QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 288
•4 February 2021
QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 288 (4 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7540
Re:QHRY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Andrew McLean Williams
Date of Decision: 4 February 2021
Date of Written Reasons: 23 February 2021
Place:Brisbane
The decision under review is affirmed.
..............................[sgd].............................
Member Andrew McLean WilliamsCatchwords
MIGRATION – refusal of application for Partner (Temporary) (Class UK) visa – applicant failed to pass the character test under section 501(6)(a) – whether the discretion in section 501(1) should be exercised – decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Khalil v Minister for Home Affairs [2019] FCAFC 151Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47
Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 105
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Andrew McLean Williams
23 February 2021
INTRODUCTION
On 4 February 2021, the Tribunal gave its decision in this matter affirming the decision under review. Please find annexed hereto a copy of this decision, at “Annexure A”.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons for that decision. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
QHRY (‘the Applicant’), a 31 year old citizen of Papua New Guinea (‘PNG’), now seeks - pursuant to s.500(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) - to review a decision of the Respondent Minister made on 24 September 2020 refusing the grant of a Partner (Temporary) (Class UK) visa (‘the visa’), pursuant to s.501(1) of the Act.
The Applicant applied for the visa on 14 March 2015.[1] On 2 June 2020, the Applicant was sent a notice of intention to consider refusal of the grant of the visa, under s.501(1) of the Act.[2] At that time, the Department advised the Applicant that it held information indicating that he had a ‘substantial criminal record’,[3] and may not pass the character test.
[1] G documents, G18, page 168.
[2] Ibid, G3, page 9.
[3] See: Migration Act 1958, s.501(7)(d).
The Applicant’s criminal history records that he has been convicted of the following offences:[4]
[4] G6.
·14 January 2013 Trespass – Entering or remaining in dwelling or yard
Nil penalty; No conviction recorded.
·14 January 2013 Unlawful entry of vehicle for committing indictable offence at night in company
Fined $150; No conviction recorded.
·22 September 2015 Contravention of Domestic Violence Order (x 3)
6 months probation; no conviction recorded.
·14 March 2017 Failure to appear in accordance with an undertaking
Fined $400; conviction recorded.
·14 March 2017 Contravention of a Domestic Violence Order (aggravated
offence)
Imprisonment, two months (concurrent); conviction recorded.
·14 March 2017 Contravention of a Domestic Violence Order
Imprisonment, nine months (concurrent); conviction recorded.
·29 October 2018 Contravention of a Domestic Violence Order (aggravated
offence).
Imprisonment, 3 months (to be suspended for nine months); conviction recorded
The Applicant made representations and submitted documents and other evidence to the department in response to the Notice of Intention to Consider Refusal.[5]
[5] G19 – G34 inclusive
On 24 September 2020, a delegate of the Minister refused to grant the visa under s.501(1) of the Act.[6] The Applicant was notified of the delegate’s decision on 12 November 2020.[7]
[6] G4, G12, p 123.
[7] G2, page 6.
The Applicant then lodged an application in this Tribunal for review of the refusal, on 13 November 2020.[8] The Tribunal has jurisdiction to review the refusal, pursuant to s 500(1)(b) of the Act.
[8] Exhibit G1, s501 G Documents, G1, page 1.
The hearing of this application for review took place on 19 and 20 January 2021.
At the hearing, the Tribunal received oral evidence via video from the Applicant and his wife (Ms MA), and the following further witnesses by telephone:
·Mr Tim Watson-Munro, Consultant Psychologist;
·Mr JD; an uncle of the Applicant, providing a character reference; and
·Mr DD, a friend of the Applicant, providing a character reference.
The Tribunal also received the written evidence that is now listed in the attached exhibit list, marked as “Annexure B” to these reasons.
FACTUAL BACKGROUND, and offending History
The Applicant was born and raised in the PNG Western Highlands Province, in K village, Mount Hagen. Prior to his arrival in Australia the Applicant had lived with his parents, six siblings, and extended family. As the oldest sibling the Applicant said he “always cared and looked after [his] younger siblings”.[9]
[9] Transcript, Day One, page 25; Exhibit 3(d).
After completing high school in PNG, the Applicant was offered a PNG Government Scholarship to study Automotive Mechanical Engineering at the Barrier Reef Institute of TAFE, Townsville Campus, arriving in Australia for that purpose in August 2011.[10] However the Applicant elected not to complete these studies, and returned to PNG. In February 2012, when aged 21, the Applicant re-entered Australia in order to study geology at James Cook University.[11]
[10] Exhibit 3, page 1; Transcript, Day One, pages 7 and 8.
[11] Exhibit 3, page 1; Transcript, Day One, pages 7 and 8.
The Applicant’s evidence was that he went on “study leave in my final semester, third-year student”, and still has six more subjects to complete before he can be awarded a degree.[12] Despite not having completed his degree, the Applicant still obtained work in the mines in Queensland as a field assistant, and later as a laboratory technician, undertaking geological assays.
[12] Transcript, Day One, page 31.
On New Year’s Eve of 2012, and while living in Townsville as a student, the Applicant met his future wife, Ms MA. They commenced a de facto relationship shortly afterwards, in January 2013. Their relationship grew from a foundation of friendship,[13] with MA describing the early stages of their relationship in these terms:
“He helped me through a very rough time. I was by myself. He was a close friend to me just in the beginning. He actually helped me come home one night from being in a domestic [violence] relationship…Just as a friend, he took me home and made sure the kids were all right...We had a very close relationship. That’s when we started – we became together.”[14]
[13] Transcript, Day One, pages 37 and 38.
[14] Transcript, Day One, page 68.
MA explained that, at that time, she had recently left her abusive ex-partner (‘N’), who was the father of her two sons (Child M and Child I).[15] It was MA’s evidence that N was ‘not in the picture’ in early 2013, after their initial separation.[16] The Applicant took on a parental role for M and I, with MA saying the Applicant would “always look after the kids, and I would attend work. I was a full-time – working full-time then.”[17]
[15] Transcript, Day One, pages 68, 69 and 82.
[16] Transcript, Day One, page 71.
[17] Transcript, Day One, page 68, lines 40 – 44.
The Applicant and MA were married on 11 July 2014.
On 14 January 2013, the Applicant appeared in the Townsville Magistrates Court in relation to his first offences of ‘trespass – entering or remaining in dwelling or yard’ and ‘unlawful entry of vehicle for committing indictable offence at night in company’. These offences were committed in December 2012. The Applicant pleaded guilty to both charges. In consequence the Applicant received a fine of $150 (for the latter offence), yet no conviction was recorded for either. According to the Queensland Police Service Court Brief, police had been called to attend an address in Mundingburra at about 2.30am on 22 December 2012, because two male persons had been observed loitering suspiciously outside the complainant’s yard. The larger of the two male persons (the Applicant) was then observed to enter the yard, and to open the door of an unlocked car, and to rummage through various personal items inside the car, before strewing these on the ground. No items were stolen. A short time later the police located the Applicant nearby, whereupon he made full admissions.
When giving his evidence before the Tribunal, the Applicant sought to explain these offences as follows:
“Applicant It was - that time it was a silly idea. And it was just out of the blue. Me and my - one of my, like, a cousin, close friend---
Mr Cummings Yes?
ApplicantWe were just walking back from a friend’s place. And yes, it was just something silly. There was a car that was there near the road, we must have walked in and opened the door or something. Yes…
Mr Cummings So, [Applicant], when you say you did something silly, was the silly thing you went into someone’s car that you knew wasn’t your own?
ApplicantYes. Yes, it was - yes, to be honest it was - it was, like, my friend at that time, it was like a daring thing to do. So, it was, I pleaded guilty to doing that. It was something I shouldn’t have done.”
Ultimately, the Tribunal concludes that the Applicant’s first two criminal offences are trivial matters, and of little consequence to the outcome in this matter. No determinative weight is attached to either of these offences by the Tribunal.
In December 2014, the Applicant received news that two of his uncles had been killed in a car accident in PNG. The younger of the uncles was only one year older than the Applicant, with the Applicant explaining that this uncle was more akin to an older brother. After their deaths, the Applicant says that he increasingly turned to alcohol to deal with the pain of their loss. Prior to this, and before meeting his wife MA, the Applicant claimed that he “was never a big fan of alcohol and would only have a beer or glass of wine whenever I’m out with family and friends.”
On the basis of the evidence received before the Tribunal, a very significant feature of the domestic relationship between the Applicant and his wife MA has been the fact of abuse of alcohol, by each of them. It was the Applicant’s evidence that:
“When we used to drink, it would go from just drinking, you know, a sixpack of beer or a bottle of wine, to a full bottle of vodka or rum just between us. It used to be very, very bad.”[18]
[18] Transcript, Day One, page 8.
The Applicant has now developed sufficient insight to realise that he has a problem with alcohol, admitting to the Tribunal that when he drinks, “I become like a different person. I – you know, I don’t have respect.”[19]
[19] Transcript, Day One, page 46.
Despite the Applicant having obtained that insight, in her evidence, MA proclaimed that her husband does not have a drinking problem. Instead, MA felt that the domestic violence episodes within their relationship were mostly attributable to her own issues with alcohol. MA described her perspective on their marital dynamic in these terms: [20]
[20] Transcript, Day One, pages 87 to 89.
“Mr Cummings In [the Applicant’s] visa application one of the questions was about you and why your previous relationship ended?
MA Yes.
Mr Cummings At page 202 of the G documents for the tribunal’s benefit. You’ve been asked to give details of how and why the relationship ended between you and [Name Redacted] and what [the Applicant] said there is?
MAYes.
Mr Cummings “He was a drunken and a woman abuser”. Is that correct?
MA Correct.
Mr Cummings You agree those words apply to [the Applicant] as well?
MA No.
Mr Cummings Why do you say that?
MA Totally different people.
Mr Cummings Does [the Applicant] have a drinking problem?
MA Because that’s why I married him. No, he doesn’t.
