PJJT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4071
•25 November 2022
PJJT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4071 (25 November 2022)
Division:GENERAL DIVISION
File Number:2022/7460
Re:PJJT
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member J Rau SC
Date:25 November 2022
Place:Adelaide
The decision under review is affirmed.
.......................[SGND].................................................
Senior Member J Rau SCCatchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa) under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKN20 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2021) 285 FCR 1
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
25 November 2022
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 12 September 2022, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”). His visa was cancelled on 29 November 2021 under section 501(3A) on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. On 10 November 2021, the Applicant was convicted in the QLD Magistrates Court in Richlands of offences including assault occasioning actual bodily harm in company.[1] He was sentenced to 21 months imprisonment. The sentencing remarks in that matter were in evidence before the Tribunal.[2]
[1] See National Criminal History Check dated 12 April 2022; Exhibit 2, G2, Attachment A, pp 23-24.
[2] Exhibit 2, G2, Attachment C, pp 27-31.
The Applicant appealed and the matter was dealt with by the Brisbane District Court on 2 September 2022. The Applicant’s head sentence was reduced to 12 months imprisonment, suspended on account of his time already spent in custody. He is no longer on parole.[3] No transcript of those proceedings or the judgment of the Court was put before the Tribunal, notwithstanding a request to do so being made at a telephone directions hearing on 3 November 2022. This is less than ideal. The evidence available to the Tribunal suggests that the appeal succeeded primarily due to the learned Magistrate falling into error in sentencing the Applicant, by assuming that he was on bail at the time of being involved in an assault in company. This was factually wrong and was incorrectly considered as an aggravating factor. The Applicant was asked about the facts of his offending as set out in the decision at first instance. He either accepted that the facts as found by the Magistrate were correct or conceded that he was so intoxicated at the relevant time, that he was unable to recall the events properly, or indeed at all. He did not dispute the findings of fact. It seems from the Applicant’s evidence that other faults of a procedural nature were also found on appeal, but these did not go to the facts. It is regrettable that the Tribunal has had to rely on incomplete evidence regarding the appeal, but that was all that was available.[4]
[3] Exhibit 5, p 2.
[4] Exhibit 10, SM, p 10.
The Applicant therefore fails the character test on account of being sentenced to 12 months imprisonment.
The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 15 November 2022. The Applicant was self-represented and the Respondent was represented by Ms Emma Letcher-Boldt of Clayton Utz.
The Applicant gave evidence by Microsoft Teams. He gave a good account of himself. He answered questions directly and without hesitation. He presented as a generally credible witness.
The Applicant called no witnesses.
Background Facts
The Applicant was born in New Zealand in September 1987. He is a citizen of that country.[5]
[5] Exhibit 2, G2, Attachment G, p 41.
An undated letter from the Applicant, written after his visa cancellation, gives some history of his troubled background. This letter states:
“To whom this may concern,
Thank you for the opportunity to explain my life experience to gain perspective on why I am in this situation today. I have been fortunate post my jail time to have counselling with a major revelation. Alcohol feed the worst side of me and stopped me from healing from my history of abandonment abuse and loss. I was an unwanted baby born to a alcoholic mother and a criminal father. Due to this I was adopted out at 6 months to my birth mother’s sister and her husband too of which I call my mother and father my biological parents have never tried to find me. During my early years I was sexually abused by family members in NZ. This was from the ages of 7-12 years old. Looking back threw therapy I began to behave badly to the ones I loved the most and started to drink heavily thinking that it was helping me. This only lead to more distress when intoxicated and I began to self-harm and have suicidal thought. 16 I fell in love but tragically girlfriend died in a car and feeling the grief loss I became very depressed and was hospitalised for attempting suicide by hanging after my hospital stay I stopped the prescribed medication and reverted back to drinking as my main way to cope but to no surprise my suicidal thoughts and self-harming continued. To my surprise during my dark time I reunited with my childhood sweetheart and we had some of the best times in my life we got married and also had a beautiful boy together. Again tragedy struck and my nan who I was very close with died in a car accident all my feelings of abandonment and loss flooded back to me. I began drinking heavily again I was a mess and eventually drove my love away. But during this dark time the one shining light was my dedication to my son and our agreement not to drink. I always honoured this. My parents had been in Australia all this time so I had no support whilst going threw all of this so I decided to head over to make a fresh new start and to get the support I had needed for a long time. I quickly gained employment and found a new love. Unfortunately, she is a drinker and as our relationship was passionate and argumentative eventually ended in me assaulting her which I whole heartedly regret and forever am remorseful for. A duo and jail eventuated. She is still my partner today and is very supportive of my journey to be alcohol free. Today I am one year sober. I am in the best mind state I have ever been in my life and am continuing to better myself and my wellbeing. Jail time has been a time of huge learning and reflection and I feel I needed that time to sort myself and my life out I have embraced every course and counselling available to me on my quest to heal from my alcohol addiction. I believe I have made major progress in healing from my abandonment abuse and loss by attending drug & alcohol course in prison.
