Rangiuia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3550
•8 October 2024
Rangiuia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3550 (8 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9629
Re:Jarrod Rangiuia
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:8 October 2024
Place:Melbourne
The Tribunal affirms the decision of 12 September 2023 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..........................[sgd]..............................................
Deputy President Britten-Jones
Catchwords
MIGRATION – cancellation of Class X Subclass 444 Special Category (Temporary) visa –where the Applicant does not pass the character test – having failed the character test whether to exercise the discretion to cancel the visa – the nature and seriousness of the non-citizen’s conduct – applicant has been a member of outlaw motorcycle gang – applicant’s criminal record is extensive – contravened a domestic violence order – the best interests of a child who is affected by the decision – whether to exercise the discretion to cancel the applicant’s visa – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
REASONS FOR DECISION
Deputy President Britten-Jones
8 October 2024
This is an application for review of a decision made by the delegate of the Respondent on 12 September 2023 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’) under s 501(2) of the Migration Act 1958 (Cth).[1] The Tribunal has the power pursuant to s 500(1)(b) to review the decision of the delegate of the Minister. The Tribunal may affirm or set aside the decision under review.
[1] All references to legislation are to the Migration Act 1958 (Cth).
On 19 December 2023, the applicant was notified that the visa was cancelled under s 501(2) due to his association with a motorcycle gang involved in criminal conduct. The applicant applied to the Tribunal to review the cancellation decision. The Tribunal affirmed the decision. The Tribunal’s decision was then set aside by the Federal Court who remitted the matter for rehearing by the Tribunal. The matter was reheard on 30 September and 1 October 2024.
THE LEGISLATIVE SCHEME
Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been involved in criminal conduct…
The High Court in Minister for Immigration and Border Protection v Makasa (2021) considered the construction of s 501(2) and said as follows:[2]
[34] Bearing centrally on the construction of s 501(2) of the Act is recognition that s 501(2) confers a single power that is exercised by the Minister or a delegate in the first instance, and that is re-exercised by the AAT under s 43(1) of the AAT Act on review, according to a two-stage decision-making process.
[35] The first stage of the decision-making process begins with the decision-maker forming a reasonable suspicion that the visa holder in question does not pass the character test. By operation of s 501(6), a person either passes the character test or does not. The person does not pass the character test in any one or more of the circumstances exhaustively enumerated in s 501(6). Otherwise, the person passes the character test.
[36] Reasonable suspicion is a state of mind — “a state of conjecture or surmise” — that is based on “sufficient grounds reasonably to induce that state of mind”. The necessary precondition to the decision-maker forming a reasonable suspicion that the visa holder does not pass the character test is therefore the existence of facts sufficient to induce a reasonable person to surmise that one or more of the circumstances exhaustively enumerated in s 501(6) has occurred.
[37] The decision-maker having formed a reasonable suspicion that the visa holder does not pass the character test, the first stage of the decision-making process is completed by the decision-maker making a binary decision either to be satisfied by the visa holder that he or she passes the character test or not to be so satisfied and in consequence to maintain the reasonable suspicion.
[38] Satisfaction too is a state of mind — an “actual persuasion of [the] occurrence or existence” of the thing in issue. Implicit in the statutory placing of the onus on the visa holder to satisfy the decision-maker that he or she passes the character test is a requirement of procedural fairness that the visa holder be given notice and an opportunity to make representations before the first stage of the decision-making process can be completed. Implicit in the statutory need for satisfaction or non-satisfaction is that the satisfaction or non-satisfaction is to be reasonably based on the totality of the facts then known to the decision-maker.
[39] If the outcome of the first stage of the decision-making process is that the decision-maker is satisfied by the visa holder that he or she passes the character test, the only decision open to the decision-maker is not to cancel the visa. The decision-making process necessarily ends with the making of that decision.
[40] The second stage of the decision-making process is reached only if the outcome of the first stage is that the decision-maker, not being satisfied that the visa holder passes the character test, maintains a reasonable suspicion that the visa holder does not pass the character test by reason of the occurrence of one or more of the circumstances set out in s 501(6). The second stage then involves the decision-maker, reasonably and in compliance with applicable directions given under s 499, exercising a discretion the outcome of which is the making by the decision-maker of a further binary decision either to cancel the visa in the exercise of discretion or not to cancel the visa in the exercise of discretion.
[2] 270 CLR 430.
