PKBV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 748
•7 April 2022
PKBV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 748 (7 April 2022)
Division:GENERAL DIVISION
File Number(s): 2019/0444
Re:PKBV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:7 April 2022
Place:Sydney
The correct or preferable decision is to affirm the reviewable decision not to revoke the cancellation of the Applicant’s Class WA Subclass 010 Bridging A visa.
.............................[sgd]...........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class WA Subclass 010 Bridging A visa - Applicant does not pass the character test – is there another reason to revoke the cancellation – consideration of Ministerial Direction No. 90 - protection of the Australian community – best interests of minor children – expectations of the community – impediments to removal – strength, nature and duration of ties – decision affirmed.
LEGISLATION
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
7 April 2022
BACKGROUND
This is an application for the review of a decision of a delegate of the Respondent, dated 15 January 2019 (‘the reviewable decision’), which refused to revoke the mandatory cancellation of the Applicant’s Class WA Subclass 010 Bridging A visa (‘the original decision’) (‘the visa’) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant’s visa was mandatorily cancelled on 23 January 2018 under s 501(3A) of the Act on the basis that he did not pass the character test in s 501(6)(a) due to a substantial criminal record as defined in s 501(7)(c).
The Respondent helpfully set out the history of the matter and of the Applicant’s offending in the table below:
Date Event 1996 The Applicant is born in Tonga. January 2008 The Applicant first arrived in Australia at the age of 11 as the holder of a Class UP Subclass 461 visa. December 2009 The Applicant returned to Tonga. December 2009 The Applicant arrived in Australia for the second time as the holder of a Class UP Subclass 461 visa. November 2010 The Applicant returned to Tonga. November 2010 The Applicant arrived in Australia for the third time as the holder of a Class UP Subclass 461 visa. He has remained in Australia since then. March 2013 The Applicant was cautioned for:
1) use of offensive language in/near public place/school and
2) continue intoxicated etc behaviour after move on direction.
January 2014 The Applicant was sentenced to:
1) a good behaviour bond for 18 months with supervision by juvenile justice for intimidate police officer in execution of duty without actual bodily harm;
2) a good behaviour bond for 6 months for use offensive language in/near public place/school;
3) a good behaviour bond for 6 months for refuse/fail to comply with part 14 direction;
4) a good behaviour bond for 8 months for be carried in conveyance taken without consent of owner
5) probation for 18 months with supervision by juvenile justice for aggravated break and enter and commit serious indictable offence in company
6) a control order for 18 months with a non-parole period 6 months for reckless grievous bodily harm in company;
7) probation for 12 months with supervision by juvenile justice for assault police officer in execution of duty without actual bodily harm and
8) probation for 18 months with supervision by juvenile justice for >=3 people threaten violence cause fear.
April 2014 The Applicant was sentenced to a good behaviour bond for 6 months for destroy or damage property <=$2000. October 2014 The Applicant was sentenced to:
1) a control order for 24 months with a non-parole period 15 months for assault occasioning actual bodily harm (2 counts) and
2) a good behaviour bond for 6 months for larceny <=$2000.
November 2015 The Applicant turned 18 years old. May 2016 The Applicant was sentenced to a bond for 12 months and to pay compensation ($7,838) for destroy or damage property >$5000 & <=$15000. July 2016 The Applicant was convicted of contravene prohibition/restriction in AVO (domestic). August 2016 The Applicant was sentenced to:
1) a bond for 11 months with supervision by NSW probation services (callup) for destroy or damage property >$5000 & <=$15000 and
2 2) imprisonment 3 months suspended on a bond under supervision of NSW probation services for steal from person.
