Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1270
•5 May 2022
Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1270 (5 May 2022)
Division:GENERAL DIVISION
File Number: 2022/1159
Re:Thomas Robinson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member George
Date of Decision: 5 May 2022
Date of Reasons: 19 May 2022
Place:Brisbane
The decision under review is affirmed.
[SGD]
Senior Member George
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – domestic violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
19 May 2022
INTRODUCTION AND BACKGROUND
Mr Robinson (“the Applicant”) was born in New Zealand and,[1] as at the date of decision, is aged 28 years. He arrived in Australian in 2001, aged seven years, and has remained in Australia since.[2] As a New Zealand citizen, the Applicant was a holder of a Class TY Subclass 444 Special Category (Temporary) visa until 31 March 2021.
[1] Exhibit G1, s 501 G-Documents, G2, pages 34 and 57.
[2] Exhibit G1, s 501 G-Documents, G2, pages 45 and 54.
On 31 March 2021, in a notice delivered by hand, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under section 501(3A) of the Migration Act 1958 (“the Act”).[3] On the same date, the Applicant made written submissions to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 10 February 2022 the Respondent decided to not revoke the cancellation.[5]
[3] Exhibit G1, s 501 G-Documents, G2, pages 46-53.
[4] Exhibit G1, s 501 G-Documents, G2, pages 59-60.
[5] Exhibit G1, s 501 G-Documents, G2, pages 7-8.
On 15 February 2022, the Applicant lodged an application for review of the 10 February 2022 decision in this Tribunal.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit G1, s 501 G-Documents, G1, pages 1-6.
This matter was heard on the 13th and 14th of April 2022 by audio-visual means. The applicant was self-represented. He gave evidence. The Applicant’s witnesses were a former partner TLD, a former employer SMB, and his father PMG. The Respondent was represented by Ms Letcher-Boldt of Clayton Utz. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that the Minister may revoke the original decision under s 501(3A) if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by s 501); or
(ii)that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, the issue in this matter is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised if either of s 501CA(4)(b)(i) or s 501CA(4)(b)(ii) of the Act are met.[7]
[7] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 19 January 2021, the Applicant was convicted of four offences in the Local Court at Campbelltown and sentenced to an aggregate of more than 12 months imprisonment.[8] The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[8] Exhibit G1, s 501 G-Documents, G2, page 38.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[9]
[9] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
Paragraph 7(2) of the Direction provides that the primary considerations should generally be given more weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant’s evidence is that he moved to Australia in 2001 at the age of eight, although the Tribunal notes its previous finding that it was at the age of seven. He regards himself as an Australian Permanent Resident.[10] The Applicant’s parents, siblings, and many of his cousins are resident in Australia.[11]
[10] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 1.
[11] Exhibit G1, s 501 G-Documents, G2, page 70.
The Applicant’s evidence is that he is bi-polar and schizophrenic for which he is prescribed medication,[12] and that he has depression and trust issues.[13] This is not contested,[14] and the Tribunal notes that the Applicant has a history of acute schizophrenia-like psychotic disorder and bipolar disorder with mild to moderate depression.[15] On 14 January 2021, the Applicant’s General Practitioner noted “Correspondence from community mental health stated that this patient did not want to engage with them”.[16]
[12] Exhibit G1, s 501 G-Documents, G2, page 73.
[13] Exhibit A1, page 4.
[14] Transcript, page 94, lines 28-30.
[15] Exhibit R2, SM1, page 50..
[16] Exhibit R2, SM1, page 42.
In the material submitted to the Tribunal the Applicant has also expressed a level of suicidal ideation:
“The like [sic] hood of being removed from Australia and away from my children and Family would send me suicidal”.[17]
[17] Exhibit A1, page 4.
The Applicant has a history of self-harm.[18]
[18] Exhibit R2, SM1, pages 52, 57.
In his oral evidence, the Applicant said that he found life in Australia hard at the start. His family had its “ups and downs and, you know, we all went our separate ways, you know, and I sort of stayed with my dad most of my life”.[19] This family separation was clearly difficult for the Applicant and had a lasting impact upon him. The Applicant said:
“And that’s when I started, you know, really starting to take things into my own hands and start offending. And when I first was incarcerated it was – it was due to, you know, robbery – well, wasn’t – well actually it was robbery, but it – it was actually because I had family issues going on”.[20]
[19] Transcript, page 9, lines 5-7.
[20] Transcript, page 9, lines 10-14.
