PXWZ and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 205
•12 February 2025
PXWZ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 205 (12 February 2025)
Applicant:PXWZ
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9741
Tribunal: Senior Member T Tavoularis
Place:Brisbane
Date of Decision: 12 February 2025
Date of Written Reasons: 4 March 2025
Decision: Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal AFFIRMS the decision made by a delegate of the Respondent dated 20 November 2024 to not revoke the mandatory cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) Visa.
....................[SGD].................
Senior Member T Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five BF transitional (permanent) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence - the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed - decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Domestic and Family Violence Protection Act 2012 (QLD)Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v Minister for Immigration and Citizenship (2009) 106 ALD 566
[the Applicant] v Secretary, Department of Home Affairs [2024] FCA 1246
Khalil v Minister of Home Affairs (2019) 271 FCR 326
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Regulations 1994 (Cth)
Statement of Reasons
INTRODUCTION
The Applicant is a 41 year old citizen of Tonga. He first came to Australia on 14 May 2003 as the holder of Special Purpose Visa. This visa allowed to him remain here for only three days until 17 May 2003 on which date he had to depart Australia. He did not do so and remained here illegally until 18 June 2005 when he was located by NSW Police. Ten days after being apprehended he did, on 28 June 2005, apply for a Combined Spouse visa. Following a somewhat elongated process, the Respondent’s Department eventually granted him a Partner (Residence) (class BS)(subclass 801) visa (‘partner visa”) on 19 December 2014.[1] His movement history[2] indicates that since his initial arrival, he had made five trips abroad spending just under three months outside Australia. Apart from this approximate three month period abroad, he has been a constant presence in Australia since his initial arrival in May 2003.
[1] R2, pp471-473.
[2] R1, pp120-121.
VISA CANCELLATION HISTORY
Somewhat uniquely, the Respondent Minister has been compelled to twice mandatorily cancel two different visas held by the Applicant. Both mandatory cancellations occurred pursuant to s501(3A) of the Migration Act 1958 (Cth).[3] The first mandatory cancellation occurred on 24 November 2021. The Applicant made the necessary representations seeking revocation of this first mandatory cancellation decision. He was successful and his visa status to remain in Australia was restored to him on 10 August 2022. This resulted in him being granted a Resident Return (Class BB)(Subclass 155) visa[4] on 17 November 2022.
[3] For the purposes of these Reasons, I will refer to this legislation as “the Act”.
[4] For the purposes of these Reasons I will refer to this visa as “the visa”.
The second mandatory cancellation occurred on 13 May 2024. The Applicant again made the necessary representations but failed to persuade the Minister’s delegate to set aside this second mandatory cancellation. This decision refusing to revoke the second mandatory cancellation was made on 20 November 2024 and it is in respect of this decision[5] that the Applicant now seeks merits review this decision via this Tribunal.
[5] For the purposes of these Reasons, I will refer to this decision as the “Decision Under Review”.
THE INSTANT HEARING
The instant hearing proceeded before me on 5th and 12th February 2025. The hearing received oral and written evidence from (1) the Applicant; (2) his step-son[6]; (3) the consultant and clinical psychologist, Mr Jeffrey Cummins; and (4) the mother[7] of a putative minor-aged child of the Applicant. At the commencement of the hearing, I sought the parties’ agreement to a draft Exhibit List in an endeavour to ensure there was unanimity between the parties and the Tribunal about the totality of the material before the Tribunal. Between the first and second hearing dates, an additional Applicant’s exhibit was added to the initial list. The finalised Exhibit List is attached these Reasons and marked Annexure A.
[6] See Exhibit R4, person number two on that list.
[7] See Exhibit R4, the putative child is person number 6 on that list.
This is an expedited application pursuant to s. 500(6L)(c) of the Act which requires the Tribunal to make a decision within the period of 84 days after the day on which the Applicant was notified of the Decision Under Review. The 84th day in this matter fell on 12 February 2025 which comprised the second day of the instant hearing. This did not afford sufficient time for the drafting of detailed Reasons. To ensure this Tribunal met its statutory obligation pursuant to s500(6L)(c) of the Act, I caused a short-form decision to be issued to the parties on 12 February 2025 immediately following conclusion of the instant hearing. Attached to these Reasons and marked “Annexure B” is a true and correct copy of that short form decision.
Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326, I now publish my detailed written reasons within a reasonable time of my short-form decision.[8]
[8] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48].
APPLICANT’S ABORIGINALITY
The Applicant purports to self-identify as an Aboriginal Australian. He claims to be recognised as an Aboriginal Australian by the [name of Aboriginal Tribe redacted][9] which is also said to have culturally adopted him in 2008. The Applicant claims to have maintained this recognition and cultural adoption on a continuous basis since that time. As best as I understood his position on Aboriginality, the Applicant does not claim to be a non-citizen, non-alien falling within the category of Love v Commonwealth (2020) 270 CLR 152. He does not seek determination of whether he is a non-citizen, non-alien by this Tribunal as a basis of making submissions about any extent to which that issue now impacts this Tribunal’s capacity to conduct and determine the instant review.
[9] Note to reader: I have redacted the name of the referred to Aboriginal Tribe consistent with anonymisation of the Applicant’s name in order to prevent identification of the Applicant.
I agree with the Respondent’s contention to the effect that it is safe for this Tribunal to conduct and determine the instant application because the Applicant does not meet the tripartite test contained in Mabo v Queensland (No 2) (1992) 175 CLR 1. He does not claim biological descent from an Aboriginal or Torres Strait Islander person. The Federal Court of Australia recently rejected any such claim on the balance of probabilities.[10] The Federal Court found:
[148] ‘There is no reason on the evidence to suspect that [the Applicant] has any Aboriginal ancestors. I find that … [the Applicant] is not of Aboriginal descent… [to be] objectively reasonable. Indeed, on the basis of the evidence concerning [the Applicant’s] immediate family in Tonga, I find on the balance of probabilities that [the Applicant] is of Tongan descent and is not biologically descended from an Aboriginal person. Further, [the Applicant] has admitted that he does not have a genetic connection with the [name of Aboriginal Tribe redacted] people.
