary G documents; G5 at 290-314

[19] Supplementary G documents; G1 at 13

[20] Supplementary G documents; G1 at 12

[21] Supplementary G documents; G3 at 87

[22] Supplementary G documents; G1 at 11

[23] Supplementary G documents; G1 at 3

[24] Supplementary G documents; G1 at 9

[25] Supplementary G documents; G1 at 4-6

[26] Supplementary G documents; G1 at 7-8

[27] Supplementary G documents; G1 at 3-4

[28] Supplementary G documents; G2 at 61-62

[29] Supplementary G documents; G2 at 33-34

[30] Supplementary G documents; G2 at 25

[31] Supplementary G documents; G2 at 30-31 and 33-34

[32] G documents; G15 at 71

[33] G documents; G15 at 73

[34] Supplementary G documents; G5 at 279-285

[35] Supplementary G documents; G5 at 286

[36] Supplementary G documents; G5 at 289

[37] Supplementary G documents; G4 at 217

[38] Supplementary G documents; G5; 135

[39] Supplementary G documents; G4 at 125-126

[40] Supplementary G documents; G4 at 135-136

1. Mr Pizarro said at the hearing that he knew that he should not have made any threats but that, deep down, PS knew that he would never act on them.  When they got together, she said that she wanted respect, no violence and no swearing.  He said that he gave her all of that.  Following the service of the IVO, Mr Pizarro said, he had gone to SP’s house on only one occasion and that was in response to her asking him to do so. 

   Programmes completed

2. In a report dated 9 November 2016, Ms Jodie Armstrong reported on the 24 sessions that Mr Pizarro had attended with ISIS Primary Care.  Ms Armstrong is an Advanced Practitioner in the Dual Diagnosis Team (Alcohol/Drugs & Mental Health).  She has a BA majoring in psychology and an MA majoring in Social Work as well as post-graduate qualifications in addiction studies and education.  Ms Armstrong has worked primarily with offenders within correctional settings for over 20 years.  She has a specialist interest in behaviour modification.  Ms Armstrong described herself as:

   “… a ‘skills based’ counsellor who more than listening, seeks to identify skill deficits to then target with the psychosocial strategies including cognitive behavioural approaches.  An example of this would be the identification of ‘thinking errors’ which once identified can be challenged with reflective strategies.  In addition, a self-care assessment is conducted, from which basic commitments to nutrition, exercise and other forms of self‑care are developed into goals to form an overall treatment plan.  I see both voluntary and involuntary clients (the latter on a legal order).  However, I do not offer a service to voluntary clients or extended service (beyond six sessions) to forensic clients who do not engage fully and who cannot commit to the development of a treatment plan that is goal focused and dependent on a level of commitment to action on their part.”[41]

   [41] G documents; G11 at 56

   25.Mr Pizarro had attended at first as an involuntary client fulfilling a condition of a Community Corrections Order and following an ASCO COATS assessment.  The assessment identified Mr Pizarro as requiring a “standard episode of care” and so four counselling sessions.  When those four sessions concluded, Mr Pizarro continued further sessions on a voluntary basis.  Ms Armstrong reported:

   “Counselling primarily focused on relapse prevention and cognitive behavioural therapy to identify the relationship between thoughts and behaviour, along with skill development to challenge negative thought process.  In addition, issues of grief and loss were explored, with Mr Pizzaro suffering acutely from the separation from his children, as well as the loss of his mother and brother some years ago.

   Despite the impact of grief and familial isolation, Mr Pizarro reported the achievement of abstinence from use of alcohol and other drugs, with no indication of use exhibited within counselling contact.  He was also subject to drug testing as per the conditions of his order, with all test results negative.  He appeared to have achieved this change via the application of various strategies that have included expressing his emotions within a safe/therapeutic environment, the identification and challenging of negative thought processes, the avoidance of high risk situations (and associations), the application of learned urge management techniques and regular exercise.  He also completed an anger management program as directed by Correctional Services.

   In July 2016, Mr Pizarro re-contracted the writer.  He was distressed and admitted that he had re-offended by contacting his ex-partner in the hope that he would be allowed contact with their child.  He was provided with an appointment and recommenced counselling on 22/08/2016.  At this appointment he admitted that he struggled over the Christmas/New Year period and sent his ex partner texts, not of a threatening nature, with an example being provided as a picture of a male and female stick figure pulling a child between them.  He also sent Christmas gifts via an associate and admitted that he was aware that any contact signified a breach of an active intervention order.

   In a therapeutic environment, Mr Pizarro’s behaviour can be understood (not condoned) in the context of grief that is universal to the parent separated from a child regardless of the circumstance.  It can be understood within the widely applied model of change, which views such a process, in which relapse is so common as to be recognised as a stage in itself.  There are also some protective elements that can be drawn upon as a focus of strengths analysis and future therapy.  Inclusive is the non-directly threatening nature of the messages suggesting a capacity to self-moderate at least to some degree, along with the ability, as demonstrated in counselling to recognise the error in his thinking that resulted in this behaviour and also his demonstrated capacity to engage in a therapeutic process both voluntarily and for extended periods.

   Since his return to counselling, Mr Pizarro has again demonstrated a commitment to change.  He attends on time and engages fully in a process that has self-care, the application of routine and an awareness of (and ability to manage) negative thought process as central to change.”[42]

   [42] G documents; G11 at 57-58

   26.Mr Pizarro agreed with Mr Cunynghame that he had breached an IVO since undertaking this course.  This occurred in the Christmas period at the end of 2015 and beginning of 2016.  He told his counsellor about it.  When he was asked about the extent, if any, that SP had been part of the incident leading to his breaching the IVO, Mr Pizarro said that, when two people argue, there are always two people; not just one.  He had approached the court about applying an IVO against SP but the clerk at the court laughed at him and told him it was not happening.  He was the man and so the dominant one, he was told.

