Rooney and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 283
•22 February 2021
Rooney and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 283 (22 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7918
Re:Wayne Rooney
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:22 February 2021
Place:Brisbane
The decision under review is affirmed.
[sgd] Senior Member Theodore Tavoularis CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Back and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1105
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
XKFR and Minister for Immigration and Border Protection [2017] AATA 2384
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
TABLE OF CONTENTS
DECISION
CATCHWORDS
LEGISLATION
CASES
SECONDARY MATERIALS
TABLE OF CONTENTS
REASONS FOR DECISIONISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITYThe Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s contentions
Respondent contentions
Application of factors in Paragraph 13.1.1(1) of the DirectionThe risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conductViolent Offences
Theft and Fraud Offences
Drug offences
Breaches of Orders or DirectionsThe likelihood of the non-citizen engaging in further criminal or other serious conduct
Findings about the Applicant’s risk of recidivismTo what extent is the Applicant’s past history of very seriously offending informative of his risk of recidivism?
Does the Applicant’s now-propounded sobriety automatically lead to a finding of a lowered risk of recidivism?
To what extent are the Applicant’s past failures to experience any deterrent effect from non-custodial terms now informative of his risk of recidivism?
To what extent is the Applicant’s current level of rehabilitation from a propensity to abuse illicit substances and/or alcohol now informative of his risk of recidivism?Conclusion: Primary Consideration A
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Identification of children falling within the auspices of Primary Consideration B
The Applicant’s oral evidence in cross-examination
The Applicant’s SFIC
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration BPRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration COTHER CONSIDERATIONS
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removedCONCLUSION
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
22 February 2021
Wayne Ross Rooney (the “Applicant”) is a 55-year-old citizen of New Zealand. Movement Records in the material indicate that he initially arrived in Australia on 24 March 1983. Thereafter, his inwards and outwards movements from Australia are as follows:
·depart 8 April 1983;
·arrive 28 May 1989;
·depart 20 December 1989;
·arrive 18 January 1990;
·depart 21 December 1995;
·arrive 4 January 1996;
·depart 10 February 1997;
·arrive 24 February 1997;
·depart 23 February 2001;
·arrive 15 March 2001;
·depart 31 December 2003; and
·arrive 25 January 2004.[1]
[1]Exhibit G1, G2, pages 95–96.
As best as I recall the evidence, the Applicant accepts that his date of actual settlement in Australia occurred upon his arrival in May 1989. During the period May 1989 until his final arrival in Australia in January 2004, the Applicant spent approximately three months outside of Australia. Further, he has been a constant presence in this country since the date of his most recent arrival (January 2004) until the present. Adopting the arrival date of 28 May 1989, it can be reliably said that the Applicant has resided in Australia for 31–32 years. When the Applicant arrived in Australia for the final time in January 2004, he did so pursuant to a Class TY, Subclass 444 (Special Category) visa (the “visa”).[2]
[2]Ibid.
The Applicant has a long history of offending in Australia that first saw him before lawful authority for sentencing at the Brisbane Magistrates Court on 17 May 1999. His most recent sentencing episode occurred at the same court on 9 April 2020. It suffices to say that his offending history spans a period of some 20–21 years, involving the commission of approximately 40 criminal offences punished at 18 separate sentencing episodes.
In its Statement of Facts, Issues and Contentions (“SFIC”), the Respondent has helpfully set out the history of the Applicant’s offending on a timeline basis that spans the date of his birth (in September 1965) up to the date of his lodgement of the instant application with this Tribunal (December 2020).[3] Of further assistance, the Respondent, in its SFIC, has also helpfully prepared a precis of the range of offences committed by the Applicant during his period of offending:
[3]See Exhibit R1, pages 1–6.
