Rawiri-Pukeroa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4183 (5 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5095
Re:Rawiri-Pukeroa
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member McLean Williams
Date of decision: 5 October 2023
Date of written reasons: 19 December 2023
Place:Brisbane
Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the Delegate of the Respondent dated 12 July 2023 to not revoke the cancellation of the Applicant's visa with a decision that this Tribunal exercised the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).
..................[SGD]................
Member McLean Williams
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of visa – where the Applicant fails the character test- whether there is another reason to revoke the mandatory cancellation decision- application of Ministerial Direction No. 99 – Tribunal finding there is another reason to revoke the mandatory cancellation decision – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v MIBP (2016) 248 FCR 296Secondary Materials
Ministerial Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member McLean Williams
19 December 2023
On 5 October 2023 the Tribunal set aside and substituted a decision not to revoke the mandatory cancellation of the Applicant’s visa, pursuant to s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
In accordance with the Full Federal Court decision 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 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…
[Emphasis added]
On 5 December 2022, a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’), pursuant to section 501(3A) of the Act on grounds that the Applicant did not pass the character test.[1]
[1] G73.
On 13 December 2022, the Applicant made representations seeking revocation of the cancellation decision (‘the revocation request’).[2]
[2] G15.
On 12 July 2023, the Minister’s Delegate decided that the power in s.501CA(4) of the Act was not enlivened, and accordingly the Applicant’s visa remained cancelled.[3]
[3] G3.
The Applicant then applied for a review of that decision in the General Division of the Administrative Appeals Tribunal on 13 July 2023.[4] The Tribunal has jurisdiction to review that decision pursuant to s.500(1)(ba) of the Act.
[4] G2.
The Hearing of this application for review took place on 21 and 22 September 2023. At the Hearing, the Respondent was represented by Ms Cody Allen of Sparke Helmore Lawyers. The Applicant was self-represented.
At the Hearing, the Tribunal received oral evidence from the Applicant, as well as from the Applicant’s partner, Ms Amber Jade Cavanagh.
The Tribunal also had the benefit of written character references from:
(a)Harlan Collins (Applicant’s family friend);[5]
(b)Phillip McLeod (Applicant’s work supervisor);[6]
(c)Kelly Holmes (Applicant’s mother-in-law);[7]
(d)Shannon Kororiko (Applicant’s friend / co-worker);[8]
(e)Demetrius Taneora (Applicant’s friend);[9]
(f)Chop Tipitoa (Applicant’s work colleague);[10]
(g)Kathleen Ripi (Applicant’s aunty);[11]
(h)[M] (Applicant’s daughter);[12]
(i)Katylin McDonald (Applicant’s friend);[13] and
(j)Sachin Nair (Applicant’s friend).[14]
[5] G19.
[6] G20.
[7] G43.
[8] A2.
[9] A3.
[10] A7.
[11] A10.
[12] G45; A19.
[13] A24.
[14] A25.
The Tribunal also considered the documentary evidence submitted by the Applicant and the Respondent, as now detailed in the attached Exhibit Register, now marked as ‘Annexure A’ to these reasons.
BACKGROUND
The Applicant is a 29-year old male citizen of New Zealand, born in January 1994.
The Applicant informed the Tribunal that he had left both home and school at the age of 14, commencing work in New Zealand as a tyre fitter. Home was claimed to be an unsafe place for the Applicant, because of domestic violence.[15]
[15] Transcript, p. 5 line 19.
The Applicant first visited Australia in 2007, and then again in 2008, and then three further times in 2009. Each time the Applicant had come to Australia to visit his older brothers. In 2010, when aged 16, the Applicant spent nearly 18 months in Australia, living with an older brother (now deceased), and working alongside him, as a baker. The Applicant returned to New Zealand in 2012, before relocating to Australia more permanently in February 2013 when aged 19, this time in company with his new partner Ms Amber Cavanagh and their daughter, who at that stage was a new-born infant.[16] Since the arrival in February 2013 the Applicant has left Australia on two further occasions, yet only for short periods, in November 2013 and December 2018.[17]
[16] Transcript, p. line 34 – p. 5 line 44.
[17] Transcript p.5 line 47.
The Applicant and Ms Cavanagh now have two children together, their daughter, MJ, born in 2012 in New Zealand (now aged 11), and their son, CK, born in Australia in 2017 (now aged 6).
The Applicant’s criminal offending
The Applicant’s criminal offending[18] primarily[19] relates to domestic violence offences committed against his partner Ms Cavanagh. The Applicant and Ms Cavanagh have been in a relationship together for approximately ten years now, commencing in their teens.
[18] G4, pp. 37 – 40.
[19] The Applicant was also convicted of minor property offences in 2014 and 2017 and a common assault in 2017.
At one point in their relationship difficulties arose because of Ms Cavanagh’s infidelity:
‘MEMBER: Just looking at your criminal history. It’s mostly domestic violence type matters, some stalking and things like that. Was the victim always the same person?
APPLICANT: ---Yes.
MEMBER: All right. The victim was your partner?
APPLICANT: ---Yes.
MEMBER: All right. Now, presumably your relationship was going through a very rocky period then?
APPLICANT---Yes, it was.
MEMBER: What do you want to tell me about that?
APPLICANT---Just – we went through a rough stage where she was unfaithful to me, and I struggled badly with it.
MEMBER: How long had you been together?
APPLICANT: ---Ten years.
MEMBER: And how did you discover she had been unfaithful?
APPLICANT: ---Through her phone and through friends.
MEMBER: Did you just suspect that or was it confirmed that she was unfaithful?
APPLICANT: ---It was confirmed.
MEMBER: All right. And had there been any domestic violence before that?
APPLICANT: ---I’m not too sure. I think so. Just things like arguing and things like that.’[20]
[20] Transcript p 7, lines 4 -25.
On 24 June 2019 the Applicant was dealt with in the New South Wales Central Local Court for the following domestic violence offences, being convicted on each offence on his own confession:[21]
·use carriage service to menace/harass/ offend;
·stalk/intimidate intend fear physical etc harm (domestic) -T2 (x 2);
·common assault (DV) – T2;
·contravene prohibition/restriction in AVO (Domestic); and
·destroy or damage property.
[21] G4.
These offences all relate to one weekend:
‘MS ALLEN: Now, the stalk, intimidate, intend fear of physical harm and use a carriage service to menace, harass, offend, those offences were committed on 17 February 2019 – sorry 16 February 2017 and 17 February 2019. Do you recall how much alcohol you had consumed on those days?
APPLICANT: ---I’m not too sure of the amount but it was a lot, yes.
MS ALLEN: And you mentioned before about your partner being unfaithful. Is it fair to say that that was a contributing factor to your conduct against her?
APPLICANT: ---Yes.
MEMBER: Had you separated? Were you living apart?
APPLICANT: ---We did separate for a bit, yes. And then kind of got back together, and yes just up and down a lot (indistinct) I think along the way. Yes, it wasn’t good. It wasn’t good at all.’[22]
[22] Transcript p 8, lines 45-47; p 9, lines 1-10.
In the aftermath of the Applicant’s court appearance on 24 June 2019 he was enrolled in a domestic violence program, however that was interrupted and not completed:
‘MS ALLEN: Thank you. After you were sentenced on 24 June 2019 did you engage in any rehabilitation programs, counselling or psychological treatment?
APPLICANT: ---I did a course here. I think it was at Raymond Street at the courthouse there. It was an anger management and domestic violence one. But it stopped because I think COVID at that time, we’d only done six – I think it was six weeks and it’s supposed to go for 12 weeks and it ended up stopped.
MS ALLEN: So, you didn’t seek out any online counselling or anything like that?
APPLICANT: ---No, just (indistinct) just doing it on my own like watching videos and podcasts and things like that. Just – yes, I wasn’t – I think I was just too proud to look for help, just too stubborn, I think, at that time.’[23]
[23] Transcript, p 9, lines 21-33.
On 30 January 2020, the Applicant again breached the domestic violence order:
‘MS ALLEN: On 30 January 2020 you again contravened the domestic violence order?
APPLICANT: ---Yes.
MS ALLEN: And that involved you punching and kicking your partner because she put on a song that set you off?
APPLICANT: ---I think so.
MS ALLEN: And your two children were present at the time of this incident, weren’t they?
APPLICANT: ---Yes.
MS ALLEN: And, in fact, your daughter screamed at you to, quote, ‘stop killing mummy’. Didn’t she?
APPLICANT: ---I think so, yes.
MS ALLEN: You were intoxicated on this occasion?
APPLICANT: ---Yes, I was.
MS ALLEN: Do you recall how much alcohol you consumed on that occasion?
APPLICANT: ---It was a lot.
MS ALLEN: And as a result of that incident, you were incarcerated between 30 January 2020 and 12 February 2020. Is that right?
APPLICANT: ---Yes.’[24]
[24] Transcript p 9, lines 45-47; p 10, lines 1-10.
The Applicant was released from prison on 12 January 2021. On 17 January 2021 the Applicant again contravened the domestic violence order. According to the police version of events presented to the Court on 29 April 2021:
‘The aggrieved stated that she had been drinking with the defendant at home and later attended Wynnum Tavern where they had further drinks. The aggrieved stated that they returned later to their unit complex and approximately after an hour the defendant started having an argument with the aggrieved in relation to family issues whilst in the rear yard of the unit. The aggrieved stated that the defendant started to punch her on the face without provocation. The aggrieved stated that the defendant then grabbed her and started to drag her behind him which caused laceration to her right arm and left knee. The aggrieved stated the she managed to escape from the defendant and entered the unit and ran upstairs so she could ask the children to hide inside their room in fear for their safety. She then sent downstairs and sat in the lounge room whilst the defendant was in the kitchen.’
