Retzlaff Carruthers and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 70
•6 February 2025
Retzlaff Carruthers and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 70 (6 February 2025)
Applicant/s: Tautai Ozzy Jr Retzlaff Carruthers
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9510
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:6 February 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the Applicant’s visa is revoked.
........................[SGD]................................................
General Member A. Maryniak KC
Catchwords
Non-revocation under s 501CA(4) of the Migration Act 1958 of the mandatory cancellation of Applicant’s TY Subclass 444 Special Category (Temporary) visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation– Protection of the Australian Community – Strength Nature and Duration of Ties to Australia – Best Interests of Minor Children – Other considerations – Decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Rogers and Minister for Immigration and Multicultural Affairs [2025] ARTA 28
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
The 32 year old Applicant, a Samoan and New Zealand citizen, born on 30 November 1992 in Moto’otua Samoa, migrated to Australia on 15 August 2014, aged 21. He seeks review of a decision, which cancelled his subclass 444 Special Category visa pursuant to section 501(3A) of Migration Act 1958 (Cth) (the Act). He has been held in Immigration detention since 28 March 2024.[1]
[1] Exhibit R1, ‘G’ Documents, G10, 88.
Consideration
The Tribunal has considered the documentary material before it, comprising exhibits A1-2 and R1-3,[2] together with the testimony of the Applicant, the Applicant’s mother, the Applicant’s eldest sister Ms Brown and independent Forensic Clinical Psychologist Dr James Freeman. The Tribunal has also considered the written and oral submissions of the parties.
[2] A1 24/1/25 Email from Applicant’s solicitors;
A2 30/1/25 Email from Applicant’s solicitors;
R1 G-Documents;
R2 Respondent’s Hearing Tender Bundle;
R3 30/1/25 Email from Respondent’s solicitors.
The Applicant concedes and the Tribunal finds that he does not pass the character test, pursuant to section 501(6)(a) of the Act due to him having been sentenced to 18 months imprisonment: see section 501(7)(c) of the Act.
The Tribunal is to determine whether there is another reason why the visa cancellation decision should be revoked pursuant to section 501CA(4)(b)(ii) of the Act, by assessing and evaluating the factors for and against revoking the visa cancellation. Such a determination must be carried out in accordance with any written directions given pursuant to section 499(1) of the Act. The Tribunal must comply with Direction 110 (the Direction) made pursuant to s499 of the Act.
Paragraph 5.2 of the Direction provides the following framework principles:
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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
5Australia 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.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-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.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal, informed by these principles, is to take into account the primary and other considerations, with Primary Consideration 1 generally to be given greater weight, per paragraph 7(2) of the Direction, and the primary considerations to be given greater weight that the other considerations.
Primary consideration 1 – Protection of the Australian community
Paragraph 8.1(2) of Direction 110 requires decision-makers to give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of Conduct
The protection of the Australian community is paramount. The Applicant’s relevant criminal offending in Australia comprises a violent assault occasioning bodily harm on 27 February 2023, for which he was imprisoned for 18 months from 24 November 2023, then paroled on 30 March 2024 (the 2023 Assault). The Applicant was also ordered to pay $5000 compensation to the victim and there is no suggestion that compensation was not paid. Further, the Applicant was convicted on 17 September 2014 of a series of three related offences of assault officer in execution of duty ($1000 fine and 18 month bond), resist officer in execution of duty ($1000 fine) and resist or hinder police officer in the execution of duty ($1000 fine) (the Police Offending).[3]
[3] Ibid G4, 45.
The Applicant also has three earlier convictions in New Zealand from February 2013 and June 2011 for Unlicensed Driver Failed to Comply With Prohibition, Drink Driving and careless driving (the Driving offences).[4] Further, in light of the testimony of the Applicant before the Tribunal, the Tribunal considers that the discrepancies on the passenger cards were not intentional and hence of limited consequence.[5] In context, the earlier New Zealand Driving offences are also of limited consequence.
[4] Ibid G5, 46.
[5] Ibid G15-16, 345-346; G12, 333-334.