(a)wilful damage;
(b)wounding;
(c)unlawfully enter dwelling without consent of owner/person in lawful occupation;
(d)possessing dangerous drugs;
(e)possess utensils or pipes etc that had been used;
(f)fraud - dishonest application of property of another;
(g)fraud - dishonestly make off without paying (3 charges);
(h)fraud - dishonest gain benefit/advantage;
(i)stealing by clerks and servants;
(j)stealing;
(k)receiving tainted property;
(l)unauthorised dealing with shop goods;
(m)unlawful possession of suspected stolen property;
(n)unlicensed driving;
(o)commit public nuisance;
(p)breach of order;
(q)breach of bail condition;
(r)failure to appear in accordance with undertaking;
(s)contravention of a domestic violence order; and
(t)breach of fine option order.[4]
[4]Exhibit R1, pages 10–11, paragraph [26].
The Applicant also has an offending history in New Zealand.[5] That history involves the commission of some 11 offences comprising four traffic offences and seven criminal offences. His traffic history (in terms of sentencing episodes) commenced in March 1983 and concluded in January 1986. The four relevant offences involve:
·“Drove a Motor Vehicle At A Dangerous Speed”;
·“OTHER TRANSPORT ACT SECT. 58A/B/C OF”;
·“DANGEROUS DRIVING”; and
·“Driving with Excess Breath Alcohol Level Blood/Breath = 850”.
[5]Exhibit G1, G2, page 90.
The first three of these four traffic offences were punished by fines in the range of $250–$300 and accompanying disqualifications from driving in the range of six months – one year. The driving under the influence offence was punished by the imposition of an order compelling the Applicant to complete 75 hours of community service plus a one year disqualification of his driving privileges.
His criminal history in New Zealand involves the commission of seven offences. In terms of sentencing episodes, the history runs from September 1982 to February 1987. Shortly described, his criminal offending in New Zealand is as follows:
·“Wilful Damage”;
·“Common Assault (Manually)”;
·“Theft Property (Under $100)”;
·“PROCURE POSSESSION WITHOUT PERMIT”;
·“Procure/Possess Cannabis Seed”;
·“Male Assaults Female(Manually)”;
·“Common Assault (Manually)”.
For each of these offences, no custodial term was imposed. Instead, the Applicant received fines ranging from $50–$500.
While the Applicant was serving a term of imprisonment (that is, in actual criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”), decided on 22 April 2020 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]
[6]Exhibit G1, G2, page 53. Note: the second page of this letter does not appear in the material.
On 24 April 2020, the Applicant requested revocation of the abovementioned decision to mandatorily cancel his visa.[7] This involved the preparation of a formal request for such revocation, together with ancillary supporting documentation – primarily in the form of a Personal Circumstances Form (“PCF”).[8] On 27 November 2020, a delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the mandatory cancellation decision. This particular refusal decision comprises, for instant purposes, the reviewable decision.
[7]Exhibit G1, G2, page 55.
[8]Ibid, pages 45–76.
On 1 December 2020, the Applicant applied to this Tribunal seeking review of the aforementioned reviewable decision made on 27 November 2020.
The instant hearing proceeded before me on 9 February 2021 and received oral evidence from the Applicant and his partner, Ms R T. There was also written evidence before the Tribunal which was, prior to the hearing, particularised into an agreed Exhibit List. A true and correct copy (anonymised) of which is attached to these reasons and marked “Annexure A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4) The Minister may revoke the original decision 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 section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[9]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10]
[9][2018] FCAFC 151.
[10]Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[11] I will address each of these grounds in turn.
[11]Ibid.
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”.
Until shortly prior to the hearing, the Applicant was legally represented. His prior legal representation prepared a SFIC.[12] Paragraph [20] of that SFIC makes the following concession:
“The Applicant has been convicted of a number of offences, with a total term of imprisonment adding up to 12 months or more. At the time of consideration of the exercise of the power, he was serving a sentence of imprisonment on a full-time basis in custodial institution. He therefore accepts that he fails the character test on the basis of ‘substantial criminal record’, as per subparagraph 501(7)(d).”
[12]See Exhibit A1.
The Respondent has helpfully prepared an additional precis relating to the custodial sentences imposed upon the Applicant. [13] A summary of those custodial sentences are in the following table:
[13]Exhibit R1, pages 17–18, paragraph [51].