Courses Completed in detention
·Weekly a:a meetings online
·Weekly anger management appointments
·Communicate – prevention against woman certificate
Completed 20/02/22
·Family violence foundations certificate
Completed 28/04/22
·Drug a/n drug & alcohol counselling
·No to violence family violence counselling
·Interrelate – respectful man 10 week program
Discharge mental health plan
·Continue attending A.A meetings
·Continue drug a/m drug & alcohol counselling
·Continue D.V counselling with d.v direct
·Relationship counselling
·And have referred self to lifes lived well day rehab
In conclusion I would again like to thank you for an opportunity to explain my perspective. I am insightful of my past, past behaviour and believe I have made major steps to an alcohol-free life in the Australian community.”[6]
[6] Ibid, G2, Attachment H, pp 55-58.
The Applicant was kicked out of home by his adoptive parents when he was 12 years old, in about 1999.[7] He told the Tribunal that this had something to do with his failure to embrace religious observance, as required by his mother. He went to live with a maternal aunt. He was sexually abused by relatives, although he provided no particulars. His adoptive parents separated in the early 2000s. His mother remarried in about 2009. His adoptive mother, her new husband, his siblings and his adoptive father all moved to Australia in 2009.
[7] Ibid, G2, Attachment W, p 160.
The Applicant was married in New Zealand in about 2009. He has a son who is now almost 6 years old and lives in New Zealand with his mother. He has autism and is non-verbal. The Applicant separated from his wife on 5 December 2017. He attributes this separation to an increase in his abuse of alcohol. In relation to his son, the Applicant is reported in clinical notes dated 21 August 2022 as saying:
“[PJJT] has discussed his protective factors as length - whilst there is some sadness that his son (six years old, non-verbal and autistic) resides in NZ and said and he is unable to hug him, [PJJT] tries to call him as much as possible and sends voicemails to his ex-wife to play him so he doesn't forget his dads voice. He informed Clinician that he is ‘still more present than his birth dad and will continue to remain in his son's life helping any chance he gets’.”[8]
[8] Ibid, G2, Attachment W, p 162.
On 10 May 2013, the Applicant arrived in Australia. His incoming passenger card described his usual occupation as “seasonal work”. It also states that he was a visitor intending to stay for 2 months. In answer to the question “Do you have any criminal convictions?”, the Applicant ticked “no”.[9] This answer was untrue.[10] He told the Tribunal that he was having troubles in his marriage at the time and that he worked here for a while. He returned to New Zealand on 8 September 2013.[11]
[9] Ibid, G2, Attachment Y, p 166.
[10] Ibid, G2, Attachment B, pp 25-26.
[11] Ibid, G2, Attachment Z, p 167.
On 22 and 29 June 2013, during his visit to Australia, the Applicant was issued with two enforcement orders for speeding.[12]
[12] Exhibit 10, SM1, p 17.
On 18 January 2019, the Applicant again arrived in Australia. His incoming passenger card describes his usual occupation as “unemployed”. It also states that he was a visitor intending to stay for 2 months. In answer to the question “Do you have any criminal convictions?” the Applicant again ticked “no”.[13] This was of course, very far from the truth. His criminal history in New Zealand is extensive, with the first recorded conviction in respect of offending on 3 September 2004. It is notable that his record includes firearms offences. He told the Tribunal that he had never held a firearms license, but he used to go hunting with a friend, using his friend’s shotgun. On one occasion, he had brandished the weapon at people he described as “gang members” to discourage them from assaulting him. A copy of his NZ Police Record is annexure B hereto.[14]
[13] Exhibit 2, G2, Attachment Y, p 165.
[14] Ibid, G2, Attachment B, pp 25-26.
On 2 October 2019, the Applicant commenced a relationship with RW. RW is a citizen of New Zealand. She is separated or divorced from her former partner/husband with whom she has 3 sons. She is 12 years the Applicant’s senior.[15] Her eldest son is 27 and lives in New Zealand. Her other two sons live with her. The eldest is 22 and the youngest, Child A, will turn 18 in December 2022.
[15] Exhibit 10, SM1, p 12.
On 15 December 2019, the Applicant was issued with enforcement orders for “public nuisance-violent behaviour” and “obstruct officer”.[16]
[16] Exhibit 10, SM1, p 19.
On 17 December 2019, the Applicant was the subject of a protection order in favour of RW on the application of police. This order, obtained within 3 months of the Applicant commencing his relationship with RW, was in the following terms:
“It is ordered that:
(1) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
(2) The respondent is prohibited from remaining at the premises situated at […]
(3) Respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives, works or frequents;
(4) The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved and from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text or internet;
(5) The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place
(6) The respondent is prohibited from using the Internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved.”[17]
[17] Ibid, SM1, p 21.
On 25 November 2020, the Applicant assaulted RW. He was intoxicated. He had been residing with her knowingly in contravention of the DV order.[18]
[18] Ibid, SM1, pp 2 and 12-13.
On 26 November 2020, the Applicant’s licence was suspended until 29 April 2021.[19]
[19] Ibid, SM1, p 18.
On 21 January 2021, the Applicant was convicted of driving whilst disqualified and an enforcement notice was issued for exceeding the speed limit by in excess of 20 km/h.[20]
[20] Ibid, SM1, pp 13-14 and 18.
On 27 January 2021, the Applicant assaulted KW.[21]
[21] Ibid, SM1, pp 7 and 13-14, G2 p 28.
On 23 March 2021, the protection order in favour of RW was amended as follows:
“It is ordered that the Protection Order made at Magistrates Court Beenleigh on 17/12/2019 to be varied to read as follows:
(1) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
(2) The respondent is prohibited from remaining at the premises situated at […]
(3) Respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives, works or frequents;
(4) The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved and from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text or Internet;
(5) The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place;
(6) The respondent is prohibited from using the Internet or any other communication device (including social networking sites) to communicate with, published pictures of or make comments concerning the aggrieved.”[22]
[22] Ibid, SM1, p 36.