Both the 2023 Assault and the Police Offending involved violence and are viewed very seriously by the Australian Government and the Australian community: Direction 8.1.1 (1)(a)(i) and (c). The victim of the 2023 Assault was punched in the face at about 3am by the Applicant, rendering him unconscious as he fell to the ground, striking his head on the ground resulting in significant bleeding. The Applicant, who had been out drinking for hours with his brother Richard, then left in a taxi, whilst the victim was convulsing on the ground until the paramedics arrived. The victim sustained a concussion, a large laceration at the back of his head (with 14 stitches) together with bruising and swelling to the left side of his face and eye.[6] It is only fortuitous that the victim did not sustain more serious injuries. It was not suggested that the victim has ongoing consequences from the assault.[7] However the injuries were significant. The evidence before the Tribunal going to the lead up to the assault suggests nothing to justify the Applicant’s conduct. It was cowardly and disproportionate to any perceived insult or misconceived threat. The Applicant seems genuinely and appropriately remorseful for the 2023 Assault.
[6] Ibid G6, 64; R2, 4-6.
[7] Paragraph 8.1.1(1)(d) of Direction 110
The Police Offending, also occurred when the Applicant was intoxicated, and was very serious.[8] Police had attended to assist with the eviction of the Applicant and others from a building due to their intoxication and the related disturbance they were causing. The Applicant’s behaviour was both violent and offensive towards the police.[9] The Applicant is also remorseful for this conduct.
[8] Ibid 8.1.1 (1)(b)(ii).
[9] R2, 18-21.
The Tribunal acknowledges that the 2023 Assault occurred some 9 years after the Police Offending, the latter occurring just before the Applicant migrated to Australia in August 2014. The Tribunal is not satisfied that such offending constitutes a trend of increasing seriousness in light of that significant time interval between the two instances of offending.[10]
[10] Paragraph 8.1.1(1)(e) of Direction 110
However, the Tribunal is satisfied that both the 2023 Assault and the Police Offending are very serious and finds accordingly.
Risk to the Australian Community
In assessing risk to the Australian community and the likelihood of the Applicant committing further offences or engaging in other serious conduct the tolerance for such risk is lowered because the offending is very serious. However, the Tribunal does not accept that the offending is at the highest level which results in any risk of reoffending being unacceptable.
The Tribunal takes into account the fact that the Applicant remained in the community without any offending for the best part of 2023, after the 2023 Assault until sentencing on 24 November 2023 and that he testified that he had made attempts to reduce his alcohol consumption during that period. Consistent with his testimony, during that period he consulted with his GP Dr Chi-Cheng Fang, having been prescribed benzodiazepines (which the Applicant took on occasion but not regularly) to reduce alcohol intake, and escitalopram for Adjustment Disorder. It is also relevant that the Applicant completed a 9 module Effectively Managing Anger Program of his own volition prior to being assessed by Dr Freeman on 20 November 2023, just prior to sentencing.
Dr Freeman identified an Alcohol Dependency Disorder and an Adjustment Disorder and in his view the Applicant’s “condensed offending history [as per Dr Freeman’s report being the 2023 Assault and the Police Offending] may prove to stem from substance abuse (eg impairing effects of alcohol dependency) rather than clear deviant anti-social ideation.”[11] . Dr Freeman’s initial report also stated:[12]
Given the absence of broader deviant ideation, the primary contributor to the offence is again likely to be excessively consuming alcohol and engaging in
impulsive behaviours with little consideration for the consequences when emotionally agitated and impaired. That is, alcohol is known to impair judgement and elevate irritation and he accepts reacting excessively. In contrast, there appears to be a lack of broader criminogenic treatment needs. Given this (and when considering all his past offences are alcohol related), the risk of recidivism may be considered in the low category if he was to avoid alcohol misuse. However and not surprisingly, the risk of re-offending is likely to elevate if he does not experience behavioural change (including avoiding similar high-risk drunken incidents in the future). Encouragingly, there are a number of protective factors that may prove to reduce his risk including: (a) completion of the intervention program, (b) support of family, (c) lack of deviancy or clear anti-social tendencies, (d) capacity to demonstrate regret/remorse, (f) strong work ethic with ongoing employment opportunities, (g) specific deterrence and the fear of impending sanctions, etc.Importantly, Mr. Carruthers continues to accept culpability and demonstrates remorse and has actively attempted to create behavioural change via engagement in a course-based rehabilitative intervention as well as psychotropic medication. However, and consistent with the extent of his addiction, he has yet to develop the necessary skills to achieve lasting abstinence.