During the Tribunal hearing the Applicant was asked about this:
‘MEMBER: Does that ring a bell?
APPLICANT: ---Yes.
MEMBER: All right, now you just unpack for me what happened that day. That’s just a very – in a very anodyne police version of what happened. But you give me the context about what happened that day?
APPLICANT: ---Again, just stupid text messages I think from another person that I received. Again, struggled with it. Didn’t handle it the best way.
MEMBER: Were you drunk at the time?
APPLICANT: ---Yes.
MEMBER: All right. Was she drunk?
APPLICANT: ---I think so, yes.
MEMBER: All right, it’s because you’d been to the Wynnum Tavern?
APPLICANT: ---Mm-mm.
MEMBER: So you were both probably intoxicated?
APPLICANT: ---Yes.
MEMBER: And you’re saying she received text messages from somebody?
APPLICANT: ---I believe so, yes. And it was just like – we got into a heated argument talking about it. Like the history came back up.
MEMBER: All right, so all the stuff that had happened in Sydney. That all flared up again?
APPLICANT: ---Yes.
MEMBER: All right, understand. And I take it you overreacted?
APPLICANT:---Yes, hundred per cent.
MEMBER: Right, so it was probably a mixture of emotion and alcohol?
APPLICANT: ---Yes.
MEMBER: All right. Did you drag her by the hair?
APPLICANT: ---I’m not too sure, to be honest. I think I dragged her by like her clothes.
MEMBER: All right, so you did drag her?
APPLICANT: ---Mm-mm.
MEMBER: Right. All right, and she did have to race upstairs and tell the children to hide?
APPLICANT: ---Yes.
MEMBER: All right, okay. So, you’re not disagreeing with the facts that we’ve given to you, are you?
APPLICANT: ---No.
MEMBER: All right. So, it was a context where you’d both been out drinking. She received some text messages from somebody. You got jealous, didn’t you?
APPLICANT: ---Yes.
MEMBER: Right. And then you overreacted?
APPLICANT: ---Yes.
MEMBER: And then you had a big blue about stuff that had happened in the past?-
APPLICANT: --Yes.’[25]
[25] Transcript p 13, lines 15-47; p 14, lines 1-30.
In consequence of the incident on 17 January 2021 the Applicant was imprisoned for a further ten months.
On 30 September 2021 the Applicant again breached the domestic violence order. On 13 October 20201 the Applicant appeared in the Cleveland Magistrates Court in relation to that breach, and received another 4 months imprisonment, yet this was wholly suspended, for 12 months.
On 20 August 2022 there was a further contravention of the domestic violence order. In consequence on 11 November 2022 the Applicant was imprisoned for another 18 months.
The contravention on 20 August 2022 had involved the Applicant smashing crockery:
‘MS ALLEN: And that was due to a further contravention of the DVO which occurred on 20 August 2022?
APPLICANT: ---Yes.
MS ALLEN: And that involved you smashing glass and crockery while your partner was out of the house?
APPLICANT: ---Yes.
MS ALLEN: And then she returned, and you had a verbal argument?
APPLICANT: ---Yes, I believe so.
MEMBER: So what, she was out. You broke in - - -?
APPLICANT: ---No. We were living together.
MEMBER: Oh, right?
APPLICANT: ---Yes.
MEMBER: Why did you start smashing up the crockery?
APPLICANT: ---We had an argument on the phone. I think it was just over – I’m not even too sure what we were arguing about. But I think we’d had a few drinks then too, and just got into a heated argument. I just, yes, lost my temper.
MEMBER: All right, you took it out on the crockery?
APPLICANT: ---Yes.
MEMBER: That’s pretty stupid, wasn’t it?
APPLICANT:---Yes.’[26]
[26] Transcript p 17, lines 5-25.
The Applicant was next detained in immigration detention, on 30 January 2023.
Since being in immigration detention, the Applicant has undertaken a number of rehabilitation courses:
‘MS ALLEN: All right. Now, since being in detention you’ve completed a number of courses. I’ll just ask you a few questions about those. So, the first is the healthy relationships course?
APPLICANT: ---Yes.
MS ALLEN: And that, I understand, is a seven hour course?
APPLICANT: ---Yes.
MS ALLEN: And is that a group course?
APPLICANT: ---It’s online.
MS ALLEN: Online?
APPLICANT: ---Yes.
MS ALLEN: But there were other people undertaking that course at the same time?
APPLICANT: ---Yes.
MS ALLEN: But there were other people undertaking that course at the same time?
APPLICANT: ---Yes.
MS ALLEN: What did you learn from that course?
APPLICANT: ---I learned a lot. Just with relationships, how to, think, have an even side of whatever we’re going through, how to handle things as a team instead of an individual, in a positive manner.
MS ALLEN: And you’ve also completed a basic parenting 101 course?
APPLICANT: ---Yes.
MS ALLEN: That as a five hour course?
APPLICANT: ---Mm-mm.
MS ALLEN: And was that in one session or was that split over a number of weeks?
APPLICANT: ---One session. I think maybe a couple, yes.
MS ALLEN: All right. And that was online as well, was it?
APPLICANT: ---Online, yes.
MS ALLEN: And there were others in the course as well?
APPLICANT: ---No. So, it’s not like a group. It’s just out of my way kind of a thing.
MS ALLEN: Oh, okay, so it’s kind of self-teaching. You go through modules and things like that?
APPLICANT: ---Yes.
MS ALLEN: Is there any assessments at the end?
APPLICANT: ---Yes, there was.
MS ALLEN: Did you learn from that course?
APPLICANT: ---Again it’s just – the awareness things, side of things, about being a parent, more mindful of things, I think. How to teach and be a better role model for your children.
MS ALLEN: I understand you’ve also done a PPP online parenting course. Is that separate or is that the same thing?
APPLICANT: ---That’s separate.
MS ALLEN: Separate, all right. And what did that involve?
APPLICANT: ---Same thing but got into more depth with the parenting and things like that.
MS ALLEN: So, what kind of skills did you learn in that course?
APPLICANT: ---The same as – just more mindful, more awareness, just really breaks it down on how to – like being in control for children and just have more skills at better parenting.
MS ALLEN: All right. You haven’t done any other courses or counselling directed to parenting?
APPLICANT: ---No. I think those are the only two I’ve done.
MS ALLEN: All right. You’ve also done a stress management course?
APPLICANT: ---Yes.
MS ALLEN: That was four hours?
APPLICANT: ---Yes.
MS ALLEN: And was that also online module kind of thing?
APPLICANT: ---Online, yes.
MS ALLEN: And what did you learn from that course?
APPLICANT: ---Just different coping mechanisms with whatever the individual goes through and how to (indistinct), how to reflect on it and what we can – use it in the community and things like that.
MS ALLEN: All right. So, can you give me an example of a coping mechanism for when you are feeling stressed?
APPLICANT: ---Going through with my – the loss of my brother, being inside in that situation and that (indistinct) being away from my children, it’s made me I think cope more – better – in a positive manner instead of, I think, just stressing over little things.
MS ALLEN: All right. So as stressful if that happened in the future, as they inevitably do, how would you deal with the stress now?
APPLICANT: ---Doing all these courses I’ve learned how to manage, I think, my anger in a better way. I’ve had a lot of anger growing up. But doing these courses has made me more mindful of things, brought me more awareness to what I’ve learned. And I think – yes, put me in a better and positive mind frame I think it has.
MS ALLEN: Right. So how do you manage your anger in a better way now?
APPLICANT: ---Well, at the detention centre we’ve got things like a gym. Do all these classes and things like that with all the other detainees. But I also do therapy sessions with an off-site counsellor and my psychologist that I see.
MEMBER: Tell me a bit more about that. So, you’re doing some off-site stuff as well, are you?
APPLICANT: ---Yes.
MEMBER: Who are you doing that with?
APPLICANT: ---So I’m doing a course called Respectful Men.
MEMBER: Who is that organised through?
APPLICANT: ---Interrelate I think it’s called.
MEMBER: Interrelate?
APPLICANT: ---Yes. I’ve also done a 12 week session with, it’s called SANE.
MEMBER: SANE?
APPLICANT: ---SANE, yes. S-A-N-E.
MEMBER: SANE? What is that course?
APPLICANT: ---Just – it’s like a – well I rang them, and they asked, what are we struggling with. What do we need help with? And I told them it was my anger, alcohol. I’m in for domestic violence. So, I want to learn better things off that.
MEMBER: All right, so these are online courses or - - -?
APPLICANT: ---Yes, over the phone with SANE.
MEMBER: Over the phone, right?
APPLICANT: ---Respectful Men is a 14 week course. That’s on Zoom with other people online.
MEMBER: And how many sessions over the 14 weeks?
APPLICANT: ---I’ve done – I’m into my fourth week now. I do it every Saturday.
MEMBER: So once a week?
APPLICANT: ---Yes, once a week.
MEMBER: For how long?
APPLICANT: ---Two and a half hours. And I’ve done a - - -
MEMBER: Do you have to pay for these courses?
APPLICANT: ---Being in the detention centre I think we get like a leeway kind of a thing because we’re in the centre.