January 2017 The Applicant began dating his current partner. February 2017 The Applicant meets his new partner’s family and moved into their home. July 2017 The Applicant is taken into custody. August 2017 While incarcerated, the Applicant was dismissed from his role in the metal workshop in custody due to destroying property. The Applicant tagged various places with graffiti throughout the workshop as well as holding cells in reception. August 2017 The Applicant was sentenced to:
1) imprisonment for 3 months (callup) for destroy or damage property >$5000 & <=$15000
2) imprisonment for 3 months (callup) steal from person
3) imprisonment for 3 months for aggravated enter dwelling in company intent to steal <=$60000 and
4) imprisonment 1 month for failure to appear in accordance with bail.
September 2017 The Applicant was disciplined in custody for graffitiing another inmate’s prison cell. September 2017 The Applicant was sentenced to:
1) imprisonment for 12 months with a non-parole period 9 months for demand property with menaces with intent to steal and
2) imprisonment for 18 months with a non-parole period 12 months for steal from person.
September 2017 The Applicant was disciplined in custody for graffitiing his prison cell. December 2017 The Applicant was disciplined in custody for belittling a correctional services officer in front of other inmates. January 2018 The Applicant’s visa was cancelled under s 501(3A) of the Act. June 2018 The Applicant was disciplined in custody for a graffitiing bathroom walls. July 2018 The Applicant entered another inmate’s cell and kicked an object which appeared to be a TV box. The inmate later complained that his TV had been damaged. September 2018 The Applicant was released from custody and taken into detention. January 2019 The Respondent’s delegate decided not to revoke the cancellation of the visa under s 501(CA)(4) of the Act. January 2019 The Applicant applied to the Tribunal for review of the reviewable decision. April 2019 The Tribunal affirmed the reviewable decision. December 2019 The Federal Court quashed the Tribunal’s decision of 09.04.2019 and remitted the application to the Tribunal. September 2020 The Tribunal affirmed the reviewable decision for a second time. Jan 2021 The Federal Court quashed the Tribunal’s decision of 11.09.2020 and remitted the application to the Tribunal. RELEVANT LEGISLATION AND POLICY
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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-biding, 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 sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
ISSUE
It is agreed by the parties that the Applicant does not pass the ‘character test’ as defined by s 501(6) of the Act as he has a substantial criminal record under s 501(7)(c) of the Act. Therefore, the only issue before the Tribunal is whether there is ‘another reason’ why the original decision, being the mandatory cancellation of the Applicant’s visa, should be revoked pursuant to s 501CA(4) of the Act.
THE EVIDENCE
Evidence of the Applicant
The Applicant is a citizen of Tonga and lived in that country until he was 11 years old. Whilst living in Tonga he lived with his grandparents, he spoke Tongan and attended school in Tonga. He was taught in Tongan, including reading and writing.
Whilst in Tonga, the Applicant lived with his grandparents until he came to Australia in late 2009 to live with his biological mother following the death of his grandmother. After coming to Australia, the Applicant continued to have a relationship with his grandfather in Tonga. The Applicant said that he would live with his grandfather if he were returned to Tonga.
The Applicant had completed Year 10 at school in Australia and later obtained qualifications as a carpenter. He worked as a concreter for Bellamy Concrete for about 18 months before going to prison. After completing his sentence, he went back to work at Bellamy. The Applicant had not made any inquiries about working Tonga and did not know whether it would be possible to get a job in that country.
The Applicant had received one dose of a COVID-19 vaccine.
The Applicant said that he had three sisters, two of whom are less than 18 years old. However, he had not seen either since going to prison in 2017. He said that if he were returned to Tonga he would continue to have contact with his sisters via the Internet.
The Applicant has been in a relationship with NT since January 2017. He said he had known MT since 2014. She is now 21 years old and has three siblings under the age of 18; namely, AT, NOT & NIT. The Applicant said that he thought AT was around 17 years old, NIT was around 11 years old and NOT is around three years old. The Applicant said that he had been in detention when NOT was born but that he is regularly in contact with him. Given NOT’s young age, the Applicant said that, in relation to his contact with NOT, “I just say hello”. He said that he would continue to have such conversations if he were to be returned to Tonga.