…
[346] … he is not an Aboriginal Australian within the meaning of that expression in the majority judgments in Love/Thoms, and is thereby a person who is within the reach of the aliens power conferred by s 51(xix) of the Constitution. [11]
[10] [the Applicant] v Secretary, Department of Home [2024] FCA 1246
[11] At [148] and [346], per O’Bryan J.
I am satisfied that this Tribunal lawful power to conduct and determine this instant review.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations[12] required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:
a. whether the Applicant passes the character test; and if not
b. whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
[12] That is, with specific reference to the second mandatory cancellation decision.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[13] It is clear from his criminal history that he has received a sentence of imprisonment of 12 months or more,[14] and thus has a “substantial criminal record” which compels this Tribunal to find that he does not pass the character test.[15] The 12 month threshold is comfortably met as a result of the imposition of the head custodial term of 18 months (imposed by the Taree Local Court on 19 February 2024.
[13] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[14] Section 501(7)(c) of the Act.
[15] Section 501(6)(a) of the Act.
Is there another reason why the Decision to cancel the Applicant’s visa should be revoked?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[16] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110 has application.[17]
[16] Pursuant to section 501C(4) of the Act.
[17] Direction No 110 commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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 noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five 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 strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian 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 allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
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 the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)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;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
An overview of the Applicant’s offending.
The Applicant’s offending may be summarised as follows:
·Number of offences: 14
·Number of sentencing episodes: 9
·Types of offences:
oContravention of domestic violence orders: (x2);
oOffending against the person: (x8);
oProperty offences: (x1);
oDriving offences (x2); and
oContravention of other order: (x1).
oTotal: 14 offences.
·Nature of sentences imposed
oSection 9 Bond[18]: (x3);
oCommunity Service Order: (x1);
oImprisonment: (x5);
oFines: (x5);
oIntensive Correction Order: (x2); and
oCommunity Correction Order: (1)
oTotal: 17 sentences.
[18] Then pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The disparity between the number of offences (14) and the number of sentences (17) may be explained as follows. For one of his offences (common assault, Court reference: H 5….502)[19], the Applicant received two sentences. He was initially sentenced on 31 August 2006 to a community service order requiring him to serve 150 hours of community service. This charge was then “called up” on 18 May 2007 meaning that the community service order was presumably revoked and, in lieu, he was sentenced to one month imprisonment. At first blush, it may be said he received two sentences for this one offence. However, I will proceed on the basis that he received just the one sentence for this offence.
[19] Note to reader: I have intentionally removed reference to four digits from this reference number to protect the identity of any victim of this offending.
For another of his offences (destroy or damage property (DV), Court reference: H 6….618)[20], the Applicant received what at first blush my appear to be three sentences. He was initially sentenced on 6 December 2017 to (1) a fine in the sum of $250 and (2) a section 9 Bond with an operative period of 12 months. This charge was then “called up” on 5 June 2019 and, in lieu of the earlier sentence (i.e the fine plus the bond), he was sentenced to a community correction order with an operative period of 12 months. Again, while it may appear he received three sentences for this one offence, I will proceed on the basis that he received just the one sentence for this offence.
[20] Note to reader: I have intentionally removed reference to four digits from this reference number to protect the identity of any victim of this offending.
Therefore, if we remove these three sentences (1 x Bond, 1 x community service order and 1 x fine) from the current total of 17, there is parity between the number of offences (14) and the number of sentences (14). For the purposes of assessing the nature and seriousness of the Applicant’s offending, I will proceed on this basis.
Application of factors appearing at paragraph 8.1.1(1) of the Direction.
The Direction contains nine non-– exhaustive factors referrable to the assessment of the nature and level of seriousness of a non—citizen’s criminal offending in Australia. My finding will be that this Applicant’s history of offending in Australia should now be viewed as “very serious”. In the Direction the “very serious” descriptor appears at the chapeau to paragraph 8.1.1 (1)(a). There is a helpful summary of the Applicant’s offending appearing in the Respondent’s Statement of Facts, Issues and contentions (“SFIC”).[21]
[21] See R3, pp3-5, [12].
The criminal history contains a sad and repeated record of violent offending. A good deal of that offending was committed against female victims. This domestically violent offending also drew children into its orbit which involved the Applicant both committing domestically violent conduct on an adult partner in the presence of a child and, perhaps more even more appallingly, it involved him perpetrating violence upon a child victim. I am comfortably satisfied that this conduct comprises (1) violent crime[22] and (2) the commission of crimes of a violent nature against women and children.[23] As such, the Direction safely facilitates a finding that the totality of the Applicant’s conduct must now be found to be very serious. I will accordingly make that finding.
[22] For the purposes of paragraph 8.1.1(1)(a)(i) of the Direction.
[23] For the purposes of paragraph 8.1.1(1)(a)(ii) of the Direction.
The Applicant’s criminal history does not attract the auspices of paragraph 8.1.1(1)(b) of the Direction. The chapeau to this particular paragraph allocates the serious descriptor to four categories of offending. As best as I understood his criminal history, none of it falls within any of these four categories. He has not caused a person to enter into, nor has he been a party to, a forced marriage.[24] He has not committed crimes against vulnerable members of the community such as the elderly or against government officials such as the Police in the course of their duty.[25] He has not committed conduct that would form the basis of a finding that he does not pass an aspect of the character test that is dependant on my opinion.[26] Nor has he committed a crime while in immigration detention or otherwise attempted to escape from such detention.[27]
[24] As contemplated by paragraph 8.1.1(1)(b)(i) of the Direction.
[25] As contemplated by paragraph 8.1.1(1)(b)(ii) of the Direction.
[26] As contemplated by paragraph 8.1.1(1)(b)(iii) of the Direction.
[27] As contemplated by paragraph 8.1.1(1)(b)(iv) of the Direction.
I must also look at the sentences imposed by the Courts on this Applicant for his offending as a guide for defining the nature and seriousness of this conduct.[28] In performing this exercise, the Direction precludes me from taking into account sentences imposed for conduct comprising (1) crimes of a violent and/or sexual nature against women or children; (2) acts of family violence (regardless of whether there was a resulting conviction or sentence imposed); and (3) conduct involving the Applicant causing a person to enter into or himself being a party to a forced marriage.