MEMBER: Okay?
APPLICANT: ---But it does cost, I think $350 if you were to pay for it.
MEMBER: Okay. And the SANE course which is a 12 week course over the phone. How far into that one are you?
APPLICANT: ---I’m finished.
MEMBER: Was that once a week?
APPLICANT: ---Yes, one phone call a week.
MEMBER: So how long were you on the phone for each time?
APPLICANT: ---An hour.
MEMBER: So, it’s a 12 hour total course?
APPLICANT: ---Yes.
MEMBER: So that’s just chatting with a counsellor is it?
APPLICANT: ---Yes.
MEMBER: Did that help?
APPLICANT:---I think so, yes.
MEMBER: All right?
APPLICANT: ---And I’ve also done a No to Violence. That was just a six week course over the phone also. Everything to do with violence. And I’m also doing a Lives Lived Well which is also on video call. It’s a one-on-one. And we cover all those aspects like domestic violence, alcohol, and everything that I’m struggling with.
MEMBER: And how far into Lives Lived Well are you?
APPLICANT: ---I’ve done I think six weeks so far.
MEMBER: Six weeks?
APPLICANT: ---Yes, I do it once every two weeks now because I’ve got a new – had to change counsellors.
MEMBER: All right. Are you going to continue with these programs?
APPLICANT: ---Yes, hundred per cent. I’m on two waiting lists also for other violent ones that are on the outside that I’m on the waiting list for. And me and my partner, we’re on another violent – I think it’s called Better Relationships. Me and her have agreed to - - -
MEMBER: So, she’s agreed to do a course with you too?
APPLICANT: ---Yes, to do on Zoom together. And the one Living Without Violence is – that’s the one I’m on the waiting list for. It goes for 18 weeks but it’s in person.
MEMBER: Where would that be conducted?
APPLICANT: ---Spring Hill I believe.
MEMBERL And how long before you get into it?
APPLICANT: ---I haven’t started yet.
MEMBER: I know you’re on the waitlist, but have they told you it’ll be three months, six months, nine months?
APPLICANT: ---Yes, they said about six months. But she said people tend to fall off and then you go up more, comes quicker.
MEMBER: And, you’re intent on doing that?
APPLICANT: ---Hundred per cent. I continue doing a lot of these courses. I’ve come to a point where I’m – before I was – I don’t know, I think I was a stubborn man. I was just stubborn and I think too proud to look for help, too scared I think. And since doing these courses and – like I got onto the certificate ones and they were like, just not enough. I need to get stuff off. Like it was just getting a certificate. And I wanted to actually talk to a person where I can get things off my chest and – I think I’ve done like three or four counselling ones.
MEMBER: Of all the ones you’ve done so far, which one do you think was the best?
APPLICANT: ---I liked Respectful Men. Lives Lived Well, same. They’re all pretty good, yes.
MEMBER: You got something out of those?
APPLICANT: ---Hundred per cent, yes.
MEMBER: All right, okay good?
APPLICANT: ---The peer support worker that I was talking to, he’s been through similar situations as me. So had a lot of back and forth of learning off each other and things like that.
MEMBER: All right, so you – the person who’s facilitating these courses was themselves a domestic violence perpetrator in the past?
APPLICANT: ---Yes.
MEMBER: So, you can relate to that?
APPLICANT: ---Yes. He lost his – I think it was one of his friends that passed away also. So, we related well to that also.
MEMBER: All right, thank you for that. Ms Allen.
MS ALLEN: Thank you, Member. Just to complete the courses that you’ve done. You’ve also done drug and alcohol abuse 101?
APPLICANT: ---Yes.
MS ALLEN: That was a seven hour course?
APPLICANT: ---Yes.
MS ALLEN: And was that again online?
APPLICANT: ---Yes, online again.
MS ALLEN: All right, and what did you learn from that course?
APPLICANT: ---Just how much of a severity it could have on your life. Like me for instance, taking it in a negative manner and being in situations like this. I think it was a real eye-opener.
MS ALLEN: What do you think would cause you to drink in that past?
APPLICANT: ---I’m not too sure. I’ve never really thought about it. I’ve been just thinking about it’s not in my future. I know alcohol, when I’m with my partner and that, we (indistinct) in trouble all the time, before the bad history and things like that.
MS ALLEN: All right, so if you – your evidence was before that you would drink on weekends. You would often drink with your partner. So, it was like a social activity?
APPLICANT: ---Yes.
MS ALLEN: And do you drink – do you find that you would drink more when stressful things happened in your life, for example, when your brother passed away?
APPLICANT: ---Yes.
MEMBER: Is your partner a big drinker?
APPLICANT: ---No, not really. I think we’re more just – we used to binge drink on the weekends.
MEMBER Did she binge too?
APPLICANT: ---Yes. So, we would both be at work and then come – yes.
MEMBER: All right. So do you think she has a problem with alcohol too?
APPLICANT: ---No. I’m not too sure. I think it’s just – it’s just me. My temper, my anger and things like that. I think, yes, caused a lot.
MEMBER: See, one of the issues becomes, even if you realise that you’ve got a problem relationship with alcohol, if she has a problem relationship with alcohol and she doesn’t change, there could still be a real problem that could become a match point for another big flare-up?
APPLICANT: ---Yes, well we’ve both agreed to have no alcohol whatsoever. Because I don’t want to be ever in this situation again. And I want to be a – somewhat of a role model to my kids. I think I owe it to them that much.
MEMBER: Well, you haven’t been so far, have you?
APPLICANT: ---Yes, hundred per cent.
MEMBER: I mean we’ve got a situation where the children are fearful of you and asking the police to take you away?
APPLICANT: ---Yes.
MEMBER: That’s not good, is it?
APPLICANT: ---It’s not good at all.
MEMBER: No. All right, yes. Thanks, Ms Allen.
MS ALLEN: Thank you. Now I think you said before that the SANE course is a 12 week course, once per week, one hour sessions. Is that correct?
APPLICANT: ---Yes.
MS ALLEN: All right. And are they one-on-one?
APPLICANT: ---Yes, one-on-one.
MS ALLEN: Okay. And the topics discussed there are anger management, alcohol and domestic violence?
APPLICANT: ---Yes.
MS ALLEN: All right. And you’re also engaging with Redlands Psychology?
APPLICANT: ---Yes.
MS ALLEN: And you’ve been engaging with that service for – is it just over two months now?
APPLICANT: ---Yes.
MS ALLEN: And those sessions are fortnightly?
APPLICANT: ---Yes.
MS ALLEN: And how long are those sessions?
APPLICANT: ---Just an hour.
MS ALLEN: An hour. And that’s with a psychologist presumably?
APPLICANT: ---Yes.
MS ALLEN: All right. And what do you talk about in those sessions?
APPLICANT: ---Again, like anger, things towards alcohol and domestic violence.
MEMBER: Who’s your counsellor? What’s their name?
APPLICANT---Fredi Bashour.
MEMBER: Fredi Bashour, yes.
MS ALLEN: And the Respectful Men course, you started that just recently, haven’t you?
APPLICANT: ---Yes, on 2 September I started.
MS ALLEN: All right. So how many sessions – oh, you said your fourth week – so that’s weekly is it?
APPLICANT:---Yes, every Saturday.
MS ALLEN: And the Lives Lived Well, that started in August?
APPLICANT: ---Yes.
MS ALLEN: And you said – I think you said it’s not (indistinct) program. It’s an ongoing service?
APPLICANT: ---Yes.
MS ALLEN: And are you limited in how many sessions you can have with them?
APPLICANT: ---No. It’s just like if you want to carry on we book another one.
MS ALLEN: All right. And if you were released into the community, would you start having to pay for those sessions?
APPLICANT: ---I’m not too sure.
MEMBER: If you get released from immigration detention will you continue will all of this stuff?
APPLICANT:---Yes. Yes, I will.
MEMBER: It seems to me that all of these courses have opened your eyes?
APPLICANT:---It has.
MEMBER: But there’s always the risk that you’ll just stop doing them if you get released from immigration detention and just go back to your normal life?
APPLICANT: ---That’s not the plan. But yes, I get what you’re saying.
MEMBER: What assurances can you give me that you’ll continue with all of this counselling which does seem to be helping?
APPLICANT: ---Just to put my – not just myself – my family in a better position. My kids to be – so I can be a safe space for my kids, you know, they don’t have to be scared of me, and my partner. It’s helped me in a big way. Just handing things in a more positive way, I think, yes.’[27]
[27] Transcript p 18, lines 17-45; pp 19-29.
Ms Amber Jade Cavanagh
As indicated, Ms Amber Jade Cavanagh is the Applicant’s partner, and is the mother of their two children. Ms Cavanagh is a dual Australian and New Zealand Citizen who first met the Applicant in New Zealand when she was 18 and he was 17.[28] Their relationship commenced ‘pretty much instantly’.[29] They came to Australia together, along with their newborn daughter.
[28] Transcript p.33, lines 34 - 45.
[29] Transcript p. 34, line 14.
Ms Cavanagh acknowledges that her relationship with the Applicant entered into an epoch of turbulence after the Applicant’s discovery of her infidelity:
‘MS ALLEN: And can you recall when things started to go south in terms of his verbal or physical aggression towards you?
MS CAVANAGH: ---Yes. So, after I had my son I had some infidelity issues where I cheated on Denley. And that kind of progressed a bit of turmoil in our relationship.’[30]
[30] Transcript p 34, lines 27-30.