The Applicant remains close to his father, witness PMG, and his brother. The Tribunal accepts the Applicant’s brother was unable to give evidence due to shift work commitments.[21] The Tribunal notes that the Applicant’s brother’s letter of 24 March 2022 forms Exhibit A6. In that letter, the Applicant’s brother wrote:
“Australia is the only home that [the Applicant] has ever known, we came here in 2001 when I was only 3 years old, Since arriving to australia he is the only member of our family whom is not an Australian citizen, and that was due to being raised apart, as my parents divorced only a year after we migrated to Australia”.[22]
[21] Transcript, page 70, line 10.
[22] Exhibit A6, paragraph [9].
On 19 July 2012, aged 18 years, the Applicant fathered a child who he described as “my first and only son”.[23] Witness TLD was the mother. Although there is no birth certificate before the Tribunal, it is not in contest that the Applicant and TLD are the biological parents of their son and the Tribunal is satisfied of as much.
[23] Transcript, page 17, line 25.
For completeness, the Tribunal notes that in the Applicant’s Mental Health Assessment of 3 October 2020 states that he does not have any children.[24] For the reasons above, the Tribunal regards this as incorrect.
[24] Exhibit R2, SM1, page 54.
In her letter of 24 March 2022, TLD says of the Applicant that he:
“… had a rough up bringing and unfortunately has had too just about raise himself in my opinion and it may have taken him a long time to grow up but he is genuine trying to do so and be a better person/father and is making so many positive decisions”.[25]
[25] Exhibit A7.
Consistent with TLD’s evidence is that of the Applicant’s, where he said:
“… I know I haven’t obeyed directions in the past but that was when I was a young delinquent and I have been trying to change myself for the last three, four years. It’s just the last two years I, sort of, just lost myself because I was on drugs and alcohol”.[26]
[26] Transcript, page 97, lines 13-16.
The Applicant has contended that his crimes were committed under ‘duress’.[27] Under cross-examination, the Applicant clarified that by ‘duress’ he meant that he “… was on drugs and alcohol, I was stressed, I was jealous, and I acted out in a rage …”.[28]
[27] Exhibit A1, page 5.
[28] Transcript, page 37, lines 20-21.
TLD and the Applicant had been childhood sweethearts but fell out of contact after the birth of their son.[29] The couple were very young and the relationship was tumultuous and the Applicant was, in the view of TLD, not ready for the responsibility of fatherhood.[30] Nevertheless, in the past six months,[31] or two years,[32] the Applicant has re-established contact with his son. In her oral evidence, TLD said:
“He talks to [the son] daily now. Not at the moment because my little man’s phone is broken and I obviously quite busy and have two other children, but he still talks to him at least every second or third day there. Back and forth with messages, you know. If [the son is] having a bad day and he needs to talk to someone, he rings his dad. So they are very close at the moment. [The son] is really excited to be able to have him back in his life and he really would like to be able to rebuild some kind of actual relationship with him which is kind of hard with the situation the way it is”.[33]
[29] Transcript, page 53, lines 46-47.
[30] Transcript, page 55, lines 43-46.
[31] Exhibit A7.
[32] Transcript, page 55, lines 12-13.
[33] Transcript, page 56, lines 12-20.
The Applicant’s highest level of education is Year 10 at TAFE in New South Wales. He has managed to maintain employment from 2012, notwithstanding unemployment caused by the COVID-19 pandemic.[34] This employment includes as a removalist, a roof tiler, and amusement ride attendant.[35]
[34] Transcript, page 80, lines 32-44.
[35] Exhibit G1, s 501 G-Documents, G2, page 72.
Witness SMB, who operates travelling amusements for shows, wrote in a letter that formed part of Exhibit A4 that she had known the Applicant for 11 years and that he had worked and travelled with her throughout Australia. SMB said of the Applicant that “He’s hardworking dedicated and has never left a job unfinished that I’m aware of”.[36] Another witness, who did not give oral evidence but also wrote a letter that formed part of Exhibit A4, wrote:
“[The Applicant] worked for me as a furniture removalists in the past. He’s hardworking person and always brings a positive attitude and also leave a good impression with all our clients that move with us at [name] removals and storage, he gets a lot of clients coming back and also asking for him”.[37]
[36] Exhibit A4.
[37] Exhibit A4.
The Applicant has a lengthy criminal history dating back to his youth, when in 2007 he was found guilty of the offence of robbery in the Australian Capital Territory Children’s Court.[38] The Applicant has been subject to three Apprehended Domestic Violence Orders protecting three different women.[39] He also has a lengthy traffic record,[40] although the Tribunal acknowledges that the Applicant contests some listed offences.[41]
[38] Exhibit R2, SM1, page 21.