The Issue for the Tribunal
In this case, there is no dispute about the outcome of the first stage of the decision-making process because it is conceded by the applicant that he does not pass the character test. Consistent with that concession, I am not satisfied that the applicant passes the character test by reason of s 501(6)(b). The facts establish, and there is no dispute, that the applicant has been a member of the Bandidos outlaw motorcycle gang. Having failed the character test, the issue for the Tribunal is whether to exercise the discretion to cancel the visa, guided by the considerations set out in Direction 110.[3]
[3] Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Background Facts
The Applicant is a 30 year old citizen of New Zealand who arrived in Australia in 2011 when he was 17 years old. He has never had difficulty obtaining employment and has worked from the day he arrived in Australia up until he was detained in immigration detention.
The applicant began a relationship with his current partner in 2012. They are not married but they have three children together born in 2014, 2016 and 2021. The two older children suffer from severe autism and are non-verbal. The younger child also has health issues. This has understandably caused the applicant and his partner significant stress over many years. He turned to alcohol and drug abuse and engaged in various acts of domestic violence often while intoxicated from April 2018. He also became involved with outlawed motorcycle gangs. In addition to contravening domestic violence orders, he engaged in frequent (mostly drug related) criminal activity from 2019 to 2021.
The applicant and his partner say that they maintained their relationship despite a domestic violence protection order which prohibited his attendance at her house for a five year period from April 2018 to April 2023.[4].
[4] Exhibit 2 p 4
The applicant first associated with members of the Mongrel Mob in 2017 and he became a formal member in July 2018 when he attended a ceremony in Melbourne at which he received a vest which identified him with this adult street gang. He remained a member for about two years. The Mongrel Mob was shut down in early 2020 and later that year the applicant started associating with members of the Bandidos, an outlaw motorcycle gang, and became a ‘prospect’ member in early 2022.
The applicant’s visa was cancelled on 12 September 2023[5] by a delegate of the relevant Minister. The delegate relied on information from Queensland Police about the Bandidos and the applicant’s association with the outlaw motorcycle gang. On 19 December 2023, the applicant was notified of the cancellation decision and taken into immigration detention.
[5] Exhibit 3, p 14
Direction 110
The Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’) has application.
For the purposes of deciding whether to refuse a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
The other considerations are:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[6]
CONSIDERATION
[6] Direction 110 at 7(2)
Protection of the Australian community – 8.1 of the Direction
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity:
Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[7]
As required by paragraph 8.1(2) of the Direction, I give consideration below 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.
[7] Ibid 8.1(1)
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of the Direction
The applicant’s criminal record is extensive. He contravened a domestic violence order in April 2018, April 2020 and December 2020 but I will deal with the family violence later in my reasons.
On 23 May 2019, the applicant was approached by police and refused to comply with their directions. Other members of the Mongrel Mob were in attendance but the applicant said he was wearing his work clothes. Police attempted to handcuff him but he tensed his body up and pulled his arms away. He was warned to stop resisting or he would be charged with obstructing police. He was verbally abusive towards a police officer and made several threats towards her.[8] He said that she had punched him in the mouth to dislodge a cigarette but there is no mention of that in the police reports and I consider it unlikely that she did that. He appeared at the Beenleigh Magistrates Court on 18 July 2019 when no conviction was recorded but a recognisance of $400 was imposed together with a good behaviour period of eight months.[9]
[8] Exhibit 2, p 19.
[9] Ibid 1.
On 13 July 2019, the applicant was in a vehicle that was intercepted by police. He was observed wearing a prohibited item namely a Mongrel Mob jumper.[10] On 18 September 2019 the applicant was at a shopping centre in the company of another Mongrel Mob member. They abused another man and made gang-related threats to him and chased him to his vehicle. The applicant was charged with commit public nuisance.[11] On 1 November 2019 the applicant was convicted with respect to these two offences and fined $1000. As a result of these offences the recognisance was forfeited.[12]
[10] Ibid 23.
[11] Ibid.
[12] Ibid 2-3.
On 29 August 2020 the applicant was charged with unlawful possession of a dangerous drug namely cannabis.[13] He was convicted of this offence on 26 March 2021.[14]
[13] Ibid 31.
[14] Ibid 2.
On 29 November 2020 in the early hours of the morning, the applicant entered someone’s yard and stood near the front door banging on the sliding door and fly screen causing damage to it. He was then picked up by the police who found him in the middle of the road in a rage, angry, thrashing his arms and abusing others and the police. He was arrested and conveyed to the Beenleigh watchhouse.[15] On 26 March 2021 the applicant was convicted of wilful damage, trespass, committing a public nuisance and possessing dangerous drugs. A probation period of 12 months was imposed by the magistrate.[16]
[15] Ibid 41.