This was to afford the backdrop against which the Applicant’s domestic violence offending transpired:
‘MS ALLEN: And in one of your statements, you say that Denley is at no risk of reoffending. What makes you say that?
MS CAVANAGH: ---I say that in terms of just the work he’s put in to change. And I think his biggest issue was forgiveness with me. And also realising that this is not something I’m proud of. It is embarrassing for me, and I think I took a lot of time to admit my wrong in things. I’m not saying that gives him any excuse for what he did because it’s none. But I see the changes he’s made in terms of rehabilitation for his anger issues.
MS ALLEN: And you see those changes at your visits?
MS CAVANAGH: ---Correct, yes. And not even just that. I think just like in – it’s more of a verbal thing, I think with the way he speaks, just the way he addresses situations as a whole.’[31]
[31] Transcript p 35, lines 1-14.
Ms Cavanagh was cross-examined in relation to some of the domestic violence incidents:
‘MS ALLEN: Now I just want to ask you some questions about your children, M and [C]. They’re 11 and six?
MS CAVANAGH:---Yes.
MS ALLEN: And they were present on a number of occasions when the police were called to the house?
MS CAVANAGH:---Yes.
MS ALLEN: And in respect of the incident that occurred on 30 January 2020 whereby you were punched and kicked because you’d put a song on which had set the applicant off, do you recall M screaming at her father, ‘stop killing mummy’?
MS CAVANAGH: ---I do, yes.
MS ALLEN: And then more recently, on 20 August when police arrived after Denley was smashing things in the house, the children told police, ‘please take daddy to jail. We’re scared of daddy’. Are you aware of that?
MS CAVANAGH: ---I’m aware that that’s what they’ve said but there’s a lot of grey areas with that whole night, not in terms of me being intoxicated or anything like that. Basically, with how the police handled that entire situation.
MEMBER: Just tell me from your perspective what happened that night?
MS CAVANAGH: ---I was not even on the property when things kind of happened, escalated with Denley.
MEMBER: This is when he broke all the crockery?
MS CAVANAGH: ---Yes.
MEMBER: All right, so – well tell me what had happened that day. You’d gone out. Tell my why you’d gone out and what you came home to?
MS CAVANAGH: ---So I knew that he had been struggling a bit with his brother’s death and obviously him drinking is just not a great idea. Alcohol does not suit him whatsoever. And I think he was annoyed at just little things. Not so much to do with me. There was no real aggression shown with me. I had come back to hearing all this crashing and commotion going on and was just like, what is happening. Obviously neighbours had heard everything. And when the police came to the address he had gone to leave and we were both in the driveway. I was standing at the passenger’s side of the car. I had gone to walk up to check on my children and I was actually arrested.
MEMBER: You were arrested?
MS CAVANAGH: ---I was arrested and put in a paddy wagon. They didn’t announce themselves whatsoever.
MEMBER: What did they say you were being arrested for?
MS CAVANAGH: ---For not talking – or basically resisting arrest. I was like, ‘I’m going upstairs to check on my children’. I’m not understanding why I’m being arrested.
MEMBER: Did they later unarrest you?
MS CAVANAGH: ---Yes, they did. But I had to go to court and everything. I had a journalist actually approach me because they wanted me to take it further against QPS. I refused to. I just wanted it to be done. And it was just – yes, it was a very strange kind of – and obviously you can see our history there. I’ve been very willing with statements. I’ve said when he is wrong. But that night was not. I mean it was one of them in the eyes of public nuisance. But there was no aggression to me or my children whatsoever that night.
MEMBER: Why did the kids say, ‘take daddy’?
MS CAVANAGH: ---Well I was not there when they said that. There was no adult, as in myself or Denley, present when they apparently said that. I’ve spoken to my children and they said they’ve never said that as well.
MEMBER: All right, so the particulars that the police have recorded in the charge sheets to present to the magistrate, you’ve got some doubts about them?
MS CAVANAGH:---Yes, I do, very much so.
MEMBER: This is the same police officers who arrested you?
MS CAVANAGH: ---Correct.
MEMBER: Your arrest went to court?
MS CAVANAGH:---Correct.
MEMBER: What happened at court?
MS CAVANAGH: ---It was – it was dropped.
MEMBER: It was dropped at court, was it?
MS CAVANAGH: ---M’mm.
MEMBER: It wasn’t dismissed by the magistrate, it was dropped by the police?
MS CAVANAGH: ---It was, yes, because I had been – I was willing to fight it and I wanted evidence of them announcing themselves, I – and had gone through all of that, and then they said, ‘Look, we will drop those charges.’ Because they were going to charge me with, I believe, resisting arrest – I could be incorrect on that – and assault on a police officer, because they had said that I had actually struck one of them. We asked for footage, recording, they could not provide it, so they just told us, ‘Oh, no, we will drop it.’
MEMBER: There’s a lot of confusion that night?
MS CAVANAGH: ---Very much so, for that particular case. I will sit here hand on my heart and say in every other situation, yes, he is very wrong. But this particular night where – and his latest arrest was just very all over the show.
MEMBER: But he did go to gaol in consequence of that arrest, didn’t he?
MS CAVANAGH: ---Yes, yes.
MEMBER: You went into the house. There’s crockery everywhere, it’s all broken?
MS CAVANAGH:---Yes. I actually didn’t get into the house until after they had left.
MEMBER: They took Denley away?
MS CAVANAGH:---Yes.
MEMBER: What was he charged with?
MS CAVANAGH: ---So a part of his – the AVO was to be of good behaviour, and that was considered a breach.
MEMBER: Understand?
MS CAVANAGH:---Yes.
MEMBER: It’s a breach of the AVO or one of the terms of the AVO?
MS CAVANAGH: ---M’mm.
MEMBER: What did the kids say to you afterwards?
MS CAVANAGH: ---Honestly, they were just very confused at the whole situation. [C] was actually asleep, and then the – this is where it’s all wild to me as well, because they’re trying to say that the kids were in the pool. Not the case, they were in – but then – and the next sentence it’s contradictory, because it also says they were in my room. So I’m like, ‘Well, which one is it? They’re in the pool and the room.’ M said she was a little bit worried because there was things smashed and everything and she didn’t know why dad was going off, but after I had asked her, ‘Did you tell – did you tell the police to take him away?’ she said point blank, ‘No, I never said anything to them.’ Which, regardless of whether she did or not, that’s not for us to, you know, put it on the children. But I also am very uncomfortable - - -
MEMBER: M was asleep?
MS CAVANAGH: ---My son was asleep. M had woken up from, obviously, the commotion.
MEMBER: Yes?
MS CAVANAGH: ---But I just – I feel – I was very uncomfortable that those things were taken from my children without my – I was not present for this at all or when they were speaking to my children.
MEMBER: That is a matter of some concern, yes. But in all events, it was a breach of the AVO?
MS CAVANAGH:---Yes.
MEMBER: Because there’s an AVO in place and he busted up all the crockery and - - -?
MS CAVANAGH: ---That’s correct, yes.
MEMBER: - - - behaved a bit silly?
MS CAVANAGH: ---Silly, yes.
MEMBER: That was the third bout in gaol?
MS CAVANAGH:---Yes.
MEMBER: You go to visit your partner in the detention centre, don’t you?
MS CAVANAGH: ---Yes.
MEMBER: You take the children?
MS CAVANAGH: ---Yes.
MEMBER: Just tell me about all of that. How is that going?
MS CAVANAGH: ---It’s going good. Like, obviously it’s not the most ideal place to have a visit.
MEMBER: No?
MS CAVANAGH: ---But, you know, we always look forward to it, the children always look forward to it. I’ve even had visits of just myself sometimes to be able to have just a bit of adult conversation, I would say.
MEMBER: What is your relationship now with him?
MS CAVANAGH: ---I just want honestly the – whatever is best for him, and that is to be in Australia. Like, I don’t - - -
MEMBER: Do you want to be in a relationship with him?
MS CAVANAGH: ---Ideally, yes.
MEMBER: There’s an AVO in place until, what, 2027?
MS CAVANAGH: ---Correct.
MEMBER: What are you going to do about that?
MS CAVANAGH: ---We’ve actually – we were supposed to see Magistrate Zara prior to this hearing.
MEMBER: Yes?
MS CAVANAGH: ---However, that was a lot of miscommunication between, like, Serco, ABF. He was unable to attend, and it was adjourned, which was kind of upsetting, because that could’ve had a lot of things dropped in our place. Because it was to have a variation, which we now go back on the 26th, so next Thursday.
MEMBER: What are the variations that you’re seeking?
MS CAVANAGH: ---To be reduced back to that good behaviour.
MEMBER: Do you want to resume cohabiting with Denley?
MS CAVANAGH: ---Yes.
MEMBER: Do you want to have just a normal, intimate partner relationship with Denley?
MS CAVANAGH: ---I do, but then at the same token I am also willing to just have a co-parenting relationship with him if that is what would be best for his position, to stay in the country.
MEMBER: Have you forgiven him?
MS CAVANAGH: ---Very much so.
MEMBER: Are you fearful of him?
MS CAVANAGH: ---No.
MEMBER: What about the kids? We’ll hear from your daughter, but what about your son? Does he fear Denley?