The risk of recidivism is linked to a condensed set of factors. More specifically, he will need to:
a) Obtain significant control of his alcohol consumption vulnerabilities or maintain sustained abstinence. Encouragingly, he reports a high level of motivation to develop these skills and is cognisant of the origins of his offending behaviour. However, there are some likely impediments to such obtainment, including the chronic nature of the addiction and residing with his brother who also likely has a similar dependency; and
b) Avoid engaging in similar high-risk situations in the future (which is clearly linked to point a). As noted above, he reports actively avoiding intoxication in public spaces/licensed premises.
[11] R1, G10, 106-107.
[12] Ibid 108.
The Applicant later completed four 2 hour psychological sessions via video with Dr Riachi, Clinical and Forensic Psychologist,[13] who concluded that on the basis of gains the Applicant “has made during current treatment and assuming that [he] adheres to the established safety plan, maintains abstinence from alcohol, and continues to utilise his support network as needed, I would consider his low risk of re-offending as likely to be consolidated should he be released into the Australian community”.[14] Dr Riachi also uncovered disturbing aspects of the Applicant’s childhood relevant to the Applicant’s mental health.
[13] Ibid, G10, 127-132
[14] Ibid, 131-132.
More compelling in respect of risk is Dr Freeman’s second report dated 29 April 2024, together with his testimony during the hearing. Dr Freeman testified that it was psychologically improbable that the Applicant would re-offend but fairly accepted that it was possible that the Applicant’s abstinence from alcohol could be interrupted although the risk of that and associated re-offending was, in his opinion, low. He stated the Applicant is fundamentally a pro-social individual and not criminally versatile in the sense that his range of offending in very narrow and not part of any developing or other pattern of behaviour. In Dr Freeman’s professional opinion:[15]
In regard to his risk of re-offending, utilisation of the PCL-R and HCR-20 indicates the risk of violent re-offending can be considered in the “low” category. Given the applicant is primarily pro-social, he has limited risk factors that are primarily associated with: (a) avoiding alcohol consumption (which is now part of his relapse prevention plan) and (b) managing his depression (underlying trauma) and improving his capacity to regulate his responses to emotional stimuli, which he intends to achieve via ongoing engagement in therapeutic interventions. In contrast, there are a number of protective factors including: family support, ongoing employment, stable accommodation, lack of personality pathologies, no ongoing contact with negative peer support group, etc. Finally and importantly, given his current predicament and lack of cognitive impairments, he presents as particularly deterred from re-offending and can recognise the likely consequences of further offending (if his visa was returned). That is, he dislikes the personal deprivations of incarceration and his statements regarding being deterred from re-offending appear authentic.
[15] Ibd 122.
In addition to completion of the Effectively Managing Anger Program,[16] the Applicant has engaged with further rehabilitation programs including Circuit breaker course, Drug ARM, SMART Recovery and Universal Class. Further, Dr Riachi has developed a Relapse Prevention Plan and Safety Plan for the Applicant, designed to avoid or mitigate risks.[17] As best as the Tribunal can determine, the Applicant by his testimony appears determined to continue his rehabilitation, which he started prior to sentencing for the 2023 Assault. He has insight into his offending and its consequences and now fully appreciates what he could lose if he re-offends. The evidence from his mother and sister Ms Brown underscore that they are fully engaged in his rehabilitation and he can continue his work in the family business if he is permitted to re-enter the Australian community.
[16] Ibid 254.
[17] Ibid 256-261.
The Applicant will be living and working with his close-knit family which should provide a very secure protective environment as he continues to complement his rehabilitation, if released. Significant evidence is before the Tribunal establishing that he will live and work with his close-knit family into the future and that they will help him in avoiding alcohol, that being the root cause of his offending in the past. This, together with the Applicant building upon the successful rehabilitation work he has done to date, should ensure the low risk of re-offending, moving forward.
The Tribunal finds that there is a low risk to the Australian community from any repeat offending of the nature of the 2023 Assault and the Police Offending.
Finally, the Tribunal notes the family violence allegations relating to a reported incident on 20 December 2017. For the reasons discussed in paragraph 24 below the Tribunal is not in a position to allocate any significant weight to such allegations.