The Applicant’s brother-in-law also had three children, all born whilst the Applicant was in detention. He said that he had short calls with the children just to say hello and that those would continue if he were returned to Tonga. He said that he speaks to NT virtually every day.
The Applicant said that he did not refer to NT’s siblings in previous hearings before the Tribunal or in his representations to the Department as he did not think it was relevant. Also, at that time he was not considered close family whereas he is now considered close family. He said that he had stayed with his partner’s family most weekends from about February 2017, and moved in more permanently in about April 2017.
The Applicant also said he did not previously include his half-sisters and brother on his Personal Circumstances form because he did not consider them close enough family at the time.
The Applicant was questioned about his criminal history, details of which are set out above. When questioned the Applicant said that he was not able to recall the details of many of the violent incidents which occurred. He did not recall an AVO being taken out against him after a violent incident involving a woman (Ms R). He also said he did not recall being spoken to, or receiving any warning about, a character assessment and the risks of deportation. He did not remember any discussion about the possible cancellation of his visa.
The Applicant also said that he did not recall a conversation with a corrections officer in relation to going to counselling. He also admitted lying to a corrections officer.
The Applicant accepted that his behaviour had not changed after he went to live with his partner’s family and he had continued to commit violent offences and lie to the police.
The Applicant was arrested on 31 July 2017 and taken into custody. NT visited him regularly whilst he was in gaol, although it was difficult for her to do so due to inaccessibility of the prison by public transport and ‘prison restrictions’. She was able to visit him more regularly when he was transferred to immigration detention.
There were further incidents while the Applicant was in custody, including being dismissed from his role in the prison workshop due to destroying property. The Applicant also accepted that he was also disciplined after spraying graffiti including in another inmate’s cell. He further admitted that he had belittled a corrections officer in front of other inmates.
The Applicant was moved from custody into detention. He said that NT continue to visit him in prison and in detention when possible.
The Applicant accepted that he had been involved in violent incidents whilst in detention including on 1 August 2019 where there was an altercation with a female staff member, an incident on 22 February 2021 where the Applicant smashed two windows with a chair because of his frustration with Serco employees, and an incident in May 2021 where the Applicant threw condiments around the kitchen and an incident on 8 July 2021 where the Applicant struck another detainee.
When it was put to the Applicant that in detention he had continue to engage in abusive behaviour towards people in the position of authority, the Applicant said that he did not think so.
During re-examination, the Applicant was asked about his recall of the various details including the incident in 2017. He said that he was not good with dates, but he did remember being charged with offences relating to a motor vehicle and he recalled the victim’s name. The Applicant said that the victim Ms R was “just a friend” and that he was not in a relationship with Ms R at the time of the offences. It was noted that this was contrary to previous evidence the Tribunal had been given in a previous hearing where he had said that it was an “intimate” relationship. However, the Applicant continued to assert that he had not been in any relationship with Ms R.
The Applicant said he did not consider himself to be violent.
Evidence of Ms NT
Ms NT affirmed her statement of 7 October 2021. She said she met the Applicant in September 2016 when she was 15 or 16 years old. They had moved in together around April 2017 and she said that she loved the Applicant. The Applicant had been around Ms NT and her family most of the time from April 2017 until he went to prison.
Ms NT said that she worked in retail. She had not made any inquiries in relation to working in Tonga. She gave evidence as to her importance as a member of her wider family including assisting her grandmother and her mother, providing help with the care of NOT and her young niece, as well as her sister, who she was also supporting through her pregnancy. She said that her family depended on her. She said that she would go to Tonga to be with the Applicant and would come back to help her family if her assistance was needed.
Ms NT accepted that she was previously unable to stop the offending of the Applicant, which took place at the service station in July 2017.