   27.In addition to the programmes, to which I have already referred, Mr Pizarro completed a number of programmes in 2017.  Except where I have indicated otherwise, each was conducted by Caraniche:

Date

Name of Programme

03/03/2017

6 hour (closed) Ice Effects Program[43]

12/04/2017

44 hour (closed) Semi-Intensive Drug and Alcohol Treatment Program (level IV)[44]

The Caraniche Psychologist at the Middleton Prison described this programme in a letter dated 7 May 2017.  At the time, Mr Pizarro had completed ten sessions and had a further 12 sessions remaining.  He completed those 12 sessions by 12 April 2017 as expected.  She described the programme:

“The 44 hour Drug and Alcohol Treatment Program is a group program for those who use drugs and alcohol.  The aim of this program is to develop an understanding that a lifestyle independent of drug use is possible.  That focus of the program is to help develop new ways of thinking, beliefs and behaviours to allow a prisoner to achieve a productive lifestyle.  The program aims to achieve this by raising self-awareness, creating independence from drug use and developing skills that will assist the change process.  Prisoners in the 44 hour offence related program attend 22x2 hour sessions.”[45]

07/06/2017

6 hour (closed) Stress Management Program[46]

15/06/2017

Six week “Change On The Inside’ Program

Mr Pizarro was also presented with a certificate for:

Attentiveness

Showing the worth of a person or task by giving my undivided concentration.[47]

22/06/2017

6 hour Stress Management Program[48]

23/06/2017

6 Hour Depression Program[49]

27/06/2017

12 Hour Mind Matters Program[50]

Undated

Bringing Up Great Kids 2017[51]

[43] G documents; G13 at 63

[44] G documents; G13 at 60

[45] G documents; G6 at 45

[46] G documents; G13 at 65

[47] G documents; G13 at 66; Prison Fellowship Australia

[48] G documents; G13 at 64

[49] G documents; G13 at 62

[50] G documents; G13 at 61

[51] G documents; G13 at 67 and see also Exhibit A; Bendigo Community Health Services

28.During cross-examination, Mr Pizarro referred also to his having completed a Food Handling course.  In all he had received between 20 and 22 certificates of achievement.

Mr Pizarro’s letter to SP from Christmas Island

29.Mr Pizarro sent a letter to SP from Christmas Island.  The letter is postmarked 3 April 2018.  He said that he thought that he could send the letter as the IVO had expired.  As he now realises, it had not.  He wrote:

“I hope this letter finds you, and finds you well.  I don’t know why I’m writing to you knowing the risks are high, but I hopeing you’ve had a change in heart now that you properly know that your actions have landed me in this place and you’ll never know how sorry I am.  I think all the time about never been able to see the kids again, and living in a forien place.  I don’t know if my dad has told you this yet but I have parkinsons^[[52]^] and I’m really struggling to do every day things.

[52] At the hearing, Mr Pizarro said that he thought that he had Parkinson’s Disease when he wrote the letter but has since been told that the shaking that he experiences is a symptom of his anxiety and depression.  He has been prescribed Propranolol.

I know you don’t care, if only you could step in my shoes for one day you’ll see the misery I go through.  Seven year and three months in jail, don’t you ever think thats enough torture.  I’ve regreted alot of things in life by losing you and the kids, has been the biggest regret and life moves on.  And now I’m here and you and the kids are there.  I’m sorry.

I have 2 choices left while Im here

*          Get my visa back and go back home

*          Or suicied if I lose it all

I have so much more to say to you and the kids but the law says I cant only you can change all this delemar

I’m going to send the kids a present through the mail soon, I hope they like their presents, I love and miss them very much and please tell them that and I miss you too even though you’ve put me through all this.  I can never hate you or hurt you again by I can try to make things better and easier if you let me.  Depending on how things go for me in future.

I love both our kids and I’ll love them for ever and I miss them heaps

please tell them that.

*Could you please sent me some recent photo’s of them the kids so I can rest a little bit easier.

Thank you :

Love always

Julio Pizarro

If you want to ring me and talk

… [telephone number of the Christmas Island Detention Centre]

I’m in green 1

ONLY YOU CAN CHANGE MY PREDICIMENT”[53]

[53] G documents; G18 at 78-81

30.Mr Pizarro said in cross-examination that he just wanted it all to stop.  He did not want confrontation with SP.  If they could come to the table and sort it out, it would be great for her and great for him.  The last time he saw her was in approximately 2012 and that was also the last time he has spoken with her.

SP’s email to the Department

31.      On 9 April 2018, SP wrote to the Minister’s Department:

“My understanding is that my ex partner is currently residing on Christmas Island and is appealing his deportation.

All I can say is that I am terrified of him being released into the public as I will demonstrate.

Julio has damaged my vehicle several times which is nothing in comparison to everything else.

I have over 2,000 text messages threatening to kill me and in breach of the restraining order.  My solicitor has said that she has never seen anything like this in her life.  I have never responded to one.

These messages threatened to cut me up in to pieces and bury me interstate.  Others told me I would swim with the ‘fishes’.  Not great grammar.  Over 2,000.  I also have messages extorting me out of $40000 if I didn’t send it to him or else he would send his friends to my home if I din’t sell my car to pay for this.

I have sent Julio to prison on five occurrences for constant breaches of the restraining order.  These involved abusive phone calls.  One of which was to a police officer whilst I was making a statement, one of many.  Julio answered the phone and his response to the Constable was ‘Come and get me you fucking cocksucker’  Julio had a massive lack of respect for authority.

Julio has tried to get my child dismissed from school whilst I was at work.  The Family Law Agreement is permanent and he has no legal custody permanently as the Magistrate felt that it was in the safety of both the mother and child to terminate it.

I can have so much to add to this over a decade of torture and torment, but all I can say is that we lived a terrifying existence whilst Julio was out of jail and I severely hope that you hear our plea.

I am a single mother of two teenage children and take care of my disabled mother.  Julio has never provided child support and I have worked two jobs to make ends meet for years.