Date Court Conviction Custodial Sentence 25 May 2018 Brisbane Magistrates Court of Queensland Fraud – dishonest application of property of another (3 counts) 3 months imprisonment (suspended for 15 months) Stealing by Clerks and Servants 6 months imprisonment (concurrent and suspended for 2 years) Fraud – dishonest application of property of another (4 counts)
Fraud – dishonest gain benefit/Advantage Receiving Tainted Property
2 months imprisonment (concurrent and suspended for 12 months)
5 March 2020 Brisbane District Court of Queensland Wounding 18 months imprisonment (concurrent) Breach of suspended sentences imposed on 25 May 2018 Stealing by Clerks and Servants 3 months imprisonment (concurrent) Fraud – dishonest application of property of another (3 counts) 3 months imprisonment (concurrent) Fraud – dishonest application of property of another (4 counts)
Fraud – dishonest gain benefit/Advantage
Receiving tainted property
2 months imprisonment (concurrent)
Having regard to these respective cumulative terms that have been imposed upon the Applicant, there can be no question that he does not pass the character test pursuant to s 501(6)(a) of the Act. I am thus satisfied that as a result of not being able to pass the character test, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
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. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[14] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[15]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[14]On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[15]The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[16]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[16][2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens 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 whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(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
The Applicant’s contentions
In the SFIC prepared by his prior legal representatives, the Applicant addressed the nature and seriousness of his criminal offending. Chief among those contentions was a suggestion that the nature and seriousness of his conduct is tempered because (1) his criminal offences “are not at the most serious end of the spectrum” and (2) his criminal offending must be viewed in light of his drug and alcohol addiction issues, mental health issues, and “challenging relationship with his de facto partner, [Ms R T]”. Those submissions appear in the SFIC as follows:
“29. In considering the nature and seriousness of the Applicant’s criminal offending, we make the following submissions.
30. While the Applicant’s criminal history is lengthy, the majority of his criminal offending has been low level offences, resulting in the application of a fine.
31. He has a smaller number of criminal offences that could be considered on the more serious end of the spectrum, that may be of concern to the Tribunal Member in this case, specifically:
(a) The breach of domestic violence order offences on 26 March 2015 and 14 September 2015; and
(b) The conviction of wounding on 5 March 2020.
32. We submit that while these offences involve violence and are therefore more serious in nature than the rest of the Applicant’s criminal offending, they are not at the most serious end of the spectrum (such as violence occasioning grievous bodily harm, and/or sexual crimes).
33. We note that this statement is not intended to minimise the seriousness of any application or threatening of violence against a person, but to merely to highlight that the Applicant’s criminal offences are not at the most serious level.
34. These criminal offences should also be considered in light of the fact that they are tightly linked to two significant issues in the Applicant’s life:
(a) His drug and alcohol addiction and mental health issues; and
(b) His challenging relationship with his de facto partner, [Ms R T] (who also suffers from drug and alcohol addiction and mental health issues).”[17]
Respondent contentions
[17]Exhibit A1, page 8.
In its SFIC, the Respondent contends that the totality of the Applicant’s offending should be regarded as “very serious”. Those submissions are summarised in the Respondent’s SFIC as follows:
“41. The Respondent contends that the totality of the Applicant's violent actions should be regarded as very serious by the Tribunal. The Respondent submits that the gravity of the Applicant's actions in regards to these incidents are exacerbated by the fact that, at the time, the Applicant was under an imposed domestic violence order which prevented him from making contact with the victim.
42.The Respondent contends that the Tribunal should give significant weight to the Applicant's capacity and willingness to engage in domestic violence in considering the seriousness of his offending and in considering, more broadly, the risk that he presents to the Australian community.
[…]
62. In light of the above, the Respondent contends that the Tribunal should conclude that the nature and seriousness of the Applicant's conduct weigh heavily against the Applicant.”[18]
Application of factors in Paragraph 13.1.1(1) of the Direction
[18]Exhibit R1, page 15, paragraphs [41]–[42]; page 20, paragraph [62].