MS CAVANAGH: ---No, I don’t believe – my kids adore their father. They are very aware, obviously. You’ve seen the records; they were present for each and every time. I also felt like I did a lot to protect them in the sense of just how intense some of those situations were, but I – yes. No, my kids – I do not believe whole-heartedly that my kids are afraid of their father.
MEMBER: Denley has said that he recognises that alcohol is not good for him. Are you a drinker? Do you drink?
MS CAVANAGH: ---I do drink sometimes, yes.
MEMBER: It seems on the evidence that there have been occasions where you and he have got intoxicated together, and that’s been a bit explosive?
MS CAVANAGH: ---Yes, 100 per cent I would say would be the most contributing factor.
MEMBER: Do you need to do something about your drinking?
MS CAVANAGH: ---No. My drinking for me is something that if I was to say, ‘I will stop drinking to benefit that relationship,’ that is fine for me. It’s just not something I’m – I’m not a drinking every night kind of person. I do enjoy a drink, but it’s also something I wouldn’t miss.
MEMBER: Yes, Ms Allen. Anything arising out of any of that?
MS ALLEN: I do have just a few more questions.
MEMBER: Yes. We’d better explore the first two incidents, too, the ones that led to gaol the first two times.
MS ALLEN: Sorry, just in terms of - - -
MEMBER: We’re talking about this third incident that put Denley in gaol after he smashed all the crockery.
MS ALLEN: Yes.
MEMBER: But we probably need to unpack a little bit from this lady’s perspective the first two incidents, too.
MS ALLEN: Sure.
MEMBER: I mean, I’ve heard Denley’s version. I probably need to hear hers as well.
MS ALLEN: Yes. All right. You’re aware that the applicant was convicted of a number of domestic violence offences on 24 June 2019?
MS CAVANAGH: ---Yes.
MS ALLEN: Were you in court that day?
MS CAVANAGH: ---I honestly don’t recall, I’m sorry.
MS ALLEN: Then he contravened the order on 30 January 2020. That was when he first went to gaol. Do you recall that?
MS CAVANAGH: ---I believe so, yes.
MS ALLEN: I’ll just turn up the police report. Just bear with me. All right. This was the incident that, according to the police report, you and Denley had been drinking alcohol since about midday on Thursday 30 January 2020. Police were called at about 6.40 pm. But, yes, so the police report states that you and Denley had been drinking alcohol since about midday. Denley told police that you had put a song on that set him off, and then you told the police that he had become violent, began punching and kicking you. You fell to the ground, and he kicked you in the face. He has further punched the television, destroying it. This was the occasion - - -?
MS CAVANAGH: ---Yes.
MS ALLEN: - - - where [M] is reported as screaming, ‘Stop killing mummy’?
MS CAVANAGH: ---M’mm.
MS ALLEN: Is that your recollection of events that occurred on that day?
MS CAVANAGH: ---Yes.
MS ALLEN: Then there was an incident that occurred on 17 January 2021. I’ll just pull that up. Again, I understand that you and Denley had been drinking and you’d attended the Wynnum Tavern?
MS CAVANAGH: ---Yes.
MS ALLEN: And later returned to the complex and started having an argument in relation to family issues. You told police that Denley started to punch you in the face without provocation, then grabbed you and started to drag you behind him, which caused a laceration to your right arm and left knee. You managed to escape from Denley and enter the unit and ran upstairs to ask the children to hide in fear for their safety. You then went downstairs, sat in the lounge while he was in the kitchen. Denley started talking to you and you didn’t respond and he became angry and damaged – Denley started damaging glass windows, lounge room walls and the television screen by throwing billiard balls. Is that an accurate (indistinct) of what occurred?
MS CAVANAGH:---Yes, unfortunately, yes.
MEMBER: Was this in a rental property?
MS CAVANAGH: ---Yes.
MEMBER: Did you lose your lease?
MS CAVANAGH: ---I didn’t. That was an expensive exercise, but - - -
MEMBER: I imagine. How drunk was Denley?
MS CAVANAGH: ---Belligerent.
MEMBER: Were you drunk this day as well?
MS CAVANAGH: ---Yes.
MEMBER: You were both drunk?
MS CAVANAGH: ---Both drunk, both. I think all three occurrences.
MEMBER: Were you pressing each other’s buttons that day?
MS CAVANAGH: ---I believe so. And I just – I also think there was – we hadn’t moved on, I believe, from the Sydney kind of - - -
MEMBER: The affair?
MS CAVANAGH: ---The affair. No, we hadn’t.
MEMBER: Was this something that cropped up whenever Denley got drunk?
MS CAVANAGH: ---Yes.
MEMBER: He was obviously very hurt?
MS CAVANAGH: ---Yes.
MEMBER: When he was drunk, he couldn’t hide that?
MS CAVANAGH:---No.
MEMBER: And behaved inappropriately?
MS CAVANAGH: ---Yes.
MEMBER: In a juvenile kind of way?
MS CAVANAGH: ---Very much so.
MEMBER: Yes?
MS CAVANAGH: ---Yes.
MEMBER: Did you try and have an adult discussion about that affair you had?
MS CAVANAGH: ---No. I was in denial for a lot of it, and then I was also fearful of bringing it up, because I didn’t want it to get - - -
MEMBER: Cause this?
MS CAVANAGH: ---Cause this, exactly. And then I think where I come from in the point of where I can see has changed is we can have those conversations now. It’s not - - -
MEMBER: Seems to me like this was like the elephant in the room in your relationship and you’re going to have to deal with it at some stage?
MS CAVANAGH: ---Yes, 100 per cent.
MEMBER: Otherwise, you know, the relationship is not going to work?
MS CAVANAGH: ---Yes.
MEMBER: You want to have a relationship with Denley?
MS CAVANAGH: ---I very much do.
MEMBER: Do you want to have a relationship with her?
MR RAWIRI-PUKEROA: Yes, I do.’[32]
[32] Transcript, p. 36 lines 10–47; pp. 37-41; p 42 lines 1-21.
ISSUES
The issues for determination are:
(a)whether the Applicant meets the requirements of the character test as defined in section 501 (subparagraph 501CA(4)(b)(i)); and
(b)if he does not, whether there is another reason why the cancellation decision should be revoked (subparagraph 501CA(4)(b)(ii)).
LEGISLATIVE FRAMEWORK
Does the Applicant pass the character test?
In November 2022, the Applicant was sentenced before the Magistrates Court of Queensland to a term of imprisonment of 18 months, for the offence of ‘Contravention of Domestic Violence Order (Aggravated Offence)’. In consequence, the Tribunal can only now find that the Applicant has a ‘substantial criminal record’, and that the Applicant does not - and cannot - pass the character test: s.501(7).
In light of same the task for the Tribunal reduces to an exercise the discretion in s.501CA(4)(b)(ii), to consider whether there is now ‘another reason’ why the original visa cancellation decision under s.501(3A) should be revoked?
In considering whether to exercise the discretion the Tribunal is bound to comply with any Directions made under the Act by virtue of s.499(2A). In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable.
The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in s.501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:
6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The principles contained within 5.2 of the Ministerial Direction are as follows:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Ministerial Direction sets out the five Primary Considerations that the Tribunal must take into account, being:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);
(4)the best interests of minor children in Australia (‘Primary Consideration 4’); and
(5)expectations of the Australian community (‘Primary Consideration 5’).
The Ministerial Direction then stipulates ‘Other Considerations’ which must also be taken into consideration:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Notably, these considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
‘...Direction 65 [now Direction 99] 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.’
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the Applicant’s conduct to date
The Respondent Minister submits[33] that when having regard to the relevant factors, the Applicant’s offending should now be viewed by the Tribunal as ‘very serious’.
‘34 When assessing the nature and seriousness of the applicant’s offending, regard must be had to the fact that the applicant has been sentenced to terms of imprisonment for his offending (paragraph 8.1.1(1)(c) of Direction 99). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.3 Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
35 Regard must also be had to the frequency and cumulative effect of the applicant’s offending (paragraphs 8.1.1(1)(d) and (e) of Direction 99). Here, the applicant has committed 17 offences over a period of eight years. This can fairly be described as frequent. The seriousness of the applicant’s offending has trended upwards and his behaviour can be seen as cumulatively having had a deleterious impact on the Australian community.’[34]
[33] Respondent’s SFIC [24].
[34] Respondent’s SFIC [34]-[35].
The Applicant himself describes his criminal offending as ‘very serious’, and as ‘out of character’.[35]
[35] Transcript, p.6 line 23-24.
Risk to the Australian community
When assessing the risk of harm to the Australian community that may now be posed by the Applicant, a decision-maker must have regard to, cumulatively, the following relevant matters arising under paragraph 8.1.2(2) of the Ministerial direction:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen reoffending; 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).
The Respondent Minister submits[36] that there remains an ‘unacceptable’ risk that the Applicant will re-offend in a similar manner in the future and that the requirement for protection of the Australian community now weighs very heavily against revocation on the basis that:
[36] Respondent’s SFIC paragraphs [42], [43].
‘38 Family violence offending also has broader societal consequences, as canvassed by Kendall DP (as his Honour then was) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
39 The applicant seeks to attribute his offending to the death of his brother and father figure. There is also some suggestion that he was intoxicated at the time of his offending.
40 In assessing risk, the Tribunal is “entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past”.4
41 For the reasons that follow, the Tribunal should conclude that the risk of further offending by the applicant is unacceptable:
41.1 There is no expert evidence in respect of why the applicant has offended in the past and what the likelihood is of him offending in the future.