[39] Exhibit R2, SM1, page 36.
[40] Exhibit R2, SM1, pages 17-19.
[41] Transcript, page 89, lines 26-30.
It is not necessary at this juncture to detail the history of the Applicant’s juvenile offending, his Apprehended Domestic Violence Orders, or his traffic offences. However, it is useful to detail the Applicant’s most serious antecedents.
On 1 February 2012, aged 18 years, the Applicant was sentenced to 200 hours of community service at the Local Court in Queanbeyan for “Assault an officer in execution of duty”. On 4 June 2013, he received a 12-month suspended sentence of imprisonment in relation to this offence when he was further fined $200 for “Possess prohibited drug”.[42]
[42] Exhibit G1, s 501 G-Documents, G2, page 35.
On 11 December 2017, aged 24 years, the Applicant was sentenced to bonds at the Local Court in Queanbeyan on the following matters.[43]
a)For a count of “Common assault (DV)-T2”, the Applicant received a term of imprisonment of seven months commencing on 11 December 2017 and concluding on 10 July 2018 suspended on entering a bond to attend for counselling, educational development, and drug or alcohol rehabilitation supervised by the New South Wales Probation Service.
b)For a count of “Stalk/intimidate intend fear physical etc harm (domestic) T2”, the Applicant received a bond to attend for counselling, educational development, and drug or alcohol rehabilitation supervised by the New South Wales Probation Service.
c)For a count of “Contravene prohibition/restriction in AVO (Domestic)”, the Applicant received a term of imprisonment of seven months commencing on 11 December 2017 and concluding on 10 July 2018 suspended on entering a bond to attend for counselling, educational development, and drug or alcohol rehabilitation supervised by the New South Wales Probation Service.
[43] Exhibit G1, s 501 G-Documents, G2, page 35.
On 19 January 2021, aged 27 years, the Applicant was sentenced to terms of imprisonment at the Local Court in Campbelltown on the following matters variously committed on 2 May 2020 and 21 September 2020.[44]
a)For a count of “Stalk/intimidate intend fear physical etc harm (domestic)-T2” on 2 May 2020, the Applicant received a term of imprisonment of four months commencing on 22 September 2020 and concluding on 21 January 2021.
b)For a count of “Destroy or damage property <=$2000 (DV)-T2” on 2 May 2020, the Applicant received a term of imprisonment of four months commencing on 22 September 2020 and concluding on 21 January 2021.
c)For a count of “Assault occasioning actual bodily harm (DV)-T2” on 21 September 2020, the Applicant received a term of imprisonment of 14 months commencing on 22 January 2021 and concluding on 21 March 2022 with a non-parole period of eight months commencing on 22 January 2021 and concluding on 21 September 2021.
d)For a count of “Contravene prohibition/restriction in AVO (Domestic)” on 21 September 2020, the Applicant received a term of imprisonment of 14 months commencing on 22 January 2021 and concluding on 21 March 2022 with a non-parole period of eight months commencing on 22 January 2021 and concluding on 21 September 2021.
[44] Exhibit G1, s 501 G-Documents, G2, pages 34-35.
PMG gave evidence as to the background of the Applicant’s offending in a letter to the Presiding Magistrate dated 19 January 2021.[45] In that letter, PMG stated that the Applicant had lost his job at the start of the COVID-19 pandemic and that he lost his job as a removalist then. That had put stress on the Applicant and his then partner, with “…bills, food, car payments, money woes …”.
[45] Exhibit R2, SM1, page 43.
The Tribunal has before it a copy of a Sentencing Assessment Report dated 11 January 2021 authored by Ms Sfetcopoulos, a Community Corrections Officer at the Silverwater Community Corrections Office.
Ms Sfetcopoulos found “As evidenced by his criminal history, [the Applicant’s] offending is escalating in seriousness and frequency”.[46] Ms Sfetcopoulos’ report addressed the issue of substance use. The Applicant had reported to her that he had consumed beer and drugs leading up to the offences on 2 May 2020, but that he reported being sober at the time of the offences on 21 September 2020. The Tribunal notes that this issue of sobriety whilst offending was addressed by Her Honour in sentencing,[47] however under cross-examination the Applicant was uncertain if in fact he was fully sober at the time of his offending on 21 September 2020.[48] The Applicant’s evidence is that he may still have under the influence of marijuana and methamphetamine at that time.[49] This is consistent with a brief drug and alcohol history taken in a Mental Health Assessment dated 3 October 2020 where the it is reported:[50]
“Hx of THC, ICE, MDMA and Ecstasy use
Last used 2/7 prior to arrest.