I am of the view that the Respondent’s assessment of the totality of the Applicant’s offending as “very serious” is correct. I base that finding on the following application of the relevant factors appearing in the Direction to assist decision-makers in assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The material discloses at least one instance of the Applicant’s commission of violent offending. That particular instance arose as part of the factual matrix around an incident that occurred on 25 November 2018 resulting in the Applicant’s conviction for a charge of wounding at the Brisbane District Court on 5 March 2020. The circumstances of the incident and the Applicant’s conduct within that incident, appear in the sentencing remarks of Her Honour Judge Loury DCJ QC:
“HER HONOUR: Stand up please, Wayne Ross Rooney. You pleaded guilty before me on Tuesday to one offence of wounding. You attended at the complainant’s home, who is a man known to you, at about 8.30 pm looking for the keys to your car. They were in the possession of your girlfriend who was visiting the complainant and there seems to be some tension that surrounded her relationship with the complainant and her relationship with you. You shouted from outside the house and continued to yell and scream after the keys were returned to you. It seems that this altercation ended up underneath the house, which is a Queenslander, where the complainant lived. The complainant was also yelling and arguing with you. You were armed but you had not produced the knife that was in your possession.
You were approached by the complainant who was holding an empty beer bottle which he hit you in the head with. It did not break. He put his other hand on your neck and pinned you to the ground and you stabbed him several times as he punched you in the head. The complainant was pulled away from you and you then left the residence. He sustained a number of injuries which are set out in the statement of facts. There were six in total as a consequence of your having stabbed or slashed at him with the knife. Some of them required suturing. Others healed without significant treatment. I have received some photographs which depict two of the injuries or at least depict the scarring that has been left as two of the injuries and both of those at least indicate that it was a slashing action rather than a stabbing, incised-style wound.”[19]
[19]Exhibit G1, G2, page 38.
This offending episode was put to the Applicant during cross-examination. While accepting the circumstances of the offending, the Applicant sought to ameliorate the nature of his conduct by seeking to suggest that he was reacting to threats that had been earlier made to him by the victim and because of the victim’s alleged supply of illicit drugs to the Applicant’s partner, Ms R T.
“Ms Law:[20] Yes, okay. And then we, I think for the purposes of the chronology, the wounding offence then occurs in 2018 but doesn’t come before a court until 2020, so I will just put that wounding offence to the side for one moment and I am now on the – on the bottom of page 34, we can see that there’s some – that’s still 2020. When we get to the point where you committed the wounding offence in 2018, were you aware that, at that time, you were still under a suspended sentence imposed by the court?
[20]Ms Rachael Law, Senior Lawyer, Clayton Utz, legal representatives for the Respondent.
Applicant: Well not exactly because of my addiction with ice, I didn’t realise how much time I had left on that.
Ms Law: Yes. And how was your ice usage around 2018? Had the frequency increased?
Applicant: Yes, it would have.
Ms Law: Yes. And what was your ice – so what frequency were you using ice?
Applicant: Sorry, could you say that again, sorry?
Ms Law: What frequency were you using ice in 2018?
Applicant: Pretty much every day.
Ms Law: And how were you able to afford the ice, that appears to be quite a large amount of ice, that I imagine would have had a significant cost attached to that?
Applicant: Well I pretty much worked all the time, even when I’ve been on it, I’ve still managed to get up and go to work and do a normal days work.
Ms Law: Yes. And so, the wounding offence appears to relate to – I guess, it’s in connection with [Ms R T] and from my understanding of the material it seems as though the sentencing judge accepted that you had, I think we could say, some concerns and you’d made some allegations that she was cheating on you with [the victim], who is described as being a drug dealer. And you went to confront [the victim]. Is that – do you remember going to speak to him that day?
Applicant: I actually didn’t go over there to speak to him, [Ms R T] had taken my car and I needed it for work the next day.
Ms Law: Yes?
Applicant: I couldn’t get a hold of it so I went over to his house and my car was there and I asked her for my car keys back and she’d thrown my car keys to me and this is when myself and [the victim] got into a verbal argument.
Ms Law: Yes?
Applicant: His ex came outside then with his dog, and his dog was biting my leg and as I was trying to get the dog off me he’s come and hit me over the head with a bottle - a beer bottle - and then we got into a physical fight then.