I owe him nothing and I hope that he will leave us alone forever.  Life is hard enough without him in it.  The children want nothing to do with him, as do I.”[54]

DIRECTION No. 65

[54] G documents; G17 at 77

32.Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:

“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[55]

[55] Direction No. 65 at [6.1(1)]

The objectives are followed by passages described as “General Guidance” and “Principles”.  The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set.  They give those considerations their form, pattern and underpinning framework.  The Principles set out in paragraph 6.3 are:

“(1)     Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non‑citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, 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.”

33.Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:

“Informed by the principles in paragraph 6.3 above, a decision-maker:

a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”

Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Pizarro’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).

34.In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker.  Decision-makers must take into account the primary and other considerations relevant to the individual case.[56]  The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):

“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”

[56] Direction No. 65 at [8(1)]

35.In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[57]  Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”.  Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[58] 

[57] Direction No. 65 at [8(2)]

[58] Direction No. 65 at [8(4)] and [8(5)]

CONSIDERATION

36.Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community.  Each of these considerations is developed in paragraph 13 of the Direction.

Protection of the Australian community

37.The first primary consideration relating to the protection of the Australian community begins with the general statement:

“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  Remaining in Australia is a privilege that Australia confers on 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.  Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[59]

[59] Direction No. 65 at [13.1(1)]

38.That statement makes clear that the person’s conduct, past and future, is relevant.  That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:

“… should also give consideration to:

a)The nature and seriousness of the non-citizen’s conduct to date; and

b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”

A.        The nature and seriousness of Mr Pizarro’s conduct

39.Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.  It sets out a number of factors to which a decision-maker must have regard in considering this matter.  In the circumstances of this case, the following factors may be relevant:

“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 committed against vulnerable members of the community (such as minors, 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;

c)The sentence imposed by the courts for a crime or crimes;

d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

e)The cumulative effect of repeat offending;

f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

h)Where the 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; [sic]”.[60]

[60] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention.  Penalty: Imprisonment for 5 years.”

A.1      Consideration

40.There can be no doubt that what is called commonly “domestic violence” is a matter of serious concern not only to the person who is subjected to it but to the Australian community as a whole.  It can take various forms.  If physical in nature, it may lead to the victim’s suffering horrific injuries, or even death, or it may lead to nothing that shows.  In the worst cases, domestic violence in a psychological form may lead to suicide or serious mental health issues for the victim.  Domestic violence may be delivered more subtly by way of, for example, manipulation or withdrawal of support be it financial or emotional.  What amounts to domestic violence will depend on the circumstances but it cannot be doubted that the cost of domestic violence, even if counted only in terms of loss of emotional well-being and feelings of security and self-worth, is inestimable. Loss of that sort can lead to a person’s having difficulty in leading a normal life, focusing on work and education and carrying on normal social relations with others.  Cost to the community in pragmatic terms of loss of earning power, health care, shelters and care generally cannot be ignored.

41.That said, the fact that an IVO has been made against a person should not be taken as equating with a finding that the person is always guilty of domestic violence.  He or she may be but he or she may not be.  This follows from the way in which an IVO may be made.  I will continue to call it an “IVO” as that is the way in which it is described in all of the documents in this case but I note that, in Victoria, it is now called a “family violence intervention order” and is made under the Family Violence Protection Act 2008 (FVP Act) when the order is made when those involved are members of a family.[61]  The purpose of the FVP Act is to maximise safety for children and adults who have experienced family violence, prevent and reduce family violence and promote the accountability of perpetrators of family violence for their actions.[62]  One way in which the legislation was intended to achieve its purpose was by proving an effective and accessible system of family violence intervention orders and family violence safety notices.[63]  Another was by creating offences for contraventions of family violence intervention orders and family violence safety notices.[64] 

[61] A personal safety intervention order is made when they are not members of the same family.

[62] FVP Act; s 1

[63] FVP Act; s 2(a)

[64] FVP Act; s 2(b) There is no suggestion in the evidence that a family violence safety notice has ever been issued.  That notice is issued by a police officer of the rank of Sergeant or above if there is no IVO in place and he or she believes on reasonable grounds that its issue is necessary to ensure the safety of the affected family member, preserve property of the affected family member or protect a child who has been subjected to family violence committed by the respondent: FVP Act; s 26.

42.Part 4 of the FVP Act is concerned with family violence intervention orders.  It sets out where an application for such an order may be made, how an application may be made and by whom it may be made.  An application for protection of a child may be included in an application for protection of the child’s parent.  The application must be served on the respondent, who may also be directed to attend the hearing. 

43.Section 5(1) defines the expression “family violence” in the following terms:[65]

[65] FVP Act; s 4

“(1)      For the purposes of this Act, family violence is—

(a) behaviour by a person towards a family member of that person if that behaviour—

(i) is physically or sexually abusive; or

(ii) is emotionally or psychologically abusive; or

(iii) is economically abusive; or

(iv) is threatening; or

(v) is coercive; or

(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or

(b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

Examples

…

(2) Without limiting subsection (1), family violence includes the following behaviour —

(a) assaulting or causing personal injury to a family member or threatening to do so;

(b) sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;

(c) intentionally damaging a family member's property, or threatening to do so;

(d) unlawfully depriving a family member of the family member's liberty, or threatening to do so;

(e) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.

(3) To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.”

Sections 6 to 10 define the expressions “economic abuse”, “emotional or psychological abuse” “family member”, “domestic partner” and “relative”. 

44.The court may make an interim order if a person has applied to the court for a family violence intervention order and one of three types of circumstances has arisen.  In the first, the court may make the order if it is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application in the court is satisfied that it is necessary in order to ensure any one of the following: the safety of the affected family member; preserve any property of the affected family member; or protect an affected family member who is a child who has been subjected to family violence committed by the respondent.[66]  The second set of circumstances arises if a person has applied to the court for a family violence intervention order and the parties to the proceeding have consented to, or do not oppose, the making of an interim order for the application.[67]  The third arises if a family violence safety notice has been issued for an affected family member and the court is satisfied, on the balance of probabilities, there are no circumstances that would justify discontinuing the protection of the person until a final decision about the application.[68]

[66] FVP Act; s 53(a)

[67] FVP Act; s 53(b)

[68] FVP Act; s 53(c)

45.The second set of circumstances is relevant in this case.  There is nothing in the evidence that suggests that Mr Pizarro ever opposed PS’s application for an IVO against him.  This is particularly important because s 53(1C) of the FVP Act provides that:

“The court may make an order under subsection (1)(b) —

(a) without being satisfied as to any matter referred to in subsection (1)(a) or (1)(c); and

(b) whether or not the respondent admits to any or all of the particulars of the application.”