On 10 May 2021, the Applicant assaulted a male victim, doing him bodily harm in the company of his brother.[23]
[23] Ibid, SM1 pp 8, 14-15 and 23-24, G2 p 28-29.
On 15 June 2021, the Applicant breached a DV order protecting RW by attending at her home.[24]
[24] Ibid, SM1, pp 6 and 16, G2 p 29.
On 10 November 2021, the Applicant was convicted of various offences and sentenced to 21 months imprisonment. In his sentencing remarks, which pull few punches, Magistrate Shearer said:
“HIS HONOUR: Stand up, please. I’ve taken into account your pleas of guilty and reduced the penalty I would otherwise have imposed. Quite frankly I think the penalty that is deserved is far higher than the one I’m going to give you. It sure isn’t nine to 11 months, [PJJT]. Your repeated violent criminal behaviour is absolutely disgusting, and to say that you were just drunk, you’ve only got one previous for breaching a domestic violence order in Australia – nobody seems to have been bothered to check New Zealand to see whether you have any criminal history there or not, so I’m just left in the dark about that. So I have to assume, even though it may not accurate, assume, at least, that you don’t. But with your alcoholic history, that seems unlikely.
For sentencing purposes, you’re only being sentenced on the basis of the Queensland criminal history, and it’s fair to say that since your arrival two and a half years ago you have not been a valuable addition to the Australian community given the fact that a domestic violence order was made against you as far back as the 17th of December 2019, so nearly two years ago, so virtually within six months of your arrival in Australia, domestic violence order has already been made against you.
Then in November of last year, while grossly intoxicated, in breach of that order, not only were you present in the premises you were barred from and drunk, but you punched the aggrieved woman with clenched fist straight in the face. Luckily enough other members of your family are there to boot you out the front door, and you come back to the door kicking and punching and trying to get back in again, and ultimately they have to assault you to get you out of the place and remove you from the premises.
That wasn’t enough, of course, as we saw on the video. Two months later you’re in the bottle shop at Marsden being attended by a girl who looked to me like she was in her early 20s at best, being drunk, abusive. When she’s serving your friend, you tell her “hurry the fuck up, cunt”. Unsurprisingly, she asked you not to speak to her like that, given the grossly abusive and disrespectful way that you were speaking to her, and then you say to her “get fucked, cunt, you’re a useless piece of shit”, when she refused to serve you after you abused her. Then when she said she was going to call the police, as we saw, you spit in her face and onto her shoulder, which is grossly disgusting, contemptuous, disrespectful. Who knows what diseases – communicable diseases you’ve got that you might have communicated to her by spitting in her face. It’s considered by the courts to be a gross act of disrespect and contempt and one that on its own deserves a jail sentence. And then not satisfied with spitting in the face, of course, you then say to her, “get fucked, cunt, I’m going to make you pay, I’ll come back and kill you.” She, luckily enough, as we saw in the video, had the presence of mind to wait to see what car you got in, take your number down when you left. So she was a very – plenty of courage, that girl, and presence of mind in the way she responded to your abuse and violence.
Then of course that wasn’t enough for you. In May of this year you and your brother in company assaulted the complainant in the assault occasioning bodily harm whilst in company charge, merely because two Indian blokes happen to be speaking to each other in their own language. And you then try and grab him by the neck and punch him, unsuccessfully. Then in the most grossly cowardly way you come up from behind him and coward punch him from behind in the left cheek when he can’t see you approaching and has no chance to defend himself. Gutless way for a bloke to behave. Don’t even have the wherewithal or the courage to approach someone face on so they can see the attack coming and respond to it if they want to. Then your brother hits him on the top of the head splitting his head open, and when he’s on the ground you and your brother then kick and punch him in the face a number of times. It’s simply a matter of good luck rather than good management that he only got lacerations to the face, head, lips, shoulder, chest, elbow and lower leg. So as I said to Mr Wanigesakera, he was injured from head to toe by you and your brother.
Then in addition to that, of course, you breach the domestic violence order again in June of this year, and ultimately remanded in custody because you demonstrated you were an unacceptable risk of committing further offences if you were to be given bail.
So that’s a neat summary, I guess, of the extent of your violent criminal behaviour. And I note that at least the common assault on the girl in the bottle shop would have occurred when you were on bail for a breach of a domestic violence order and wilful damage charges committed on the 6th of December 2020. That is an aggravating feature as well.
As Mr [W] has said, Penalties and Sentences Act says that when it’s an offence of violence, a sentence of imprisonment is not the last sentencing option. It can often be the first, particularly if the offending behaviour is seriousness enough – serious enough, I should say. And all of these offences, apart perhaps from the last one, are serious enough to deserve a term of imprisonment on their own.
Punching a woman in the face in breach of a domestic violence order is serious enough to lead to a sentence of imprisonment. The Parliament of Queensland of course has made it perfectly clear by increasing the maximum penalties, doubling them, in fact, for breaching domestic violence orders, that the community is sick to death of this gutless, pathetic behaviour and expects that deterrent penalty is going to be imposed.