Mr Cummings Has [the Applicant] ever had a drinking problem?
MAI do. No, but after his father died, he went through a lot there but no, I don’t believe he does have a drinking problem.
Mr Cummings Why can’t [the Applicant] drink then?
MAHe chooses not to, and he tells me that too. That’s him (indistinct) from the past six – probably he just feels it makes me too upset. Sorry?
Mr Cummings Do you care about whether [the Applicant] chooses to drink again in the future?
MASorry, I don't, because I strongly believe that he chooses - he won't. Because we talk about all this stuff all the time, so.
Mr Cummings But you don't think he has a problem, so - - -
Member It would be better for your relationship if neither of you were to drink?
MA(Indistinct) so I'm not worried about him.
Member[MA], it would be better for your relationship if both of you chose not to drink?
MASorry? Yes. Correct.
MemberIt seems to me from where I'm sitting - - -?
MANot even one drink.
Memberthat a lot of the problems in your relationship in the past have been caused by drink?
MACorrect. Very true.
Mr Cummings If [the Applicant] said to you one day, "Look, I think I'm going to have a drink" would you say "Don't do that [Applicant]"?
MAI would choose not to drink as well because I know that I am part of the problem – I am the main problem.
Mr Cummings So, if [the Applicant] needs help not drinking, he won't get that support from you?
MA Yes, that will help because I won't drink, so that would help him as well and he doesn't feel he needs to drink anyway. I haven't found that as a problem (indistinct).
Mr Cummings You just agreed that if he said to you, "I am going to have a drink" you wouldn't talk him out of it. So - - -?
MANo, I just said that he hasn't asked – he hasn't had a drink, so he hasn't said those words, so I haven't thought about it.
Mr Cummings Just could you think about it - sort of imagine that situation happening?
MABut not in - - -
Mr Cummings In the future?
MAYes.
Mr Cummings [The Applicant] says, "I'm going to have a drink tonight" will you say "Don't do that"?
MAI would try and encourage him, it's - yes, I would definitely try to encourage him.
Mr Cummings But why? You don't think he has a problem with alcohol?
MANot (indistinct). For his health. Where - because his - you know - just.
Mr Cummings Does [the Applicant] have any mental health issue in your opinion?
MANo way, no. No, he doesn't. I think he's been through a very hard road with his father passing, I wouldn't say he's got mental health issues.
Mr Cummings Does [the Applicant] need to rehabilitate himself?
MAThere's a difference between grieving for a period and (indistinct)? No, he doesn't. I don't feel he does.
Mr Cummings So, when he gets out of immigration detention it should be just back to work, back to normal. Is that your position?
MANo, we'll continue to go on our counselling together and follow up with the appointments that we had in line before he got taken away.
Mr Cummings But you're the one that needs to sort your own problems out, is that right? He is fine?
MANo, we - the reason that we go to - we've set up relationship Australia appointments is to try and understand each other better in (indistinct) so we'll make up and just get over like the things that I've done to him mainly and - because I just feel so bad for everything that I've done - with the drinking and lying and…”
A recurrent theme emerging from the evidence before the Tribunal from each of the Applicant and MA was that a night of their drinking together would often lead to conflict. The Applicant explained to the Tribunal the circumstances as such:
“When we used to get drunk we – arguments started off in small things like, you know, if someone wants to go to bed and if someone doesn’t want to go to bed; or someone wants to make more drink; or it’s little things like that starts a small argument, then it starts from there.”[21]
[21] Transcript, Day One, page 8.
Although attributing primary responsibility to herself, MA eventually conceded that there were significant issues in her relationship with her husband, caused by alcohol:[22]
[22] Transcript, Day One, page 79.
“Member [MA], it’s the Member here again?
MA Yes.
MemberLook, it seems to me there’s a lot conflict and volatility in your relationship with your husband?
MA Yes.
MemberAnd a lot of that seems to be caused by alcohol, plus a few other factors?
MADefinitely.
MemberWhat have you pair done to try and fix this bad dynamic between the two of you where you get into conflict and you fight and you call the police on each other? What have you pair done, as a couple, to try and resolve this situation?
MAWe’ve tried to find better things to do. Like going to dinner. Or making sure we drive to dinner so that we can get a way home and one of us could not drink. Or - and when one of us doesn’t drink, then usually the other one doesn’t, since there’s no point just one of us drinking. That’s the way we see it unfortunately. But yes, like, we’ve gone clean altogether (indistinct) the counselling.
Member Have you discussed your alcohol use with [the Applicant]?
MA Yes.
Member Have you discussed your alcohol use?
MA Definitely.
Member You have?
MA Yes, definitely (indistinct).
Member And what have you discussed about your alcohol use?
MAThat it should be cancelled altogether. Not even to have a few. And how much it effects - changes my attitude and the way I act. And I just don’t remember a lot of things when I drink as well. It’s really bad.
MemberAre you confident that going forward from here that [the Applicant] won't drink?
MAYes, definitely.
Member Why are you confident?
MAI know that because when - like it's been – like because it's been a long time that he's had a big night where he has been drinking and - but I see we've been - we talk about it all the time, like how much things have become better when we don't drink.”
On 19 December 2014, the first Domestic Violence Order (‘DVO’) was issued by the Queensland Magistrates Court at Townsville, naming the Applicant as the respondent and MA as the aggrieved. The incident leading to the DVO occurred on 13 December 2014.
According to the police report placed before the court at the time of the making of the DVO, the Applicant had arrived home very heavily intoxicated after a Christmas party, and was carrying more take-away alcohol. The Applicant then became angry with MA, when she announced that she was going to bed.[23] The Applicant then threw a beer bottle at MA, which hit her on the side of her torso. The Applicant proceeded to throw more items at MA, including a chair, before also hitting MA in a flurry of closed fists. MA then broke free and ran outside, however the Applicant caught up with her, and knocked her to the ground, before starting to kick her in the head. MA then broke free again, and sought refuge with neighbours, who called the police. At that stage the Applicant de-camped the scene.
[23] Exhibit 2, page 14.
When the police arrived, they observed that MA was visibly upset and shaking and was bleeding from an elbow wound, which MA said she had sustained when she had fallen to the ground. The police also observed broken beer bottles on the kitchen floor, together with a broken chair. MA told the police at that time that she wished to have a domestic violence application made against the Applicant.[24]
[24] Exhibit 2, page 14.
The Tribunal notes the accounts given by both the Applicant and by MA during this hearing in relation to the incident on 13 December 2014 - and in relation to subsequent domestic violence incidents – oftentimes differed quite noticeably from the factual circumstances described in the Queensland Police Service Court Brief, each time these matters were dealt with by the Court.
By way of example, in relation to the breach on 13 December 2014, the Applicant’s recounting of that incident before the Tribunal involved him breaking a beer bottle by dropping it, rather than his throwing it at MA; and his pushing MA away rather than hitting her with closed fists, which had then caused her to fall and scratch her knee, rather than her elbow.[25] When asked before the Tribunal whether the police summary was accurate to the best of his recollection, the Applicant variously replied that he ‘didn’t remember’, or that he ‘did not believe that he would have’ hit MA with a closed fist, or that he kicked her, while she was on the ground. The Applicant did however accept that “I pushed her away and she fall and scratch. I remember that one. I felt guilty for that.”[26]
[25] Transcript, Day One, pages 46 and 77.
[26] Transcript, Day One, page 46.
Meanwhile, when giving her own evidence in relation to the 13 December 2014 incident, MA said the following:[27]
[27] Transcript, Day One, pages 77 to 79.
“Mr Cummings Can you remember when the first one was taken out?
MA 2014, I think.
Mr Cummings What happened that led to that - to the order being taken out?
MAThat we were drinking and [the Applicant] must have dropped a beer bottle or something on the ground. And I remember I must have - I can’t even remember what I wrote. I - it can’t have been that bad the - what happened, because I can’t even remember it. I really can’t. I remember making the statement when I was drinking a lot that night and the police turned up.
Mr Cummings Why did the police turn up?
MA Then we were just - because I called them.
Mr Cummings And did you call them because you were afraid of him?
MAI think I just - no, it’s really embarrassing. I think I just (indistinct) - - -
Member Are you still there, MA?
MA Yes. Yes.
Member We just having a bit of trouble with the line it seems?
MA That’s okay.
MemberLook, has [the Applicant] ever punched you?
MANo. Not punched me.
Member Has he ever kicked you when you were on the ground?
MA No. No, he’s pushed me away once to try to restrain me.
Member Yes?
MA He hasn’t kicked me or anything.
Member Has he ever tried to choke you?
MA (Indistinct) he’s broken a glass bottle once. (Indistinct).
Member Has he ever tried to choke you?
MA But that’s - I made a false statement one night.
Member Why did you put in a false statement that one night?
MA No.
Member Why did you put in a false statement about [the Applicant]?
MA Just for attention.
Member Right. There’s one occasion where - - -?
MA For attention.
MemberYou claim he pushed you down a flight of stairs. And apparently that wasn’t true. Why were you attention seeking? What’s that all about? Can you try and explain in your own words what was going on with you?
MADepression. Because I take antidepressants and sometimes I’d miss them. And sometimes I’d miss taking my contraception pill and I would get very hormonal all the time.
MemberYes?
MA(Indistinct) and it made it so much worse. And I just remember calling the police to get attention because I thought - I didn’t realise how serious it is calling. I didn’t - because I called them so many times, I just thought that, like, he’d get in trouble, like, charged or have to pay some money or something. I didn’t think he’d go to gaol or anything.
MemberYes. Why did you want to see [the Applicant] charged? May I ask you that? I mean, this man’s your husband. Why were you intent on having him charged with breaches of DVOs, to the extent that you’d make things up and call the police?
MAYes.
MemberWhy were you doing that? Did you think through that there might be consequences for [the Applicant]?
MATo tell you the truth, no.
Member All right. Were you intoxicated most of these times?
MA Yes. Very.
MemberAll right. All right, Mr Cummings, anything arising out of that, feel free to ask.