Expert evidence of Mr Hudd
Mr Hudd is a consulting psychologist. He affirmed his report of 4 November 2021 and the addendum to the report dated 8 February 2022. He said that he had diagnosed the Applicant with chronic PTSD. He believed that his diagnosis helped to explain some of the Applicant’s behaviour. Mr Hudd said that the Applicant had not had any treatment and that he did need treatment as soon as possible in order to reduce his symptoms. He said the treatment options would depend upon how the complex PTSD arose. His diagnosis had been made on the basis of the Applicant’s history. He stated he had had no opportunity to assess the Applicant prior to his incarceration.
Mr Hudd said that the Applicant may continue to have problems with impulse control and that it would depend upon the circumstances at the time. Mr Hudd was unable to recall at hearing whether he had been told about the Applicant’s threats towards an employee and an older woman at a petrol station in July 2017. However, he appears to refer to these offences in his report, where he states:
A short time after [NT] and he were living together, he met some friends he had known from juvenile detention who lived nearby and began drinking with them regularly. [NT] was unaware of his association with these people. In July 2017 he was arrested for demand property with menaces with intent to steal, and steal from person. He again could not remember being involved in the crime because he had been drinking heavily with his friends.
Mr Hudd, in his report dated 4 November 2021, said he believed that the Applicant had a ‘very minimal’ chance of reoffending ‘so long as there is [a] solid structure of support around him’, such as the support he receives from NT and her family.
Mr Hudd said that it was less likely that the Applicant would reoffend if he had support, and when taken to the Applicant’s offending history, he said that the Applicant may have committed even more offences if it were not for the support he had received from NT’s family. Mr Hudd was not aware of the graffiti incidents while the Applicant was in prison although he was aware of the incidents whilst the Applicant was in detention.
Mr Hudd said that he agreed that alcohol was not the only trigger for the Applicant to become violent, but rather that complex PTSD could also trigger such behaviour. He said that whilst in detention the Applicant did not have the benefit of calming influences. Mr Hudd also said he had no knowledge of conditions in Tonga, and when asked whether he had sympathy for the Applicant, he said that he saw a person who had lived most of his adult life in Australia and would be sent to Tonga ‘to what?’.
Other Evidence
There were a multitude of other letters of support produced for the Applicant, from various family members, friends, and former colleagues. The Tribunal has considered these letters and has given them appropriate weight.
CONSIDERATION
Credibility of the Applicant
During the course of the hearing, it was suggested by the representative of the Respondent that I make a finding as to the credibility of the Applicant. This was because the Applicant gave answers before this Tribunal which were inconsistent with answers that he had previously given at hearings before differently constituted Tribunals, particularly in relation to the motor vehicle incident involving Ms R, and the Applicant’s apparent failure to recall details of his offending behaviour.
Although I note both the Applicant’s lack of recall and the fact that there may have been inconsistencies in his evidence, I decline to make any findings as to the Applicant’s credibility. This is because, firstly, the Applicant did not have the benefit of the relevant documents in relation to which he was being questioned, although he did say he had previously had the documents and no explanation was offered by any party as to why he did not have them for the hearing. I note, however, that the Respondent’s representative went to some lengths to read the documents to him while he was being questioned about the information in them. Secondly, there has been a lapse of time between the various hearings and the offending behaviour. I note that, at least in relation to the motor vehicle incident, he was able to recall details when provided with greater context.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 90.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
Nature and seriousness of the Applicant’s conduct
There is no doubt that the Applicant’s conduct must be considered very serious. In the 2013 incident, the Applicant and four other people approached the victim, and when he tried to get away the Applicant punched him multiple times in the face. When he fell to the ground, the Applicant kicked him on multiple occasions. The victim suffered head injuries and required surgery.
In May 2014 the Applicant, apparently whilst intoxicated, punched a man later at night in the Sydney CBD and threatened to kill him. When the victim fell to the ground, the Applicant kicked him in the face and whilst the victim was unconscious, stomped on his head. He became aggressive to witnesses, following them for a period before again attacking the victim. The victim required hospitalisation and was said by police to be barely conscious and bleeding profusely.