Spitting in the face, unprovoked, gratuitous public violence against a girl working behind a counter, threatening her and abusing her, which – you know, really, you must have felt like such a hero when you were doing that. That on its own deserves a 40 term of imprisonment. And of course in company coward punching someone to the ground and then punching and kicking them when they’re prone in the face again on its own deserves a term of imprisonment.
I’ve taken into account the fact that prior to today, at least, you only had the one conviction recorded in Queensland, and I’ve taken into account the theoretical prospect that you may have your visa cancelled because of the persistent violent behaviour, criminal violent behaviour you’ve demonstrated in relation to these matters. I certainly do not intend to, as I’ve already indicated, tinker with the sentence to try to help you avoid that prospect. That would be utterly improper to do so. And the prospect is itself speculative. It depends upon – firstly depends upon the Department of Immigration taking any action at all. The prosecution will have to tell them about this matter if it’s not communicated by the prison authorities. Secondly, it then depends upon if they take any action, what decision the Minister decides to take at the end of the day. You will have appeal rights if your visa actually is cancelled. So it will also then depend upon how those sort of processes proceed if they go ahead. So when the submission is put up that the defendant has the prospect of deportation, it’s intended to create the impression in the court that deportation is a certainty, more or less, upon their being sentenced to more than 12 months of imprisonment, and that’s not the case. It ignores the many processes, exercises of discretion that are vested in both the executive and the courts before anything like that happens at all. So it’s nothing but speculative, in reality.
So far as the sentence is concerned, Lude and Love can be distinguished on the basis that there’s no indication in the sentence, although it was a – decision. Even though it was a attack in company upon a taxi driver, that that fellow was ever hit to the ground. He was certainly attacked in company, punched and kicked, but on my reading of the case, and my memory of it, he was not prone on the ground and being kicked in the face by multiple attackers, and he had the benefit, of course, of others intervening to stop the complaint. And in addition to that, these two, Lude and Love were only 20 and 21 at the time they committed the offence. So far different to a 34 year old man who does not have the benefit of the stupidity of youth on his side.
And so Lude and Love is only marginal utility in terms of arriving at what would be a just sentence in all the circumstances.Had I been sentencing you for the assault occasioning bodily harm in company on its own, I would impose a sentence of 18 months imprisonment, because it deserves that every day of the week.
I have to take into account the totality of the criminality as well as the totality of the sentences that I impose and fix a sentence that reflects the serious nature of the criminal behaviour, the nature of it, the need for punishment, the need for deterrence, the need for condemnation on behalf of the community for this sort of behaviour, one that affords you an opportunity to rehabilitate, but of course rehabilitation is not something that can be imposed upon you from the outside. There’s nothing I can say or do that will compel you to rehabilitate yourself. There’s nothing the parole authorities can do that will compel you to rehabilitate yourself. The only person that can rehabilitate yourself is you. And it will depend upon the decisions you make and the commitment you have to doing what’s required in order to rehabilitee yourself. When you get out of jail, if you just hit the grog again, well, nothing’s going to change. That’ll be your own fault.
So the opportunity for rehabilitation comes by virtue of the fact that you’re not required to serve the full balance of the head sentence. In New South Wales, for example, where they have truth in sentencing laws, 18 months imprisonment, for example, means pretty much 18 months in jail. In Queensland, well, we don’t have truth in sentencing. 18 months means generally on a plea you serve a third of that and the rest of the time is served in the community with the prospect of returning to jail at any time based upon whether or not you reoffend, don’t comply with the parole or whatever it might be, don’t turn up. But you’re given the benefit of not serving the majority of the sentence on the basis of the plea of guilty. Whether that happens or not, as is the case for rehabilitation, depends entirely upon you. But nine to 11 months is – it would be plainly obvious doesn’t begin to come anywhere close to what would an appropriate sentence to take into account the totality of the criminality in all of these cases – all of these offences, I should say.
I’ve obviously had regard to all the matters that have been raised. I’ve read the – I read the references that have been given. I don’t agree with the character assessment included therein, because of course persons of good character don’t end up where you are, charged with – being sentenced for the type of offences that you’re being sentenced for. Certainly, a person of good character doesn’t out of the blue spit into the face of a defenceless woman working in a bottle shop as she’s doing her job.
Taking into account all the matters that I’m required to pursuant to section 9 of the Penalties and Sentences Act, and totality in terms of criminality and sentence, the sentences are these – for the assault occasioning bodily harm in company, you’re convicted and sentenced to 21 months imprisonment. Common assault and the breach of a domestic violence order of the 25th of November 2020, on each charge you’re convicted and sentenced to nine months. For the breach of the domestic violence order the 15th of June 2021, you’re convicted and sentenced to six months imprisonment. 148 days of pre-sentence custody is declared to be time served under the sentences. You will be released after you’ve served a third. Parole release is fixed 14th of January 2022. Is there anything else?
MR [W]: No, your Honour.
HIS HONOUR: All right. Thank you.”[25]
[25] Exhibit 2, G2, Attachment C, pp 28-31.
On 6 December 2021, the Applicant damaged RW ‘s motor vehicle in contravention of the current DV order.[26]
[26] Exhibit 10, SM2, pp 44-45, 49 and 53.
A copy of Applicant’s ACIC report generated on 13 April 2022 is annexure C hereto.[27] As mentioned previously, I note that this report pre-dates the Applicant’s successful appeal, (mentioned above) in September 2022.