Mr Cummings You say it was a false statement when you said he broke a glass bottle?
MANo.
Mr Cummings That happened?
MAHe - yes, at the unit (indistinct) a beer bottle. He must have dropped it on the ground or - because I was arguing with him.
Mr Cummings Has [the Applicant] ever said to you - - -?
MA And I got angry at him. Sorry, cutting out there.
Mr Cummings Has [the Applicant] ever said to you, ‘I just want to kill you.’?
MA No. I don’t (indistinct) - - -
Mr Cummings Well, his evidence earlier today he said he did say that to you?
MAHe probably did, but I can’t remember.
Mr Cummings You don’t remember that?
MAIt couldn’t have been that bad if I don’t remember it. I would have remembered something like that. Especially if I was being threatened and I would have been scared.”
Despite evidence before the Tribunal from each of the Applicant and MA now attempting to minimise the Applicant’s conduct resulting in the Applicant being charged with DVO contraventions, it is to be noted that on each of the three occasions[28] when the Applicant appeared before the Townsville Magistrates Court in relation to these matters he entered a plea of guilty. No challenge was made during any of these court appearances to any of the factual allegations recorded in the Queensland Police Service Court Brief, as may have occurred, for example, had the Applicant proceeded on the basis of a plea of guilty, subject to an evidential challenge of the factual particulars, thus necessitating some element of fact finding by the learned Magistrate, prior to sentencing.
[28] 22 September 2015, 14 March 2017, 29 October 2018.
Nor was there ever an agreed set of facts, worked out beforehand, by the police prosecutor and the Applicant’s (presumably duty lawyer) representative, prior to his entering a guilty plea; and nor does the Tribunal now have the benefit of any sentencing remarks.
In these circumstances, and in light of HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [63], per McKerracher J), the Tribunal regards itself as bound to regard the facts as set out in the Queensland Police Service Court Brief as the factual basis that was accepted by the Court for the Applicant’s plea of guilty. The Tribunal considers it to be impermissible to now seek to go behind those facts, and accept any material departure from them, as may have been expressed by either the Applicant or MA in these proceedings in a manner that lessens the severity of the domestic violence in the facts presented to the court.
On 22 September 2015, the Applicant was again dealt with by the courts for having been in breach of the DVO, this time on 2 February 2015. According to the Queensland Police Service Court Brief, the circumstances of that breach involved the Applicant returning home after a night out drinking. The Queensland Police Service Court Brief records that police were dispatched to attend at around 3.00am. Upon their arrival, the police observed that MA was clearly upset and crying, and that she was intoxicated. MA told the police that the Applicant had arrived home at about 7.00pm after drinking at another location. At some point after midnight the Applicant had held a knife up at MA, and had also thrown a glass towards her, that had not hit her.[29] The Applicant then punched MA, once in the face. At the time when the police arrived and were told these things by MA, the Applicant was asleep in another room. When awoken by the police, the Applicant told the officers that he had been drinking with MA, and had wanted to go to bed, yet MA would not allow him to do that, and insisted that the Applicant stay up and keep drinking with her. The Applicant told the police that he became upset and smashed two glasses together. The Applicant denied ever having punched MA, or having ever brandished a knife at MA, or throwing a glass towards her. Despite these denials, when the matter proceeded to court on 22 September 2015, the Applicant did plead guilty to having contravened the terms of the DVO, and no factual challenge was made by him to any of the police averments, prior to his entering a plea of guilty.
[29] Exhibit 1, G9, page 140.
During the Tribunal hearing, the Applicant again claimed he didn’t hold a knife up to MA, or throw a glass at her. Rather, the Applicant said that he had been gesticulating with his arms during an argument with MA - at a time when he also happened to be holding a kitchen knife - and that he had also thrown a glass down at the floor, in exasperation.[30] It is to be noted that these accounts are different again from those given by the Applicant to the attending police, on 2 February 2015.
[30] Transcript, Day One, pages 38 and 39.
Later that same month, on 28 February 2015, the Applicant again contravened the DVO. The Queensland Police Service Court Brief indicates that, on this occasion, at approximately 12.15am, the Applicant was at home with MA, having returned home earlier that evening intoxicated, and carrying a bottle of vodka, which he had continued to drink at home. The Applicant then become unhappy with MA in relation to her having called the police on him on a prior occasion where he had been arrested. The Applicant was verbally shouting at MA, and MA had attempted to calm him, yet the Applicant had pushed her away. MA then became scared, so called the police again. Upon realizing that MA had called the police, the Applicant said to MA that he would “fuck you up”, before throwing the vodka bottle at the television, thereby causing the screen to smash, and the television to fall to the floor. The Applicant then decamped, before the police arrived. When found by the police walking the streets of Townsville a short while later, the Applicant explained that he had thrown the vodka bottle at the television because he had been conscious that the conditions imposed on him by the DVO meant that he could not throw it at MA.[31]
[31] Exhibit 1, G9, page 144.
During his evidence before the Tribunal in relation to the 28 February 2015 incident, the Applicant described it in these terms:
“Mr Cummings The event that happened on 28 February 2015 was one of the events that led to you being convicted for breaching your DVO on 22 September 2015. Is there anything in that page you’ve just read that’s incorrect?---
ApplicantYes, it looks - I don’t think something incorrect, but yes, you know, bit drunk and I’ve said things, bad words
Member This is where you smash the TV. You smashed the TV with a vodka bottle?
ApplicantYes, I was sitting - yes, I must - yes, must have.
MemberYes, all right?
ApplicantMust have done that.
Mr Cummings Could I have you turn back - - -?
ApplicantIt was - - -
Mr Cummings Sorry, I interrupted you, [Applicant]. Please continue?
ApplicantIt was a glass vodka bottle, I remember hitting the TV, yes.”
On 14 March 2015, the Applicant applied for a Partner (Temporary) (Class UK) visa.[32]
[32] Exhibit 1, G18, page 168.
On 5 May 2015, the Applicant again breached the DVO. The Queensland Police Service Court Brief indicates that on this occasion the police were called to the Applicant and MA’s premises at about 1.00am. Upon their arrival, the police located MA who was clearly intoxicated, standing across the road from their residence. The officers attempted to question MA to ascertain what had happened. Yet, MA only became argumentative with the police officers, and insistent they immediately arrest her husband. Despite having no obvious signs of injury, MA asserted that the Applicant had just pushed her down a flight of stairs. When questioned further about this by the officers, MA then changed the nature of her allegations several times. The police report states that MA appeared aggressive, and to be suffering from mood swings.[33] The police then entered the premises and found the Applicant, asleep in a bedroom. When roused by the police, and although obviously intoxicated, the Applicant denied pushing MA down the stairs, yet informed that he and MA had been arguing because he had wanted to go to bed, yet MA wanted him to stay awake and to continue to drink with her. Police then escorted the Applicant downstairs. When the Applicant saw MA, each of them immediately started to argue. In the process, the Applicant verbally abused MA and started to approach her, raising his hand in a clenched fist and swinging it in an aggressive motion, whereupon the police arrested the Applicant and took him to the watch house.[34]
[33] Exhibit 1, G10, page 148.
[34] Exhibit 1, G10, page 148.
The Applicant explained during his evidence before the Tribunal in relation to this incident that they had both been drinking that night, and he was angry because he had already gone to bed, yet MA had woken him up again. He had refused her demands for him to drink more and had resumed sleeping, only to be woken up again by two police officers, shortly afterwards. The Applicant also stated that he felt that MA was “setting him up”, to go to the watch house again.[35]
[35] Transcript, Day One, pages 40 and 41.
In August 2015, the Applicant’s father unexpectedly passed away in PNG.[36] The Applicant explained that he had been very close to his father, and the grief felt by him at that time caused an exacerbation of his drinking:[37] “From that Day Onwards I was emotionally drowned, I started drinking with my friends [and] arguing with my wife over things that were not necessary.”[38] The Tribunal notes that the evidence received by the Tribunal suggests that the Applicant was already drinking alcohol excessively, and arguing with MA, well prior to August 2015.
[36] Exhibit 1, G20, page 221.
[37] Exhibit 3(D).
[38] Exhibit 1, G20, page 221.
On 22 September 2015 the Applicant was convicted of the three contraventions of the DVO that had occurred on 2 February, 28 February, and 5 May, 2015. On all charges the Applicant was given 6 months’ probation, without any conviction being recorded.
In May 2016, the Applicant’s first biological child with MA, a daughter, child H, was born. MA informed the Tribunal that she suffered from postnatal depression after the birth of H, and was also diagnosed as suffering from anxiety by her general practitioner. In a letter of support dated 21 December 2020, MA stated that she “drank very heavily to cure my depression.”[39]
[39] Exhibit 3(C).
On 14 March 2017, the Applicant was convicted, fined, and sentenced to two concurrent terms of imprisonment for breaches of DVOs that had occurred between August and November, 2016. These convictions formed part of the basis for the delegate’s decision to refuse the Applicant’s visa.[40] The Applicant’s evidence was that he was remanded in custody after the second breach, in November 2016, and then spent the next 112 days in custody on remand, prior to his being released after the court hearing on 14 March 2017. [41]
[40] Exhibit 1, G4, page 126.
[41] Exhibit 1, G5, page 135; and G20, page 221.