[28] As contemplated by paragraph 8.1.1(1)(c) of the Direction.
There are no sentences for conduct in the third category but the Applicant clearly has sentences for conduct falling within the first two categories. If the sentences for the precluded conduct are deducted, the balance of the Applicant’s sentencing history is unremarkable and involves the imposition of non-custodial punishments in the form of fines, bonds and the like. Thus the sentences imposed on the Applicant do not assist with the assessment of the nature and seriousness of his conduct. This does not, in any way, detract from the earlier finding that the totality of his offending has been very serious.
The Direction also compels an inquiry into the impact of the Applicant’s offending on any victims where information in this regard is available and where the Applicant has been afforded procedural fairness.[29] In terms of an impact(s) on a victim(s), one need look no further than the Applicant’s conduct perpetrated on 30 June 2018[30] and on 7 April 2023.[31] In the former incident, the sentencing remarks note the Applicant “….uses his right fist punching the victim to the head once. This caused the victim to fall heavily to the ground.“ [32] The sentencing remarks further note “Police could see the victim had a laceration to the bridge of his nose…..and that there was a puddle of blood. …..It is noted that there was a fracture to the bone in terms of his face …….photos which depict bruising to the eyes and also bruising and laceration to the top of the bridge of the nose.”[33] The learned sentencing Magistrate thought this conduct could not be “…..described as below mid-level.”[34]
[29] Paragraph 8.1.1(1)(d) of the Direction.
[30] Sentenced on 5 June 2019.
[31] Sentenced on 19 February 2024.
[32] R1, p71, lines 13-14.
[33] R1, p71, lines 33-35 and 38-40.
[34] R1, p71, line 42.
In the latter incident, the learned sentencing Magistrate noted the Applicant “….taking his time to put his drink down before punching the man [victim] in an unprovoked attack, three times, with upper cut punches, which resulted in the victim being taken to hospital and being treated in relation to a fracture of his right mandible, which required specialist surgery at John Hunter Hospital, with the jaw having to be surgically repaired using plates and screws.”[35]The learned sentencing Magistrate also thought “In terms of assault occasioning actual bodily harm, it falls well above the mid-range and towards the high range of the scale of assaults that are considered by this Court and assaults falling into the category of assault occasioning actual bodily harm.”[36]
[35] R1, p 50, lines 35-40.
[36] R1, p 50, lines 43-46.
I am comfortably satisfied that the Applicant’s above-described offending has very significantly impacted at least two victims. I am also satisfied that the respective sentencing remarks of the learned Magistrates who dealt with the offending comprise reliable “information available” to the Tribunal. Further, I am satisfied the Applicant has, for the purposes of the instant proceeding, been afforded procedural fairness in terms (1) being aware this conduct being ventilated against him and (2) having the opportunity to respond to it.
The only conclusion open to me is to apply the terms of paragraph 8.1.1(1)(d) of the Direction in favour of a finding that the totality of this Applicant’s unlawful conduct in this country has indeed be very serious. I so find.
The next inquiry[37] requires an assessment of (1) the frequency of a non-citizen’s conduct and (2) whether it contains any discernible pattern of increasing seriousness. With reference to its frequency, the Applicant’s criminal history runs (in terms of sentencing episodes) from January 2005 until February 2024, a period about 19 years. During that period he compiled convictions for 14 offences that were dealt with at nine separate sentencing episodes. This equates to the commission of less than one offence for each year of the history and a sentencing episode on very second year of that history. On these numbers alone, while the rate of offending might be considered “frequent” relative to a law abiding and offence-free person, it cannot be safely to be frequent in terms of other offenders with criminal histories running for nearly two decades.
[37] Pursuant to paragraph 8.1.1(1)(e) of the Direction.
Is there a discernible pattern of increasing seriousness in the offending? I am of the view that the Applicant’s conduct has been at least serious, more likely very serious, from its inception. The offending sentenced in the mid-2000’s is of particular concern. On 13 January 2005 he was convicted on a charge of “Contravene apprehended domestic violence order and “common assault.”[38] This conduct involved the Applicant throwing a bag at the female victim’s chest, picking her up by the shirt and pushing her multiple times onto a bed. On 31 August 2006 he was convicted on a charge of “Common assault”[39] for conduct involving him grabbing his partner around her throat, pushing her so that she stumbled and fell into a refrigerator and striking her with his shoulder. This was followed by him picking up a bowl and throwing it at the kitchen window. It should be noted that this conduct was perpetrated in front of the Applicant’s then two year old son. On 18 May 2007 the Applicant was convicted on respective counts of “Common assault” and “Knowingly contravene prohibition / restriction in order”[40] This conduct involved the Applicant slapping his child to the face multiple times.
[38] See R1, pp46-47.
[39] See R1, p45.
[40] See R1, p 45.
There followed a relative lull in the offending until 2016-2017 at which time the Applicant was sentenced for the commission of two driving offences, an offence against the person and a property offence. For these matters, the Applicant received fines and a bond. This relative mildness in the conduct was followed by the abovementioned very serious conduct I have described earlier that was sentenced on 5 June 2019 and 19 February 2024. I thus arrive at finding that this Applicant’s conduct does not necessarily demonstrate a trend of increasing seriousness because it has been very serious from its commencement.
Overall, I am satisfied (and will find) that despite its relative lack of frequency, the very serious nature of the Applicant’s unlawful conduct from its inception causes paragraph 8.1.1(1)(d) of the Direction to strongly militate in favour of a finding that the totality of the offending has been very serious. I so find.
The Direction then requires a decision-maker to identify any cumulative effects of a non-citizen’s offending.[41] There are, I think, a number of discernible cumulative effects from the Applicant’s unlawful conduct. First, his violent offending in both a domestic context and more broadly has resulted in clear and obvious physical injury to victims. The domestic violence conduct sentenced in the mid-2000’s undoubtedly impacted its female victim(s) both physically and psychologically. I have earlier recounted the dreadful physical injuries suffered by the Applicant’s very violent conduct resulting in his convictions on 5 June 2019 and 19 February 2024.
[41] Paragraph 8.1.1(1)(f) of the Direction.