[16] Ibid 2.
Late in the evening of 22 May 2021, the applicant was arrested for being intoxicated in a public place and was then found to be in possession of cannabis.[17] He was convicted for these offences on 18 June 2021 and fined $500.[18]
[17] Ibid 53.
[18] Ibid 3.
The applicant was taken into detention on 19 December 2023. Whilst in detention on 23 March 2024, the applicant received a visit from his partner who provided him with some cannabis. The staff observed suspicious behaviours and movements between them during the visit and the cannabis was discovered on the applicant soon thereafter.[19] On 24 April 2024 the applicant was convicted of possessing dangerous drugs and was fined $250.[20] The applicant explained to the Tribunal that he had held a prescription for medicinal marijuana which was confirmed as true by a medical certificate that due to a medical condition he had been on prescription based medicinal marijuana since May 2022. However, the applicant accepted that his receipt of marijuana whilst in detention was unlawful and he admitted asking his partner to bring it to him because he had just been told that his first application to the Tribunal was unsuccessful, he had ongoing back pain and he had been told of four deaths amongst family members.
[19] Ibid 65.
[20] Ibid 3.
In addition to the above matters that were dealt with by the courts, the applicant engaged in other serious conduct by his association with outlaw motorcycle gangs. As confirmed by paragraph 18 of the applicant’s statement of facts, issues and contentions dated 4 September 2024, the applicant concedes that he was a member of both the Mongrel Mob and the Bandidos and accordingly accepts that he fails the character test for the purposes of s 501(6)(b). However, it was contended that he did not engage in gang related criminal conduct and that he was unaware of any criminal conduct engaged in by these gangs. The applicant does not deny that he was aware that the gangs were outlawed by the Queensland authorities.
The applicant gave the following evidence. He said that the Mongrel Mob was not a bikie gang and that he had never owned a motorbike. He joined the Mongrel Mob in 2017 through a friend he was working with who invited him to a fitness camp. He recalls driving to Melbourne with other members for a ceremony at which he received a vest in July 2018. He agreed to join because he felt connected to the other members who had similar backgrounds and he liked the positive things that the Mongrel Mob were doing in the community. He became aware in August 2018 that the Mongrel Mob were outlawed. He was a member for just over two years up to 2020. He participated in some of the monthly meetings but he was often working and therefore unable to attend some of them. There was no discussion of criminal activities at these meetings but rather they talked about offering free food to the community and fitness camps.
On 28 September 2019, the applicant was involved in an organised gang fight which involved baseball bats and vehicles being smashed. He was questioned by police but not arrested.[21] He admitted being involved with the fight.
[21] Exhibit 3, p 58.
The applicant said that he left the Mongrel Mob because the gang was being closed down and because it was moving towards what he described as a MC[22] pathway with which he did not agree. Nevertheless, he admitted that he started associating with members of the Bandidos later in 2020 and that he became a member of the Bandidos from early 2022. He says that he was only a member for about 4 to 5 weeks and that his association and membership ceased prior to 21 March 2022 when he was served with the notification of an intention to cancel his visa.
[22] motorcycle
During his evidence the applicant was taken to a file note of the Department of Home Affairs which summarised his association with the Bandidos.[23] The applicant agreed that he had attended an official gathering in Victoria of the Bandidos with other gang members and that he was issued with a Bandidos prospect vest which was later located in his luggage and confiscated at the Coolangatta airport at the time of his return on 7 February 2022. He was not arrested at the airport but he felt scared and intimidated by the authorities who searched him and found his prospect colours. He said that he left the Bandidos a few weeks after this incident at the airport for numerous reasons. These included his children and his partner, and the incident with the police at the airport, and because he had no motorbike and did not like the path that they were going down, namely more drug and alcohol abuse and violence amongst members. Shortly before 21 March 2022, he told the Bandidos that he no longer wanted to be involved and they understood. He gave back his Bandidos T-shirt.
[23] Exhibit 3, p 62.