41.2 The applicant has demonstrated a propensity for committing domestic violence offences and a flagrant disregard for Court orders designed to protect victims of family violence. His claim that he will not offend in the future needs to be viewed in the context of the frequency with which he has done so in the past and the fact that past punishments imposed on him by the criminal justice system have not apparently had any rehabilitative effect on him.
41.3 This is not a case where the applicant’s conduct was perpetrated against an ex-partner with whom he now has no contact. To the contrary, the applicant remains in a relationship with the victim of his past offending, and so the potential for the applicant to again engage in domestic violence against her cannot be tempered. Further, the events which the applicant says were the catalyst for his offending (the death of his brother and father figure), whilst unfortunate, are part of the vicissitudes of life. The possibility that the applicant will experience similar hardships in the future cannot be discounted.
41.4 To the extent that alcohol played a part in the applicant’s offending, he has completed a seven hour “Drug and Alcohol Abuse 101” course and has an ongoing “Alcohol Prevention Plan.” He has also completed an eight hour “Domestic Violence 101” course, a seven hour “Healthy Relationships” course, a five hour “Basic Parenting 101” course, a three hour “Problem Solving Strategies” course, a four hour “Stress Management” course, a five hour “Anger Management 101” course, and has attended six sessions in a “Brief Intervention Service” (which focusses on the provision of short term, multi session telephone support for men who use family violence and who are currently on a waiting list for family violence support) and a six week course with Sane Australia (which focusses on “no to violence,” anger management, accountability, coping mechanisms, grief and mindfulness). The applicant has provided evidence that he is engaging in a “1 to 1 Peer Support” program, however, the focus of this program is not clear. In addition, the applicant is apparently attending fortnightly appointments with Redlands Psychology (although the only evidence of this is an invoice for $120 dated 23 August 2023), has enrolled in the “Respectful Man” program and is on the wait list for a “Living without Violence” program. The applicant’s rehabilitative efforts to date ought to be seen in the context of his serious and repetitive domestic violence. Further, the skills he asserts he has learnt from these courses have not been tested in an uncontrolled environment.’[37]
[37] Respondent’s SFIC [38]-[41].
In a statement prepared by the Applicant as part of these proceedings, the Applicant said the following:
‘I would like to acknowledge the traditional custodians of the land on which we gather today. I pay my respects to their Elders past, present, and emerging and acknowledge the important role that Aboriginal and Torres Strait Islander people continue to play within the Australian community."
Your Honor [sic] ,
I stand before you today with a heavy heart and a deep sense of responsibility for the actions that have brought me to this moment. I am aware of the gravity of the situation, and I am here to take full accountability for my past actions, which have led to the possibility of my deportation from Australia.
I want to be upfront in my acknowledgment that my past was tainted by a history of domestic violence. I am not proud of the person I was, and I am deeply ashamed of how I treated my partner and children. The pain and trauma I inflicted upon them are scars that will never fully heal, and I am forever burdened by the knowledge of the harm I caused.
My unhealthy relationship with alcohol played a significant role in many of my regrettable actions. While I do not excuse my behaviour by blaming it solely on alcohol, I recognize that it enhanced the consequences of my actions. I have come to understand that I cannot allow this to be an excuse for my behaviour, but rather a sobering reminder of the need for change.
I want to make it clear that I am not seeking sympathy or making excuses. Domestic violence is a horrible and inexcusable act, and I am fully aware of the importance of breaking the cycle of generational trauma and ending the pattern of domestic violence. Reading the history of my actions in black and white on paper is both embarrassing and scary, and I take full ownership of my past.
In my journey of redemption and rehabilitation, I have actively involved myself in therapy in both individual and group settings. These experiences have opened my eyes to the deep-seated issues that led me down a destructive path. I have devoted myself to these sessions with genuine remorse and a commitment to change. My partner and children have, incredibly, found it in their hearts to forgive me and are extremely supportive as I strive to make amends.
My partner, who was the primary victim of my crimes, is a strong and intelligent woman who loves me unconditionally. I am profoundly sorry for the pain I caused her, as well as the harm inflicted upon my children and the broader community. I understand the immense trust that has been shattered and the disappointment I have caused.
During my time in detention, I have dedicated myself to reflect on and making active choices to change. I have pledged never to let alcohol control my life again, and I am committed to being a better, non-violent person. I am begging for the compassion of the wider community, the court, and all those involved in this decision to allow me the opportunity to stay in Australia.
I believe that I can become a productive and law-abiding member of Australian society, and I am committed to spending as long as it takes to make up for my past. I understand that actions speak louder than words, and I am ready to prove my worth through my future conduct. Please, let me stay in Australia so that I can continue my journey towards redemption and contribute positively to the community that I have wronged in the past.
Thank you for considering my plea.’[38]
[38] A26.
In relation to future risk the Applicant also engaged in the following exchange with the Tribunal, during his final oral submissions:
‘MEMBER: All right. And one of the other key points that was made against you is that, look, you’ve exposed your children to some pretty dreadful stuff, right, that no child should really need to see. And there’s a risk that you’ll re-expose them to that and traumatise them. You know, that stuff has a big impact on how children grow up. It normalises violence, and, you know, lack of respect for women and all those sorts of things. Now, you’ve already exposed your kids to that sort of stuff, and in light of what’s happened, the point is made, there’s a risk that you’ll do it again.
MR RAWIRI-PUKEROA: Well, I don’t think so. The things that I’ve been doing and all the rehabilitation that I’ve been doing, I’ve been taking it so seriously that, you know, it’s just I’m willing to do – and I know my charges are really severe, but being inside has made me gather my thoughts and made me think about where I want to be, what I want to do, and how I want to be with my partner and my kids. And that’s breaking those cycles, and breaking domestic violence and all those repetitive cycles that I’ve – that I’ve done. That’s what I want to do, break the cycles in a positive way.
MEMBER: I’m a bit concerned about the alcohol too, I’ve got to say. Seems to me that alcohol’s the root of all of this, that you don’t think clearly when you drink. How can we be sure you’re not going to drink in the future.
MR RAWIRI-PUKEROA: Drinking is not my future. I’ve told my partner, and we’ve had multiple conversations about that. And I know, you know, that there is a risk there, but alcohol is not in future.
MEMBER: All right. Just say you could be at work one day and after knock off on Friday, the boys could pull out a carton of beer and give you a couple.
MR RAWIRI-PUKEROA: All my friends are aware of my situation that I’m in now, the drinking problem and things like that, and they’re all supportive.’[39]
[39] Transcript, p 64, lines 1-31.
Tribunal’s Assessment Primary Consideration One:
The Tribunal considers that the Applicant’s conduct must be categorised as very serious.
Having heard from the Applicant, and having now been afforded a reasonable opportunity to assess the Applicant while giving his evidence, the Tribunal is satisfied that the Applicant has developed a great deal more insight and maturity, particularly in terms of his understanding the role of alcohol as a trigger for inappropriate behaviour.
Having also considered the courses that the Applicant has undertaken, and the courses that the Applicant intends to continue taking, in conjunction with his partner Ms Cavanagh; and in light of the Applicant’s evident understanding of the consequences that will inevitably follow in the event of further domestic violence occasioned by him, the Tribunal considers that the risk of further similar conduct by the Applicant has reduced to a level where that risk is at least able to be accepted by the Australian community as a tolerable risk going forward.
Having regard to the nature of the Applicant’s conduct, as well as the future risk to the Australian community, the Tribunal considers that Primary Consideration One now weighs ‘heavily’ against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION TWO – FAMILY VIOLENCE
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 (paragraph 8.3(2) of the Ministerial Direction).
The Respondent Minister submits[40] that in circumstances wherein the Applicant has committed 12 family violence offences over a period of three years his conduct is apt to be categorised as ‘frequent’, and that his conduct has also increased in seriousness over time. In light of the received understanding regarding the cumulative impact of repeated acts of family violence, the Minister contends that this consideration now weighs ‘very heavily’ against revocation of the visa cancellation decision.
[40] Respondent’s SFIC, paragraphs [47] – [50].
The Applicant acknowledges that the majority of his own offending is domestic violence offending, and that this is both ‘very serious’ and ‘unacceptable’:
‘ At the time of my crimes committed, I didn’t know how much of an effect it would have not only on myself but everyone around me, My daughter M, my son C, My partner Amber and the greater community. The physical and verbal abuse I have inflicted on my partner Amber and having my kids witness some occasions of my disgusting behaviour I couldn’t bare to accept. I am very remorseful for all my wrong doings and for the hurt, pain and suffering I have put my family through. I take full accountability for my actions. Whilst I was young and lacked wisdom, I had less knowledge, and I also lacked the understanding of my crimes at those times., However I am aware this is not an excuse and more so realisation for myself. With the education I have absorbed on my rehabilitation journey whilst being in custody & detained I have learnt a lot about domestic violence and the toll it takes on families.
I have learnt how to be mindful and to have awareness on the areas that I should avoid, to have patience and to control my anger in a positive manner. I have gained a lot of wisdom and used this time for self-reflecting whilst been detained. I understand my crimes were completely out of order. For the hurt I've put my family through I am truly sorry, not only to them but the greater community in which my actions have had affect on. I now have a good understanding of my crimes and can reflect on where I went wrong and acknowledge my behaviour. I have the right tools to be more aware of my anger. I have gained clarity on the violent crimes I have committed as a young father through the guidance of peer supporters and professionals. I take full responsibility of my actions upon my partner and my kids, the community and everyone else i have affected with my actions. I am truly sorry and hope to have the opportunity to redeem myself with not only my family but the Australian community.’[41]
[41] A5.