Ms Law: Yes, and is it - so I’m having a look at the sentencing remarks of Judge [Loury DCJ QC][21] on 5 March 2020, so this is on page 37. And in particular from page 38 it details the circumstances of that offence. So as I understand it when he hit you with the bottle the bottle didn’t break but I think you had - you and [the victim] were then on the ground and you had produced a knife that you were holding and started to slash at him?
[21]Note: the Transcript incorrectly refers to Her Honour Judge Loury QC DCJ as “Judge Lawrie”.
Applicant: Yes at - when it first happened he’s come out, hit me over the head with a bottle, we got into a physical fight. I punched him - the first punch I hit him with a ring and it split his - like his lip - open and then I got tackled to the ground by his friends and then he was on top of me, punching me in the head and choking me and that’s when I pulled the knife out and stabbed him a couple of times and slashed him trying to get him - get him off me and then I’ve got up and left.
Ms Law: And do you understand though, that the judge considered that you acted disproportionately for how [the victim] was acting towards you? I think if we have a look at page 39, at line 38, the judge said,
You are to be sentenced on the basis that by stabbing the complainant - [the victim] - as you did, you reacted disproportionately to the assault that you were under.
?
Applicant: Yes, I - that’s why I had to plead guilty, because I did like go overboard but I was threatened with my life at the time and there was actually three of them and they were a lot younger than I am and they were - they did have a better hand on me and he was choking me to death, so that’s when I reacted and I sort of went a bit overboard by doing that.
Ms Law: Yes?
Applicant: Realistically I should never have taken a knife with me but it’s only because of threats that I have been told from him - that [the victim] before that him and his mates were going to bash me with a hammer is the only reason why I actually took a knife for protection in case that had happened.
Ms Law: And I do have to let you know, Mr Rooney, I don’t see in these sentencing remarks, any indication that there was anyone other than [the victim] and perhaps one other man and it seems to be that [the victim’s] involvement was, I think, threatening and then that he hit you with the beer bottle to the head and then there is the stabbing. We can see throughout there if I look further up the page, that you were receiving threats via text message - I think that’s what you just went to talk about there. What were the threats that you were receiving?
Applicant: That he was going to get a group of his mates to bash me and actually to kill me.”[22]
[22]Transcript, page 17, lines 9–47; page 18, lines 1–45.
There is little to cavil with the suggestion that this offending episode is, without question, violent and thus within the ambit of this sub-paragraph (a). The Applicant’s contentions stated in his oral evidence under cross- examination must be received with a measure of caution because (1) he alone purported to suggest that the altercation did not just involve the victim and that it involved “his mates were going to bash me with a hammer” and (2) the sentencing judge’s remarks to the effect that the Applicant reacted disproportionately to the assault perpetrated upon him.
In any event, it is well-established that the Tribunal cannot contradict or go behind the sentencing court’s findings of criminal guilt or otherwise rely on a contention that the circumstances of the offending were different to those circumstances adopted by the sentencing judge when sentencing the Applicant. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, His Honour Colvin J noted:
“179. […] I add some observations concerning the principles to be applied in cases where a party seeks to advance a factual position before an administrative decision-maker that is contrary to the necessary factual foundation upon which a conviction or custodial sentence is based.
180. The procedure that must be followed in criminal proceedings requires a high standard of proof after a clear statement of the nature of the charges brought against an accused person. There are many protections for the accused in the criminal trial process. Therefore, a high degree of confidence may be entrusted in the truth of the factual matters that provide the necessary foundation for a criminal conviction or the imposition of a sentence. It follows that it is a serious matter for a person convicted of a criminal offence to seek to contradict the factual matters that provide the foundation for the conviction or the imposition of the sentence.