The circumstances of these breaches, as reported in the applicable Queensland Police Service Court Briefs, are as follows:
·On 4 August 2016, the couple had been at home drinking on the verandah, after socialising with friends. MA had asked a question of the Applicant in relation to her car. At this juncture MA and the Applicant commenced a heated argument, which turned physical when the Applicant used his hand to push MA into a wall, causing damage to the wall. The Applicant also grabbed MA’s mobile phone and smashed it. Then, after MA had gone inside their home and locked the door, the Applicant picked up a bottle and threw it at the glass sliding door, causing it to smash. The police Court Brief reports MA hearing the Applicant say words to the effect of “I just want to kill you.”[42] The Applicant was convicted of contravention of domestic violence order (aggravated offence) and sentenced to a two month term of imprisonment.[43]
·On 26 August 2016, the Applicant failed to appear in accordance with an undertaking he had given on 4 August 2016 to appear at the Townsville Magistrates Court. On 14 March 2017 the Applicant was convicted for having failed to appear, and was fined $400.[44]
·On 21 November 2016, after another night of drinking, MA woke the Applicant up, and informed him that she had taken a deliberate overdose, imploring the Applicant to call on ambulance. The Applicant did as his wife had requested. Only after the ambulance had been called, did MA inform the Applicant that she had been deliberately untruthful about the overdose, as she wanted to gain his attention. An argument then ensued, with the Applicant calling MA a ‘bitch’, pushing her, grabbing at her by the throat, and hitting her against the walls and in the face, about five times.[45] Despite this version – as is contained in the Queensland Police Service Court Brief - the Applicant’s evidence before the Tribunal was that he had never squeezed MA’s throat, and nor had he punched her in the face.[46] This was re-iterated by MA in her own evidence. When asked if the Applicant had ever choked her, MA denied that, and claimed that she had just made another false statement to the police when saying that.[47] The Applicant was subsequently convicted on his own plea of guilty of contravention of domestic violence order and sentenced to 9 months imprisonment, to be served concurrently.[48]
[42] Exhibit 1, G13, page 160.
[43] Exhibit 1, G5, page 135.
[44] Exhibit 1, G5, page 135.
[45] Exhibit 1, G11, page 152.
[46] Transcript, Day One, page 42.
[47] Transcript, Day One, pages 77 and 78.
[48] Exhibit 1, G5, page 135.
Once prison visits were approved, MA and their daughter H would visit the Applicant every Saturday, throughout the remainder of his time in custody.[49]
[49] Transcript, Day One, page 28.
Upon his release from prison on 14 March 2017, the Applicant resolved to no longer drink any alcohol. In a letter dated 29 January 2018, the Applicant expressed he had been receiving counselling and was learning to help himself when facing similar difficult situations to those he had encountered in the past, stating he had now been living alcohol free for the last “10 months and 15 days and loving it.”[50] At the Tribunal hearing, the Applicant expanded on the details of his rehabilitative efforts, saying he had been to two sessions of anger management counselling in 2018, and had also participated in ATOD while in custody.[51] He said both he and MA were doing well with their abstinence until 29 May 2018, when another drinking incident occurred.[52]
[50] Exhibit 1, G20, page 221.
[51] Transcript, Day One, pages 48 and 49; Exhibit 3(C).
[52] Transcript, Day One, page 16.
In around February 2018, the Applicant had begun working as a field assistant at Exco Resources.[53] This role entailed the Applicant working on-site at a remote mine in North-West Queensland, on a fly-in, fly-out basis. The Applicant’s evidence was that when he started working at the mine, the roster initially required him to work three weeks on, before having one week off. This 3:1 roster was in place for approximately two years.[54] After employees complained that the 3:1 roster was too onerous, it was changed to instead become 2:2 - two weeks on, two weeks off.[55] While at the mine, the Applicant would call and speak with his family every day.[56] Once at home, the Applicant would assume all aspects of primary care responsibility for the children.[57]
[53] Exhibit 1, G25, page 230.
[54] Transcript, One Day, page 28.
[55] Transcript, Day One, page 29.
[56] Transcript, Day One, page 30.
[57] Transcript, Day One, page 29; and page 75.
On 29 October 2018, the Applicant appeared again at the Townsville Magistrates Court and was convicted of ‘contravention of a DVO (aggravated offence)’ for an incident that had occurred on 29 May 2018. The Applicant was sentenced to three months imprisonment, suspended for nine months. It is noteworthy that this conviction - along with the 14 March 2017 convictions - were the basis of the delegate’s decision to refuse the Applicant’s visa, owing to the Applicant having a ‘substantial criminal record’.
The Queensland Police Service Court Brief which outlines the facts of the incident occurring on 29 May 2018 reports that while drinking together at the Kirwan Tavern, MA and the Applicant had an argument (in relation to her use of his credit card), when the Applicant became aggressive towards MA. The Applicant stood over MA (who was seated at the time), and poked her in the face, thereby causing a small abrasion.[58] Police officers viewed CCTV footage obtained from the Kirwan Tavern, which confirmed that. Later, the police took up with the Applicant and raised the incident with him. The Applicant made full admissions to the officers, yet also said that he and MA were both very drunk, and he had not meant to hurt MA. When the matter proceeded to be heard in the Townsville Magistrates Court as a DVO contravention, the Applicant again pleaded guilty.
[58] Exhibit 2, page 60.
After that incident, the Applicant and MA agreed that they would each abstain from alcohol.[59]
[59] Transcript, Day One, page 16.
In November 2019, the Applicant was working in a new job as a laboratory technician at a zinc mine in North West Queensland, again on a fly-in fly-out basis.[60] Around the date of his 30th birthday - and shortly prior to his being required to depart Townsville for work at the mine - the Applicant purchased a bottle of wine to share with his wife. At the hearing, the Applicant explained that “after we had [that] bottle of wine and we drove to [MA’s] mum’s, it was, yes, we find out that drinking even just one glass of wine or two glasses of wine is not something we would want to do”. .[61] After that occasion, the Applicant and MA both claimed to have strengthened their resolve to abstain from alcohol, saying they had “decided to stop drinking ..and put our family first.”[62]
[60] Exhibit 1, G25, page 231; Transcript, Day One, page 7.
[61] Transcript, Day One, page 16.
[62] Transcript, Day One, page 16.
The Applicant reflected on his reasoning for quitting alcohol at this stage in these terms:
“Like, I’ve seen my life without alcohol has been, you know, a lot of good things has happened. And I have my son, my family, work. And yes, well, and me and MA we both realised that alcohol doesn’t help in our situations. And it caused a lot of family problems. And me especially towards myself. It made me to breach the DVOs and put DVO on me and I went to gaol. And all of these things.”[63]
[63] Transcript, Day One, page 147.
In cross-examination, the Respondent sought to clarify the Applicant’s assertion that between May 2018 and November 2019 he hadn’t touched any alcohol. Initially, the Applicant confirmed that he had not.[64] The Respondent then took the Applicant to the facts of a drink-driving incident which had transpired on 4 November 2018. The Court Brief referrable to that incident outlines that police had pulled in behind a stationary car occupied by the Applicant and another male, both of whom were asleep at the time. The left indicator was engaged, and the engine was running. The Applicant was identified as the male occupying the driver’s seat, and he was required to provide a specimen breath test, which returned a BAC of 0.204.[65]
[64] Transcript, Day One, page 47.
[65] Exhibit 2, page 64.
The Applicant appears to have entirely forgotten this incident when recounting the final occasions on which he had consumed alcohol, as it was only after this had been put to him by the Respondent that he was able to recall it. Once it had been recalled, the Applicant told the Tribunal that he wasn’t driving at the time. Rather, his intoxicated friend had been driving, and had pulled the car over to the side of the road in order to sleep. The Applicant says that he had shoved his sleeping friend out of the driver’s seat, and had sat in the driver’s seat himself, in order to run the air conditioning so they could sleep more comfortably. The Applicant explained that because the engine was on, and he was sitting in the driver’s seat when the police arrived, he was charged with drink driving.[66]
[66] Transcript, Day One, page 48.
Despite this forgotten episode, both the Applicant and MA confirmed in their evidence before the Tribunal that the last time they had a drink together was in November 2019, when they had shared a bottle of wine.[67] The Applicant explained that he and his wife realised the negative effects of alcohol and that it doesn’t help their situation.[68] It is to be noted that the Applicant and his wife intend to go to counselling, both together and separately, in order to address their underlying issues with alcohol.[69] In the hearing, MA also referred to her own problems with alcohol as one of the primary reasons she was intent on attending counselling.[70]
[67] Transcript, Day One, pages 47 and 74.
[68] Transcript, Day One, page 47.
[69] Transcript, Day One, page 73.
[70] Transcript, Day One, page 73.
On 30 November 2018, another domestic incident arose that ostensibly did not involve the consumption of any alcohol by the Applicant. At the time, a DVO was in place mandatorily precluding the Applicant from seeing or being near MA. Despite the terms of the order, MA, (who was herself already intoxicated), had invited the Applicant over to see her and the children, and she then drove the Applicant to a nearby Hungry Jacks fast food restaurant late in the evening. Initially, the Applicant was asleep in the vehicle in the queue at the drive-through. The Applicant and MA then had an argument. The Applicant then told MA it was time to go home, as the children were at home alone, before getting out of the car and proceeding towards the driver’s side of the vehicle. The police facts state that MA then panicked, and attempted to rip the key from the ignition, causing the key to break in the process. MA then got out of the car and ran through the car park screaming, before banging on the doors of the Hungry Jacks restaurant. The Applicant then fled.[71] Police located him a short time later, whereupon he was charged with having breached the DVO.
[71] Exhibit 2, page 24.
In his evidence, in relation to this incident, the Applicant said:
“Applicant there was one incident in two thousand, I think, eighteen, where we went to a - a KFC[72] drive-through late in - at night, and we were - she drove through and then she - she couldn't choose anything so we had to drive and park on the side, and we were there and she couldn't make up her mind and I said, "Well, let's just drive home," with the kids at home. Yes, then we had an argument. She - she just got (indistinct) at me when I said, "Move to the side and I will drive if you don't want to drive home," and - and we had a bit of argument and I just left.” [73]
[72] The Tribunal notes that the incident occurred at a Hungry Jacks restaurant.
[73] Transcript, Day One, page 43.
…
RespondentBut you breached the DVO in November 2018 and you weren’t drinking then. Do you accept that?
Applicant No.
Respondent At Hungry Jacks in (indistinct)?
ApplicantI have - there was - I wasn’t drinking, but I was - it was just a - I was upset with [MA], because she broke the car key out of the car. That was the only thing I could argue. I was pissed off and I left the car, yes.” [74]
[74] Transcript, Day One, page 47.