In a statutory declaration provided by Ms Cavanagh as part of these proceedings she has said, in part:
3I am an educated individual very aware of the seriousness Denley's actions have had on myself and our children. I do not condone any of the offenses committed and are well educated on the impact as such these incidents have had on myself and my children and the community.
4I cannot speak for anybody but myself and my children, but I was always taught forgiveness is a life tool.
"Forgiveness is not a feeling; it is a commitment. It is a choice to show mercy, not to hold the offence up against the offender.
5I stand here as the aggrieved and forgive Denleys past mistakes, I simply ask that AA T (decision maker) can please have enough compassion to do the same.
6I am aware of Denleys entire criminal history and believe he has undertaken the appropriate steps to rehabilitate effectivley. The courses he has enrolled and completed are inclusive of DV 101, Maintaining healthy relationships, Basic Parenting, Anger Management. Denley has also sought professional medical & mental health help through counselling services, Psychologists and multiple avenues of peer support.
7I believe Denley is no threat to the community, and has no risk of re offending.
8I am a firm believer in keeping families together. Separating the father from their children and extraditing him to another country where he has nil support or means to see his children is more of a punishment on the children then to him.
9Not allowing Denley to witness his children grow up, thrive in school sports, academics and forge new friendships or help Mold them into respectful young adults will be detrimental for the children's wellbeing.
10Denley has developed deep ties in the Australian community since the age of 18. He has remained employed throughout the past 10 years. His son was born in Randwick, Sydney Hospital. His daughter has been here since 2013 (roughly 6 months old) Children have been enrolled in all day care and schooling in Australia only.
11Deporting Denley from Australia will create further emotional and financial distress for myself and our children. The current financial climate and pending recession has already inflicted distress on our family since his detainment and I fear the position I could potentially be in if he was to not have the cancellation revoked.’[42]
[42] A1, [3]-[11].
All of the Applicant’s criminal history - with the exception of some minor offences in 2014 and 2017 – is comprised by domestic violence offences committed by the Applicant against Ms Cavanagh, in the circumstances as now described in other passages of these reasons.
The Tribunal regards domestic violence offending as ‘very serious’ and as ‘completely unacceptable’. However, no further adverse weight is attached by the Tribunal to Primary Consideration Two as part of this deliberation, noting that ‘heavy’ weight against revocation of the visa cancellation decision has previously been applied by the Tribunal on account of this conduct by the Applicant as part of the Tribunal’s earlier deliberation regarding Primary Consideration One. The Tribunal maintains the approach it has previously adopted in Chand v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 2752, for the reasons expressed therein.
PRIMARY CONSIDERATION THREE – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
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 (paragraph 8.3(2) of the Ministerial Direction).
Decision-makers must also consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely (paragraph 8.3(2) of the Ministerial Direction). Decision-makers 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)the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when the offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia (paragraph 8.3(4) of the Ministerial Direction).
The Applicant has two biological children in Australia, as well as his partner Ms Cavanagh, and an aunt. The Applicant has declared no other immediate family living in Australia. Ms Cavanagh has provided strong statements in support of the Applicant, as has his 11-year old daughter. Further statements in support have also been provided by a number of friends of the Applicant.
The Applicant has now lived in Australia for 13 years, since arriving on a more permanent basis in July 2010 when aged 16 years.[43] The Applicant has also had a reasonable employment history throughout his time in Australia.
[43] The Tribunal notes that the Applicant lived between Australia and New Zealand until February 2013.
The Respondent Minister accepts that this Primary Consideration now weighs in the Applicant’s favour, yet submits[44] that any weight in favour of revocation arising because of this Primary Consideration is not outweighed by the First, Second or Fifth Primary consideration, which each weigh heavily against revocation.
[44] Respondent’s SFIC, paragraph [57].
The Tribunal considers that Primary Consideration Three now weighs ‘heavily’ in favour of revocation of the visa cancellation decision.
PRIMARY CONSIDERATION FOUR – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA.
In accordance with paragraph 8.4 of the Ministerial Direction, decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of minor child affected by the decision. Paragraph 8.4 (4) of the Ministerial Direction provides that when having regard to this consideration, a number of factors must be considered:
(a)the nature and duration of the relationship;
(b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;
(c)the impact of the Applicant’s prior conduct, and whether it has or will have a negative impact on the child;
(d)the likely effect of separation and the ability to maintain contact; and
(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; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has two biological minor children in Australia, his daughter M (age 11) and his son C, (age 6).
The Respondent Minister accepts that revocation of the visa cancellation decision would be in the best interests of both M and C, yet submits[45] that any weight that should be given by the Tribunal to this consideration should be significantly reduced because:
·The Applicant’s relationship with M and C has been marked by lengthy absences due to his incarceration, and detention.
·It is ‘unlikely’ that the Applicant will play a positive parenting role in the future, given his criminal history.
·Any future exposure to negative conduct of the kind previously engaged in by the Applicant would no doubt have an adverse impact on the children.
·If deported, the Applicant can continue to have contact with his children by electronic means, or they could visit him in New Zealand.
·The children live with their mother, who fulfills a parental role.
·The children have previously been exposed to family violence against their mother, perpetrated by the Applicant.
[45] Respondent’s SFIC paragraph [61].
The Applicant has submitted that it would not be in the best interests of his children in Australia that he be deported to New Zealand. The Tribunal agrees.
The Tribunal considers that ‘very heavy weight’ in favour of revocation of the visa cancellation decision applies on account of Primary Consideration Four. Although the Tribunal accepts that the Applicant has previously exposed his children to family violence the Tribunal considers that the Applicant remains capable of being an effective parental figure and can be a positive role model for his children in the future.
PRIMARY CONSIDERATION FIVE – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) and (2) of the Ministerial Direction outlines the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia, and that the Australian community expects the government to not allow individuals to remain in Australia where they have engaged in serious conduct in breach of this expectation. 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 enter and remain in Australia (paragraph 8.5(1)).
Paragraph 8.5(3) of the Ministerial Direction states that these expectations apply irrespective of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Decision-makers should proceed on the basis of the government’s views, as now outlined in paragraph 8.5 of the Ministerial Direction, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant circumstances, or evidence about those expectations. Rather, the Tribunal must regard paragraph 8.5 the Ministerial Direction as if it were a deeming provision: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104], per Stewart J; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68.
Overall, the Respondent Minister submits[46] that this primary consideration weighs heavily against revocation.
[46] Respondent’s SFIC paragraph [66]
The Tribunal considers that Primary Consideration Five must weigh ‘heavily’ against revocation of the visa cancellation decision.
OTHER CONSIDERATIONS
It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs
(a), (b), (c) and (d).
(a) Legal consequences of the decision
Under paragraph 9.1 of the Ministerial Direction decision-makers are required to be mindful of Australia’s non-refoulement obligations. There is no claim by the Applicant - and nothing on the material to suggest - that Australia’s non-refoulment obligations are engaged in the case of the Applicant; and the Applicant has not raised any other prospective legal consequence as to why the cancellation decision should now be revoked.
In all of the circumstances, the Tribunal considers that this ‘Other’ Consideration now weighs neutrally.
(b) Extent of impediments, if removed
Pursuant to paragraph 9.2 of the Ministerial Direction, decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, when establishing themselves and maintaining basic living standards (in terms of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health; whether there are substantial language or cultural barriers and any social, medical and/or economic support that will be available to them.
The Respondent Minister submits[47] that the Applicant is a youthful man in his late twenties who has not declared any mental or physical health conditions who will, as a citizen of New Zealand, have access to the same social, medical and welfare supports as all other New Zealand citizens, which in the absence of any evidence to the contrary, may be assumed to be similar to government benefits accessible in Australia.[48] The Respondent Minister further observes that the Applicant spent the first 16 years of his life in New Zealand, such that New Zealand will not be an unfamiliar or foreign place for the Applicant, and in light of the Applicant’s employment history in Australia, it is reasonable to presuppose that the Applicant could now secure equivalent employment in New Zealand. In all these circumstances the Respondent Minister submits that this Other Consideration does not weigh in the Applicant’s favour, and should be assessed neutrally by the Tribunal.
[47] Respondent’s SFIC, paragraphs [71] – [74].
During his evidence before the Tribunal the Applicant indicated that he has only very limited contact with family in New Zealand:
‘MEMBER: Your parents are still in New Zealand. What’s your relationship like with them?
MR RAWIRI-PUKEROA: ---I haven’t – since I’ve been in Australia I haven’t much – anything to do with them. Since young really.
MEMBER: Is the relationship a bit broken is it?
MR RAWIRI-PUKEROA:---Yes, something like that.
MEMBER: Why did it break down?
MR RAWIRI-PUKEROA:---I don’t know. I was just 14 when I left school. I was just on my own, had a rough relationship with my father growing up.
MEMBER: Do you have any family in New Zealand that you are close to?
MR RAWIRI-PUKEROA:---I talk to my sister.
MEMBER: So you’ve got a sister that you talk to?
MR RAWIRI-PUKEROA:---Yes.
MEMBER: All right, where does she live?
MR RAWIRI-PUKEROA:---In Huntly, in New Zealand.
MEMBER: All right. Does she have a relationship with your parents?