The evidence as to why and when he resigned from the Bandidos is not clear. In his written statement of 17 February 2024 the applicant said that his departure from the Bandidos came shortly after the birth of his youngest daughter but she was born in July 2021 which was well before March 2022. In his evidence at the first Tribunal hearing on 1 March 2024, the applicant said that he was a member of the Bandidos for “probably like eight, nine months” which is inconsistent with his latest evidence that he was a member for only about four or five weeks. There is also evidence from Queensland police[24] that the applicant was identified with other Bandidos members in July 2022, although the applicant denies this.
[24] Ibid 63.
I consider that the applicant has downplayed his involvement with these outlaw gangs. It was known by the authorities that these gangs were involved in illegal activities and it is simply implausible that the applicant had no knowledge. He made two interstate trips from Queensland to Melbourne which suggests a significant involvement. He attended numerous gang meetings. It is implausible that he would join the Bandidos if he had genuine concerns about the path that the Mongrel Mob were going down. It is inconsistent for the applicant to say he knew nothing of illegal activities when he participated in the organised gang fight in September 2019 and when he was regularly abusing drugs at the time he was a member of these gangs. I also consider that he remained a member of the Bandidos for longer than he admits; at least until July 2022 based on the evidence from Queensland police.
With respect to the nature and seriousness of the applicant’s conduct, I conclude that his criminal and gang related conduct was very serious. He was a member of a gang from 2017 to at least July 2022 and he offended regularly from 2019 until 2021. His acts of family violence commenced in April 2018 and his final offence of possessing drugs was in March 2024. This represents a very significant period of unacceptable behaviour which has had a significant cumulative effect.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of the Direction
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[25] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[25] Direction 110 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[26] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of the Direction
[26] (2014) 225 FCR 424..
If the applicant were to engage in further similar criminal offending, the nature of the harm would be very serious. The damage to property and the fear that he caused by committing acts of family violence has resulted in serious harm. Being involved with outlaw motorcycle gangs has a negative impact on the wider community.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of the Direction
The applicant has expressed remorse for his offending and has committed no acts of family violence since December 2020. He has engaged in some rehabilitative programs to address family violence issues. He has also engaged in alcohol and drug rehabilitation but it is of concern that as recently as March this year he caused illegal drugs to be smuggled into the detention centre because he was going through a difficult time. This suggests that despite rehabilitative programs the applicant still turns to drugs as a coping mechanism and that he has not learnt that it is wrong to break the law. If released he will have the support of his partner, but she may not necessarily be the best influence on him because she was the person who, at his request, brought the drugs to him in detention earlier this year. If he continues to break the law and take illegal drugs once released from detention, then it is likely that his life of crime and family violence will continue.
I take into account the numerous letters of support from friends and colleagues who would be available to provide support to the applicant if he were to be released. These friends together with his partner and her family would provide a stable environment which would help him to not reoffend.
In considering the likelihood of further offending, I give significant weight to the report from Dr Emily Kwok dated 16 September 2024 and her oral evidence to the Tribunal. She noted that the applicant has poor coping skills and will be at risk of relapsing to substance use without adequate alcohol and drug and psychological intervention. She concluded that the applicant has a moderate risk of engaging in further domestic violence and that, without individualised alcohol and drug and psychological intervention, the applicant was a moderate risk to the Australian community in terms of his general behaviours. She said that his risk of reoffending is reducing. In her oral evidence under cross examination, she referred again to the applicant’s poor coping skills and explained how that relates to his ability to manage stressful situations. She said that it increases his risk of relapse to drugs in a stressful situation.
I consider it very likely that the applicant will face very stressful situations if he is released mainly because of the disabilities of his children. The applicant’s partner explained in great detail how difficult it is for her in dealing with her children who have special needs. It is likely that, if released, the applicant would turn to illegal drugs and alcohol as a coping mechanism for this stressful environment and this would likely result in further offending and acts of family violence. I accept the opinion of Dr Kwok that he is a moderate risk of further family violence and offending more generally. Given the seriousness of his past conduct, I consider that this represents an unacceptable risk to the Australian community.
Conclusion as to protection of the Australian community – 8.1 of the Direction
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[27] The applicant is a moderate risk of reoffending and has not shown himself to be adequately rehabilitated. The applicant’s past offending and membership of the Mongrel Mob and the Bandidos means that the protection of the Australian community is a factor that weighs heavily in favour of exercising the discretion to cancel the visa.
[27] Direction 110 at 8.1(1).