In April 2016 the Applicant was being driven home by a friend, Ms R, after the Applicant had been drinking. There was an argument when they arrived at the Applicant’s home. The Applicant took the keys from the car and left the vehicle, kicking the door with great force. Ms R screamed at the Applicant to try to get him to stop. The Applicant went inside the house with the keys whilst Ms R ran to a friend’s home in fear. When she returned, her car had been very badly damaged.
In October 2016 the Applicant went to the Bellagio apartments to attend a party. He and two others went to another floor and broke into an apartment and took some alcohol from the fridge, before returning to the party.
In July 2017, an associate of the Applicant asked a petrol service station attendant for cigarettes. When he refused to give the cigarettes to them for free, the Applicant threatened to stab him with a knife and then stole money from an older lady who was waiting to pay for petrol.
These offences must be regarded as extremely serious. There are many offences which involve violence towards members of the Australian community, resulting in actual harm. Most of the victims of his violence were unknown to him, and could be described as having simply been in the wrong place at the wrong time. The Applicant had been drinking heavily at the time of most of these incidents, if not all of them; however, that does not excuse his conduct. It is also of concern that he sought to distance and deny his involvement in the offending to police on at least one occasion. At the very least, the Applicant must be seen as having demonstrated a complete lack of respect and concern for the welfare of individuals members of the community, for Australian law and for those whose duty it is to enforce it.
Overall, the Applicant’s offending conduct must be seen as extremely serious as reflected in the total of the custodial of sentences imposed.
Risk to Australian community should the Applicant reoffend
In considering this matter, I have regard to 8.1.2(2) of Direction 90.
It is of serious concern to the Tribunal that the Applicant expressed little remorse for his behaviour, and also that the pattern of violent offending or lack of respect for authority appeared to have continued from the time of the Applicant’s first offence through to the time he was in prison and in detention.
There was some evidence that the Applicant has ceased to consume alcohol, which was certainly a contributing factor in his criminal offending. However, despite the Applicant having participated in a number of programs whilst in custody and whilst in detention, there is little evidence of any real behavioural change which could continue if the Applicant should be released into the community. The courses were undertaken in a controlled environment, and the Applicant remains in such an environment. He has, however, to continue to react inappropriately in situations which trigger an adverse response in him.
It was put to the Tribunal that the fact that the Applicant will be living with his partner’s family if he is released into the community. That will be a positive influence and assist him not to reoffend. However, I can only place limited weight on this, because the Applicant continued to offend after he started to live with his partner and her family.
Mr Hudd diagnosed the Applicant with complex PTSD, although there is no evidence of the Applicant being treated for this disorder nor of him making any real commitment to enter into a suitable treatment program either in detention or in the community should he be released.
Mr Hudd stated he believed there to be a ‘very minimal’ chance of the Applicant reoffending if he continued to have access to systems of support such as is provided by NT’s family. However, I note that the Applicant had been living with NT’s family for nearly three months prior to his offending in July 2017, in which he threatened a service station employee with serious violence and harm, and robbed an older lady who was simply waiting to pay for petrol. It is difficult for me to place significant weight on Mr Hudd’s assessment of the Applicant’s likelihood of reoffending in light of this, as it does not appear that NT’s family has been a serious protective factor in the past.
Mr Hudd also opined that the Applicant’s previous offending may have been more serious without the influence of NT and her family. However, I have already found that the Applicant’s offending is objectively very serious, and this includes his offending in July 2017.
On the basis of the evidence overall, I believe it is likely, and even highly likely, that the Applicant would reoffend if he were to be released into the Australian community.
It is of no solace to the Tribunal nor the wider community, nor of any benefit to the Applicant’s case that Mr Hudd thought that the Applicant’s offending in 2017 might have been worse had it not been for the beneficial influence of NT and her family.
Overall, this first primary consideration weighs very heavily against revocation of the original decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
In this regard, I note paragraph 8.2.2 of Direction 90.