46.That is to say, a court could make an interim IVO against Mr Pizarro without being satisfied that it was necessary to make the order to ensure the safety of the affected family member, to preserve any property of the affected family member or to protect an affected family member who is a child or that the child is a child who has been subjected to family violence committed by him.  It could make the interim IVO whether or not he had been served with the application and whether or not he was present when it was made.[69]

[69] FVP Act; s 54(a) and (b)

47.Divisions 3 and 3A of Part 4 of the FVP Act are concerned with the court’s procedures and with ensuring that the respondent is given notice of the hearing of an application for a final IVO.  Section 74 of the FVP Act provides that:

“(1)      The court may make a final order if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.

(2) A final order may be made for more than one affected family member if —

(a) the court is satisfied of the matters set out in subsection (1) in relation to each of the affected family members; or

(b) consent has been given, or the making of the order has not been opposed, in accordance with section 78 by —

(i) all the parties to the proceeding; and

(ii) if the application for the final order was brought with the consent of an affected family member's parent or guardian, that parent or guardian.

Notes

1 If the court makes a final order in relation to an affected family member, the court must make a final order to protect a child who has been subjected to family violence — see section 77.

2 If the court does not make a final order in relation to an affected family member, the court may, on its own initiative, make a final order to protect a child who is not an affected family member — see section 77B(1).”

48.Section 78 is headed “Consent orders” but it applies not only when a respondent consents to the making of a final IVO but also when the respondent does not oppose its making.  Section 78(1) provides:

“(1)      If the parties to a proceeding for a final order, or the variation, extension or revocation of a final order, consent to the making of the order or do not oppose the making of the order, the court may make the order —

(a) without being satisfied as to any matter referred to in —

(i) section 74 or 76; or

(ii) in the case of a proceeding for a variation, revocation or extension of a final order, section 100 or 106; and

(b)whether or not the respondent admits to any or all of the particulars of the application.”[70]

[70] Section 76, to which reference is made in s 78(1)(a)(i), is not relevant as it relates to associated final orders.  Associated final orders may be made against a person who is an associate of the respondent and has subjected the protected person to behaviour that would be family violence were he or she and the protected person family members and is likely to do so again.

49.I recognise that this is a bare outline of the FVP Act but what it shows is that a court may properly make an interim or a final IVO on the evidence of the affected family member (AFM), who makes the application on his or her own behalf and on behalf of his or her children.  When the application for either is not opposed, the court may properly do so even if it is not satisfied that, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.  Once interim or final IVOs are made, however, the consequences for the respondent who has not opposed their making and who breaches their conditions are serious. 

50.I have set out the way in which interim and final IVOs are made as background to the situation in which Mr Pizarro has found himself.  By not opposing them, he is faced with orders that do not allow him to have contact with his children.  He has not had contact with them since 2011.  That, however, does not excuse his breaching the IVOs and I cannot condone his doing so.  The courts have found that he has been in breach and have passed sentence in light of the number of breaches they have found that he has committed.  The imposition of a 15 month sentence is indicative of the seriousness with which the court regarded his multiple breaches.  There can be no doubt that ignoring a court made IVO on multiple occasions is a very serious matter indeed.  Mr Pizarro has his reasons for doing so and I will come to those but they do not mean that I can ignore the fact that he has been convicted of something like 87 counts of being in breach of an interim or final IVO.

51.I do not have a copy of the remarks made by the County Court judge in sentencing Mr Pizarro on the last occasion.  Despite that, I do have the pattern of his offending as shown in the table of convictions above.  Mr Pizarro has not attempted to walk away from the circumstances that led to his breaching the IVOs or to excuse his behaviour.  He has not attempted to deny that he has damaged SP’s motor vehicle on at least two occasions but I also accept that on one occasion when he kicked in the door, he has paid for the damage to be repaired.  He has not attempted to deny that he has threatened to kill SP in the past and he has not denied that he has sent her over 2,000 text messages over a nine year period. 

52.I have set out the Preliminary Brief prepared in relation to the charges which led to his last convictions because it is representative of the way in which matters between him and SP seem to go.  Mr Pizarro understands that he is in breach of the IVOs when he sends SP text messages but I also accept that his family is important to him and that Christmas is important to him.  Two sets of events occurred at Christmas time and led to convictions for breaches of IPOs.  They were the 2016 convictions and those on 14 May 2013 relating to the November 2012 to February 2013 period.  Mr Pizarro has not seen his Second Daughter or his son since 2011 and he wants to give them presents on both occasions.  There is no suggestion in the evidence that the presents he left on the door step were inappropriate.  Other Mr Pizarro becomes increasingly frustrated when SP does not answer his texts and I also accept that she never has answered them.  He then becomes abusive. 

53.None of this excuses Mr Pizarro’s breaches of the IVOs because a court order must be complied with but it gives them context.  What is also important in that context is that Mr Pizarro has continued to pay child support for SP’s daughter, whom he has always treated as his own, and their son.  Contrary to SP’s statement that Mr Pizarro has never paid child support, the records from the Department of Human Services show that he has paid child support from at least 31 March 2011 to 16 June 2018.[71]  Certainly, Mr Pizarro has been in arrears and has not paid at times but, on the latest figures available to me, he was $1,650.06 in arrears.  His last payment was in June 2018 and his previous payments had been fairly consistent until 11 November 2016.  The cessation of payments from that date is consistent with his being sentenced to 12 months’ imprisonment on 10 November 2016 and a further period on 13 December 2016 before being taken into immigration detention on his release from prison.  There is no reduction in the daily rate of payment of child support even though he was unable to work.  That is not the fault of the Department of Human Services but perhaps can be attributed to a lack of awareness by Mr Pizarro of the need to take steps to advise of the change in his circumstances. 