[27] Exhibit 2, G2, Attachment A, pp 23-24.
The Applicant’s partner RW has produced various statements in support of the Applicant.[28] She was not called as a witness.
[28] E.g., Ibid, G2, Attachment I, pp 59-62 and Exhibit 7.4.
The Applicant’s adoptive parents (though separated), who have lived in QLD since about 2009, have also provided statements in support.[29] It is important to note that according to the Applicant, his adoptive parents kicked him out of home when he was 12 years old, (in about 1999). They moved to Australia without him. His relationship with them and his siblings has been strained for many years due to his behaviour,[30] though he says that the relationship is now good. His interactions with them and his other family in Australia after he arrived here in January 2019, did nothing to prevent him from offending in Australia. Any suggestion that his being with them in this country, will prevent him further offending carries little weight. None of them were called as witnesses.
[29] E.g., Ibid, G2, Attachment J, pp 63-63, Attachment K, p 65 and Exhibit 7.7.
[30] See Exhibit 2, G2, Attachment W, p 162.
There are other statements of support in evidence from other friends, family and former employers.[31]
[31] E.g., Exhibit 2, G2, Attachment I, pp 59-62, Attachment J, pp 63-64, Attachment K, p 65, Attachment L, p 66, Attachment M, p 67, Attachment N, p 68 and Exhibit 7.
The Applicant has produced evidence of having completed or participated in various rehabilitation programmes.[32]
[32] E.g., Exhibit 2, G2, Attachment O, pp 69-127, Attachment P, pp 128-134, Attachment Q, pp 135-139, Attachment R, p 140, Attachment S, pp 141-144, Attachment T, p 145, Attachment U, p 146, Attachment V, pp 147-154, Exhibit 3, Exhibit 4 and Exhibit 6.
There are records of him having seen a mental health nurse in detention.[33]
[33] Exhibit 2, G2, Attachment W, pp 155-163.
There is no evidence before the Tribunal, from a suitably qualified practitioner, that any current diagnosis of a mental health condition has been made. I do however note the Applicant’s statement regarding this issue in his application for review dated 13 December 2021 (“the Application”). This relevantly states:
“In the past and without family support I have suffered from depression & have attempted suicide multiple times so I fear for my wellbeing & mental state if I have to return. This being the reason I came to Australia to be close to family to help myself heal.”[34]
[34] Ibid, G2, Attachment G, p 53.
I also note the materials produced by the Applicant regarding mental health consultations in New Zealand between 2004 and 2015.[35] The Applicant told the Tribunal that he is not taking any medication for mental health conditions and has not done so since he has been in Australia. He has not sought help for any mental health condition from a doctor or a psychologist in Australia.
[35] Exhibit 9.
The Applicant has struggled with alcohol since his early years and there is a clear association between his alcohol abuse and his offending.
The Applicant has a 6-year-old son, and former wife who live in New Zealand.
If the Applicant were to be released into the community, he wants to resume living with RW with a view to possible marriage.[36] He would also like to return to doing demolition work.
[36] Exhibit 2, G2, Attachment G, p 44.
The Applicant has an extensive criminal history,[37] spanning the whole of his adult life. A copy of his record of convictions is annexed hereto and marked “B” and “C”.
LEGISLATIVE FRAMEWORK
[37] Ibid, G2 Attachment A, pp 23-24 and Attachment B, pp 25-26.
Does the Applicant Pass the Character Test?
The Applicant was sentenced by the Brisbane District Court to a term of imprisonment of 12 months.[38]
[38] Exhibit 6.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[39]
[39] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[40]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[41]
[40] [2018] FCA 594.
[41] Ibid, [23].
offending HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure C. His record in New Zealand is set out in Annexure B.
The Applicant’s offending commenced in 2004. The Applicant is a chronic offender. Most of his offending is connected with alcohol abuse. He has a serious record of motor vehicle offences, demonstrating a disregard for the law.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has been involved in family violence (as defined in Direction 90) against his partner, RW.[42] This is very serious.
[42] See sentencing remarks, G-Documents filed 26 September 2022, G2, Attachment C, pp 27-31, and history set out above.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant clearly does not pass the character test, contrary to subparagraph (3) (iii) above. This is serious.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant was sentenced to 12 month’s imprisonment (on appeal) this is indicative of the serious nature of his offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has been a serial offender for most of his life.[43] His most recent offending is very serious and represents a trend of increasing seriousness. Family violence is very serious.
[43] See Annexures B and C.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s offending has been very serious. In the short period between his arrival here in January 2019 and December 2019 he had already managed to have a domestic violence order made against him. He had only been with RW for less than 3 months at that time. He has seriously assaulted his partner. He has knowingly breached DV orders. The balance of his anti-social behaviour which has been the subject of charges in Australia is set out in the sentencing remarks of 10 November 2021.[44] The Applicant has been a burden on police, corrections and immigration detention. He has offended against the laws of this country with little apparent regard for the consequences upon his victims and our community. By any measure, his contribution to our community during his short time here, has been overwhelmingly negative.
[44] Exhibit 2, G2, Attachment C, pp 27-31; See para 16, above. Note also driving offences set out above.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
As already set out above, the Applicant has twice given grossly untrue information to Immigration officials on entry into the country.[45] I note also that this is contrary to S 102 of the Act.
[45] Ibid, G2, Attachment Y, pp 165-166.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
This consideration is neutral.