The Respondent argued strongly that the Applicant had committed family violence offences in relation to his conduct towards Ms R, as a result of the incident involving her car in 2014. He was also found to have acted in breach of an AVO issued to protect Ms R. The Respondent said that the Applicant was in a relationship with Ms R at the time of the offence, and that that had been his evidence at a previous hearing before the Tribunal.
During the current hearing, however, the Applicant denied that he was in any sort of intimate or family relationship with Ms R, and said that they were merely friends and that they talked sometimes, she drove him home sometimes and they kept in contact sporadically. Despite further questioning during cross-examination, the Applicant did not change his evidence as to the nature of the relationship.
This Tribunal is required to have regard to all of the evidence put before it, and although the evidence of proceedings before previous Tribunals was before this Tribunal, I am of the view that the preferable course is for this Tribunal to give weight to the oral evidence before it. Despite rigorous cross-examination, the Applicant did not waver in his evidence as to his relationship with Ms R. Although changes in evidence may go to credibility, I do not believe that the evidence before the Tribunal can be said justify a finding by this Tribunal that the Applicant was in a domestic or family relationship with Ms R.
Accordingly, although it is appropriate to take account of the Applicant’s behaviour towards Ms R in other parts of this decision, I find that based on the evidence before this Tribunal that the Applicant has not engaged in family violence for the purposes of this consideration, and accordingly I give no weight to this consideration.
In coming to my conclusion, I note that there is no evidence of any family violence towards the Applicant’s current partner or any member of her family.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN
There are a number of children whose best interests would be affected if the Applicant should be removed from Australia. Six of these children are relatives of the Applicant’s partner NT. The other two children are his half-sisters. There is also an unborn child of the Applicant’ sister-in-law, TN.
None of the children are the biological children of the Applicant.
In relation to the children in the family of NT, I note that she and the Applicant began dating end in January 2017 and he moved with her family in April 2017. He was taken into custody a short time later in July 2017.
I will consider the interests of each of the children in turn.
NIT
NIT is around 10 - 11 years old and is the sister of NT. There was no evidence before the Tribunal of any close relationship between the Applicant and NIT. Certainly, there was no evidence of any parental relationship. This role is fulfilled by NIT’s grandmother. I accept, however, that NIT is likely to miss the Applicant at least to some extent if he were to be removed, and that she would likely be much more significantly affected if NT were to leave with the Applicant as NT has stated is her intention to do.
NOT
NOT is three years old and is NT’s sister. The Applicant gave evidence that he was in regular contact with NOT but that their conversations, due to NOT’s age, is limited to saying hello. There was no evidence that the Applicant had all or would in the future play a parental role in relation to NOT. To the extent that the Applicant’s contact with NOT has been carried on via the Internet, it would be possible for this connection to continue if the Applicant were to be returned to Tonga.
MM
MM is around 16 -17 years old and is NT’s sister. There is no evidence of a parental relationship between the Applicant and MM and there was no evidence that he played any significant role in MM’s life.
ZN
ZN is two years old and is the son of BN, who is the brother of the Applicant’s partner. Accordingly, Z is NT’s nephew. The Applicant describes himself as being his godfather, but he admitted he has had limited contact with ZN.
AN
ATN is the sister of ZN and around one to two years old. There is little evidence as to any meaningful contact between the Applicant and ATN who, in any event, is too young to have formed a strong relationship with the Applicant. ATN‘s parents fulfil the parental role in respect of the child.
The child of BN and TTN
NT’s sister-in-law gave birth in late October to a baby girl, AUN, the sister of ZN and ATN. There is no evidence of any relationship between the Applicant and AUN. The parents of the child will clearly fulfil the parental responsibility in relation to this child. The Applicant’s partner NT helps to take care of AUN when her parents require it.