[71] Exhibit A and G documents at 86-96

54.Mr Pizarro’s early offences had nothing to do with domestic violence or breaches of an IVO.  They were consistent with his use of drugs and alcohol.  His threatening words were not translated into action and the sentences for his two convictions for them when he was 21 and 23 years of age reflected that.  I have no information about his conviction for recklessly causing injury and assault by kicking but, although a term of imprisonment was imposed, he was able to serve it by way of an Intensive Correction Order.  That is an offence of concern but, apart from a driving offence in 2011, his criminal history after 2009 shows that his offending has all been in the context of his relationship with SP and the subsequent IVOs.  That is not to excuse it but it is to give it that context, to which I will return.

B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

55.      Paragraph 13.1.2 of Direction No. 65 states:

“(1)     In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).”

B.1.     Consideration

56.Mr Pizarro has not been charged with having committed with any offence in the nature of assault since 10 March 2012.  No records have been included in the material relating to the time that he has spent in prison or subsequently in immigration detention.  I conclude from the absence of that material that there is nothing adverse to Mr Pizarro in it.  That is consistent with his evidence even that focused on his being drug free and returning negative results on every urine sample he was required to give in prison.

57.The pattern of Mr Pizarro’s offences shows that, with the exception of the drug and arms offences in 2014, they have arisen entirely within the domestic context.  I accept his explanation that those drugs and ammunition belonged to his friend who was sharing the house.  That may seem naïve but Mr Pizarro has not tried to explain any of the offences.  He has accepted full responsibility for them and not attempted to mitigate them.  The same can be said of the drug and ammunition offences in 2014 because he accepted responsibility because they were found in his house but I also accept that he had nothing to do with them.

58.Turning to the offences connected with the breaches of the IVO, they mainly centre on Mr Pizarro’s sending text messages and leaving presents.  I accept that SP regards Mr Pizarro’s text messages as intrusive and disruptive of her life.  Receiving 2,000 text messages over a nine year period from someone regarded as a friend may well not be excessive.  It amounts to something like four a week.  Receiving four a week or 2,000 spread over nine years takes on a different complexion when they are not wanted.  They also take on a different complexion when, as Mr Pizarro has at times, used language that could, at best, be described as inappropriate and, at worst, offensive and sexist.  If the texts he wrote between December and January 2016, are any guide, Mr Pizarro tends to begin writing texts very respectfully.  When he does not receive an answer to his texts, and on the basis of his evidence and the letter of SP, I find that he never does, he descends to language that is entirely unacceptable.  He does not, however, persist with his tone and regains his self-control in the use of his language, if not in his actions, in breaching IVOs. 

59.His messages and his most recent letter written to SP from Christmas Island are consistent with a person who wants to see his children and has not been permitted to.  They are not consistent with a person who wants to do harm to his family despite all that has happened between him and SP.  The contrary is the case.  He wants there to be peace between them and he speaks in respectful terms about SP.  Having read all of the material and having listened to Mr Pizarro at the hearing, I find that he is in fact respectful of SP and he does not hold any grudges against her at all.  As he has said, he does lose control of his language at times and has particularly done so when he has been using drugs but he is now drug free.  He no longer loses control of his physical actions.

60.In summary, I am satisfied that Mr Pizarro is not a danger to the Australian community as a whole.  He has behaved in the past in a way that is in breach of IVOs but the work that he has done on his behaviour and the knowledge that another offence is likely to lead to his visa being cancelled, leads me to conclude that the risk of Mr Pizarro’s breaching an IVO is greatly reduced.

C.       Best interests of minor children in Australia affected by the decision

61.Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child.  That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[72]  In considering the best interests of the child, paragraph 13.2(4) provides:

[72] Direction No. 65 at [13.2(2)]

“In considering the best interests of the child, the following factors must be considered where relevant:

a)The nature and duration of the relationship between the child and the non‑citizen.  Less weight should generally be given where the relationship is non‑parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the 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.”

C.1     Consideration

62.Mr Pizarro has three children.  His First Daughter is over 18 years of age and does not come into consideration.  His Second Daughter and his son are under the age of 18 years.  He has not seen them since 2011 but clearly still cares about them.  The circumstances in which he breached the IVOs demonstrate that.  They include his leaving Christmas presents on the doorstep, his pleading with SP to talk with him and his asking her for photographs of his children.  His love for his children is apparent in his most recent letter and his grief at being separated from them is clear from Ms Armstrong’s report.

63.Direction No. 65 expects me to make a determination whether cancellation of Mr Pizarro’s visa would, or would not, be in the best interests of the children.  It is very difficult to make such a categorical determination when I have not heard from the children themselves.  Their views are referred to in SP’s letter but they are of an age where they might now have their own views.  I have not heard from them in writing or orally.  SP’s views are clearly to the effect that Mr Pizarro has no place in their lives. 

64.What cancellation of Mr Pizarro’s visa would mean is that the children would lose the opportunity to make contact with him if they chose to do so.  He would be in Chile and they would be here in Australia.  The same would be true of Mr Pizarro’s 14 year old nephew.  Mr Pizarro is in contact with him and, on the evidence, I find that his nephew wants to be in contact with his uncle.  The opportunity to have contact with his late father’s brother, his uncle, will be denied to Mr Pizarro’s nephew if Mr Pizarro’s visa is cancelled.

65.Having regard to all of the matters, including the existence of an IVO that extends to Mr Pizarro’s children and that is intended to protect them and to his efforts to comply with that IVO and to the loss of opportunity to which I have referred, I have reached the view that cancellation of the visa is not in the best interests of the children.

D.       Expectations of the Australian community

66.Paragraph 13.3(1) states:

“The Australian community expects non-citizens to obey Australia’s 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.”

D.1     How are those expectations determined?