MR RAWIRI-PUKEROA:---I think so, yes.
MEMBER: All right. So apart from that sister, any other family in New Zealand that you’re - - -?
MR RAWIRI-PUKEROA:---No.’[49]
[49] Transcript p 26, lines 8-28.
The Tribunal considers that this Other Consideration now weighs ‘heavily’ in favour of revocation of the visa cancellation decision.
(c) Impact on victims
Under paragraph 9.3 of the Ministerial Direction decision-makers are required to be mindful of the impact on victims of the Applicant’s offending if he is or is not allowed to return back into the Australian community.
In the current case the primary victim of the Applicant’s offending is his partner Ms Cavanagh, and the Applicant’s children M and C have also been adversely impacted by that conduct, as well. In that sense the Applicant’s children are also victims of the Applicant’s offending.
The Respondent Minister acknowledges that Ms Cavangh has provided statements and oral testimony in support of the Applicant being allowed to remain in Australia. Notwithstanding, the Respondent Minister submits[50] that this Other Consideration should now only weigh neutrally ‘given the historical context of repeated and serious family violence committed by the Applicant against Ms Cavanagh and [because] …she can be seen as inherently biased in his favour’. Furthermore, the Respondent Minister submits that, as stated by Senior Member Morris in RVDN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA (21 December 220) at [127]:
‘…it would be inimical to other parts of the Direction to determine that this consideration could weigh in favour of an Applicant who has been convicted of domestic violence offences, even where the domestic violence victim might have expressed views of forgiveness or support for a person to be granted a visa. This is because when Direction No. 79 was made by the Minister, it specifically emphasised, amending the Direction it replaced, that crimes against women and children are to be regarded seriously, regardless of the sentence imposed.’[51]
[50] Respondent’s SFIC,[76] – [77].
[51] Respondent’s SFIC, [77].
Ms Cavanagh has provided lucid oral testimony and written statements in which she makes it absolutely clear that she forgives the Applicant and wishes to remain in an intimate domestic relationship with the Applicant, even notwithstanding her status as the primary victim of the Applicant’s past domestic violence. Notwithstanding the submissions by the Respondent Minister, the Tribunal considers that regard must be had for the impact on Ms Cavanagh, and her children, in the event that the Applicant is deported to New Zealand. Similarly the Tribunal considers that this Other Consideration requires that some agency must now be afforded to the wishes of the primary victims, notwithstanding anything that may have been said by Senior Member Morris in RVDN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The Tribunal considers that this Other Consideration now weighs ‘heavily’ in favour of revocation of the visa cancellation decision.
(d) impact on Australian business interests
In consideration of this Other Consideration, paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
The Applicant does not claim and there is otherwise nothing on the material to suggest that a non-revocation decision would significantly compromise the delivery of a major project or an important service in Australia. In all the circumstances the Tribunal considers that this ‘Other’ Consideration now weighs only neutrally.
CONCLUSION
In summary the Tribunal concludes as follows regarding each of the Primary and Other considerations:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’) – weighs heavily against revocation of the visa cancellation decision;
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’) – regarded by the Tribunal as both ‘very serious’ and ‘unacceptable’, yet no further adverse weight attaches by reason that adverse weight has already been attributed to this same conduct as part of the Tribunal’s prior deliberations regarding Primary Consideration One;
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’) – heavy weight in favour of revocation of the visa cancellation decision;
(4)the best interests of minor children in Australia (‘Primary Consideration 4’) – very heavy weight in favour of revocation of the visa cancellation decision; and
(5)expectations of the Australian community (‘Primary Consideration 5’) – heavy weight against revocation of the visa cancellation decision.
(6)legal consequences of the decision – neutral weight;
(7)extent of impediments if removed – heavy weight in favour of revocation of the visa cancellation decision;
(8)impact on victims – heavy weight in favour of revocation of the visa cancellation decision; and
(9)impact on Australian business interests – neutral weight.
DECISION
Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 12 July 2023 to not revoke the cancellation of the Applicant's visa with a decision that this Tribunal exercised the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).
I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams
..................[SGD]................
Associate
Dated: 19 December 2023
Dates of hearing: 21 and 22 September 2023 Applicant: Self-represented litigant Solicitors for the Respondent: Mr Jake Kyranis (Special Counsel) Sparke Helmore Lawyers ANNEXURE A
Exhibit Number
Description of Exhibit
Date of Document
Filing Date
Page no.
A1
Statutory Declaration – Amber Jade Cavanagh
31 July 2023
11 August 2023
1
A2
Character Reference – Shannon Kororiko
–
11 August 2023
3
A3
Character Reference – Demetrius Taneora
–
11 August 2023
4
A4
Death Certificate – Jay Te Ahu Rawiri-Pukeroa
30 June 2023
11 August 2023
5
A5
Applicant’s Statement – ‘My Journey with Domestic Violence’
6 August 2023
11 August 2023
6
A6
Course Completions and Enrolments
–
11 August 2023
7
A7
Character Reference – Chop Tiputoa
13 August 2023
14 August 2023
8
A8
Record of Appointments – Sane 1on1 Peer Support Sessions
–
14 August 2023
9
A9
Complaint
–
25 August 2023
10
A10
Character Reference – Kathleen Ripi
20 August 2023
25 August 2023
11
A11
Tax Invoice – Attendance at Redlands Psychologists
23 August 2023
25 August 2023
12
A12
Letter to Wynnum Court
24 August 2023
25 August 2023
13
A13
Serco Individual Management Plan Review
27 August 2023
28 August 2023
14
A14
Tax Invoice – Attendance at Redlands Psychologists
19 July 2023
5 September 2023
15
A15
Tax Invoice – Attendance at Redlands Psychologists (Duplicate)
23 August 2023
5 September 2023
16
A16
Tax Invoice – Attendance at Redlands Psychologists
26 July 2023
5 September 2023
17
A17
Email from Tony Kenny re ‘Respectful Man Group Agreements’
2 September 2023
5 September 2023
18
A18
Email from SANE Australia re ‘Exit from SANE guided counselling, peer support and groups’
1 September 2023
5 September 2023
19
A19
Character Reference – M Pukeroa
–
6 September 2023
21
A20
Tax Invoice – Attendance at Redlands Psychologists
6 September 2023
6 September 2023
22
A21
Letter from Redlands Psychologists – Confirmation of Attendance
6 September 2023
6 September 2023
23
A22
Email from Tony Kenny re ‘Respectful Man Group’
9 September 2023
11 September 2023
24
A23
Email from Sue Vugler re Microsoft Teams meeting – Lives Lived Well
8 September 2023
11 September 2023
25
A24
Character Reference – Kaytlin Mcdonald
–
13 September 2023
26
A25
Character Reference – Sachin Nair
–
13 September 2023
27
A26
Applicant’s final statement
–
18 September 2023
28
A27
Lives Lived Well Support Letter
18 September 2023
18 September 2023
29
- AGLC
- Rawiri-Pukeroa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4183
- Case
- [2023] AATA 4183
- Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal was required to determine the appropriate weight to be given to both primary and other considerations when assessing the applicant's character, particularly in light of his criminal offending. This involved considering the nature and seriousness of the applicant's past conduct, the frequency and cumulative effect of his offending, and the risk of future harm to the Australian community. The Tribunal also had to consider the Full Federal Court's decision in *Khalil v Minister for Home Affairs* regarding the distinction between a decision and the reasons for that decision.
The Tribunal applied the principles outlined in Ministerial Direction 99 (formerly Direction 65), which requires an evaluation of the weight to be given to "other considerations," including non-refoulement obligations. While primary considerations are generally given greater weight, the direction does not mandate that other considerations are always secondary. The Tribunal noted that the applicant had committed 17 offences over eight years, with an upward trend in seriousness, which was described as frequent and having a deleterious impact on the community. The assessment of risk involved considering the nature of potential harm, the likelihood of reoffending, and evidence of rehabilitation. The Tribunal also referenced *Khalil* to confirm that its obligation within a specified timeframe was to deliver a decision, not necessarily to provide reasons at that exact moment.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Notably, these considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]: ‘...Direction 65 [now Direction 99] 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.’PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITYThe nature and seriousness of the Applicant’s conduct to date The Respondent Minister submits[33] that when having regard to the relevant factors, the Applicant’s offending should now be viewed by the Tribunal as ‘very serious’.‘34 When assessing the nature and seriousness of the applicant’s offending, regard must be had to the fact that the applicant has been sentenced to terms of imprisonment for his offending (paragraph 8.1.1(1)(c) of Direction 99). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.3 Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved. 35 Regard must also be had to the frequency and cumulative effect of the applicant’s offending (paragraphs 8.1.1(1)(d) and (e) of Direction 99). Here, the applicant has committed 17 offences over a period of eight years. This can fairly be described as frequent. The seriousness of the applicant’s offending has trended upwards and his behaviour can be seen as cumulatively having had a deleterious impact on the Australian community.’[34][33] Respondent’s SFIC [24].[34] Respondent’s SFIC [34]-[35]. The Applicant himself describes his criminal offending as ‘very serious’, and as ‘out of character’.[35][35] Transcript, p.6 line 23-24.Risk to the Australian community When assessing the risk of harm to the Australian community that may now be posed by the Applicant, a decision-maker must have regard to, cumulatively, the following relevant matters arising under paragraph 8.1.2(2) of the Ministerial direction:(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:(i) information and evidence on the risk of the non-citizen reoffending; 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).