Family Violence – 8.2 of the Direction
The applicant has engaged in family violence which caused fear and injuries to his partner. In considering the seriousness of the family violence engaged in by the applicant, the following factors in paragraph 8.2(3) are relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
The first recorded incident of domestic violence was on 16 April 2018 when a domestic violence protection order was granted in the Beenleigh Magistrates Court.[28] The applicant has no recollection of the incident because he was intoxicated but the police records show that he argued with his partner about smoking in the house and slapped her in the mouth with a backhand causing her pain and bruised swelling. The children were present and witnessed this incident. The applicant’s partner told the police she did not wish to make a complaint of assault but that he had struck her in the past and he had anger issues which needed to be addressed.
[28] Exhibit 3, p 64.
Despite the terms of the domestic violence protection order which prohibited his attendance at his partner’s house, he attended there at 2am less than a week later on 22 April 2018 banging on the door and being loud and aggressive. The police were called. The applicant has no recollection of the incident because he was intoxicated.
On 16 May 2018, the applicant was picked up by the police and expressed remorse for his actions. He was issued with a notice requiring him to attend in the Beenleigh Magistrates Court for contravention of the domestic violence protection order. On 13 June 2018, he was penalised $800 recognisance with no conviction recorded and a good behaviour period of 18 months.[29]
[29] Exhibit 2, p 1.
The next incident was on 30 April 2020 when the applicant is reported to have caused property damage to his partner’s house after an argument. His partner asked him to leave the address but he refused. The applicant also sent his partner extremely foul and abusive messages on 10 May 2020. The police recorded that the partner was “actively fearful of the defendant and has avoided reporting the defendant due to fears of retribution.”[30] The applicant was arrested and taken to the Beenleigh Watchhouse. On 13 August 2020, he was convicted in relation to this conduct for contravening the domestic violence order (aggravated offence) and fined $750.[31]
[30] Exhibit 3 at p 55
[31] Ibid 2.
In another incident, the applicant arrived drunk at his partner’s home late on 23 December 2020 and argued with her and then threw household items around and took her keys and locked her out. The applicant was arrested by police that night and convicted of further contravening the domestic violence protection order on 26 March 2021.[32]
[32] Ibid.
The applicant explained that he drank alcohol and smoked cannabis because he was going through a rough period. He was under the influence of alcohol or drugs when he engaged in the domestic violence. He continued to offend despite warnings and court orders. The domestic violence protection order was in place for 5 years.
In her most recent statement, the applicant’s partner confirmed that he left very awful and offending messages on her phone, but she says that he has since expressed remorse and apologised. She believes he is genuinely ashamed of his behaviour and considers that his time in detention has prompted him to rehabilitate and concentrate on his family and children.[33] In an earlier letter of support dated 31 March 2022 she referred to a massive transformation in the applicant’s thought processes and self-awareness over the last year and said that she does not consider him a harm to her, their children or society.[34] There are also numerous letters of support from friends and colleagues who attest to the applicant being a good husband and father. I agree that his behaviour has improved and I take into account the absence of further domestic violence from after December 2020. In her written statement dated 17 February 2024, the applicant’s partner acknowledged the breaches of domestic violence orders in which she was the victim but says, despite this, that she has chosen to extend forgiveness and that she does not harbour any fear towards him because of his positive changes.[35]
[33] Exhibit 1, p 9.
[34] Exhibit 3, p 104.
[35] Ibid, 331.
Since being detained in immigration detention, the applicant has taken some steps towards addressing his family violence related conduct. He has attended counselling and engaged in an online domestic violence awareness course for eight contact hours for which he received a certificate on 9 August 2024.[36] In his most recent statement and at the hearing before the Tribunal the applicant expressed regret and shame for his past conduct and said that he feels very lucky that his partner “has always stuck by me even when I don’t deserve it.”[37] He referred to his considerable rehabilitation to improve himself including Smart Recovery courses, participation in a weekly ‘Man Up’ church group by video and a 10 week Circuit Breaker course to address his domestic violence offending. The applicant understands that his alcohol and drug abuse contributed significantly to his violence towards his partner and he has taken steps to address those issues.
[36] Exhibit 1, p 73.
[37] Ibid 1.