67.Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.  A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction.  Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind.  That is particularly so when regard is had to the general statement in 6.2(1) that:

“… The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

68.Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence.  Sometimes evidence will be found in what is said in any sentencing remarks, if they are available, but regard must be had to all of the evidence.  Ultimately, the judgment that a decision-maker comes to must be one that is able to be explained.[73] 

[73] I explained the reasons for coming to this view in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72], which I adopt.

D.2     Consideration

69.Paragraph 13.3(1) of the Direction states at the outset that the Australian community expects non-citizens to obey Australia’s laws while in Australia.  It makes no reference to the different challenges which may face non-citizens and which may lead them to fail to meet that expectation.  That is not to say that those challenges will not be relevant in considering what the Australian community would expect in an individual case but it does set a baseline. 

70.Mr Pizarro came to Australia as a young baby less than a year old.  He has grown up in Australia and he has been exposed to its influences (both good and bad) and its opportunities.  Sadly, like too many people who are born in Australia, he has done so in a family affected by alcohol, in so far as Mr Pizarro and his father are concerned, and by drugs, in so far as he and his brother are concerned.  For some, that environment does not throw a shadow of their lives and the choices that they make.  For others, it does and it may lead them to take a path of misbehaviour and offending as it has with Mr Pizarro.  Where Mr Pizarro differs from some who were born in Australian and who take the path he has spent time walking, he has tried to change his path.

71.Although I accept that he did not stop using drugs until 2015, I note that Mr Pizarro did not offend between 2002 and 2009.  His reason for not doing so was that he had met SP and she was a good woman who kept him on the straight and narrow.  That remained the case until 2009.  Whether the loss of his brother, which led to Mr Pizarro’s increasing his drug use and turning to ice, precipitated the breakdown of the relationship with SP or whether it was already disintegrating, I do not know.  What the pattern of convictions does tell me is that Mr Pizarro was not able to deal with the loss of his family.  There were gaps in his breaches when he was able to deal with that loss in a way that enabled him to stop trying to see his children.  I give as an example the period after his release from prison following his conviction on 14 May 2013.  He would have been released at the end of 2013 or early in 2014.  His next breach of an IVO was on 26 May 2014.  That was a five or six month period when he was not in breach.

72.The pattern also tells me that he has tried both to help himself and to find a way to ensure that he complied with the IVOs.  That is illustrated by his compliance with orders to attend programs as ordered by the court.  His work with COATS in late 2012 and early 2013 helped him to abstain from substance abuse.  COATS reported to the court that Mr Pizarro was learning new strategies to achieve that.  At that stage, he had not learnt sufficient strategies to prevent his breaching the IVO again between December 2012 and February 2013.  He was convicted of two offences relating to contraventions of the IVO in that period as well as being sentenced in relation to the breach of the Community Correction Order.  His conviction on the same day, 14 May 2013, for Make Threat to Kill, Threat to Inflict Serious Injury and three contraventions of an IVO related to offences committed over eighteen months earlier in November 2011.  Mr Pizarro has not been convicted of any threat to kill or to inflict injury made since November 2011.  His last conviction for unlawful assault occurred on 28 March 2012 and related to events on 10 March 2012.  I have no background information relating to the events leading to the conviction.

73.As ordered by the court, Mr Pizarro also attended sessions with a psychologist, Ms Armstrong.  He has attended far more sessions than required by the court and Ms Armstrong reported that he was making good progress.  In her professional capacity, Ms Armstrong is supportive of Mr Pizarro and wrote to him to let him know that he was welcome to recommence the counselling process upon his release.  She referred to the work that he had put into the change process and it was because of the work that he had put in that ISIS was prepared to continue to work with him as a voluntary client.

74.On issues such as this, it seems to me that there will never be possible to ascertain a single expectation that can be attributed to the Australian community.  A baseline expectation held by the majority will be that court orders should be obeyed.  After that point, there will be divergence.  There will be those who will think that a father’s pain and grief at not being allowed to see his children or communicate with them in any way since 2011 is of no relevance.  They will think that his payment of child support over the years will be as it should be and of no consequence.  They will think that his attempts to learn to control his behaviour are an irrelevancy and that he has shown his failure in those attempts by writing to SP in April 2018 from Christmas Island.  Such a person should not be allowed to remain in Australia.

75.There will be others who, like the first group, think that domestic violence of any sort is not to be tolerated.  They will look at the convictions and see the breaches of the IVOs but they will see Mr Pizarro’s attempts to help himself to overcome his longing to see his children.  His attempts have extended beyond his counselling sessions to his attempts to find a place for himself where he feels relevant and that place is his local bowling club where he has undertaken voluntary duties.  They will see his attempts to pay child support.  There are gaps in the payments but Mr Pizarro found work where and when he could and when he was not in prison.  There are significant periods of regular payments.  Those who fall in this group would also look at the fact that Mr Pizarro has not been convicted of any offence relating to a threat to kill since 14 May 2013 and that offence related to events dating back to 19 November 2011.  That is seven years ago.  Mr Pizarro’s choice of language on 22 December 2015 was not pleasant but it was not threatening to her safety.  On the information that I have, the pictures that Mr Pizarro sent to SP on 16 January 2016 related to the suicide of fathers who were not able to see their children.  Again, that was not a threat to her safety.

76.There will be many shades of opinion between the two schools but it seems to me that, in this case, the majority of the Australian community would see him as a person who came to Australia as a baby and as a person who have been formed and shaped by this community.  It would look to the considerable efforts that Mr Pizarro has made to change his ways and do so in light of his being a man who is, as Ms Armstrong has said, grieving for his children.  It seems to me that the majority of the Australian community would think that Mr Pizarro should remain part of it for all of his and its imperfections and should be supported in his efforts. 

Other considerations

77.The five other considerations are summarised in 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 obligation

78.A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm.  Non‑refoulement obligations arise under a variety of international conventions.  Paragraph 14.1(1) states:

“A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.  Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).  The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.”

79.A person may make claims which may give rise to international non-refoulement obligations in response to a notice of intention to consider refusing his or her application for a visa under s 501 of the Migration Act. Alternatively, a person’s claims might be clear from the facts of the case as would be the case if he or she has applied for a protection visa.[74]  This is not a case in which there is any suggestion that Mr Pizarro would be at risk of a specific type of harm were he to be returned to Chile.