Second, this Applicant has been offending for nearly two decades. Policing resources have been deployed to deal with his conduct and to otherwise apprehend him. Sentencing Courts have had to sentence him on almost 10 occasions and court-related resources have been doubtlessly deployed in implementing and overseeing the Applicant’s adherence to intensive correction orders. His violent conduct has caused significant injury to victims requiring emergent treatment and management. Such has been the severity of his conduct that (1) he was sentenced to nine months of head custodial time for his abovementioned offending sentenced in the mid-2000’s; (2) two and a half years of head custodial time consequent upon the sentences imposed on him in June 2020 and February 2024: and (3) although he was in the community from April 2023 until February 2024, he returned to criminal custody from February 2024 until June 2024, at which time he was taken into immigration detention where he remains. I am therefore comfortably satisfied that this Applicant’s offending has consumed more than its fair share of the community’s policing, judicial sentencing, public healthcare and custodial resources.
Third, I have found the Applicant has committed 14 offences. For the first nine of those offences he received bonds, fines, driving disqualifications and relatively short head custodial terms of four months (x2), one month (x1). There followed for the 10th, 11th and 12th convictions the imposition of (1) a community correction order for an operative period of 18 months; (2) an intensive correction order with an operative period of 20 months; and (3) an intensive correction order with an operative period of 16 months. The Applicant learnt little or nothing from this sentencing regime and otherwise appears to have experienced absolutely no deterrent effect from it. Instead, he went on to commit further and very violent conduct that attracted a cumulative period of two and half years of head custodial time.
Fourth, the Applicant implores this Tribunal for a further chance to rejoin the mainstream Australian community but does not appear to have developed any measure of respect and deference to the laws and regulations pursuant to which it is governed. Here are some examples: (1) his multiplicity of offences committed against the person of others – either in a domestic context or more broadly - is simply appalling. He does not respect the personal space of others; (2) he has two convictions for destroying and damaging property and does not appear to respect or appreciate the rights of the legitimate owners of that property to use and enjoy their property as they see fit; (3) it may be said (and found) that he does not appreciate the safety of other road users given his conviction for high range drink driving in mid-2016; and (4) he seems to have no respect for the authority represented by a Court Order compelling him to do or refrain from doing something. He twice breached the terms of domestic violence orders.
I am therefore satisfied that the above four cumulative effects of the Applicant’s offending cause paragraph 8.1.1(1)(f) of the Direction to very strongly militate in favour of a finding that totality of his unlawful conduct in this country has been of a very serious nature.
The next inquiry[42] involves identifying whether the non-citizen has provided false or misleading information to the Respondent’s Department, including by not disclosing prior criminal offending. The material incudes a reference to a couple of incoming passenger cards respectively dated 29 March 2018 and 16 August 2018.[43] Both of these cards contain the identical question put in these terms: “If you are NOT an Australian citizen:…..do you have any criminal conviction/s?” this question required the Applicant to tick or circle either a “yes” or “no” answer. In both of these cards, the Applicant has failed to record any answer to this question.
[42] Pursuant to paragraph 8.1.1(1)(g) of the Direction.
[43] See R1, pp122-123.
The Respondent’s contention during closing submissions was that this Tribunal should draw an adverse inference from the non-answered question such the Applicant intentionally sought to conceal his offending from the Respondent’s Department well-knowing that to reveal his conviction may very well have impacted his visa status to remain in (or more correctly, re-enter) Australia. There is some traction in this contention because by the date of the first card (March 2018) the Applicant had acquired nine convictions imposed at nine separate sentencing episodes. And, in terms of the question’s wording, he must surely have known at the time he completed both of these cards that (1) he was not a citizen of Australia and (2) he did have criminal convictions.
The Applicant’s response to this contention is found in his SFIC.[44] There, the Applicant forthrightly acknowledges his incorrect completion of these two incoming passenger cards and identifies three additional instances where he wrongly answered this question about prior criminal convictions. He discloses that in an additional two incoming passenger cards completed in 2015 and 2017, he actually ticked the “no” response to the subject question. He further discloses that in 2005 he failed to disclose any conviction in his application for a Combined Spouse (UK 820/BS 801) visa in which he ticked the “no” answer to the question “Have you…….ever…been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?”[45]
[44] See A2, p 21, [89]-[90].
[45] R1, p118.
The submission put in his SFIC is that his failure to correctly respond to the subject question in each of the five instances was unintentional. His SFIC refines this submission in terms of a “…..misunderstanding of the question, and his limited English literacy skills……he understood the question to mean whether he had been just released from jail, or whether there was a warrant in his name….and that…..He responded “no” given neither of these circumstances applied to him.”[46] The SFIC goes on to say “He has expressed remorse for providing the false information, and states it was not his intention to mislead the Department.”[47]
[46] A2, p21, [89].
[47] A2, p21, [89].
I will note two things about this item: first, as best as I understood the Respondent’s written and oral submissions, the additional three instances of incorrect answering of the subject question (i.e passenger cards of 2015, 2017 and the partner visa application in 2005) were not propounded against the Applicant; and second, when the Applicant travelled to Tonga on 13 December 2022 and returned on 4 January 2003 he made a full disclosure of his criminal convictions on that particular incoming passenger card. Notably, this was at a time after the Respondent’s Department restored his visa status to him after the first mandatory cancellation.
I therefore do not consider it safe to draw the inference suggested by the Respondent and, in the relatively unique circumstances of this case, I will put this paragraph 8.1.1(1)(g) to one side and render it neutral for present purposes.
The Direction then requires an inquiry into whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his continued visa status to remain in Australia.[48] The Applicant has received the clearest and most stark warning in this regard. On 24 November 2021, his then-held visa was cancelled. On 10 August 2022, the mandatory cancellation decision was revoked by a delegate of the Respondent and his visa status to remain here was restored to him. That restoration came with this warning: “Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.”[49]
[48] Paragraph 8.1.1(1)(h).
[49] R1, p105.