ETOH occasional use “I can give it up anytime”
[46] Exhibit R2, SM1, page 36.
[47] Exhibit G1, s 501 G-Documents, G2, page 37, lines 44-50.
[48] Transcript, page 35, lines 30-42.
[49] Transcript, page 38, lines 42-43.
[50] Exhibit R2, SM1, page 52.
The Tribunal notes the heavy burden of proof that applies where it is invited to make a finding contrary to one made by a Court in a criminal matter.[51] In the present circumstances, however, it is plausible that the Applicant ‘reported’ being sober to Ms Sfetcopoulos but upon reflection have formed the view that he may have in fact been under some residual influence of drugs. The Applicant may have been mistaken when he reported to Ms Sfetcopoulos, or his memory in April 2022 may differ from his memory in January 2021. There may be some other reason. In any event, as the issue of the Applicant’s sobriety on 21 September 2020 is not central to the present matter the Tribunal places little weight upon it and does not make an adverse credibility finding against the Applicant.
[51] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, [69] (McKerracher J)
Ms Sfetcopoulos reported on the Applicant’s mental health. The Applicant reported to her as to being diagnosed with an unspecified but enduring mental illnesses for which he is medicated. However, in the lead up to his offending in May 2020 the Applicant had ceased his medication of his own volition. The Applicant expressed to Ms Sfetcopoulos an impaired ability to regulate his emotions when he is not compliant with his medication.
At the time of the report, Ms Sfetcopoulos wrote of the Applicant’s insight into the impact of his offending as follows:
· [The Applicant] displayed minimal insight into the impact of his offending, identifying the only victims as his partner’s young siblings. He expressed concern with the children growing up believing that the behaviour was normal and stated that he wants to ensure they are not exposed to further violence.
· [The Applicant] did not identify any impact on his partner, the victim of his assaults and stated the witnesses were “egging on” the situation.”[52]
[52] Exhibit R2, SM1, page 37.
Ms Sfetcopoulos assessed the Applicant as “… at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”.[53]
[53] Exhibit R2, SM1, page 38.
Ms Sfetcopoulos’ report was relied upon by Her Honour Acting Magistrate Holdsworth while sentencing the Applicant on 19 January 2021. In sentencing, Her Honour summarised the facts as follows:
“In relation to the facts, concerning the first set of matters the damage to property in short involves [the Applicant] damaging the home of him and the complainant. The damage is described as having been caused by him being armed with a bat, whether it was a baseball bat or a cricket bat, and the facts outline the damage as being described as front window panels smashed; screen door having a large dint; holes in the hallway; holes in the foyer area; bathroom door off its hinges and smashed; an internal door with a large hole in it; a mirror having been smashed; and the intimidation occurs in circumstances where after the police had attended and arrested [the Applicant] he intimidated the complainant by yelling out to her words to the extent of “You wait you fucking dog, you slut”. So even whilst [the Applicant] was in custody he was threatening the complainant’s wellbeing.
He was allowed bail on those matters and then on 21 September committed the more serious matter for the Court to consider. It is an allegation or it is a charge of assault causing bodily harm upon the complainant. It would appear that [the Applicant], in breach of both his bail and the AVO, was residing with the complainant at the time that the offence took place. The offence is described in the facts as being a physical assault constituted by [the Applicant] punching the victim in the face; he pulled her to the floor and kicked her in the stomach; later on he dragged her backwards into the bedroom; he pulled her hair and he punched her a number of times to the face; he then flung her from side to side a number of times attempting to punch her but not quite connecting with her face; and the assault led to what is described as bleeding to the victim’s head. The Court has no further information in relation to the injuries constituted by the assault. [The Applicant] took off and he was ultimately arrested by the police the next day.
…
The objective seriousness of the assault matter is towards the upper end of the scale. It occurred in the home of the complainant; it occurred in circumstances where [the Applicant] was breaching his bail; it occurred where the complainant had the protection of an apprehended violence order which was breached, not only by the assault but also by [the Applicant’s] being in the premises; and the fact that the assault occurred within the context of him being on an apprehended violence order means that the Court must consider as a starting point a sentence of imprisonment. Certainly, the fact that there were a number of separate batteries and that there was a child present in the house at the time the assault took place serve as significant aggravating features elevating the objective seriousness of the assault occasioning actual bodily harm.”[54]
[Emphasis added]
[54] Exhibit G1, s 501 G-Documents, G2, page 36.