181. In an administrative law context, some decision‑making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision‑maker must proceed (there may be others). The statutory authority reposed in the decision‑maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute…
182. In all such instances, the legislature itself has acted upon the basis of the confidence that can be entrusted to decisions in criminal cases. It has formed the view that the fact of the conviction or sentence shall provide the foundation for the exercise of the power. The form of legislation itself demonstrates that Parliament intended the decision-maker to act on the basis of the correctness of the conviction or sentence. Where the legislative provision takes such a form, there is no opportunity to go behind the conviction or sentence and urge the administrative decision-maker to take a different view. Usually, the legislative context will also require the further conclusion that the decision-maker is not entrusted with power to contradict the necessary factual basis for the conviction or the sentence. However, the extent to which the foundation for the power constrains the fact finding process of the decision-maker will depend upon a proper consideration of the legislative provision in each case.
183. In other instances, the fact of the conviction or sentence (or indeed the factual matters upon which the conviction or sentence is necessarily based) may be relevant to the exercise of a decision-making power which does not have, as its jurisdictional foundation or one of the factual matters that must be acted upon in the exercise of the power, the conviction or sentence. In such instances, the administrative decision-maker may reach a conclusion upon all the material before the decision‑maker to the effect that the true position is contrary to the factual foundation on which the conviction or sentence depends. There is no issue estoppel that operates. However, it is unlikely that an administrative decision‑maker would do so. The reason why that is so is due to the high degree of confidence that, in almost all cases, ought to be afforded to the veracity of factual matters that provide the necessary foundation for the conviction or sentence.
[…]
189. The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts.”
[My emphasis and underlining]
It should also be noted that the Applicant has convictions for offences of violence in New Zealand. On 30 September 1982, at the Hastings Youth Court, the Applicant was convicted of “Common Assault (Manually)” and fined a sum of $100. Also, on 16 February 1987, at the Hastings District Court, the Applicant was convicted of an identically named offence. A fine in the sum of $500 was imposed.
I am of the view (and I find) that the totality of the Applicant’s offences involving elements of violence are offences that fall within the ambit of this sub-paragraph (a). I make the further finding that this sub-paragraph (a) militates strongly in favour of a finding that the cumulative nature of the Applicant’s offending to date – both in Australia and New Zealand – has been of a very serious nature.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant’s history of offending in Australia includes three convictions for contravention/breaches of a domestic violence order previously imposed upon him. They respectively date from 13 July 2011, 13 November 2014 and 26 February 2017. It is first necessary to address the conviction on 13 July 2011. The identity of the victim of that offending is redacted from the material before the Tribunal.[23] The Tribunal notes that in his oral evidence, the Applicant confirmed that the victim in that police report was Ms R T. However, in circumstances where this offending was not put to Ms R T, and where it was not canvassed in Ms R T’s statutory declaration, the Tribunal places limited weight on this conviction.
[23]See: Exhibit G2, G33, pages 314–315; Transcript, page 14.
It is not a stretch to suggest that the domestic relationship and Ms R T has, at the very least, been a tempestuous one. At the Sandgate Magistrates Court on 8 July 2014, a domestic violence order (“DVO”) was made against the Applicant. The material contains reference to an incident on 13 November 2014 (some four months after the DVO had been made) resulting in the Applicant’s conviction for breach of the original DVO. The circumstances of the offending are at once both threatening and had the potential of causing significant physical harm to both the Applicant and Ms R T. At the end of one of his work days, the Applicant arrived at the domestic dwelling he then shared with Ms R T. The police report contains the following description of the situation and how it occurred:
“The aggrieved stated to police that she had been at home and the defendant arrived home from work at approximately 4.45pm. Upon returning from work the pair sat down on the couch in the lounge room and began discussing the household duties and roles they each had in the relationship. The aggrieved stated to police that the discussion began to get heated and she has called him something like an old prick. This caused the defendant to become extremely angry.
The aggrieved stated the defendant has then stood up and picked up a large European pillow from the couch he was sitting on. He has wrapped the pillow around his hand and has stepped over to where the aggrieved was sitting on the couch. The defendant has then hit the aggrieved on the head twice. The aggrieved said she was going to call the police and the defendant has then grabbed a beer bottle from the coffee table in front of the aggrieved. He has hit himself over the head with the beer bottle shattering it into multiple pieces and causing a small cut to the top of his head.