In summary, there are five recorded episodes of family violence in the period from April 2018 to December 2020. These acts of family violence resulted in three separate findings of guilt or convictions for contravention of a domestic violence order on 13 June 2018, 13 August 2020 and 26 March 2021. The representative for the applicant accepted that the Tribunal could take into account these three separate contraventions of domestic violence orders but said that little weight should be given to them because no conviction was recorded for the first contravention, and no custodial sentence was imposed for the second and third contraventions but instead the applicant was fined and put on probation for a 12 month period. It was suggested that the family violence was at the lower end of the spectrum in terms of seriousness because there was no custodial sentence imposed, but I note that the Direction provides that acts of family violence are viewed very seriously by the Australian government and the Australian community regardless of whether there is a conviction for an offence or a sentence imposed.[38]
[38] Direction 110 at 8.1.1(1)(a)(iii)
The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. The government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.[39] In this case the family violence was very serious because it was frequent and repeated over a period of over two years despite domestic violence orders being in place. Since the last act of family violence in December 2020 the applicant’s behaviour has improved to the point that his partner is no longer fearful of him and wholeheartedly supports him. The applicant has also engaged in rehabilitative programs. Nevertheless, Dr Kwok, a very experienced clinical psychologist, placed him in the moderate risk of further domestic violence. Given the seriousness of the repeated acts of family violence by the applicant, I consider that a moderate risk of further domestic violence is unacceptable. A person who commits multiple acts of family violence despite warnings and court orders would not expect to remain in Australia.
[39] Direction 110 at 8.2(1)
The applicant’s domestic violence is a factor that weighs very heavily in favour of cancelling the applicant’s visa.
Strength, Nature and Duration of Ties to Australia – 8.3 of the Direction
This primary consideration provides at paragraph 8.3 of the Direction:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has lived in Australia for all his adult life since he was 17 years old having arrived in 2011. He has been in a relationship with his current partner and mother of his children since 2012. They have three children aged 3, 8 and 9 years old. The applicant’s partner gave evidence that she was born in New Zealand and came to Australia when 15 years old. Despite living apart due to the domestic violence protection order, she says that they have been in a committed relationship since completing school which is a period of about 12 years. Their two older children have severe autism and are non-verbal. They go to a special needs school and will require ongoing attention and treatment for the rest of their lives. The applicant’s partner gave detailed oral evidence about her daily routine which involves total dedication to each of her three children. Whilst she gets some assistance from her own mother, there is no doubt that if the applicant were released from detention he would provide much needed assistance so as to reduce the burden that she currently bears. The assistance that the applicant could provide to his partner includes financial, practical and emotional assistance. She will be devastated if the applicant is removed from Australia and it would have a most significant impact on her and her family.
The ‘mother-in-law’ and grandmother to the three children would also be adversely impacted if the applicant were not released. She lives nearby her daughter and granddaughters and has witnessed the applicant as a responsible and affectionate father. She believes that the applicant deserves a second chance not only for his benefit but significantly for her daughter and three granddaughters. She confirmed the daughter’s hardship and challenges of caring for the three children alone. She has her own medical conditions but provides assistance to her daughter as much as she can. She would be devastated if the applicant were not released in particular because of the impact it would have on her daughter and three granddaughters.
The ‘sister-in-law’ and aunt to the three children would also be adversely impacted if the applicant were removed. She is hoping for the applicant’s release because it would take the stress off her shoulders and reduce her worry about how her sister can cope on her own. She provides assistance to her sister when she can but she has two older children and one newborn baby which puts her in a position that she can no longer help. She is worried about her sister’s mental health which she says has declined rapidly due to the immense hardship she is facing.
The applicant loves his partner and his three children and, despite the incidents of domestic violence, I have no doubt that he misses them and that he has very close ties with his children and his partner and her family. There are other letters of support[40] from friends and colleagues of the applicant who have witnessed him being a good father which indicates that he has close ties amongst the broader community. Some of these friends attest to acts of kindness by the applicant including charitable behaviour of feeding the homeless and donating clothes.
[40] Exhibit 1 pp 86 to 91 and exhibit 3 pp 334 to 339 and 395 to 400
There is no doubt that the applicant is a hard worker who has maintained constant employment since he arrived in Australia. This represents a positive contribution to the Australian community and has resulted in significant ties to Australia. In particular, the applicant has worked as a landscaper since early 2020. His previous employer, who runs a very significant landscape construction business with between 60 to 85 employees, gave written and oral evidence in support of the applicant.[41] He described the applicant as a very reliable worker who performs well and was an asset to his business. Other work colleagues provided letters of support confirming his work ethic and how he is missed at work. I give significant weight to the time that the applicant has spent contributing positively to the Australian community through his work and I note the strong relationship that the applicant has developed with his co-workers and in particular his most recent employer.