Under cross-examination, the Applicant addressed his offending candidly:
Ms Letcher-Boldt: I’ll move on then. So on 19 January last year I understand that you were convicted of contravening a prohibition/restriction in an AVO of a domestic nature, assault occasioning actual bodily harm of a domestic violence nature?
Applicant Yes.
Ms Letcher-Boldt: Destruction or damage of property and stalking/intimidate, intend fear, physical harm, et cetera, of a domestic nature. Is that right?
Applicant: Yes, this is true and as hard as it is to want to remember that situation, it happened and I don’t – I lashed out. I was jealous, I was in a rage, I was under the influence of drugs, alcohol and there’s no excuses around this or around anything actually because I messed up and I lashed out when I shouldn’t have. And, you know, instead of just walking away and – or going to bed and not thinking, you know, bad thoughts and things like that, I just, I couldn’t shake the feeling and I messed up. I paid for my mistakes by, you know, doing what I did. I destroyed property. I struck my ex-partner. Just pretty much done everything that I shouldn’t have and just made myself look like the idiot at the end of the day by doing so. You know, and this time around now that I’ve actually took the time to be able to move forward and develop as a better person when it comes to domestic violence and being a violent person, and the drugs and alcohol and that, it’s helped me a lot now to understand how serious my actions were.[55]
[55] Transcript, page 32, lines 23-43.
The Tribunal notes an Apprehended Domestic Violence Order remains in place protecting the protected person until 26 November 2022.[56]
[56] Exhibit R2, SM1, page 37.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has committed several crimes of a violent nature from the earliest days of his adulthood, and indeed beforehand. He has assaulted police and domestic partners, he has stalked or intimidated domestic partners to intend fear in them, he has destroyed or damaged property, he has contravened orders placed upon him. The Applicant’s crimes are violent, having being committed both against authority and women. Such crimes are viewed very seriously by the Australian Government and the Australian community.
The Applicant was afforded several chances by the Courts prior to serving the actual period of imprisonment that has caused him to fail the character test. On 1 February 2012 and again on 11 December 2017 the Applicant received sentences of imprisonment that were suspended. These were judicial warnings of criminal sanction of the last resort that the Applicant did not heed.
Materially, the Applicant was granted bail after his offending on 2 May 2020 merely for him to breach that bail on 21 September 2020 and offend against the same woman. That this woman was protected by an Apprehended Domestic Violence Order on both occasions makes this offending quite extraordinary.
The gravity of the Applicant’s final offending should not be understated. From the facts contained in Her Honour’s sentencing remarks, the Applicant punched the victim in the face. He pulled her to the floor and kicked her in the stomach. He dragged her into the bedroom. He pulled her hair and punched her in the face. He flung her from side to side. He did all of this in the presence of a child.
In sentencing the Applicant on 19 January 2021, Her Honour remarked:
“The objective seriousness of the assault matter is towards the upper end of the scale. It occurred in the home of the complainant; it occurred in circumstances where [the Applicant] was breaching his bail; it occurred where the complainant had the protection of an apprehended violence order which was breached, not only by the assault but also by [the Applicant] being in the premises; and the fact that the assault occurred within the context of him being on an apprehended violence order means that the Court must consider as a starting point a sentence of imprisonment”[57]
[Emphasis added]
[57] Exhibit G1, s 501 G-Documents, G2, page 37, lines 12-19.
The Applicant’s offending is viewed very seriously by the Tribunal.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Aged 18 years, the Applicant assaulted police in the execution of their duty.[58] Unfortunately, the Tribunal does not have before it the relevant sentencing remarks from the Local Court in Queanbeyan. Nevertheless, violent crimes against government officials in the performance of their duty are viewed seriously by the Tribunal.
[58] Exhibit G1, s 501 G-Documents, G2, page 35.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant’s most recent custodial term came after lengthy period of offending and the receipt of lesser sanctions. The Applicant previously received suspended sentences and bonds from the Local Court. He was also directed by the Local Court to attend for counselling, educational development, and drug or alcohol rehabilitation. He was fined for traffic offences, received demerit warnings, and had his licence suspended. In the Applicant’s final criminal matter whereafter he served a period of actual imprisonment, he came “… before the Court with a criminal history which disentitles him to leniency”.[59]
[59] Exhibit G1, s 501 G-Documents, G2, page 37, lines 24-25.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. In these circumstances, the Tribunal again notes Ms Sfetcopoulos’ report that the Applicant’s offending has escalating in seriousness and frequency as evidenced by his criminal history.[60]
[60] Exhibit R2, SM1, page 36.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The objective seriousness Applicant’s offending in September 2020, following the previous offending against the same woman in May 2020, was “… towards the upper end of the scale”. The Court considered a sentence of imprisonment as a starting point, which indicates that the cumulative effect of the Applicant’s repeated offending was significant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not regard this factor to be relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.