The unborn child of TN
The Applicant’s partner’s sister, TN, is currently pregnant and the baby is due to be born in July 2022. While it is not possible to definitely determine what relationship the Applicant might have with the child were he to remain in Australia, it may be enough to consider that he would have a similar relationship to the child as he does with NT’s other nieces, nephews and young siblings. It is not submitted that the Applicant would fulfil a parental role to this child; although I accept that his removal from Australia may be detrimental to any relationship the Applicant would have with the child.
TEN
TEN is the Applicant’s sister and she is 17 years old.
The Applicant does not have any parental relationship with TEN, although TEN states that the Applicant is her ‘best friend’ and that they have maintained contact through social media since his imprisonment and subsequent detainment. I note that TUN is close to becoming an adult, and that she could maintain her relationship with the Applicant if he were removed to Tonga now via social media or the Internet.
SN
SN is 10 years old and is the Applicant’s sister. Once again, the Applicant does not have a parental relationship with SN and there does not appear to have been a great deal of contact prior to the Applicant being incarcerated.
There is some material before the Tribunal suggesting the existence of nephews and nieces of the Applicant – however, it is unclear if these are the children of one of the Applicant’s half-siblings, or if they are the children of NT’s brother BT. If they are the children of BT, their interests have been dealt with already. If they are the biological nieces and nephews of the Applicant, there was no evidence of him playing any role in the lives of those children before the Tribunal.
In light of the evidence, it is hard to conclude that there would be a significant impact on the lives of the various children referred to above if the Applicant were to leave Australia although I accept that there is likely to be some adverse effect.
Those children who are related to the Applicant’s partner, NT, are much more likely to be significantly affected if she was to leave Australia to be with the Applicant if he were to be removed to Tonga. I accept the evidence that NT, in many ways, is the rock upon whom most members of her family rely. NT was quite firm in her evidence that if the Applicant were to leave Australia and go to Tonga, she would go with him and therefore those children who are related to her and to greater extent depend upon her would be adversely affected. I accept that this would include all minor children in her family.
Having regard to the evidence overall I find that this consideration weighs heavily in favour of revocation of the delegate’s decision, both because of the Applicant’s direct relationship with some of the children and the indirect effect his being deported to Tonga would have on the minor children related to his partner NT, if she were to relocate to be with the Applicant.
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Direction 90 sets out the expectations of the Australian Community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
In considering the weight to be given to this consideration, I am mindful of the violent nature of the Applicant’s offending, the fact that a number of his offences were against women and strangers who were simply going about their business, and that he has also shown an ongoing lack of regard both for the police and for others in a position of authority. I also take note of the fact that his offending continued from shortly after his arrival in Australia until the time of his imprisonment in 2017.
In light of all of the evidence I give heavy weight to this consideration in favour of non-revocation.
OTHER CONSIDERATIONS
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
This consideration is not relevant in this matter.
IMPEDIMENTS TO REMOVAL
In this regard I note paragraph 9.2.1 of Direction 90.
The Applicant came to Australia from Tonga at the age of 11 or 12. He had been to school in Tonga and speaks the language. He learned to read but is not able to write the language. He has a good command of English. If he were to return to Tonga, the Applicant said that he would be able to live with his grandfather with whom he has at least previously had a close relationship, although I note that there is some evidence that the relationship between the Applicant and his grandfather deteriorated following the passing of the Applicant’s grandmother. The Applicant also has other family connections in Tonga. There was also evidence that there may be support available to the Applicant through church organisations in Tonga, although it was also stated in evidence that the Applicant might also face discrimination as a deportee from Australia and someone with a criminal record.
It is not clear as to whether the Applicant would find it easy to get work in Tonga or to use his qualifications as a concreter.
Mr Hudd said that the Applicant had complex PTSD for which he is currently receiving no treatment. No evidence was given to the Tribunal as to the availability of treatment in Tonga, but I accept that the quality of care is unlikely to be the equivalent of that which would be available to the Applicant in Australia. Certainly, it would appear he could access whatever services are generally available to citizens of Tonga.