The Tribunal finds that this Primary Consideration weighs only slightly in favour of affirming the revocation decision.
Primary consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is relevant in light of the serious family violence allegations set out in a police report of 30 December 2017.[18] Such allegations appear to be the catalyst for a Protection Order subsequently taken out against the Applicant formalised on 8 January 2018.[19] These detailed and substantial allegations were put to the Applicant in cross-examination, after he was appropriately alerted to his right against self-incrimination, but, in any event, he could not remember the incident other than the fact that he had started drinking earlier that day. Despite it also being asserted that some witnesses observed the Applicant in respect of possibly related actions to the alleged family violence allegations,[20] the Tribunal is simply not in a position to further test such allegations, noting that no charges were ever brought by the police against the Applicant, apropos of such allegations. The Tribunal also notes that on no occasion did the Applicant ever breach or was he alleged to have breached the Protective Order.
[18] R2, 38.
[19] Ibid 39.
[20] Ibid 38.
In such circumstances the Tribunal gives this consideration neutral weight.
Primary consideration 3 – The strength, nature and duration of ties to Australia
The Applicant is the youngest of a very closely knit family. His mother and more particularly his eldest sister Ms Brown gave impressive testimony. The whole family, save for one sister (now estranged) living in New Zealand, moved to Queensland, Australia in and about 2014. They have set up and are running successful Polynesian takeaway restaurants called “Le Sunrise Polynesian Takeaway” in two locations in Brisbane, with plans for a third in the future. Hence, the ties are unique being familial generally and employment wise. The family essentially live and work together as a family unit.
In addition to Ms Brown, the Applicant has another sister, Victoria and his brother Richard, both living in Queensland. The Applicant has a good relationship with Richard, although such will be monitored by the family due to the latter’s own problems with alcohol, should the Applicant be permitted to stay in Australia. The Applicant also has significant relationships with Ms Brown’s husband and the 3 children aged 13, 9 and 7. Prior to his incarceration the Applicant spent regular periods of time with Mr and Ms Brown’s children and has kept in contact with them whilst incarcerated. He will live with Ms Brown and her family, together with their parents in a home with a designated bedroom for him, if he is allowed to stay.
The Applicant’s father, also resides in Australia and the Applicant has an improving relationship with him, after a rather turbulent childhood relationship, during which time the Applicant’s father was violent due to alcohol and ‘ice’ use. The evidence before the Tribunal is to the effect that the father has been sober and now contributes positively to the Applicant’s family and business, since his arrival in Australia after the other family members had moved here in 2014.
The Tribunal is satisfied that the Applicant has significant familial ties with the various family members discussed above.
About 30 other, less close, family relatives also reside is Australia. However, the Tribunal does not put significant weight on these relationships in assessing the strength, nature and ties to Australia.
The Applicant, up to being incarcerated in late 2023, has been working full time in his family business since late 2014, paying taxes and thus has contributed positively to the Australian community for that extended period. He also has been involved with some charitable initiatives associated with the family business during that time. More significantly, his removal from Australia would irreparably break up the Applicant’s very close family unit and cause untold distress to his immediate family members, in particular his mother and sister Ms Brown and her family, all of whom have the right to continue to live in Australia and stand ready to assist the Applicant should he be permitted to stay.
The Tribunal finds that this Primary Consideration weighs heavily in favour of cancelling the revocation decision.
Primary consideration 4 – Best interests of minor children affected by the decision
As discussed above, the Applicant has a very involved relationship as Uncle to each of Ms Browns’s three children. Whilst parents are the most crucial relations to children, the evidence does show that the Applicant has a strong connection to each of Ms Brown’s three children. If the Applicant is removed from Australia, each of those children will be impacted negatively without the love and interaction from their Uncle, during the forthcoming future years of their growth and development.
The Tribunal finds that this Primary Consideration weighs in favour of cancelling the revocation decision.
Primary consideration 5 – Expectations of the Australian community
This Primary Consideration is to be considered normatively by reference to the Direction itself. By paragraph 8.5(4) of the Direction the expectations of the Australian community as a whole are to be considered.[21]
[21] FYBR v Minister for Home Affairs [2019] FCAFC 185.
By reason of the matters discussed above in respect of Primary Consideration 1 and the parties submissions in this regard, the Tribunal finds that this primary consideration weighs in favour of affirming the visa cancellation decision.