[41] Exhibit 3 p 399
The applicant’s strength, nature and duration of ties to Australia is a factor that weighs in favour of not cancelling the visa.
Best interests of minor children – 8.4 of the Direction
I must determine whether cancellation of the applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[42]
(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 ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[42] Direction 110 at 8.4(4).
The applicant has three children aged 3, 8 and 9 years old. As previously stated, all three children have very significant health issues. The two older children are autistic and require constant assistance and supervision from trusted persons. They attend a special needs school but their mother struggles to look after them. The youngest child has a highly sensitive immune system and has spent significant time in hospital. She is doing her best but one cannot overstate how difficult it is for her looking after these children.
The applicant has provided support for the three children and I have no doubt that he has a very loving relationship with them. However, it is relevant that he has been subject to a domestic violence protection order which had an impact on the contact that he could have with his children from April 2018 to April 2023. Despite this order, the applicant’s partner says that he has always provided support and love to his children and she believes that he will play a positive parental role in the future if he is released. In an email dated 6 April 2022, the applicant’s partner said that he accompanies his children everyday after work when he picks them up for a scooter ride. The children appreciate the consistency of him being there. He also helps out with the other children if his partner has to attend hospital for any one of them.[43]
[43] Exhibit 3 p 106
The applicant and his partner plan to marry and I accept that he would play a positive parental role with the children if released. However, there remains a very real risk of further domestic violence which would obviously have a negative impact on the children. It is also relevant that his two older children were present during at least one of the episodes of domestic violence.
I consider that it would be in the best interests of his three children for the cancellation decision to be set aside so that the applicant can return to be with his children. I consider this to be a most significant factor in favour of not cancelling the applicant’s visa.
The applicant also relies upon numerous other minor children to whom he is an uncle or treated like an uncle. I accept that it would be in their best interests if he were released. However, the applicant’s relationship with these children is non-parental and the evidence of meaningful relationships with them is limited. I would give more weight to those children for whom he is a biological uncle, for example, the children of the applicant’s sister-in-law. She said that the applicant is one of her children’s favourite uncles and they miss him very much.[44]
[44] Exhibit 1 p 83
There is a letter of support from a single mother with two daughters who are missing the applicant as a strong male role model.[45] Another of the applicant’s friends has a son who considers the applicant like an uncle.[46] Another friend has children on the autism spectrum and the applicant has provided much needed support.[47] It appears that the applicant has made a positive contribution towards other parents and their children, many of whom treated the applicant as an uncle and therefore it would be in the best interests of all the children named by the applicant if he were released and I give some weight to this.
[45] Exhibit 1 p 89
[46] Exhibit 3 p 334
[47] Exhibit 3 p 397
Expectations of the Australian community – 8.5 of the Direction
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[48]
[48] Direction 110 at 8.5(1).
The applicant has failed to obey the laws of Australia and has associated with outlaw motorcycle gangs and has engaged in repeated domestic violence. He would therefore be expected to be removed from the community. This is a case where visa cancellation is appropriate because the nature of the character concerns and offences is such that the Australian community would expect that the applicant should not continue to hold a visa.[49] The risk of further offending is unacceptable.
[49] Direction 110 at 8.5(1)
This is a factor that weighs heavily in favour of cancelling the applicant’s visa.
Other Considerations
In deciding whether to exercise the discretion to cancel the applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, but these are not exhaustive.[50]
[50] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303, 258 [86].
Legal Consequences of Decision – 9.1 of the Direction
The Applicant has expressed a fear of retribution because of his departure from the Mongrel Mob who continue to exist in New Zealand. The applicant accepts in his statement of facts issues and contentions that the Tribunal will have difficulty assessing a claim for non-refoulement.
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for not cancelling the applicant’s visa. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to New Zealand.
I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa.
The applicant has not applied for a protection visa but it is open to him to do so. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of the Direction is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or nonrevocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs[51] (‘Plaintiff M1/2021’) provides that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. I intend to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[52] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[53] This is consistent with the terms of paragraph 9.1.2 of the Direction.
[51] [2022] HCA 17.
[52] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 598 [23].
[53] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
In this case, the applicant has expressed a very vague fear of what will happen if he is returned to New Zealand. However, it is apparent that there is the potential for some kind of retribution to be taken against him because he left the Mongrel Mob. There is very little evidence to support a finding in favour of the applicant in this regard. I would also note that the applicant’s evidence is that the Mongrel Mob was effectively disbanded by the New Zealand chapter and that all vests were returned to New Zealand. It seems unlikely that the applicant would face retribution in those circumstances. Nevertheless, I am willing to accept that there is some potential for the Mongrel Mob to inflict some harm on the applicant if he is returned to New Zealand, but I would give it very limited weight.