The Applicant also raised concerns about the situation in Tonga following a series of natural disasters. I accept the evidence that there was considerable damage to infrastructure in Tonga, and major disruption to the community. This may make it more difficult for the Applicant to assimilate and to access services. I accept that the damage caused by the natural disasters is likely to make it more difficult for the Applicant to reintegrate into the Tongan community.
Overall, I give this consideration medium to heavy weight in favour of revocation.
IMPACT ON VICTIMS
There is no evidence from any of the victims of the Applicant’s offending regarding the effect of revocation of the Applicant’s visa cancellation. Accordingly, I find this consideration has neutral weight in this matter.
LINKS TO THE AUSTRALIAN COMMUNITY
Strength, nature and duration of ties
Although the Applicant does not seem to have any close relationships with his direct family members in Australia, including his biological mother, he does have a very close relationship with NT and her family. In fact, given the lack of affection and care given to the Applicant by his biological mother when he came to Australia, his partner’s family seem to be, in effect, his real family. I take note of the Applicant’s evidence that his relationship with his biological mother has improved, and also of her letter to the Tribunal in support of the Applicant’s application. I also accept that the Applicant has, in the least, some intentions of trying to establish a better relationship with his biological siblings.
The Applicant’s relationship with NT is clearly a very important one. They first met in September 2016 and apart from a period of about six months, they have lived apart because of the Applicant’s incarceration. The couple became engaged whilst the Applicant was detained at Villawood in 2019. It is clear that NT and her family, including all of the children related to NT, are important to the Applicant and were seen by Mr Hudd as a major protective factor in relation to him potentially reoffending and/or the severity of any reoffending.
The Applicant also has employment available to him in Australia and is able to return to the company that employed him prior to his incarceration and to continue to use and develop his skill as a concreter with that company.
Impact on Australian business interests
There is no evidence before the Tribunal of any impact on Australian business interests in this matter.
Overall, particularly in light of the importance of the Applicant’s relationship with NT and her family, I give this consideration heavy weight in favour of revocation of the delegate’s decision.
DECISION
The Tribunal is required to weigh up all of the various considerations and come to a conclusion based on the evidence before it. In this case, it is clear that the Applicant has had a very difficult upbringing and as a result, fell into bad company and started to drink heavily. As a young person, he had little family support.
Unfortunately, his offending started relatively soon after he arrived in Australia and he has continued to offend even whilst in prison and in detention.
His crimes involved threatening behaviour and apprehended violence against women, including breach of an AVO, and very serious violence against a number of victims. The violence towards third parties for which he has been convicted appears to be unprovoked and has resulted in serious injury.
There is no real evidence that the Applicant has developed better impulse control, despite having completed a number of courses in prison. In fact, the evidence seems to indicate the opposite, as demonstrated by the incidents in prison and in immigration detention, which took place within a control environment and when the Applicant was not affected by alcohol.
There was very little evidence before the Tribunal of any major steps or progress on the part of the Applicant towards better impulse control or any long-term treatment plan for his mental illness or alcoholism, although I accept that he has not been consuming alcohol whilst in detention.
It was not possible to feel confident that the Applicant was unlikely to reoffend.
I accept that the relationship with NT’s family is very important and may assist in preventing his reoffending, but there is no evidence before the Tribunal that would allow it to be confident that it will do so as he has been found guilty of serious offending after moving in with NT and her family.
After considering all of the evidence before the Tribunal, including those considerations which weigh in favour of the Applicant, I find, somewhat reluctantly, that the balance weighs firmly in favour of non-revocation of the delegate’s decision.
DECISION
The correct or preferable decision is to affirm the reviewable decision not to revoke the cancellation of the Applicant’s Class WA Subclass 010 Bridging A visa.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.
.................................[sgd].......................................
Associate
Dated: 7 April 2022
Date(s) of hearing: 24 February 2022 Advocate for the Applicant: Mr J Stephens, J Stephens & Associates Solicitors for the Respondent: Mr J. Watts, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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