In addition, the material contains a signed and dated acknowledgement from the Applicant in which he acknowledges receipt of the decision revoking the mandatory cancellation while also saying this: “I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be reconsidered.”[50] This warning from the Respondent and acknowledgment by the Applicant attaching to this revocation could not be put in clearer terms. Be that as it may, the Applicant proceeded to commit very violent offending that saw him charged and convicted with “Assault occasioning actual bodily harm” for which he was, on 19 February 2024, sentenced to a term of imprisonment for 18 months with a non-parole period of 12 months.
[50] R1, p107.
This paragraph 8.1.1(1)(g) must therefore very strongly militate in favour of a finding that totality of the Applicant’s unlawful conduct in this country has been of a very serious nature.
There is no evidence of the Applicant’s commission of any offence or conduct in another country which would comprise unlawful conduct in Australia. The final paragraph 8.1.1(1)(h) should therefore be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs in paragraph 8.1.1(1) informing my own assessment of the Applicant’s offending now safely and cumulatively lead me to the conclusion (and finding) that the totality of his unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Applicant’s conduct – particularly that committed against the person of others – has been so serious that the harm resulting from any re-commission of such offending would be of such a level of severity as to be unacceptable to the Australian community.[51] His violent conduct has physically and psychologically impacted female victims to a significant extent. It has also impacted male victims as indicated in the sentencing remarks of the learned sentencing Magistrate[52]: “And the seriousness of the offence, I mean it couldn’t be categorised anywhere near trivial…….This a man who’s been to gaol for alcohol fuelled violence and he’s back with alcohol fuelled violence where a man’s jaw has been broken in an unprovoked attack”[53] And further in the sentencing remarks, Her Honour said: “But this is a very serious matter, involving three punches delivered in an unprovoked manner by [the Applicant] for no reason on a gentleman in a pub,…….the significant amount of deterrence and denunciation that does attach to such unprovoked bouts of violence that can,……., lead to the most catastrophic consequences.”[54]
[51] In accordance with paragraph 8.1.2 of the Direction.
[52] Her Honour Magistrate Hawkins.
[53] R1, p49, lines 15-19.
[54] R1, p52, lines 9-10 and 13-15.
The Applicant cannot now be heard to say anything against the proposition and finding that if re-committed, such conduct would inevitably result very significant physical and psychological harm to members of the Australian community. This is not to ignore the impact on the community more generally arising from the undue and unnecessary consumption of its policing, judicial sentencing, custodial and public healthcare resources. I am thus satisfied that re-commission of the Applicant’s unlawful conduct would result in harm to both individual victims and our community more generally. I characterise this harm variously as psychological, physical (including potentially catastrophic) as well as materially quantifiable in terms of its undue consumption of the community’s resources.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s position: the Applicant attributes his unlawful conduct to a decades-long struggle with what is now claimed to be undiagnosed mental health and trauma together with an alcohol use disorder. He contends that the seismic change in his circumstances – and, consequently his recidivist risk profile, is to be found in his relatively recent engagement with rehabilitation which he says has lead to sustained positive results in terms of bringing his previously very unhealthy relationship with alcohol under some sort of remedial management and control. He contends he has sought, and remained connected to, this pattern of rehabilitation since February 2023 while still in the community and that this rehabilitative pattern has been consistently maintained despite his removal from the community and placement into criminal custody and then immigration detention.
It should be noted the Applicant was in the community between April 2023 (when he last offended) until February 2024 at which time he went to prison. He remained in prison between February 2024 and June 2024 at which time he was taken into immigration when he remains. According to the Applicant, whatever treatment he has received must now be found to be working because he has not re-offended since April 2023 and even after going to prison and then immigration detention, there is no record of his involvement in violent episodes during his time within those institutions.
He accepts that in a previous statement made in April 2022 he said that he not touched alcohol since 2020. Yet on his release from immigration detention in August 2022, he did, within eight months of his release, commit the very serious assault occasioning actual bodily harm offence in April 2023. He rightly poses the question of how his recidivist risk profile now is any different to what it was at the time of his release in August 2022? He says there are significant differences and they are to be found in his consistent engagement with rehabilitation and a sustained pattern of abstinence from alcohol while in the community from after his commission of the latest offence in April 2023 until his incarceration for that offence in February 2024.
This contention seems based on two things: (1) at the time of his previous release and subsequent to that release in August 2022, he completely failed to prove his abstinence from alcohol. Even though he remained abstinent from alcohol for the period 2020 until 2022 when he was in prison (for previous offending) and then immigration detention (resulting from the first mandatory cancellation of his visa), the pattern of rehabilitation offered to him in detention was not converted into an ongoing treatment plan for him to follow upon a return to the community when his visa status was restored to him; and (2) devoid of any such treatment plan upon returning to the community in August 2022, he relapsed into a pattern of abusing alcohol and to re-committing very seriously violent conduct.
The consistency and robustness of his current engagement with rehabilitation is now said to be found in his engagement with the following clinicians. First, Mr Luke Steain, a Mental and Social Wellbeing Worker who has known the Applicant for three years and who says the Applicant keeps in contact with him “…..at least once a week, during these times we work on his mental health and have a plan of engagement once he returns to the community, to continue to clear the effects of deep childhood trauma.”[55] Mt Steain goes on to say the Applicant “….has expressed interest in helping support a men’s group to promote healthier living free of drugs and alcohol.”[56]
[55] R4, p35.
[56] R4, p35.
Second, Ms Corrine Ellis, a drug, alcohol and mental health Case manager attached to the Tobwabba Aboriginal Corporation Medical Service (“TACMS”) who says the Applicant “….began his journey in drug, alcohol and mental health treatment in February 2023.”[57] Ms Ellis says the Applicant has shown “….remarkable commitment to his recovery, maintaining continuous engagement in his treatment despite transitions from community living to imprisonment and detention.”[58] She makes reference to the Applicant’s expression of a strong need for continued support to successfully navigate his transition back into the community. She talks about being “…committed to providing him with continued support in AOD treatment, necessary resources and guidance during this critical time…..”[59]
[57] R1, p204.
[58] R1, p204.
[59] R1, p204.