When giving her own evidence, MA explained the Hungry Jacks incident in these terms:[75]
[75] Transcript, Day One, pages 84 and 85.
“Mr Cummings And just explain to me how the fight – how it started in the car. Just tell me what happened?
MAWell, we went there and, well, we ordered – we’d tried to order food. I was (indistinct) and I remember that I was asking him to pay for it. And then he got a bit upset because he was like – like, he didn’t have any money because he’d spent all the money that he’d worked for, like, he gave it to us. And I remember he had no money and I was forcing him to pay for it, and I got really angry. And I ripped the key out of the ignition and it snapped.
Mr Cummings Right. Did [the Applicant] try and take over driving the car?
MAYes, he did.
Mr Cummings All right?
MAWe were both drunk.[76] And he wanted to go home and see the kids. And he didn’t want me to go there at all anyway.
Mr Cummings All right. And then he took off. And you tried to raise the alarm with the police?
MAYes.
Mr Cummings Is that the case?
MAYes.
…
Mr Cummings You understand that the version of events you’ve told us about the Hungry Jack’s argument are very different to the version of events in the police’s records of it?
MAOkay. I can’t remember, hey. I just remember I was waiting for him to pay for it and yelling at him to pay for the food. I don’t remember. (Indistinct) I was (indistinct) because he wanted to get home and he was pissed off that, like, I was, ‘come with me,’, when the kids were at home. I just remember how embarrassed I was (indistinct).”
[76] The Tribunal notes that the Applicant said in his evidence that he was not drinking on this occasion. See: Transcript page 47, line 29.
The Tribunal notes that on 22 July 2019 another DVO was made, with an expiry date of 21 July 2023 (‘the current DVO’). When questioned as to the reason for the current DVO, MA stated that she did not know what it was about.[77]
[77] Transcript, Day One, pages 85 and 86.
On June 2020, a delegate of the Respondent notified the Applicant that the Department was considering refusing his application of 14 March 2015 for the Partner (Temporary) (Class UK) visa, and a notice of intention was issued. The notice stated that the Department held information about the Applicant’s criminal history which indicated that he had a substantial criminal history and may not pass the character test.
In July 2020, MA gave birth to their second child, a son, child J.
On 24 September 2020, a delegate of the Respondent refused the Applicant’s visa.[78] As a result of the convictions on 14 March 2017 and 28 October 2018, the delegate had determined that the Applicant “has a substantial criminal record and does not pass the character test by virtue of subsection 501(6)(a) with reference to subsection 501(7)(d) of the Act.”[79] The Applicant was notified of the delegate’s decision on 12 November 2020.
[78] Exhibit 1, G4, page 123.
[79] Exhibit 1, G4, page 126. Section 501(7)(d) provides that, for purposes of the character test, a person has a substantial criminal record if ‘the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.
The Applicant reported that he received news of the visa refusal while away from Townsville, working on-site at the mine. The Applicant flew back to Townsville, and spent two nights with MA and his children, before reporting to the authorities, whereupon he was sent to immigration detention.
On 13 November 2020 the Applicant applied to the Tribunal for review of the delegate’s decision to refuse the visa application.
The Tribunal notes that on 19 November 2020, the Applicant’s wife lodged an application to vary or terminate the current DVO, providing the following reasons:[80]
“[The Applicant] and I have I have been getting along very well and no domestic violence has occurred also with no consumption of alcohol and both attending councilling.”
(errors in original)
Other TESTIMONIAL Evidence before the Tribunal
[80] Exhibit 3(A).
The Psychologist, Mr Tim Watson-Munro
Mr Tim Watson-Munro is a consultant clinical forensic psychologist with extensive professional experience in dealing with offenders. He has provided a report on the Applicant dated 14 December 2020, and had spoken with both the Applicant and MA, by means of telephone, on 2 and 14 December 2020, in order to prepare that report.
Mr Watson-Munro formed the view that the Applicant has now recognised his prior negative behaviours and has now taken responsibility for these, and has expressed remorse.[81]
[81] Transcript, day two, p.55, line 6-7.
Ultimately, Mr Watson-Munro expresses the opinion that the Applicant’s risk of re-offending is ‘trending towards low’. He explained the basis for that conclusion in these terms:
Mr Cummings Thank you. From your perspective, after interviewing [the Applicant], do you believe [the Applicant] recognised his prior negative behaviour and has taken responsibility for it?
Mr Watson-Munro Yes, I do. I say that advisably, on the basis of his expressions of remorse, but more particularly the positive steps he’s taken to address his problems. He’s no longer drinking. I’ve stated in my report he hasn’t consumed alcohol for a period of two or more years. So, he’s considered to be in full remission. I note that he’s seen a psychologist in the past, and he has also seen a clinical psychiatric nurse. I make the observation in my report that, notwithstanding his progress, he’s still suffering a moderate and recurring depressive disorder. He has anxiety. A lot of that’s (indistinct) to his concerns regarding the uncertainty as to whether he can stay in Australia. There’s also work in terms of his prior history and the considerable loss that he’s experienced over the years, in terms of the death of his father and two uncles in particular.
Mr Cummings In your report, you state that [the Applicant’s] risk of reoffending is ‘trending towards low’?
Mr Watson-Munro Yes.
Mr Cummings Could you discuss the reasons or facts that, from your perspective, that opinion’s based on?
Mr Watson-Munro The progress that he’s made. Certainly, when he was offending and drinking heavily, the risk of reoffending – as the history reflects – would be moderate to high. But since that time, in the context of him addressing his issues, having a stable situation with his marriage, his focus upon his family, his desire to maintain employment, his cessation of drinking, of course, and his desire to have ongoing treatment – these are all dynamic risk factors which are now being addressed and has been fairly effectively corralled. So, when I say, ‘trending towards low’, that’s – it’s a positive direction. It’s not trending towards high.[82]
[82] Transcript, 19 January 2021, page 55, lines 6 to 33.
In part, Mr Watson Munro’s opinion was predicated on an assumption that the Applicant had not drunk alcohol for two or more years. He was taken to the issue by the Tribunal, as well as asked questions regarding the relationship dynamic between the Applicant and MA, to which Mr Watson-Munro responded, as follows:
MemberAll right. So far as you are currently aware, when did [the Applicant] last drink?
Mr Watson-Munro He told me about three years ago. 2018.
MemberAll right. It would seem, on material that I have before me, he was convicted of a high-range drink-drive offence on 4 November 2018?
Mr Watson-Munro Yes.
Member Were you aware of drinking in late 2018?
Mr Watson-Munro Yes. When I say ‘three years’, perhaps I could clarify that. It’s 2021 now. 2018. But I guess it’s probably more accurate to say ‘in excess of two years’.
MemberAll right. Now, a portion of that time, of course, he’s been in confinement because he’s in immigration detention?
Mr Watson-Munro Yes.
MemberAnd that means, of course, he cannot drink. Are you taking those sorts of considerations into account as well?
Mr Watson-Munro I have, sir. And certainly, from my history-taking, the alcohol consumption had ceased prior to him being taken into immigration detention.
MemberAll right. On my reading of the facts of this case – through various distinct documents – there appears to be a dynamic between [the applicant] and his wife which is conflagrated by alcohol?
Mr Watson-Munro Yes.
Member What’s your opinion in relation to that?
Mr Watson-Munro I respectfully concur with that. I spoke with his wife. She acknowledged that she too had some psychological difficulties in terms of depression, anxiety and drinking. And, clearly, with two people drinking with problems it’s a recipe for potential difficulties in the marriage and bad behaviour. But he’s ceased drinking. She has dealt with her issues. And as best I could judge through my discussions with her and him, they seemed focussed on maintaining a stable marriage and moving forward with their lives.[83]
[83] Transcript, 19 January 2021, page 56, lines 4 to 33.
During cross-examination the respondent put to Mr Watson-Munro that he was not apprised of all relevant information:
Mr Cummins Could you read that, please?
Mr Watson-Munro Certainly. Yes, I’ve read that (indistinct) that page.
Mr Cummins So you accept that that’s a year after [the applicant] told you he had stopped drinking and stopped arguing with his wife. He looks like he has been drinking and arguing with his wife?
Mr Watson-Munro Yes, it does.
Mr Cummins Does that affect the risk assessment you’ve made in your report?
Mr Watson-Munro Well, it certainly is concerning if he was drinking. It doesn’t say categorically that he was intoxicated. But again, it’s a similar dynamic of them arguing, and that one’s in November 2019. It clearly reflects that there was more work to do at that point.
Mr Cummins I think you can take as an agreed fact between those of us at the tribunal that the Applicant, he was drinking on that day. That’s an admitted - - - ?
Mr Watson-Munro Okay. Then that’s troubling. That’s a troubling bit of information.
Mr Cummins So, to paraphrase what you’ve said to us in the last sort of few minutes, it’s troubling that the arguments have continued, and it’s troubling that the alcohol consumption has continued; but independently of those two facts, are you also troubled by the fact that [the Applicant] and his wife didn’t tell the truth to you?
Mr Watson-Munro That’s troubling as well.
Mr Cummins And I suppose you would agree that your report is only as good as the information that is fed into it?
Mr Watson-Munro Well, yes. It’s not just their information, though. That’s the broader body of information I’ve had. Is there any further evidence of drinking beyond November 2019, or violence - - -
MemberNo, that’s the most recent evidence we have of any alcohol-related behaviour?
Mr Watson-Munro Yes. So, in the last year there have been no further incidents, which I think is encouraging, but the lack of candour of course is troubling.
Mr Cummins Assume for the hypothetical that the drinking hadn’t stopped, and the arguments hadn’t stopped, does that then push your risk assessment back to moderate?
Mr Watson-Munro If he’s still drinking, and if there’s evidence of him being emotionally and physically abusive the risk would be higher than low, trending towards moderate.
Mr Cummins And, when you use the term - the concept of a risk trending in a direction, is that because it’s not a stationary concept, risk assessment? Is that right?