I do not consider factors (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
·the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
·the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
·where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant has a significant criminal history of severe domestic violence against multiple women. Although the Applicant did not give evidence about re-partnering, the Tribunal notes the Applicant’s relative youthfulness and regards there being a distinct possibility that he would do so in the future. Accordingly, any risk of harm from further offending is not confined to the Applicant’s previous victims.
Likelihood of engaging in further criminal or other serious conduct
The Tribunal notes Ms Sfetcopoulos’ assessment of the Applicant as being “… at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”.[61] The Tribunal balances this assessment with the Applicant’s evidence under cross-examination that:
“… well, from the way I see it is only because of the timeframe of my past offending, but had I – like had I been given instructions or directions into doing something, I would have stuck to it”.[62]
[61] Exhibit R2, SM1, page 38.
[62] Transcript, page 38, lines 12-14.
The Tribunal places less weight on the Applicant’s evidence in this regard, as his offending on 21 September 2020 was in breach of both an Apprehended Domestic Violence Order and his bail. Accordingly, the Tribunal accepts Ms Sfetcopoulos’ assessment of the Applicant as being at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Apprehended Domestic Violence Order of 2 May 2020 the following statement:
“Most relationships do not include fear, control or violence. You are now part of a minority of people who has one of these order, and this is recorded on the NSW Police System.
When children are exposed to violence in the home, they are much more likely to suffer from depression, anxiety and aggression, and they do worse at school.
Many people take this as a turning point.”[63]
[63] Exhibit R2, SM1, page 9.
The Applicant not only breached the Apprehended Domestic Violence Order in a violent manner against the protected person on 21 September 2020, but he did so with a child present in the house. The Apprehended Domestic Violence Order expressly warned the Applicant that he could go to prison for a breach, which is what occurred.
It is unnecessary to repeat all the evidence and findings considered in Primary Consideration 1 for the purposes of Primary Consideration 2, noting that the Applicant’s most recent and most serious offending constitutes family violence. It is sufficient to summarise that the family violence engaged in by the Applicant is increasing both in frequency and seriousness, whilst the cumulative effect of the Applicant’s repeated offending is significant. He now accepts responsibility for his family violence related conduct and understands the impact of that behaviour on the abused. In his favour, the Applicant has long expressed concern with children growing up believing that violent behaviour was normal.
Whilst in custody, since his last known act of family violence, the Applicant has made some effort to rehabilitate. Contained in Exhibit A3 are several certificates for completing courses in domestic violence, anxiety therapy. stress management, positive parenting techniques, drug and alcohol abuse, healthy relationships, and anger management. The Tribunal accepts TLD’s evidence that a year ago the Applicant would have scoffed at such courses, but that he now “… wants to be a better person, to be a better dad …”.[64]
[64] Transcript, page 61, line 27.
The Tribunal does not have before it the sentencing remarks from the Local Court in Queanbeyan when, on 11 December 2017, the Applicant was sentenced to bonds at the on the following matters for “Common assault (DV)-T2”, “Stalk/intimidate intend fear physical etc harm (domestic) T2”, and “Contravene prohibition/restriction in AVO (Domestic)”. Nevertheless, the Tribunal infers that the Local Court would have made the Applicant aware about the consequences of further acts of family violence.
Similarly, the Tribunal does not have before it remarks of the Local Court in Campbelltown after the Applicant was granted bail following his offending on 2 May 2020. Nevertheless, the Tribunal again infers that the Local Court would have made the Applicant aware about the consequences of further acts of family violence.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· 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;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has one biological child with TLD, being a son born in 2012 and aged 9 years as at the date of decision. TLD is, and always has been, the Applicant’s son’s primary caregiver.[65]
[65] Transcript, page 45, lines 22-23.
The Applicant has also listed two other minor children in his life, who are not his biological children. The first is his step-daughter, who is the daughter of the victim of the Applicant’s most recent offending. The second is his brother-in-law.[66]
[66] Exhibit G1, s 501 G-Documents, G2, page 68.