Extent of impediments if removed – 9.2 of the Direction
The Direction requires that I consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The respondent accepts that this factor weighs somewhat against cancellation owing mostly to the emotional hardship the applicant may suffer by reason of separation from his children. In his statement of 17 February 24 the applicant says that there is no life for him in New Zealand and that he does not enjoy a good relationship with his biological father or two older brothers who live in New Zealand. He says that if deported to New Zealand he is genuinely concerned for his prospects because his deportation and criminal record would impact his employment prospects and he does not have industry or business contacts in New Zealand nor any accommodation. He is also concerned that his mental health would deteriorate if deported.
The applicant told Dr Kwok that several of his cousins committed suicide and that he has experienced sadness when he has lost loved ones. The applicant has never been diagnosed or assessed psychologically but I am willing to accept that he may have mental health issues if he were returned to New Zealand.
The applicant is 30 years old and in relatively good physical shape although he has had some problems with his back. He grew up in New Zealand and therefore I do not consider that there would be any substantial language or cultural barriers if he were to return there. There would be a difficult period of readjustment in particular because of a lack of support and being away from his partner and children and the friends he has made whilst in Australia. He would find it difficult to cope and he may turn to drugs and alcohol and further crime. Nevertheless, I consider that any impediments that the applicant would face if removed to New Zealand would not have a significant impact on him being able to establish himself and maintaining basic living standards. Accordingly, whilst this factor favours the applicant, I give it minimal weight.
Impact on Australian business interests – 9.3 of the Direction
The applicant submits that this is a factor which favours not cancelling the visa. He says that there is currently a shortage of workers in the construction industry and that his employer has given evidence that he provides a valuable role within the landscape construction industry and in particular within the employer’s workforce. I am willing to accept that if the applicant is removed to New Zealand then there would be a negative impact on an Australian business interest, namely the business of the applicant’s previous employer. I consider that impact would be minimal given that the applicant’s employer gave evidence that he employs between 60 to 85 people in his business. I do not consider that the applicant’s removal to New Zealand would significantly compromise the delivery of a major project or delivery of an important service in Australia. Accordingly, whilst this factor favours the applicant, I give it minimal weight.
CONCLUSION
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether to exercise the power under s 501(2) to cancel the applicant’s visa.
The primary considerations of the protection and expectations of the Australian community and family violence weigh against the applicant. The primary considerations of ties to Australia and the best interests of children weigh in favour of the applicant. I give minimal weight to the other considerations noting that they also favour the applicant.
The moderate risk of further family violence and other general offending is a very significant factor in this case. The Direction states that the safety of the Australian community is the highest priority of the Australian government. I consider that a moderate risk of family violence being committed by the applicant if he is released is an unacceptable risk. The safety of the Australian community would be at risk if the applicant is released. Accordingly, it is my view that the primary considerations of the protection and expectations of the Australian community and the repeated and serious acts of family violence outweigh any countervailing factors.
Whilst I have found that it would be in the best interests of the applicant’s children and his partner for him to be released, it must be noted that he has been absent from the family for periods and that some of his past conduct has being extremely disruptive towards the family and must have had a very negative impact on the children who have special needs. Further, there is a very real chance that the applicant will relapse into drug use and commit further domestic violence which would have a further devastating impact on his partner but in particular on their children.
Put simply, having weighed up all relevant factors, it is my view that a non-citizen cannot expect to remain in Australia if he is violent towards his partner, is a member of an outlaw motorcycle gang and commits frequent drug related crimes over a significant period of time. It will be very sad for his partner and his children and some of his friends, but the applicant has brought this on to himself and now he must bear the consequences of his poor decisions of the past.
The correct or preferable decision is to exercise the discretion to cancel the visa of the applicant. The decision of the Tribunal is to affirm the decision under review.
I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
............................[sgd]............................................
Associate
Dated: 8 October 2024
Date(s) of hearing: 30 September and 1 October 2024 Advocate for the Applicant: Ms Wendy J Milojkovic Solicitors for the Applicant: Milojkovic Visa & Migration Legal Services Advocate for the Respondent: Mr Jonathan Hutton Solicitors for the Respondent: Australian Government Solicitor
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