I do not consider factor (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
There is no contemporary independent expert medical or psychological evidence to assist the Tribunal in making a risk assessment.
The harm that may be caused, if the Applicant were to reoffend, is potentially very serious. Family violence is explicitly categorised as such in Direction 90, in Primary Considerations 1, 2 and 4. Violent crime generally is specifically mentioned in Primary Considerations 1 and 4. This means that, in accordance with the Direction, the tolerance to be given of any risk of such reoffending, is very low.
78. The Applicant claims that he has stopped drinking and will not relapse. I do accept that he sincerely holds this view and that he would, if released, take steps to maintain his abstinence, such as joining an AA group. The question is whether he is able, in an uncontrolled environment, to do so.
Likelihood of engaging in further criminal or other serious conduct
The Applicant says in the Application:
“Outline any factors you believe help explain your offending, that you want the decision-maker to take into account.
As a child I have been a victim of sexual abuse and this has had a major effect on how I have dealt with life. To this day from an early age I have consumed alcohol and have used it as a coping mechanism which has made me dependent on alcohol hence being intoxicated during the events that have occurred. I understand now that I have a problem with alcohol and want to get the most rehabilitative help that I can and feel to accomplish & achieve this in the best way I will need my partner & family’s support in helping me better myself & the healing process.
……
Provide information on what you believe to be the risk of you offending in the future, and your supporting reasons.
I feel after serving this 8 months in jail and having this time to reflect & revaluate my life I feel reoffending is not in option I know I have some issues I need to address and want to get the necessary help this being A.A meeting and getting a sponsor, day rehabilitation program, alcohol & drug counselling, counselling, anger management and domestic violence course.” [46]
[46] Exhibit 2, G2, Attachment G, p 50.
The Applicant assured the Tribunal that he will not return to the habits of a lifetime and resume his abuse of alcohol and his associated anti-social behaviour. As I noted above, he has undertaken rehabilitation courses, and he claims to have been alcohol free for a year. He has been in prison or detention for this period. His capacity to abstain has not however, been tested in an uncontrolled environment. He has not been tested dealing by the inevitable day to day issues arising from living with a partner, especially one who is ‘a drinker’ herself, although he assured the Tribunal that she has not got an alcohol problem.
If his visa was returned, he would enjoy unconditional liberty in our community. He is not now subject to any parole supervision. The Tribunal cannot impose parole like conditions, or grant a conditional visa.
In all of the circumstances I assess the risk of him reoffending, quite possibly against RW, as being significant. He has not demonstrated a capacity to abstain when in the community. He has committed to ceasing alcohol in the past,[47] this has not been sustained. This risk is very serious because of the low tolerance that Direction 90 gives to family violence offending.
[47] Exhibit 9, letter dated 12 August 2008 and when his son was born 6 years ago.
Conclusion: Primary Consideration 1
Primary consideration number one weighs heavily against revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The particulars of the Applicant’s conduct in this regard have been set out above. The Direction makes it very plain that family violence is not to be tolerated and that it is very serious.
Conclusion: Primary Consideration 2
This consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· 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);
· 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;
· 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;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant raised for the first time in the hearing before the Tribunal the fact that RW has a son, Child A, who will turn 18 in the next few weeks.
The Applicant has only been in Child A’s life at all since October 2019. He has been in prison or immigration detention for much of this time (since November 2021). He has assaulted Child A’s mother, RW.
The Applicant has never performed a parental role in Child A’s life as he is looked after primarily by RW. There is evidence that he has some contact with his biological father as well.
The Applicant may be of some support to Child A if he were to remain in Australia, but the relevant period, is but a matter of only weeks.
Having regard to all of the above, Primary Consideration 3 weighs very slightly in favour of revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[48]
[48] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCAFC 185
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s entire criminal record, but in particular that set out in Annexure C.
(b)The fact that he has engaged in violent behaviour, including family violence as defined in Direction 90.
(c)The other matters set out above.
Conclusion: Primary Consideration 4
Primary consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
This consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 35 years of age. There is no evidence to suggest that he is in other than good physical health.
There are some questions about his mental health, though there is no current expert evidence upon which the Tribunal can rely to come to any firm conclusion. There is a self-reported history of abuse as a child, alcohol dependence and suicidal ideation and at least one suicide attempt.[49] He has provided evidence of historic treatment for mental health concerns in New Zealand. Any mental health, or general health concerns, should they arise, could be well managed by the health services available to the Applicant in New Zealand.
[49] See also Exhibit 9.
In the Application, the Applicant says:
“Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?
In the past without family support I have suffered from depression and have attempted suicide multiple times so I fear for my wellbeing and mental stay if I have to return. This being the reason I came to Australia to be close to my family to help myself heal.
Are there any other problems you would face if you have to return to your country of citizenship?
I fear for my safety as I would be homeless. I feel I would lose all I have accomplished with my job and career and without family & partner I would suffer physically, mentally, and emotionally.
Please outline or provide any other information you would like the decision-maker to consider when making their decision in relation to your case.
I understand I have acted in a disgusting manner and also in a disrespectful way two of which is not of my nature or character I have been a real let down to myself my family partner boss & public and I'm very remorseful of my actions I know I have some issues I need to address and I'm fully committed to all the necessary steps to bettering myself to be that better person for myself my partner my family boss and the community I feel if given the chance to get further rehabilitative help & with the love and support I have here I would have more success here in Australia than I could ever achieve in NZ.”[50]
[50] Exhibit 2, G2, Attachment G, p 53.