Mr Watson-Munro Well, I don't think it is constant. One looks for progress in treatment, so consequently if somebody has ceased drinking or using drugs and they’ve been clean for three months, they’re trending in the right direction in terms of being in partial remission, but it’s not until they reach a point of two years or more that they can be considered to be in full remission. So, the fact that there has been no further allegations of drinking or emotional violence in the last 12 months, that’s a positive trend, but it takes a long time for people to be in a position where you can say that the risk is very, very low. He has no other (indistinct) however. And the other dynamic surrounding his offending behaviour referrable to the death of his father, the death of his uncle, all of these factors were contributing to his drinking, appear to be now resolved. I didn't ask him about 2019 so I don’t know what was occurring on that occasion. As you put it to me, there were two examples or two incidents, one at Hungry Jack’s, and the other on the way to a restaurant where he demonstrated poor regulation in terms of his emotions. But it’s a trend nonetheless, it appears to be that he’s not doing this on a daily basis and there has been no further complaints for the last 14 months, I see; 13 - 14 months.
Mr Cummins If I can zoom out for a bit. Have you done much work in the domestic violence space?
Mr Watson-Munro Yes, I have.
Mr Cummins That’s with victims and perpetrators?
Mr Watson-Munro Victims and perpetrators. I used to be a consultant with the victim of crime assessment team in Victoria 30-odd years ago, but I think it would be fair to say most of the work that I’ve done in this area is with offenders.
Mr Cummins Are you aware of whether there has been any research done about whether a person’s propensity to commit domestic violence is increased if their own parents had a domestic violence relationship?
Mr Watson-Munro Look, I’m aware of a wide body of research. There’s certainly some research that supports that position. There is other research that says there are a lot of people who were raised in domestically violent situation who don’t become violent, so I think the jury is out.
Mr Cummins But, is the jury out on whether it’s harmful for children to see their parents acting violently towards each other?
Mr Watson-Munro No. No, I thought you were talking about the impact on as an adult becoming violent by witnessing violence.
Mr Cummins I was. I was?
Mr Watson-Munro But, certainly, you know, the impact on children witnessing violence in the home is nothing other than negative.
Mr Cummins What are those impacts, as you understand them?
Mr Watson-Munro Well, it can lead to depression, anxiety, insecurity. But as I said in my earlier answer, some people seem to come through far less scarred than others. So, it depends on how the situation is handled, it depends on the extent and the intensity of the violence, it depends whether the children remain in fear of the offending parent or parents. So, again, it’s a spectrum. For some people it can be catastrophic, for others less so. But I think it’s fair to say that all children are affected when they witness domestic violence.
Mr Cummins And, are there any - are we very good, or are the researchers very good at predicting which children are going to be more affected by that, or we don’t know yet?
Mr Watson-Munro We don’t know yet with any precision because there’s a lot of other factors that need to be taken into account, as I’ve described. If there’s alcohol involved, if the parent has ceased drinking; if there’s drugs, similarly so; if a parent had treatment; if the children are traumatised, what sort of treatment they’re having. So, there’s still more work to be done in this area.
Mr Cummins Thank you, Mr Watson-Munro, that’s all from me.
MemberAll right. Thank you. Mr Watson-Munro, what do you know about any relationship counselling that [the Applicant and MA] have had?
Mr Watson-Munro I’m not aware of much at all, sir. I know that he saw a psychologist on two occasions on his own, as I understand, and he saw a psychiatric clinical nurse. And I’ve quoted that material. But I’m not aware of any relationship counselling they’ve had.
Member All right?
Mr Watson-Munro It’s useful if they did have it.
MemberSo far most of your answers have been directed towards [the Applicant] and his circumstances and risk of reoffending. I’m troubled by the relationship dynamic between this couple?
Mr Watson-Munro Yes.
MemberIt seems to me that alcohol is the fuel that leads to conflagration between the pair of them, and it seems to me also that there’s evidence that [MA] has her own issues. Can you tell me a little more, please, about her circumstances and her issues?
Mr Watson-Munro Well, as I understand it, she has had difficulties with alcohol, she has suffered from depression and anxiety. I didn’t do a full work-up with her, I was more interested in her views on the marriage and her perceptions of her husband and so on. But I think, with respect, sir, you’ve summarised it pretty well. She has some issues, and as I’ve said in my evidence earlier, it can be very - it’s potentially dangerous when two people with issues are drinking heavily, because it leads to poor impulse control (indistinct) and escalation of anger, and potential involvement of the police, which seems to have occurred here in the past.
MemberThere seems to be at least a few instances where [MA] has made false accusations against her husband in relation to domestic violence, and also where she has claimed to have overdosed, and then when he called the ambulance, she became quite angry with him. What do I make of that sort of thing?
Mr Watson-Munro In terms of the information you’ve given me, it seems to be manipulative behaviour, attention-seeking behaviour, and in some ways putting him in a double-bind, in that [if] she has overdosed or taken medication, he has done the right thing by calling an ambulance, and then she has argued with him about it, which puts him in a very delicate situation.[84]
[84] Transcript, 19 January 2021, page 62, line 13 to page 65, line 7.
Evidence of DD
DD is a local friend of the Applicant having known the Applicant for approximately seven years. DD was called by the Applicant to give character evidence.
DD told the Tribunal that he saw the Applicant, on average probably only twice per month. Although he was aware that the Applicant had been imprisoned for breaching a DVO, he had no awareness of any of the circumstances that had given rise to that.
Evidence of JD
JD is an uncle of the Applicant who lives approximately 5 kilometres away from the Applicant and MA. JD told the Tribunal he would see the Applicant and MA, on average, once every two months. JD is aware of domestic violence and alcohol issues in their marriage, yet feels that these issues are now in the past:
Mr Northam: ‘Do you have any concerns for the safety or wellbeing of MA? Should she fear him in any way, from your point of view based on what you’ve seen?’
JD: ‘Not from now. What I’ve seen over the last three years is that they’ve really lived a good loving family. I’ve been to some of their gatherings with the birthday and all this with the kids, and all this, and they seem to be getting on really well. And they love themselves so much, you know, together. I mean, I think, you know, there wouldn’t be any concern in there.’
JD also expressed the following:
Mr Cummings: ‘It's possible as a result of the tribunal's decision that [the Applicant] might have to go back to Papua New Guinea. If that were to happen, and MA said to you look, JD, I really need a break. Would you mind taking care of some of my kids just for a night. Is that something you could do every now and again?’
JD: ‘Definitely, yes. Yes, that's - part of our, you know, family you know obligations and all this and we - I'd love to do it, yes.’
Mr Cummings: ‘MA's your family as well isn't it?’
JD:‘Sorry?’
Mr Cummings: ‘MA is part of your family?’
JD:‘Yes, quite, yes. Definitely.’
Mr Cummings: ‘You mentioned that [the Applicant] had told you that he'd stopped drinking. Can you remember when the last time you saw [the Applicant] drinking was?’
JD:‘I moved down in 2018 and I didn't see him drinking that time so he must have - yes, stopped drinking before that.’
Member:‘What would you do if you saw [the Applicant] drinking? Well, I'd definitely talk to him as a family member. That's - you know, that's I think an important thing that, you know, I'd mention to him about that, you know, and obviously that would be a concern for me.’
Member:‘As an older man, as his uncle, do you think he would respect your views and opinions if you told him not to drink?’
JD:‘He definitely would because that's like in our custom, you know, that's what people do. They respect them, you know, get the views from the others, you know, and they tend to follow that, so.’
Member:‘If MA came to you and complained that [the Applicant] was drinking, would you do something?’
JD:‘I'd do the same thing, yes, definitely.’
Member:‘Would you step in, and try and correct the situation?’
JD:‘I definitely would, because they're part of my family now. I'd love to see them together, you know, and I'd love to, you know, see them looking after the kids, looking after their lives, you know, getting on with it, you know. They're young. I know they're growing up but, you know, things will come - happen in their lives but they need to, you know, get together and make sure that they look after the kids and grow up so - and I'm as concerned as they would be, you know, to make sure that they have a good life.’
ISSUES
The issues for consideration by the Tribunal are:
·whether the Applicant passes the character test; and if not,
·whether the discretion in s.501(1) of the Act should be exercised to refuse to grant the visa, having regard to the considerations set out in Direction No. 79 Visa refusal and cancellation under s.501 and revocation of a mandatory cancellation of a visa under s.501CA, a Ministerial Direction made under s.499 of the Act (‘the Ministerial Direction’).
RELEVANT LAW
The Character test
The character test is specified in s.501(6) of the Act. Relevantly, it provides that a person will not pass the character test if they have a ‘substantial criminal record’: s.501(6)(a). A substantial criminal record is then defined, in s.501(7), and includes (d), circumstances where a person has been sentenced to two or more terms of imprisonment comprising a total of 12 months or more: s.501(7)(d).
Here, the applicant has been sentenced to three terms of imprisonment, each in relation to breaches of domestic violence orders (DVOs), the cumulative total of which is 14 months. It is not relevant to that calculation that one of those terms of imprisonment was suspended.[85] Nor does it matter that the applicant only spent 112 days in actual imprisonment whilst on remand. By operation of law[86] the applicant cannot pass the character test, and the Tribunal so finds, accordingly.
[85] Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 105 at [27]
[86] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
The issue before the Tribunal on this application for review thus becomes whether the discretion should be exercised to refuse to grant the visa.
The Ministerial Direction
In considering whether to exercise the discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Ministerial Direction”) has application.
Part B of the Ministerial Direction identifies the considerations that are relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application. General guidance is provided for decision-makers in paragraph 6.2. Principles that ‘provide a framework within which decision-makers should approach their task of deciding whether to refuse a non-citizen’s visa under section 501’ are then set out in paragraph 6.3.[87]
[87] Ministerial Direction, paragraph 6.2(3).