When asked to describe his relationship with his son, the Applicant wrote:
“I see and contact my son frequently so I play a big role in his life and I would like it to remain that way”.[67]
[67] Exhibit G1, s 501 G-Documents, G2, page 67.
Under cross-examination, the Applicant clarified that the last occasion that he physically saw his son was in Bateman’s Bay in 2014 or 2015.[68] This evidence was not inconsistent with the evidence of the Applicant’s child’s mother, witness TLD. Under cross-examination, TLD gave the following evidence:
“Ms Letcher-Boldt: [TLD], you mentioned before that it would take some time to rebuild the relationship given that [the Applicant] hasn’t seen [his son] since – I think you said since he was one year old, is that right?
Applicant:He hasn’t been – yes, so [the son] I think was 18 months, maybe 16 months old the last time he physically – no, sorry, he’s seen him again when he was five for about an hour’s visit but that was literally, like, stopped in at Maccas, seen him for an hour and that was it. We did go to court. We went to family law court. He actually started the proceedings because he took [the son] from me as a baby, and then walked out of the proceedings. So I ended up being awarded the majority of the care.”[69]
[68] Transcript, page 46, lines 5-9.
[69] Transcript, page 60, lines 18-27.
On the evidence before it, the Tribunal is not satisfied that the Applicant has played a parental role, or maintained meaningful contact, with his son for most of his son’s life. That being so, the Applicant’s son has also avoided harm from the Applicant’s prior criminal conduct by virtue of this same remoteness over many years.
When asked to describe any impact in the event of a negative decision outcome on his son, the Applicant wrote:
“If you cancel my citizenship my son will grow up without a father and as a father I think we both should get a fair chance”.[70]
[70] Exhibit G1, s 501 G-Documents, G2, page 67.
The issue of fair chances to the Applicant aside, the evidence does not support the Applicant’s assertion that his son will grow up without a father if he is returned to New Zealand. Under cross-examination, TLD said:
“Ms Letcher-Boldt: If Mr Robinson was returned to New Zealand, would you be willing to facilitate contact with Jamal through, for example, phone calls or Facetime or (indistinct) like that?
Applicant: Yes, look, I’m happy to do phone calls and everything else. I’m happy to do this. I just feel that it should be supervised until myself and Jamal both feel confident and comfortable with the situation. So long as everybody feels, you know, comfortable with it all, then I’m – I would quite enjoy for that to be something that’s possible for these guys to do.”[71]
[71] Transcript, page 61, lines 9-16.
Under re-examination, TLD confirmed that she would prefer that the Applicant “… build a relationship with your son properly, personally, rather than through a device”, but that she would “… continue the video calls and everything else if that’s what has to be done”.[72] Taking these contact methods into account, and the age of the child, the Tribunal is satisfied that likely effect of the physical separation of the Applicant from his son on the son would be minimal when compared to his present situation.
[72] Transcript, page 63, lines 18-21.
When asked to describe any impact in the event of a negative decision outcome on his partner, being the victim of his most recent offending, the Applicant wrote:
“Well if I get deported I will unable to be in my sons life and my partner would have to take her daughter out of school also get her passports done to move to a new country”.[73]
[73] Exhibit G1, s 501 G-Documents, G2, page 65.
On the evidence before it, particularly that of TLD, the Tribunal does not accept that if the Applicant is returned to New Zealand that he will be unable to be in his son’s life. The Tribunal is satisfied that the likely effect of any physical separation from the Applicant would be no worse than his present situation, noting however this situation may be improved were the Applicant to remain in Australia. Nevertheless, and for reasons that follow, the Tribunal also does not accept that the Applicant’s partner’s daughter (described as his step-daughter) would have to move with the Applicant were he removed to New Zealand.
When asked to describe his relationship with step-daughter and brother-in-law, the Applicant wrote that he is “… like a father figure to these kids…”.[74] However, under cross-examination the Applicant was unable to answer simple questions about the children such as their ages.[75] The Applicant does not know where his brother-in-law lives.[76] The Applicant is uncertain if he would see the children again if he returned to the Australian community, as “… it’s up to them”.[77] There is insufficient evidence before the Tribunal to support the assertion that the Applicant is a father figure to his step-daughter or brother-in-law first, let alone that his step-daughter would have to move to a new country.
Conclusion: Primary Consideration 3
[74] Exhibit G1, s 501 G-Documents, G2, page 69.
[75] Transcript, page 46, lines 12-16.
[76] Transcript, page 46, line 19.
[77] Transcript, page 46, line 23.