[74] Direction No. 65 at [12.1(3)]

B.       Strength, nature and duration of ties

80.Paragraph 14.2(1) of Direction No. 65 states:

“… 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 has arrived as a young child, noting that:

i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”

B.1     Consideration

81.Mr Pizarro’s ties and social links are entirely with those in Australia.  He might have an uncle or aunt in Chile but he saw them only once on a holiday with his parents to that country in 1988.  He has no ties with them.  His father, children, nephew and ex-partners live in Australia.  His ties with SP may be fraught but they are ties nevertheless.  He is not able to see his children but they are also ties.  Mr Pizarro did not bring any friends with him to the hearing of his application but that does not diminish his ties and links to Australia.  He regards Australia as his home and he regards it as the place where he belongs.

82.It cannot be said that he began offending soon after he arrived in Australia.  Mr Pizarro endured a difficult childhood and did not commit his first offence until he was 14 years of age.  He has worked and gained tickets that have enhanced his opportunities to obtain work in the construction and other industries.  Like many people, his two relationships have not succeeded but he has paid child support.  He has found a place for himself by undertaking voluntary work.  Putting aside his offences, he has led a life like many other members of the Australian community and, by living that life, he can be said to have contributed positively to that community.

C.       Impact on Australian business interests

83.      Paragraph 14.3(1) of Direction No. 65 states:

“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

C.1     Consideration

84.The cancellation of Mr Pizarro’s visa and the non-revocation of that cancellation would not have any effect on Australian business interests.

D.       Impact on victims

85.At paragraph 14.4(1), Direction No. 65 states:

“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.”

D.1     Consideration

86.I have SP’s views regarding Mr Pizarro’s offending.  She was not called to give evidence and so I am left with her letter of 9 April 2018 and the pattern of her complaints regarding Mr Pizarro’s complaints.  I have already found that her statement in that letter regarding Mr Pizarro’s not paying child support is contradicted by the objective evidence from the Department of Human Services.  That means that I have read her other statements with some care.  I accept, for example, Mr Pizarro’s evidence that he has damaged her car on two occasions but I do not accept SP’s statement that he has done so “several times”.  The evidence that I have from the courts and from Victoria Police is that SP reports Mr Pizarro’s breaches of IVOs.  In light of that, I would find it surprising not to find a reference to any further allegation of his damaging her car.  The same is true of her allegations that he has threatened to kill her.  No reference is made to further threats in the material from Victoria Police.  I do accept that Mr Pizarro has used abusive language.  That is clear from the text message sent to her on 22 December 2015 and Mr Pizarro has readily acknowledged that he has said and done things that he should not have.  He has done that when he was taking drugs but he has not taken them since 2015.

87.In summary, if the visa cancellation is not revoked, SP will feel that she no longer has to worry about Mr Pizarro arriving on her doorstep.  If the cancellation is revoked, I find that there remains a possibility that he could but I also find that Mr Pizarro would be well aware that he must not.  He would be even more aware than he might have been in the past because he now knows very clearly that his visa can be cancelled as a direct result of his behaviour.  He did not take the warning he was given to that effect on 4 October 2013 but he is well aware of it now.

E.        Extent of impediments if removed from Australia/not permitted to return

88.Direction No. 65 also states in paragraph 14.5(1) that:

“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.”

E.1      Consideration

89.If Mr Pizarro were required to return to Chile, he would be returning to a country where he has not lived since he was a small baby less than a year old.  Although he thinks he might have met one or two uncles and an aunt in 1988, he has no recollection of where they lived or of anything about them.  Assuming that they are still alive and that they are related to him, there is no guarantee that he could live with them or that they would, in any way, support him.  Mr Pizarro would be on his own in a country in which he does not speak the language and has no qualifications that would be immediately recognised.  He knows nothing of its culture or of its ways. 

90.Mr Cunynghame said that Mr Pizarro would have access to Chile’s social security system but I have no details about the system in the evidence.  Those details are available in the Social Security Guide available on the website of the Department of Social Security.  It summarises the Chilean system as follows:

“The Chilean social security system is contributions based.  The Chilean Congress established a mandatory pension in 1924.

In May 1981 a new privatised system of individual accounts (Sistema de Capitalización Individual) was created.  The old system (Social Insurance Schemes) was closed to new entrants and was to be gradually phased out.  Special systems for key groups such as the armed forces and national police were retained.

Participation in the Sistema de Capitalización Individual is compulsory for all employees entering the work force and voluntary for the self-employed. All workers covered in the old systems (Social Insurance Schemes) had the option of switching to Sistema de Capitalización.

The Sistema de Capitalización Individual covers the majority of workers in Chile. The remainder are covered by the Social Insurance Schemes or by special systems for key groups such as the armed forces and national police.

Both Sistema de Capitalización Individual and Social Insurance Schemes operate under the auspices of the Ministry of Labor and Social Security (Ministerio del Trabajo y Previsión Social).

On 1 July 2008, the Chilean government introduced the Sistema de Pensiones Solidarias or Solidarity Pension System.  This new first pillar, a supplement to the 27 year old individual accounts system, expands coverage and provides both a non‑contributory and a top-up benefit.

The non-contributory basic solidarity pension is called the Pensión Básica Solidaria (PBS). It is a means-tested benefit (old-age and disability) paid to those individuals aged 65 or older who are not eligible for any other pension.  To qualify for an old‑age PBS, an individual must have lived in Chile for at least 20 years, including 4 of the 5 years immediately prior to applying for a benefit.

A top-up (old-age and disability) benefit called Aporte Previsional Solidario (APS) is paid to those individuals who have contributed to an individual account and whose self-financed monthly benefit in 2008 is between 50,000 and 150,000 pesos.”