The paragraph 6.3 principles 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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Suitably informed by the principles set out in paragraph 6.3, paragraph 11 in the Ministerial Direction then prescribes that the Tribunal must, when deciding whether to refuse the Applicant’s visa, bring to account the following primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)The expectations of the Australian community.
In addition, paragraph 12 in the Ministerial Direction requires that, when determining whether to refuse the visa, the Tribunal must also take into account certain ‘other considerations’, wherever these become relevant. The other considerations include (but are not limited to):
a) International non-refoulment obligations;
b) Impact on family members;
c) Impact on victims; and
d) Impact on Australian business interests.
Here, it is to be emphasised the importance of these being regarded as “other”, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Primary Considerations
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of the Ministerial Direction specifies that when considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as the result of criminal activity or other serious conduct by non-citizens. The Ministerial Direction mandates a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Paragraph 11.1.1(1) of the Ministerial Direction specifies that when considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, the Tribunal must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that 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, are serious;
d)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s.501(6)(c), is considered to be serious;
f)Subject to paragraph (b) above, the sentence imposed by the court for a crime or crimes;
g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h)The cumulative effect of repeated offending;
i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j)Whether the offence or conduct was committed in another country, whether the offence or conduct is classified as an offence in Australia.
The respondent submits[88] that the Applicant’s offending should be viewed by the Tribunal as “very serious”, for three reasons. Firstly, the Applicant has been convicted of crimes of a violent nature against his wife MA on multiple[89] occasions, in circumstances wherein paragraph 11.1.1(1)(b) of the Ministerial Direction requires that these occasions be viewed very seriously regardless of the sentence imposed.
[88] Exhibit 5, Respondent’s Statement of Facts Issues and Contentions, paragraph 19.
[89] 28 February 2015, 2 May 2015, 5 May 2015, 21 November 2016, 4 August 2016, & 29 May 2018
Secondly,[90] because paragraph 11.1.1(1)(f) requires that regard be had to the sentence(s) imposed by the Court. In this case the Applicant has been sentenced to terms of imprisonment for contravention of the DVOs, which must be viewed as a reflection the objective seriousness of the offences committed by the Applicant.
[90] Respondent’s Statement of Facts, Issues and Contentions, paragraph 21.
Thirdly,[91] and in light of paragraph 11.1.1(1)(g) in the Ministerial Direction, because the Applicant’s criminal history reveals a trend of escalating seriousness, as is reflected in the increasing severity over time of the sentences imposed by the Courts for each successive offence.
[91] Respondent’s Statement of Facts Issues and Contentions, paragraph 22.
The Applicant submits[92] that his offending behaviour should not now be categorised by the Tribunal as serious, as the Applicant has not ever been convicted of an offence of violence but rather ‘only of contravention of domestic violence orders’, and that the Respondent’s contention that the Applicant ‘has been convicted of offences which must be considered serious as they are violent offences perpetrated against his partner “is simply not consistent with the facts of the applicant and sponsor [MA] where the offences [the Applicant] has been convicted of are limited to breaching domestic violence orders”.
[92] Applicant’s Statement of Facts Issues and Contentions, paragraph 9.
The Tribunal cannot accept the Applicant’s submission. Of the principles identified in paragraph 11.1.1(1), (a), specifies that there is no limit to the range of offences that may be considered ‘very serious’, and the Tribunal does now regard domestic violence in that light. That conclusion is only then further galvanised by 11.1.1(1)(b), which provides that offences of a violent nature against women ‘are to be viewed very seriously regardless of the sentence imposed’. Here, it is to be observed that the police averments for each of the domestic violence contraventions by the Applicant are factual accounts infused with significant elements of violence perpetrated by the Applicant against MA, and that the Applicant has pleaded guilty - and thus has admitted - to each of these without challenge at the time of entering his plea. Although 11.1.1(1)(c), (d), (i) & (j) are of no present relevance, regard must still be had to (e), and to (f), and the fact that a number of the Applicant’s domestic violence contraventions were regarded by the courts as sufficiently serious to warrant sentences of imprisonment; and (g), that each successive contravention has attracted a greater sanction; and that (h), the cumulative effect of the Applicant’s recurrent domestic violence contraventions has shown that the Applicant has not been deterred from committing further acts of domestic violence by the fact of the courts having made these orders.
In light of the Ministerial Direction, the Tribunal therefore concludes that it is now compelled to assess the nature and seriousness of the Applicant’s conduct to date as amounting to “very serious”.
The risk to the Australian Community should the non-citizen commit further offences or engage in other serious conduct.
In considering the question of risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct in the future, the Tribunal is required to take guidance from paragraph 11.1.2 in the Ministerial Direction, which provides:
(a)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(b)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(c)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(i)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(d)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa
The respondent submits[93] that there remains an unacceptable risk of further offending by the Applicant such that protection of the Australian community should now weigh heavily in favour of affirming the decision to refuse the Applicant a visa, because:
[93] Exhibit 5, Respondent’s Statement of Facts, Issues & Contentions, paragraph 24 - 29
·Paragraph 11.1.2(2) of the Ministerial Direction makes plain that the Australian community has a low tolerance of any criminal or other serious conduct by visa applicants, and there should be no expectation that such people should be allowed to remain permanently in Australia;
·The possible harm that may flow from further acts of domestic violence by the Applicant has the potential to be very serious, and potentially even catastrophic. The nature of this harm may be physical or psychological and the financial cost that this type of domestic violence offending imposes on the Australian community is enormous. In these circumstances paragraph 6.3(4) of the Ministerial Direction has in contemplation that even other strong countervailing considerations may be insufficient to justify not refusing the visa;
·If the Applicant committed further acts of domestic violence, it would be so serious that any risk of similar conduct in the future is unacceptable, for the following reasons:
othe Applicant has demonstrated a lack of insight into his offending: initially appearing - by reason of his guilty pleas - to accept the factual bases upon which he was convicted yet later asserting, even now before the Tribunal that his offending behaviours were not violent, or serious, or “very serious”;
oThe QPS summonsed records reveal a multitude of concerning acts of domestic violence by the Applicant against his wife;
oThe protective force of the extant protection order has been lessened because MA – as the victim of his offending - has applied to vary the DVO such that the Applicant will now be able to enter her home without obtaining her prior written consent;
oIt is, in any event, difficult to see what protective effect the DVOs issued against the Applicant have had in this matter - and might have in the future - given that the Applicant has breached such orders on several prior occasions;
oThe applicant’s claim that his risk of reoffending in the future is very low because he has not drunk alcohol since 2018 is contradicted by QPS summonsed records which reveal an argument between the Applicant and his wife about the Applicant’s drinking having occurred in November 2019;
oExcessive consumption of alcohol is, in any event, not a complete answer to the Applicant’s domestic violence offending because he has continued to behave inappropriately towards his wife during his claimed period of abstinence commencing from May 2018. The respondent instances the ‘Hungry Jacks incident’, on 30 November 2018, as an example;
oThe following can be noted in relation to Mr Watson-Munro’s psychological report:
· Mr Watson-Munro did not have the benefit of the summoned records which suggest that: (a), contrary to what he was told, there have been violent incidents between the Applicant and his wife; and (b), again contrary to what he was told, the Applicant has not fully ceased drinking alcohol, as had been assumed by Mr Watson-Munro as a key premise underpinning his expert opinion regarding future risk;
· The Applicant has not received the needed treatment identified by Mr Watson-Munro in his report;
· Mr Watson-Munro’s assessment was that the Applicant’s risk of reoffending was “trending towards” low. Yet, it did not say the Applicant was now a low or negligible risk, and the factors informing the “trending towards low” conclusion (abstention from alcohol and reduction in marital conflict) have been shown on the evidence to be different from that which had been assumed by Mr Watson-Munro.
The Applicant submits[94] that, in light of the opinion expressed by Mr Watson-Munro that any risk of the Applicant now re-offending is not an unacceptable risk.
[94] Applicant’s Statement of Facts Issues & Contentions, paragraph 22.
Ultimately, the Tribunal determines that the evidence received before the Tribunal shows that there was a lack of candour in the accounts given by the Applicant and MA to Mr Watson-Munro. Information not known to him at the time of his expressing the original opinion expressed in his report dated 14 December 2020, yet now known by him - as at the date of the giving of his oral evidence before the Tribunal - has the result that the risk of the Applicant re-offending in like manner in the future is assessed by Mr Watson-Munro somewhat higher than the previously expressed ‘trending towards low’. The potential risks of the Applicant re-offending are very serious, and potentially catastrophic. In those circumstances, the risks of harm are so serious as to become unacceptable.[95] The Tribunal therefore concludes that protection of the Australian community becomes a primary consideration that now weighs very heavily in favour of visa refusal.
[95] Ministerial Direction Paragraph 6.3(4)
The Best interests of minor children in Australia affected by the decision
Paragraph 11.2 in the Ministerial Direction sets out various factors that, wherever relevant, must be considered as part of an assessment of the best interests of minor children in Australia who will be impacted by a visa refusal decision. Various factors are set out in paragraph 11.2(4) that must be considered, wherever relevant, as follows:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements.
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other
(e)Whether there are other persons who already fulfill a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The evidence reveals the following minor children in Australia who will be impacted by a visa refusal decision:
·Child M, male, 12 years old;
·Child I, male, 9 years old;
·Child H, female, 4 years old; and
·Child J, male, 6 months old.
The Applicant submits[96] that significant weight in favour of setting aside the visa refusal decision should be given to this primary consideration.
[96] Applicant’s Statement of Facts Issues & Contentions, paragraph 29.
The respondent concedes that the best interests of these minor children in Australia are better served if the visa is not refused, yet submits[97] that the weight that should be attributed to this primary consideration should be reduced, by reason of:
(a)the fact of the Applicant’s own admission, that by reason of the very young age of J, the Applicant has not been able to form a meaningfully close relationship with J;
(b)the children are all cared for by MA, and she has been able to do so during the Applicant’s frequent periods of absence from home as a fly-in/fly-out (‘FIFO’) worker;
(c)the children are ‘likely to have witnessed the applicant’s domestic violence against MA which can only have had a negative impact’; and
(d)any negative impact on the step-sons (M and I), needs to be assessed in the context that their biological father, N, remains as a parental figure who is still present in their lives.