Third, at the instant hearing, the Applicant spoke of seeing a psychological clinician every Wednesday. As best as I understood the evidence about rehabilitation, this clinician appears to be Ms Shana Teague, a Mental Health Support Worker with TACMS. She holds a Bachelor of Psychology and her report appears in the material.[60] Her report notes the Applicant “…..was dedicated to his sobriety and actively participated in various support services. This included working with a psychologist, a drug and alcohol case manager, two mental health support workers, and attending regular AA meetings.”[61] Her report describes the Applicant as “…..highly committed to his mental health, regularly attending appointments with myself and the team of health workers at [TACMS], who fully support his recovery.”[62]
[60] R1, p331-332.
[61] R1, p331.
[62] R1, p331.
Fourth, the Applicant referred to treatment he received from the registered psychologist, Ms Margot Klein from May 2023 onwards. Ms Kein’s report appears in the material.[63] She says the Applicant attended 12 appointments with her and she concludes her report with these comments: “[The Applicant] has potential for a positive life outcome if he remains committed to addressing his past trauma and current coping strategies.”[64] It is Ms Klein’s further opinion that the Applicant “…..would benefit from a structured and longer term in patient / community based program focusing on both his trauma and alcohol abuse. Further, he needs to remain in regular contact with a psychiatrist to monitor his mental health and adjust medications as required, as well as, continue with consistent psychology and drug and alcohol services.”[65] The Applicant’s engagement with Ms Klein ceased when he went to prison in February 2024 because with the funding for it ceased contemporaneous with his incarceration.
[63] A1, pp27-29.
[64] A1, p29.
[65] A1, p29.
Fifth, the Applicant made reference to his consultations with his General Practitioner, Dr Farid. The material contains two reports from Dr Farid. In the first, dated 1 February 2024, Dr Farid says he has been providing regular care to the Applicant for about a year prior to the date of his report. This first report refers to the Applicant being “…..under the care of a psychiatrist through Hunter Mental Health Service and has been prescribed Prazosin and Sertraline for his depression and PTSD.”[66] In this first report, Dr Farid goes on to say “The future treatment plan for [the Applicant] involves constant medication adherence, including Sertraline 150mg, Prazosin 3 mg at night and Aspirin 100 mg daily.”[67] In the second of his reports dated only several weeks later on 19 February 2024, Dr Farid says “I have been involved in regularly reviewing his medication, supervising his dosage and ongoing mental health.”[68]
[66] A1, p26.
[67] A1, p26.
[68] A1, p33.
The Applicant also made reference to some additional reports in the material. The first of those was STARTTS[69] which prepared a psychological assessment report which appears in the material.[70] For the purposes of this report, the Applicant was assessed on 17 May, 2021 which makes this report somewhat aged. After administering a couple of clinical tests[71] the report’s author opined that the Applicant’s “….reported symptoms are currently [i.e as at May 2021] clinically significant.”[72] The second of these additional reports is that from NSW Corrective Services whose Sentencing Assessment Report appears in the material.[73] Dating from August 2024, the report assesses the Applicant as representing “…..a Medium-Low risk of reoffending according to the Level of Service Inventory – Revised (LSR-I).”[74] This report contains provision for the sentencing court making a supervised order and in that scenario, it is said “……Community Corrections will supervise [the Applicant]……This means …he will be required to have contact with a Community Corrections Officer every 6 weeks.”[75] This supervision plan involved NSW Corrective Services implementing a supervision plan that effectively comprised (1) monitoring the Applicant’s engagement with counselling services offered by TACMS; (2) monitoring the Applicant’s engagement with Alcoholics Anonymous; and (3) monitoring his engagement with Dr Farid with particular reference to the Applicant remaining compliant with mental health medication.
[69] Denoting: NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.
[70] A1, pp12-24.
[71] The Hopkins Symptoms Checklist (HSCL-25) and the Harvard Trauma Questionnaire (HTQ-16).
[72] A1, p22, [3.8].
[73] R1, pp327-330.
[74] R1, pp330.
[75] R1, p330.
The most recent and probably most probative expert opinion concerning recidivist risk before the Tribunal is, I think, to be found in the evidence of Mr Jeffrey Cummins. Mr Cummins is a significantly experienced consulting clinical and forensic psychologist. He provided both oral and written evidence to the instant hearing. His report is dated 16 January 2025 and appears in the material.[76] Mr Cummins is based in Melbourne and the Applicant is detained at Villawood in Sydney. Mr Cummins conducted two video interviews with the Applicant on 3 December 2024 and 17 January 2025. The latter interview was required because following dictation of his report after the first interview, the Applicant’s representatives instructed Mr Cummins about the Applicant subsequently telling them about (1) him having biological siblings and (2) him having experienced past difficulties with illicit drugs. This necessitated an Addendum to Mr Cummins’ report which appears at the end of it.
[76] A3, pp17-29.
In terms of clinical findings, Mr Cummins opined the Applicant “…..has suffered from an Alcohol Use Disorder for most of his life, dating from at least his teenage years.”[77] Mr Cummins further opined that the Applicant’s reported symptoms “….justified him being diagnosed with both PTSD and Complex PTSD. I accept there may have been a transition from him being diagnosed with PTSD to being diagnosed with Complex PTSD as a result of him witnessing two murders whilst in custody.”[78] It was Mr Cummins’ further opinion that the Applicant’s levels of insight into his violent (including family violence) conduct have “….changed in a positive direction over time.”[79]
[77] A3, p25, [52].
[78] A3, p25, [52].
[79] A3, p25, [53].
Mr Cummins was in little or no doubt about the primary causative agent behind the Applicant’s offending: “In my opinion the primary risk factor which could prompt [the Applicant] to reoffend is a return to alcohol consumption.”[80]He was likewise quite clear about the only realistic basis of the Applicant overcoming his difficulties with alcohol: “In my opinion the only realistic long term goal in terms of alcohol for [the Applicant] is one of total indefinite sobriety.”[81] With reference to actually assessed violent and non-violent recidivist risk, Mr Cummins administered the HCR-20[82] testing methodology which he describes as a qualitative and not quantitative assessment tool directing an assessor’s attention to a total of 20 possible risk factors.
[80] A3, p25, [54].
[81] A3, p25, [54].
[82] Historical, Clinical and Risk Management – 20.