The Applicant says that he would lack supports in New Zealand and that this would lead to homelessness and depression. His family and partner are here and he claims that they are important for his wellbeing.
This representation must be viewed in the context that he managed in New Zealand for almost a decade (up to January 2019) without these supports. The fact that he was kicked out of home when only 12, is also relevant. He has managed, albeit with limited success, for much of his life without these supports. He also continued to offend after coming to Australia, despite having these supports here. They made no apparent difference. His offending here continued and indeed escalated. His partner, who apparently is “a drinker” herself, may make his path even more difficult to negotiate, if he were to remain here with her.
New Zealand makes similar provisions for the homeless and the unemployed as is made here. The Applicant has skills in demolition work which would be readily transferrable and presumably in demand.
He has only been in Australia for relatively a short time. He has no cultural or other barriers preventing him re-integrating into New Zealand society. He also has an infant son in New Zealand. In his undated statement he said, “during this dark time (after the death of his grandmother in a car accident), the one shining light was my dedication to my son…”.[51]
[51] Ibid, G2, Attachment H, p 56.
If the Applicant were returned to New Zealand, he could once again be a present and supportive father to his infant son. He did indicate that he has no wish to engage with his family there due to his history of abuse. He also did not want to mix with his old friends because they now have gang connections. He can choose not to live near these people or to associate with them.
New Zealand citizens enjoy high standards in social supports, comparable to those enjoyed in Australia.
Given that he only came to Australia in 2019, it is difficult to accept that he has no positive networks of friends or family at all in New Zealand. Even if he doesn’t, this alone is not determinative of this other consideration.
This consideration weighs moderately in favour revocation of his visa cancellation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There are statements in the evidence from the Applicant’s partner, RW, who was a victim of his offending. She wants him to remain in Australia. Her statements indicate that his departure would have an adverse emotional and financial impact on her. She would not move to New Zealand because her children have only known Australia as home.
In DKN20 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs,[52] the Full Court accepted that, under cl 14.4 of Ministerial Direction 79, [53] adverse consequences for a victim, of a non-citizen being removed from Australia, were not matters that were required to be taken into account in this other consideration. Such matters are properly considered in relation to links to the Australian community.
[52] (2021) 285 FCR 1.
[53] The previous iteration of cl 9.3.
This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has submitted into evidence, many statements of support from family and friends as set out above.
These must be put in context. The Applicant was kicked out of home by his adoptive parents as a 12-year-old boy. They left him behind in New Zealand when they came to Australia. He only joined them many years later. He has only been here since January 2019 and has been in prison or detention since November 2021.
The Applicant’s application dated 13 December 2021, states that his adoptive parents and 3 adoptive siblings are residents in Australia. He has offended in the company of at least one of these brothers.[54]
[54] Ibid, G2, Attachment C, pp 28-29.
The Applicant clearly does have connections to his relatives in Australia, as evidenced by his representations and their statements. They would no doubt be distressed by his removal to New Zealand. They could however, remain in contact with him electronically and could visit him there.
The Applicant fails to mention in his application, any relatives or connections in New Zealand, including his infant son. This is odd.
The Applicant’s connections to his partner and her sons have been discussed above. There would undoubtedly be adverse emotional and financial impacts on them if he were to return to New Zealand. Her statements suggest that she is especially in need of financial support from him. Equally, there may be serious risks to her safety if he were to remain here. If he were to relapse into alcohol abuse, RW may be in an unsafe place. If he were removed, they could continue electronic contact with him and they could visit him.
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs moderately in favour of revocation.
Impact on Australian business interests
There was no evidence on this topic, so this consideration is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral.
(b)extent of impediments if removed: weighs moderately in favour of revocation.
(c)impact on victims: neutral.
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs moderately in favour of revocation.
(e)the impact on Australian business interests: neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against revocation.
Primary consideration 2 weighs heavily against revocation.
Primary consideration 3 weighs very slightly in favour of revocation.
Primary consideration 4 weighs heavily against revocation.
Other considerations, (a), (c) and (d)(ii) are neutral.
Other consideration (b) and (d)(i) weigh moderately in favour of revocation.
In this case, as in so many others, the major issue is the extent to which the Applicant’s undoubtedly sincere desire to reform his behaviour can be sustained in the real world, with all of its inevitable challenges. Direction 90 attaches particular seriousness to acts of family violence. The Direction stipulates that a very low tolerance of the risk of such offending reoccurring is acceptable. The Applicant is untested in an uncontrolled environment. He has plans to seek help if returned to the community, which goes to his credit. There is no suitably qualified professional opinion to support his assurances that he will not relapse. This is a very finely balanced judgement to make. In the end, I am of the view that the heavy weight given to family violence in primary considerations 1, 2 and 4 is ultimately determinative of the issue.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
Decision
The decision under review is affirmed.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
.........................[Sgnd]..........................................
Legal Associate
Dated: 25 November 2022
Date of hearing: 15 November 2022 Advocate for the Applicant:
Self-Represented
Emma Letcher-Boldt, Clayton Utz.