91.In view of this information, it would seem that Mr Pizarro would, at the age of 45 years, be starting at a major disadvantage in so far as the contributory scheme is concerned.  That disadvantage arises from the fact that he has not lived in Chile since he started work and so has not contributed to its social security scheme.  Once he has worked for another 20 years, he would be entitled to a means-tested non-contributory basic solidarity pension.  In that regard and putting aside the rate of pension, he is in a position similar to that he would be in Australia.  He would not have access to any top-up age pension because he has not contributed to a self-financed scheme. 

92.If Mr Pizarro were to find himself devoid of resources after he had lived continuously in Chile for a period of three years immediately before making a claim, he could qualify for assistance under the safety net welfare system.  This is also explained in the Social Security Guide:

“There is a safety net welfare system in Chile that pays benefits to people in need. To qualify for assistance a person must be:

·           devoid of resources - the person does not have their own income or have income less than 50% of the minimum pensions, and

·           a continuous resident in the country of at least 3 years immediately prior to the date the person makes a claim.”

Decision

93.While the predecessor of Direction No. 65, Direction No. 55, clearly put the future harm to the Australian community and the risk of harm’s occurring as the fulcrum around which the other considerations were to be weighed in the balance, the removal of a clear statement to that effect in Direction No. 65 leaves the fulcrum to be drawn by implication.  I will reproduce paragraph 7 from each Direction side by side to show the differences:

Direction No. 65

Direction No. 55

“Informed by the principles in paragraph 6.3 above, a decision-maker:

a)       must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

b)       must take into account considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”

“Informed by principles in paragraph 6.3 above, a decision-maker:

a)       must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

b)       is required to determine whether the risk of future harm by a non-citizen is unacceptable.  This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.”

94.Despite the rewording, it seems to me that paragraph 6.3 of Direction No. 65 is to the same effect.  When account is taken of the considerations in, in this case, Part C, it is clear that the Minister intends that a decision-maker undertake a similar balancing exercise having regard to all of the considerations that he requires to be addressed and having regard to any other relevant factors. 

95.It cannot be denied that there is a risk that Mr Pizarro will breach an IVO again in the future but he is determined not to.  I find that Mr Pizarro is making very large efforts to change his ways.  Despite the fact that he is grieving for his children and wants to see them, he knows that he cannot do so in the circumstances.  He well knows the consequences for him not only in terms of imprisonment but in the cancellation of his visa.  He has turned to counsellors and, as they have said, he has done well as both COATS and Ms Armstrong found.  He has found the strength to give up drugs and knowing that he has that strength, he can work with his counsellors again to use it to stop breaching IVOs.  The strength he has shown is also consistent with the sense of responsibility that he has shown in trying to maintain his child care payments over the years since 2011 to 2018.

96.I accept Mr Pizarro’s evidence that psychological harm cannot be downplayed or in any way treated as less serious than physical harm.  That said, without the opportunity to ask SP questions, her statement and her going to the police to report him about texts and the delivery of Christmas presents that occurred over a number of weeks rather than immediately a breach occurs, leaves open the question of the nature of the psychological effect on SP herself.  Her reason for doing that cannot be that she has taken action and hopes that he will go away for she states that she has never responded to his text messages.  The state of the evidence is unsatisfactory and I cannot make any definitive finding as to the effect on her.  

97.When I look at the whole of the matter in light of Direction No. 65, it seems to me that there is a risk that Mr Pizarro will breach an IVO again but the risk that he will offend against other laws is low.  If he does breach an IVO, the risk of physical harm to SP is low and to the children very much lower if at all.  The letter that he wrote to SP from Christmas Island illustrates the point.  It is not a threatening letter but rather a letter pleading for SP’s help.  He has sent it even though, as he states in the letter there was a risk to himself by sending it.  The content of the letter shows the efforts he has made to self-moderate his behaviour.  The fact that he sent it is an indication of the plight he finds himself in.  As Ms Armstrong has said, she does not condone his behaviour but his grief at the loss of his children can be understood.  Even in his grief, he has demonstrated the capacity to change and he has engaged in the therapeutic processes to do so.[75]  Mr Pizarro has shown that he has strength of character to change his ways in relation to drugs and alcohol and has made large steps to change his ways in relation to his children and to SP.  Based on his behaviour in recent years, the risk of harm to SP is by way of text messages to her and presents left for her and for them.  It is a risk of psychological harm and not of physical harm.  That is not to suggest that Mr Pizarro should breach the IVOs and I do not condone any breach but it is to put in context the consequences of any breach.

[75] See [25] above

98.To cancel Mr Pizarro’s visa would lead to his having to live in a country he knows nothing of except for a three month holiday in 1988 as a teenager with his parents.  There is no evidence of the likelihood or otherwise of his obtaining work in Chile and I am satisfied that he has no friends there or, if he has family, none that he knows of or could call upon to assist him.  He would be entirely alone and knowing no-one in a foreign country.  It is one thing to visit a country as a tourist, and be in that position.  A tourist knows that he or she will return home.  It is quite another for a person to be required to go to a foreign country to live and to know that there can be no return to the country that has been his or her home almost since birth.  On the information that I have about the social security system, Mr Pizarro would be disadvantaged by the fact that he has not spent his working life in Chile contributing to one or other of its social security schemes.  He would be removed from his nephew, with whom he has a developing relationship, and from his children who would be deprived of a practical opportunity to get in touch with him should they wish to do so once they turn 18 years of age.  The same is true of his First Daughter.

99.In light of all of these circumstances, I have decided that the risk of harm that faces members of the Australian community, and particularly SP and children, is outweighed by the consequences for Mr Pizarro if he is required to leave the country that in which he was accepted as a very young baby and in which he has grown up, been educated, worked and lived his whole life bar six months or so. Therefore, I set aside the decision of a delegate of the Minister dated 27 June 2018 and substitute a decision that the decision dated 21 February 2017 cancelling Mr Pizarro’s visa under s 501(3A) of the Migration Act is revoked.

I certify that the preceding ninety nine [99] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie.

.......[sgd]...........................................................

Personal Assistant

Dated: 18 September 2018

Date of hearing:	6 September 2018
For the Applicant:	Self represented
Solicitor for the Respondent:	Mr Adam Cunynghame, Sparke Helmore