Following administration of the HCR-20 testing methodology, Mr Cummins concluded that the Applicant’s “…..current risk for committing a further either violent or non-violent offence is Low-Moderate and trending towards Low (where the risk category ratings are Low, Low-Moderate, Moderate, Moderate-High and High).”[83] Mr Cummins qualifies this assessment by saying it “should be able to be reduced further”[84] if the Applicant (1) participates in a comprehensive Men’s Behaviour Change Program (or an anger management program); (2) receives further mental health treatment of relevance to his symptoms of PTSD and Complex PTSD; and (3) never resumes drinking alcohol under any circumstance.
[83] A3, p26, [57].
[84] A3, p26, [57].
Much of the Applicant’s evidence in chief to this Tribunal was characterised by an apparently persistent inability to recall details of his offending conduct. While one could reasonably accept the Applicant has a lengthy criminal history which may now preclude or hinder recollection of specific minutiae of his conduct, the Applicant seemed unable to recall fundamental aspects of his conduct. This persistent inability to recall was something taken up with Mr Cummins during cross-examination. Mr Cummins thought one possibility or reason for this vagueness may be due to the Applicant having an alcohol-induced acquired brain injury. It was put to Dr Cummins that another reason the Applicant was not forthcoming about his criminal offending was to protect his prospects of a successful outcome in the instant proceeding. Mr Cummins said: “Well, that is a possibility but I didn’t form that view. I formed the view that he really genuinely had difficulty elaborating and providing more details.”[85]
[85] Transcript, 5 February 2025, p65, lines
There followed several questions from me to Mr Cummins following those put by the parties’ representatives. My first question related to the Applicant’s apparent inability to recall details of his offending. I sought to counterpoint Mr Cummins’ evidence on this issue by referring him to other aspects of the Applicant’s evidence where his capacity to recall detail was significantly better. I took Mr Cummins to paragraph [26] of his report where he records the Applicant telling him a number of specific things that he (the Applicant) was able to recall in minute detail. Things such as (1) his mother being aged 87 years and residing in Tonga; (2) that he speaks daily to her; (3) that she came to Australia and visited him for a month in 2008; (4) that he returned to Tonga to visit her for three weeks in 2022; (5) that prior to the 2022 visit, he had returned to Tonga to visit her on approximately three occasions; (6) that his adoptive father, who worked as a farmer, died of cancer-related symptoms when he (the Applicant) was five; and (7) that his adoptive father introduced him (the Applicant) to alcohol when he was aged five.
When I put Applicant’s recollection of this minutiae to Mr Cummins he agreed the Applicant’s capacity to recall and discuss these details was both good and reliable.[86] My resulting question for Mr Cummins was how it can be that the Applicant can recall detail like the above yet be apparently unable to recall the circumstances of the very serious offending that saw him incarcerated and now facing an existential threat to his visa status to remain here? Mr Cummins responded with this: “Well, Senior Member, how I would explain that is to say that sometimes there’s information of relevance to a person’s history which they rehearse or it somehow is rehearsed for them. ……..Plus, also, his memory of those events, in my opinion, would be likely to have been clouded in any case by his alcohol dependency at the relevant time.”[87]
[86] See generally, Transcript, 5 February 2025, p70, lines 4-28.
[87] Transcript, 5 February 2025, p70, lines 34-37 and 41-43.
The second question I put to Mr Cummins flowed from the first. I wanted to know why it was that the lack of recollective capacity apparently caused by alcohol dependence only impacted the Applicant’s capacity to recall details of his offending behaviour but not his capacity to record the abovementioned details regarding his family. Mr Cummins said: “Well, I would say that’s because they (i.e the family details) were events that were very specific events of relevance to his history.”[88] I then asked Mr Cummins about the Applicant’s criminal conduct which must surely now be seen as matters of relevance and significance in his life and why he could not recall detail about this conduct. Mr Cummins said: “Yes, I would agree they (i.e the criminal conduct) are matters of significance in his life, but I do not regard them as being matters that he would have a need or a desire to rehearse or to continually revisit.”[89]
[88] Transcript, 5 February 2025, p71, lines 1-2.
[89] Transcript, 5 February 2025, p71, lines 6-8.
In relation to sub-paragraph (c) of the abovementioned paragraph of [150], I repeat that the Applicant arrived in Australia as a 19 year old in May 2003. Although he has spent most marginally more than half is life in Australia, but did not come here at a very young age. This means the Australian community’s level of tolerance of criminal or other serious conduct by this Applicant is not raised.
In relation to sub-paragraph (d) of the abovementioned paragraph [150], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature of the totality of his offending he has committed in Australia in a criminal history spanning almost two decades and the resulting harm from the totality of that conduct, has been of such a very serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (e) of the abovementioned paragraph [150], I am of the view that the totality of the Applicant’s unlawful conduct in this country has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses an albeit Low-Moderate recidivist risk but that the harm resulting from any recommission of his offending would be so serious such as to render that risk unacceptable to the Australian community were he returned to it.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
The Applicant makes no claim for protection that could possibly engage Australia’s non-refoulement obligations in the event of his removal to Tonga. As best as I understood the evidence, he does not hold, and has no intention to apply for, a protection visa. Of course, it is open to him to do so. He is not barred from doing so by either the bar in s 48A of the Act or the prohibition in s 501E of the Act. High Court authority supports the proposition that a non-citizen before this Tribunal who has capacity to make an application for a protection visa allows this Tribunal to defer any assessment of whether any non-refoulement obligations are owed to that non-citizen.[128]
[128] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7 at [29]-[30].
It would be trite to suggest (or find) that there will be no adverse consequences for this Applicant were he not to succeed in the instant application. In such a scenario, he will, as a matter of law, be permanently excluded from re-entering Australia. This will result in at least two consequences. The first of them is the self-evident reality of his permanent exclusion from this country. That consequence is not something that engages the terms of paragraph 9.1 of the Direction. The plain and clear terms of s 501E of the Act prohibit him from making any application for another visa with the exception of a protection visa.[129]
[129] Section 501E(2) of the Act.
The second consequence of the Applicant not succeeding in the instant application refers to the impact on him in terms of (1) emotional and other impediments he will experience if removed and (2) the impact upon the ties and other relationships he has with people in Australia. Neither of these two aspects of this second consequence fall for consideration under paragraph 9.1 of the Direction. The former (ie impediments) fall for consideration under paragraph 9.2 of the Direction. The latter were considered earlier in these Reasons pursuant to paragraph 8.3 of the Direction.