[97] Respondent’s Statement of Facts Issues and Contentions, paragraph 31.
Although the fact of the Applicant’s immigration detention throughout much of the young life of child J has meant that the Applicant has not been able to establish as close a paternal relationship with J as may have been the case, had the Applicant not been so detained, this is not a factor that the Tribunal is minded to take into account as now diminishing the weight to be attached to this primary consideration in the case of child J. The evidence shows that the Applicant has done as much as could reasonably be expected of him in the specific circumstances of the birth of J and his immigration detention to establish a positive relationship with his son J. Nor is the Tribunal persuaded that the Applicant’s parental role should be viewed in some diminished light solely by reason of his status as a FIFO worker, particularly when the evidence shows that the Applicant is a very active participating parent when ‘off shift’, and not at work. As to (c) from the list immediately above, there is no evidence before the Tribunal to suggest that the children have borne witness to any of the Applicant’s domestic violence, such that the Tribunal is not prepared to make the finding called for by the respondent in (c). Some regard may be had, at (d), for the fact that step-sons M and I still have the presence of their biological father N in their lives, yet, against that, the Applicant would appear to have just as much a positive role, in their lives as does N.
The evidence received before the Tribunal reveals the Applicant as a devoted father who is an active participant in the lives of both his children, and step-children. The evidence suggests the Applicant to have performed an equanimous alternate father role for M & I, in circumstance where their own father has oftentimes been lacking.
Of the factors set out in paragraph 11.2(4) in the Ministerial Direction, the Tribunal concludes as follows:
(a)The nature and duration of the relationship between each of the minor children M, I, H, and J is parental and is of substantial duration, being for the entirety of the lives of each of H and J and for a very significant portion of the lives of step-sons M, and I. The Tribunal acknowledges that the Applicant has been in immigration detention for a large portion of the time since the birth of the youngest child, J.
(b)The Applicant is likely to play a positive parental role in the future for each of M, I, H and J, noting that the eldest (M) of them is 12 years of age, and the youngest (J) is aged just six months.
(c)There is no evidence of any adverse impact on any of the children caused by the Applicant’s prior conduct, yet there remains the potential that any further repetition of the Applicant’s domestic violence could negatively impact on the children in the future.
(d)Upholding the visa refusal decision now under review is likely to have an adverse effect on the children, noting that the ability of the Applicant to maintain effective contact with them in the future by other means is much truncated. Telecommunication with the PNG Highlands is expensive and unreliable. There is no practical likelihood of any of the children travelling to see the Applicant at any time during their remaining childhood.
(e)MA already fulfills a maternal role in the case of each of the children. MA’s former partner N performs a paternal role in the case of M and I.
(f)Although there is no direct evidence on the point, it may be assumed on the basis of the evidence of each of the Applicant and MA that each of the children would prefer for the Applicant to be granted the visa.
(g)There is no evidence before the Tribunal that the Applicant has either abused or neglected any of the children in any way.
(h)There is no evidence before the Tribunal that any of the children has suffered or experienced any physical or emotional trauma arising from the Applicant’s prior conduct.
The Tribunal determines that this primary consideration weighs heavily in favour of the setting aside of the visa refusal decision.
Expectations of the Australian Community.
Paragraph 11.3(1) of the Ministerial Direction specifies that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or the offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers are required to have due regard to the Government’s views in this respect, which reflect those of the Australian community,[98] yet the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter for the Tribunal’s discretion.[99]
[98] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66] – [67] (per Charlesworth J), [91] & [104] (per Stewart J)
[99] Ibid, at [76] (per Charlesworth J); and [97], (per Stewart J).
Paragraph 6.3 in the Ministerial Direction sets out a number of Principles, that must[100] be taken into account by the Tribunal, in terms of it further understanding primary considerations in Part B, which include the expectations of the Australian community:
(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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
[100] Ministerial Direction, paragraph 7.1(a).
The Respondent submits[101] that, in light of Principles 6.3(2) and 6.2(3) (above) in the Ministerial Direction, the Australian community would expect that the Applicant should not hold a visa on account of the serious crimes that he has committed, and that this primary consideration must weigh heavily in favour of visa refusal.
[101] Exhibit 5, Respondent’s Statement of Facts, Issues & Contentions, paragraph 35.
The Applicant submits[102] that the expectations of the Australian community ‘generally weigh against’ the Applicant, yet contends that, where the non-citizen’s conduct is not “very serious”, the risk of reoffending is not high and where there is an Australian citizen partner and dependent [minor] children who will be deprived of his presence in the event of removal, this factor should not weight heavily against the applicant.
[102] Applicant’s Statement of Facts, Issues & Contentions, paragraph 30.
The Tribunal has assessed the Applicant’s conduct as ‘very serious’, and also assesses the risk of re-offending to be higher than as now submitted by the Applicant. Further, in light of paragraph 6.3(5) of the Ministerial Direction, it is to be observed that the Applicant has only been participating in and contributing towards the Australian community for only a short period of time (having arrived in 2012). In these circumstances - and in particular light of paragraphs 6.3(2) and 6.3(3) in the Ministerial Direction - the expectations of the Australian Community must be assessed as weighing very heavily in favour of visa refusal.
OTHER CONSIDERATIONS.
Of the various ‘other considerations’ identified in paragraph 12 of the Ministerial Direction, it is conceded[103] by the Applicant that neither (a), Australia’s international non-refoulment obligations; or (d), impact on Australian business interests, become relevant in this matter. That leaves only (b) (impact on family members), and (c) (impact on victims), as still remaining for consideration by the Tribunal.
[103] Transcript, Day Two, page 132.
In terms of (c), the Applicant’s wife MA is the primary victim of his offending, yet the impact of visa refusal on MA is a matter that is more suitably brought to account when addressing paragraphs 12(1)(b) and 12.2(1) of the Ministerial Direction (consideration of the impact of a visa refusal on immediate family members).
The Applicant submits[104] that this other consideration weighs in favour of the Applicant, noting that MA suffers from depression and that the Applicant is the primary source of emotional support for MA and of financial support for MA and all of the children.
[104] Applicant’s Statement of Facts, Issues & Contentions, paragraphs 32 – 34, inclusive.
The Respondent accepts[105] that visa refusal and the attendant need for the Applicant to leave Australia will have an adverse impact on the Applicant’s wife and other immediate family in Australia, yet further submits that this consideration is now outweighed by those primary considerations directed towards the protection of, and expectations of the Australian community. The Tribunal accepts that submission.
CONCLUSION
[105] Respondent’s Statement of Facts, Issues & Contentions, paragraph 39.
Should the Tribunal exercise its power to refuse to grant the Applicant’s visa?
As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should exercise the power conferred by s 501(1) to refuse to grant the subject visa to the Applicant.
In reaching this conclusion to exercise the power, I have had regard to the considerations referred to in the Direction. With regard to the weight allocatable to each of these Primary and Other Considerations, I find as follows:
·Primary Consideration A weighs very heavily in favour of exercising the discretion to refuse to the subject visa;
·Primary Consideration B weighs very heavily in favour of not exercising the discretion to refuse to grant the subject visa;
·Primary Consideration C weighs very heavily in favour of exercising the discretion to refuse to the subject visa;
·Other Considerations (a), (c) and (d) are of either neutral weight or not relevant to this consideration;
·Other Consideration (b) weighs heavily in favour of not exercising the discretion to refuse to grant the subject visa;
·The combined weight of Primary Consideration A and Primary Consideration B determinatively weighs in favour of exercising the discretion to refuse to grant the subject visa; and
·A holistic application of the considerations in the Direction to the evidence therefore militates in favour of this Tribunal exercising the discretion to refuse to grant the subject visa to the Applicant.
In these circumstances those considerations in support of upholding the visa refusal outweigh the considerations in support of revocation of the visa refusal decision, such that the Tribunal determines that the decision of the delegate to refuse the visa is now affirmed.
Decision
The Decision under review is affirmed.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean-Williams
[sgd] Associate Dated: 23 February 2021
Dates of hearing:
19 & 20 January 2021
Solicitor for the Applicant:
Mark Northam
Northam Lawyers
Solicitor for the Respondent:
Rachael Law
Clayton Utz
Annexure A
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2020/7540
General Division )
Re: QHRY
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Member Andrew McLean-Williams DATE: 4 February 2021 PLACE: Brisbane DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 24 September 2020.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
………….………[SGD]………………..
Member Andrew McLean-WilliamsANNEXURE B
File No: 2020/7540
Between: QHRY (Applicant)
And:MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
1
Section 501 G-Documents (pages 1 to 283)
-
1 December 2020
2
Respondent’s Tender Bundle (pages 1 to 70)
-
11 January 2021
5
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 15)
11 January 2021
11 January 2021
3
Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 8) with annexures:
· Annexure A: Application to vary a domestic violence order dated 19 November 2020
· Annexure B: Psychologist report of Dr Watson-Munro dated 14 December 2020, and letter of instruction dated 2 December 2020
· Annexure C: Statements of the Applicant’s wife dated 21 December 2020
· Annexure D: Statement of the Applicant dated 20 December 2020
undated
22 December 2020
4
Applicant’s Evidence in Response
(pages 1 to 2) with annexures:· Annexure A: Letter of support from MA dated 16 April 2018
· Annexure B: MA’s email to the Tribunal dated 11 December 2020
· Annexure C: Character reference from Mr DD dated 24 December 2020
13 January 2021
13 January 2021
6
Applicant’s post-hearing submissions
(pages 1 to 8)21 January 2021
21 January 2021
7
Respondent’s submissions in reply
(pages 1 to 3)22 January 2021
22 January 2021
8
Applicant’s submissions in reply
(pages 1 to 4)22 January 2021
22 January 2021
1
4
0