Primary Consideration 3 weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[78]
[78] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·The Applicant moved Australia when he was seven years old and is now aged 28 years.
·The Applicant is from a broken home but remains close with his father PMG and his brother.
·The Applicant has held gainful employment, demonstrating a reasonable work ethic.
·The Applicant’s son is relatively young, is in the care of her mother, and has not maintained a meaningful relationship with his father for most of his life.
·The Applicant commenced offending as a youth, committed his first adult offence aged 18, and has re-offended on multiple occasions since.
·The Applicant has committed serious violent offences against multiple partners and has breached bail and multiple Apprehended Domestic Violence Orders.
·The Applicant’s offences are very serious.
·The Applicant’s preparedness to inflict physical harms upon his domestic female partners raises serious concerns about his character.
The Australian community condemns family violence. The Applicant has engaged in serious criminal conduct against multiple women and has done so in defiance of his bail conditions and protective Apprehended Domestic Violence Orders. The Applicant’s conduct raises serious character concerns.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant to the determination of this application.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Having regard to the abovementioned matters, the Applicant is aged 28 years and there is no evidence before the Tribunal:
(a)of any physical ill health;
(b)any substantial language or cultural barriers if removed to New Zealand; or
(c)any lesser social, medical and/or economic support available to the Applicant in New Zealand that he would otherwise be able to access in Australia.
The Tribunal places weight on the Applicant’s schizophrenia and bipolar affective disorder, and his history of self-harm. Conversely, the Tribunal also places weight on the Applicant’s disengagement from community mental health services as noted by his General Practitioner. The Tribunal accepts the Respondent’s submission that, should he choose to engage with mental health services, that there is no evidence to suggest that this cannot be provided in New Zealand to a standard that is comparable to those services available in Australia.[79]
[79] Exhibit R1, paragraph [82].
Accordingly, the extent of impediments if removed carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family member is Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In so doing, the Tribunal has noted the Applicant’s extensive family ties to Australia.[80] The Tribunal has placed weight on the Applicant’s relationship with his father, brother, and son. The Tribunal has also placed weight on the Applicant’s pro-social links with TLD.
[80] Exhibit G1, s 501 G-Documents, G2, page 70.
The Tribunal has considered that the Applicant has lived continuously in Australia since 2001, after he arrived aged seven years. Although the Applicant has made some positive vocational contributions during that time, the Tribunal balances these contributions against his criminal offending that commenced as a juvenile.
Given the Applicant’s strength, nature and duration of his ties to Australia the Tribunal places some weight in favour of revoking the Applicant’s mandatory visa cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;
(c)impact on victims: not relevant; and
(d)links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa .
CONCLUSION
Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or, the Tribunal must be satisfied that there is another reasons, pursuant to the Direction, to revoke the cancellation. As noted and found above, the Applicant does not pass the character test.
Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision.
In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds follows:
·Primary Consideration 1 weighs heavily against revocation;
·Primary Consideration 2 weighs heavily against revocation;
·Primary Consideration 3 weighs moderately in favour of revocation;
·Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa; and
·The weight attributable to the four-listed Other Considerations as found above.
·I consider that the totality of the very heavy weight I have attributed to Primary Consideration’s 1, 2 and 4, outweighs the weight I have allocated to the remaining Primary and Other Considerations;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[SGD]...........................................
Associate
Date of Decision: 5 May 2022 Date of Written Reasons: 19 May 2022 Date of hearing: 13 & 14 April 2022 Applicant: Self-represented Solicitor for the Respondent: Ms Emma Letcher-Boldt
Clayton UtzAnnexure A –Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G4 paged 1 to 134)
R
-
28 February 2022
A1
Applicant's Statement of Facts, Issues and Contentions (7 pages)
A
-
27 March 2022
A2
Email Statement of the Applicant (2 pages)
A
21 March 2022
21 March 2022
A3
Applicant’s Rehabilitation Evidence (7 pages)
A
-
21 & 24 March 2022
A4
Email Statements of SB, EB and EL (3 pages)
A
-
21 March 2022
A5
Applicant’s Photographs (30 pages)
A
-
22 March 2022
A6
Email Statement of SM (2 pages)
A
24 March 2022
24 March 2022
A7
Email Statement of TLD (1 page)
A
24 March 2022
24 March 2022
R1
Respondent’s Statement of Facts, Issues and Contentions (21 pages)
R
1 April 2022
1 April 2022
R2
Respondent’s Bundle of Summonsed Material (SM1 to SM2, paged 1 to 120)
R
-
1 April 2022
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
6
0