Accordingly, while there may well be legal and other consequences for the Applicant if unsuccessful in this Tribunal, it would be unsafe to allocate anything more than moderate weight to those legal and other consequences.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
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.
Paragraph 9.2(1)(a): the Applicant is 41 years of age and at the commencement of his middle years. Although his age may not suggest it, the Applicant is not an entirely well man. He has physical and mental health conditions. The most significant of his physical issues relates to his heart where he has diagnoses of myocarditis and pericarditis plus a mild level of coronary artery disease. There can be no cavilling with the proposition that (1) he has these symptoms and (2) they have impacted his life and may well do so in future. His mental health issues involve him suffering from anxiety, depressive disorder and post-traumatic stress disorder. My finding will be that the Applicant’s age is not necessarily an impediment to him returning to Tonga but that his physical and mental health issues do present as impediments. To whatever extent they do present as impediments, I am of the view that those impediments are not insurmountable.
Paragraph 9.2(1)(b): The Applicant spent about the first half of his life in Tonga. He has made a number of trips back to that country to visit loved ones. The evidence does not suggest the Applicant has a complete lack of cultural or linguistic familiarity with that country. Two decades in Australia may, to an extent, slightly cloud a non-citizen’s cultural and linguistic recollection of their country of origin. But when they have spent two decades in that country of origin, it is very unlikely those recollections will have been obliterated. I am of the view there are no substantial language or cultural barriers impeding the Applicant’s return and re-settlement in Tonga.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Tonga. First, with reference to economic support, the Applicant has compiled an employment history in Australia. Most recently, he worked as a plasterer in the building and construction industry. Although he has physical and mental health symptoms, they have not precluded him from engaging in remunerative employment in this country. There is little or nothing to suggest he will not be able to apply the skills and experience he has acquired in the Australian workforce to the work he can do in Tonga. I am of the view that any lack of economic support in Tonga is not an impediment to his return and resettlement there.
Second, I have referred to his physical and mental health symptoms. To the extent he may require publicly available care and treatment for his symptoms in Tonga, he will be able to avail himself of such medical support as is available to other citizens of that country. While I accept there may be a relative difference between Australia and Tonga in the standard of such publicly available care, it is not to suggest that the Applicant will be entirely devoid of such medical support in Tonga. The question of medical support in Tonga is, at worst, a possible but not insurmountable impediment to his return and resettlement there.
Third, with reference to social support available to him in Tonga, the evidence contains reference to the Applicant having biological and/or adoptive siblings in Tonga.[130] He contends that he has not had any contact with those relatives/contacts either while he has been in Australia or when has returned to Tonga. He does have his 87 year old adoptive mother still residing in Tonga and the contention from the Applicant is that it is unlikely she will be able to support him financially. However, be that as it may, such a contention does not displace the reality that he will, at least in the short to medium term, be able to find safe and secure lodgings with her and use that opportunity as a base from which he can gradually re-establish himself in Tonga. This relative lack of social support is, I think, the most significant of the impediments he will face if returned to Tonga. It is not an insurmountable impediment, but it will be more difficult to overcome that any of the other impediments I have identified.
[130] See A2, p34, [158].
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical and mental health are not insurmountable impediments to his return and resettlement in Tonga;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in the Tonga;
·any lack of economic support is not an impediment to his return and re-settlement in Tonga;
·to the extent that any lack of medical support is an impediment to his return and re-settlement in Tonga, I have found it is not an insurmountable one; and
·in terms of social support in Tonga, I have found that the Applicant will experience an impediment in this regard and, while I think such impediment will be the most difficult one for him to overcome, it is not an insurmountable impediment.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on Australian business interests
The parties are ad idem that this Other Consideration (c) is not relevant to the instant determination. I agree and will allocate neutral weight to it.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of moderate weight in favour of revocation;
(b)extent of impediments if removed: is of moderate weight in favour of revocation; and
(c)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a very heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are comprehensively and dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1,2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 20 November 2024 to not revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
A note about representation
The Tribunal notes the Applicant was represented on a pro bono basis. Those representatives are to be respectfully commended and thanked because not only does the Applicant receive the benefit of their experience and competence, the Tribunal also receives the support and assistance of those representatives as well. This is not for a moment to suggest that the Respondent’s representative did not fulfil his model-litigant obligations in an exemplary way. The Tribunal thanks both sets of representatives for their helpful assistance in the course of this hearing.
Dates of hearing: 5 & 12 February 2025 Counsel for the Applicant: Mr C. Wong of Counsel Solicitors for the Applicant: Gadens Lawyers Solicitors for the Respondent: Mr A. Downie (Senior Executive Lawyer) Australian Government Solicitor
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT SUBMISSIONS
R1
G-Documents
R
11.12.2024
11.12.2024
R2
Supplementary G Documents
R
24.01.2025
24.01.2025
R3
Respondent’s SFIC
R
24.01.2025
24.01.2025
R4
Agreed List of People Relevant to PC3 and PC4
R
Undated
12.02.2025
APPLICANT SUBMISSIONS
A1
Applicant’s Tender Bundle
A
20.12.2024
20.12.2024
A2
Applicant’s SFIC
A
20.12.2024
20.12.2024
A3
Applicant’s Supplementary Bundle
A
31.01.2025
31.01.2025
A4
Applicant’s Updated List of witnesses
A
31.01.2025
31.01.2025
A5
Applicant’s reply submissions
A
31.01.2025
31.01.2025
A6
Applicant’s Further Supp’y Bundle
A
Various
7.02.2025
ANNEXURE A
ANNEXURE B
ADMINISTRATIVE REVIEW TRIBUNAL ) ) No: 2024/9741 ) Re: PXWZ
Applicant
and: Minister for Immigration and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Senior Member T Tavoularis DATE: 12 February 2025 PLACE: Brisbane DECISION: Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal AFFIRMS the decision made by a delegate of the Respondent dated 20 November 2024 to not revoke the mandatory cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) Visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
…..…..……[SGD]…….......
Senior Member T Tavoularis
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