The defendant then reached for another beer bottle and feigned to do the same thing again, the aggrieved was extremely scared and told the defendant to stop. The defendant then bent down to the floor and picked up a piece of the broken glass from the ground. He has held this glass to his neck and said repeatedly, “I’ll cut my throat, I’ll slice my throat and die and then you’ll be happy.”
The aggrieved was on the couch crying at this. The defendant then walked into the kitchen and picked up a large 20cm blade carving knife. The defendant then walked back out to the lounge and held the knife up to his throat and again said, “You watch, I’m gonna kill myself”.
The defendant backed up to the hallway and the aggrieved has run from the house in fear.
The aggrieved returned home about 35-45 minutes later. At this time the defendant was in the shower washing the blood from the cut to his head off. The aggrieved cleaned up the broken beer bottle glass and then sat on the couch and the defendant finished his shower and went to bed.
The aggrieved then went to sit back on the couch and when she did she noticed that a bag of clothing she had packed up and her make-up was missing. She has walked up to the bedroom where the defendant was and has opened the door and asked the defendant where her make-up and clothes were. The defendant stated he had thrown them into the neighbour’s yard.
The aggrieved went back to the lounge and her mother called her on the phone. The defendant came out from the bedroom during the phone call. For an unknown reason the defendant then again began yelling abuse at the aggrieved. He said words like, “Your daughter is a using cunt, she uses you, she uses me, she’s a fucking bitch.” He kept on yelling abuse and screaming at the aggrieved causing the aggrieved to feel intimidated and fearful.”[24]
[24]Exhibit G1, G2, pages 49–50; See also Exhibit G2, G33, pages 347–349.
On 6 December 2016, at Sandgate Magistrates Court, a further DVO had been made against the Applicant. The material contains reference to an incident that occurred on 26 February 2017 at Fernvale, near Ipswich that resulted in the Applicant’s conviction for a breach of this further DVO. Once again, the circumstances leading to this convicted breach are at once sobering and redolent of the potential for very serious and even catastrophic harm to the aggrieved party (Ms R T) and, indeed, other road users within the vicinity of the motor vehicle in which this conduct occurred.
“On the afternoon of the 26th of February 2017, at approximately 1pm the victim was camping with the respondent by a river beside the Brisbane Valley Highway near the intersection of [street name redacted], Fernvale. The victim and defendant were involved in a heated argument when the defendant told the victim they were leaving. The victim then got into the vehicle and due to the defendant's level of anger and intimidation the victim became fearful that the defendant was going to hurt her. The victim has then locked the car doors while the defendant was outside the vehicle to prevent him from getting to her. The defendant has gained entry to the vehicle by a rear passenger door and grabbed the back of the victim's hair. The defendant then hit the victim's head against the side pillar and door beside her. The victim has crawled into the back seat of the car in attempt to get away from the defendant. The defendant then got into the driver seat of the car where he has hit the aggrieved in the head with an esky lid and twisted her fingers. The defendant then drove the vehicle away from their camp site along the Brisbane Valley highway towards Fernvale, while both the victim and defendant continued to verbally and physically fight each other as they drove into Fernvale. The victim told the defendant to stop the vehicle, at which point the defendant brought the vehicle to a stop at the Freedom Fuels service station in Fernvale. The defendant and victim continued to shout at each other as the respondent has removed the aggrieved’ s property from the boot of the vehicle and put it on the ground. The victim could see that a number of people had witnessed the incident at the two separate locations and had told her they were going to call Police. The victim then waited for Police to arrive.”[25]
[25]Exhibit G1, G2, page 48; see also Exhibit G2, G33, pages 355–357.
The Transcript does not contain any lengthy or detailed questioning of the Applicant about the circumstances of these respective breaches of domestic violence orders previously imposed upon him. With particular reference to the domestic violence offending, the Applicant’s SFIC written by his prior legal representation is configured to rely on Ms R T’s statutory declaration dating from 11 November 2020[26] and how, in that statutory declaration, Ms R T purports to ameliorate two of the Applicant's three abovementioned breaches of DVOs.
[26]Exhibit G1, G2, pages 127–131.