Advocate for the Respondent:
Annexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Respondent
Statement of Facts, Issues and Contentions
2
Respondent
G-Documents
3
Applicant
3.1. Letter from Lives Lived Well (30.09.2022)
3.2. Letter from Drug ARM (06.10.2022)
4
Applicant
4.1 Anger Management Workbook (undated)
4.2 BITA Relapse Prevention Workbook (undated)
5
Applicant
Letter from Devyn Applicant’s previous lawyer re Applicant’s sentencing and court recordings (13.09.2022)
6
Applicant
6.1 Certificate of completion for Respectful Man (29.09.2022)
6.2 Email from Mr Lea re reschedule for Respectful Men Program (03.10.2022)
6.3 Applicant’s Responses to Respectful Man program (undated)
7
Applicant
7.1 Support Letter from CW (31.10.2022)
7.2 Support Letter from GH (undated)
7.3 Support Letter from JB (14.07.2022)
7.4 Support Letter from RW (22.10.2022)
7.5 Support Letter from RK (08.10.2022)
7.6 Support Letter from SK (20.10.2022)
7.7 Support Letter from VP (18.09.2022)
8
Applicant
Email re details of upcoming rehabilitation course
9
Applicant
Mental Health records
10
Respondent
Summonsed Material
Annexure B – Applicant’s New Zealand Offending History
Court
Court Date
Offence
Court Result
Whakatane YC
11/11/2004
Take/Obtain/Use Doc for Pecuniary Adv
Case Proved and sentenced (YC): Reparation - $390.00
Whakatane YC
11/11/2004
Take/Obtain/Use Doc for Pecuniary Adv
Case Proved and sentenced (YC): Reparation - $390.00
Tokoroa DC
05/03/2007
Breach of community work
Convicted and discharged: final warning
Tokoroa DC
05/03/2007
Shoplifts (Under $500)
Convicted and Sentenced: Fine - $200.00
Tokoroa DC
15/10/2007
Shoplifts (Under $500)
Convicted and Sentenced: Fine - $250.00
Whakatane DC
30/10/2007
Breach of community work
Convicted and Sentenced: 6 month supervision
Whakatane DC
30/10/2007
Breach of community work
Convicted and Sentenced: 6 month supervision
Whakatane DC
05/04/2012
Breach of community work
Convicted and Sentenced: 40 hours community work
Whakatane DC
14/08/2012
Breach of community work
Convicted and Sentenced: 6 month supervision
Whakatane DC
04/02/2015
Unlawfully Carry/Possess Firearm/Restricted Weapon/Explosives
Convicted and Sentenced: 6 month home detention and 160 hours community work
Whakatane DC
04/02/2015
Unlawfully Carry/Possess Firearm/Restricted Weapon/Explosives
Convicted and Sentenced: 6 month home detention and 160 hours community work
Whakatane DC
04/02/2015
Present Firearm/Res Wpn At Person
Convicted and Sentenced: 6 month home detention and 160 hours community work
Whakatane DC
04/02/2015
X3 Present Firearm/Res Wpn At Person
Convicted and Sentenced: 6 month home detention and 160 hours community work
Rotorua DC
09/03/2017
Breach of community work
Convicted and Sentenced: 6 month supervision
Manukau DC
24/03/2017
Breach of Conditions of Supervision (Representative)
Convicted and Sentenced: 9 month supervision
TRAFFIC CONVICTION HISTORY
Whakatane DC
02/09/2005
Person Under 20 Exceeded Breath Alcohol Limit Blood/Breath = 329
Convicted and Sentenced: Fine - $300.00 & 3 month disqualification
Whakatane DC
16/10/2006
Drove while Licence Suspended or Revoked
Convicted and Sentenced: 100 hours Community Work & 6 month disqualification
Whakatane DC
18/02/2008
Breath Alcohol Level Over 400 Mcgs/Litre of Breath
Blood/Breath = 701
Convicted and Sentenced: Fine - $700.00 & 6 month disqualification
Whakatane DC
20/09/2011
Breath Alcohol Level Over 400 Mcgs/Litre of Breath
Blood/Breath = 519
Convicted and Sentenced: 75 hours community service and 8 month disqualification
Whakatane DC
13/09/2014
Drove with Excess Breath Alcohol – 3rd or Subsequent Blood/Breath = 629
Convicted and Sentenced: 2 months home detention
Whakatane DC
12/12/2015
Drove with Excess Breath Alcohol – 3rd or Subsequent Blood/Breath = 836
Convicted and Sentenced: 150 hours intensive supervision/indefinite disqualification
Whakatane DC
15/11/2017
Drove while disqualified
Convicted and Sentenced: Fine - $400.00 & 6 month disqualification
Annexure C – Applicant’s Australian Offending History
Court
Court Date
Offence
Court Result
Holland Park Magistrates Court
23/03/2021
Contravention of Domestic Violence Order (on 06/12/2020)
Wilful Damage (06/12/2020)
On all charges: no conviction recorded
Fined: $1, 500.00
Richlands Magistrates Court
10/11/2021
Contravention of Domestic Violence Order (on 25/11/2020)
Common Assault (on 27/01/2021)
On all charges: conviction recorded – 9 months imprisonment
Richlands Magistrates Court
10/11/2021
Contravention of Domestic Violence Order (aggravated offence) (on 15/06/2021)
Conviction: sentenced 6 months imprisonment
Richlands Magistrates Court
10/11/2021
Assaults Occasioning Bodily Harm whilst Armed/In Company (on 10/05/2021)
Conviction recorded: 21 months imprisonment
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Natural Justice
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