Other considerations
Legal Consequences
As submitted by the Respondent fairly, whilst not raised by the Applicant “as ‘another reason’ for why the cancellation decision should be revoked, it is accepted that a consequence of the Tribunal affirming the decision under review is that the Applicant will be liable to removal from Australia as soon as reasonably practicable…and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act.”[22] The Tribunal agrees but allocates only minimal weight to this consideration in favour of revoking the cancellation decision.
[22] Respondent’s SFIC [65].
Extent of Impediments if Removed
As to this other consideration the Tribunal is satisfied that there will be no substantial language or cultural barriers faced by the Applicant should he be returned to New Zealand. Further, similar health care, housing and economic supports will be available in New Zealand, comparable to those available in Australia.
The Applicant would be able to access ongoing treatment to help him further deal with his Post-Traumatic Stress Disorder and existing alcohol use disorder (as identified by the Applicant’s solicitors).[23]
[23] R1, G11, 307.
However, as summarised by Dr Freeman in his second report, the Applicant has not resided in New Zealand since 2014 (with his parents):
In regards to the cancellation of his visa, Mr. Carruthers has not resided in New
Zealand since 2014 (with his parents). He projected having limited family
support in New Zealand and could not identify any clear employment
opportunities e.g., “I’m not sure – I’ve been doing the family business my whole life.” The applicant’s family/emotional support would primarily be removed, ashis family members reside in Australia (except for one sister). Taken together, he will likely face a range of hurdles if he is required to relocate to New Zealand, and it is psychological probable that such relocation will exacerbate his trauma related disorder (creating further hardships).[24]
Dr Freeman’s testimony was equally consistent to the effect that any return to New Zealand would create significant challenges for the Applicant and he would be deprived of his very close-knit and supportive family living here in Australia. Although there was some suggestion in the evidence that the Applicant’s mother may relocate to New Zealand if he was to be returned, that would not equate to the support his family are ready to provide him here, if he is permitted to stay.
[24] Ibid G10, 122-123.
In the circumstances the Tribunal finds that this other consideration moderately weighs in favour of revoking the cancellation decision.
Impact on Australian Business Interests
This Tribunal, as presently constituted, has recently discussed the parameters of this other consideration in Rogers and Minister for Immigration and Multicultural Affairs.[25]
[25] Rogers and Minister for Immigration and Multicultural Affairs [2025] ARTA 28, [50]-[51].
It is clear on the evidence that the main tasks the Applicant performs in the family business such as cooking and deliveries could be performed by others, including perhaps family members. However, it is also clear that the Applicant has been involved in the family business since 2014 and as such has been involved in its development and expansion up to the end of 2023. Evidence also establishes that his absence is making it more difficult for the business to run day to day and that any expansion plans have been put on hold whilst the Applicant has been incarcerated.
Whilst it may be easier for a business to replace a regular employee, the position is different with a family business and it is not simply a matter of replacing a family member with a non-family employee. However, the Tribunal notes that the business has continued to run in the Applicant’s absence. In any event, the Tribunal is satisfied on the evidence that the Applicant’s absence from the family business has caused some negative impact to date and that his continued absence, should he be removed from Australia, will result in that negative impact continuing permanently.
In the context of paragraph 9.3(1) of the Direction the Tribunal finds that this other consideration weighs only slightly in favour of revoking the cancelation decision.
Conclusion
The Tribunal has in its analysis of this Application carried out the evaluative exercise of weighing up the considerations in the manner required by the Act and the Direction to determine whether it is satisfied that there is another reason to revoke the cancellation.
The Tribunal finds that Primary Considerations 3 and 4 and the other considerations discussed above in favour of cancelling the revocation decision ultimately outweigh Primary Considerations 1 and 5.
Decision
The Tribunal sets aside the decision under review and in substitution decides that the decision cancelling the Applicant’s visa is revoked.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
.................[SGD]...............................
Associate
Dated: 6 February 2025
Date(s) of hearing: 29 & 30 January 2025 Advocate for the Applicant: Ms Victoria Lenton Solicitors for the Applicant: Lenton Migration Law Advocate for the Respondent: Mr Samuel Woods Solicitors for the Respondent: Sparke Helmore Lawyers
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