The ameliorating factors identified by Ms R T in her statutory declaration relate to five things. First, Ms R T purports to say that the domestic violence order imposed on the Applicant on 8 July 2014 had nothing to do with her and that it was more the police’s doing than hers. According to her statutory declaration:
“The last DVO was put in place because he smashed some of his own property in our house, a pot plant and stereo, in a fit of anger. Nothing directed at me. But police take that as intimidation. The police put the order on him.”[27]
[27]Ibid, page 127, paragraph [12].
Second, Ms R T attributed the Applicant’s domestic violence conduct to mutual drug and alcohol abuse issues which she identified as the primary causes behind their past relationship difficulties: “Both Wayne and I have had problems with drugs and alcohol in the past, which has significantly contributed to the problems in our relationship.”[28]
[28]Ibid, paragraph [14].
Third, Ms R T propounds a hazy or unreliable recollection of the Applicant’s domestic violence conduct dating from November 2014 due to prolonged drug use having apparently affected her memory. She said: “In relation to Wayne’s breach of the DVO in November 2014, I don’t have any recollection of that incident. I think long term marijuana use has also affected my memory”.[29]
[29]Ibid, page 128, paragraph [16].
Fourth, Ms R T purports to mutualise the Applicant’s domestic violence that occurred on 26 February 2017 on the basis of both of them being under the influence of intoxicating liquor which resulted in a situation where “[they] got into a physical fight.” Her statutory declaration records the following:
“In relation to the incident on 26 February 2017, we were both were extremely drunk from drinking wine all day. We got into a physical fight. I was in the back seat, I remember scratching him from the back seat, the esky lid came off and hit me. It was an accident. There was a lot of screaming and yelling, I was quite aggressive because the dog got out, I was hysterical. I blamed Wayne for the dog getting scared and running out of the car.”[30]
[30]Ibid, paragraph [17].
Fifth, Ms R T purports to make a non-clinical yet apparently reliable assessment of the Applicant’s propensity to abuse both alcohol and illicit substances. She is of the view that he has completely overcome those propensities and is otherwise “completely off all drugs”:
“In the whole 10 years, I never felt scared or intimidated by Wayne in any way. He had anger issues, but he has really changed a lot - he is completely off all drugs. When all this happened about a year and a half ago, he had a problem with ice. That was the reason for his violence at that time.
[…]
But I can say that he is a changed man just from being clean and sober.”[31]
[31]Ibid, page128, paragraphs [18], [20].
Ms R T provided oral evidence at the instant hearing. She adopted her abovementioned statutory declaration made on 11 November 2020 and did not require any changes to it. Likewise, the Applicant had no questions for Ms R T based upon the content of her statutory declaration.[32]
[32]See Transcript, page 44, lines 22–47; page 45, lines 1–27.
In cross-examination, Ms R T openly and frankly spoke about the “significant challenges” presented to their relationship as a result of their respective difficulties with the abuse of illicit drugs. She said:
“Ms Law: What would you describe as the significant challenges that you and Wayne had had?
Ms R T: I think the majority of the challenges in the later part of our relationship was from drug use on both of our behalf. I think we were - where we were living at [suburb redacted] especially, it just wasn’t really - the people we were living with and sharing a house with, and the things we were engaging with just weren’t healthy, and it ended up taking a big turn on our relationship for the worst, just because we weren’t behaving properly towards each other, really. Not blaming it all on drugs, but I know that a significant part of it was from influence of drugs.
Ms Law: What, I guess, proportion of your relationship with Mr Rooney would you say was influenced by drug usage?
Ms R T: Wayne actually didn’t use any drugs other than marijuana for the first maybe five to six years of our relationship. I didn’t really either, but in maybe the last four years of our relationship both of us were heavily influenced by methamphetamine as well as marijuana. That’s when we started to see the majority of the problems in our relationship start.”[33]
[33]See Transcript, page 46, lines 26–42; page 48, lines 35–47.
She was taken to paragraph [18] of her abovementioned statutory declaration and purported to suggest that the Applicant was not a violent person and that he was “[…] definitely not [violent] towards her”:
“Ms Law: And so you say in paragraph 18 of your statutory declaration;
In the whole 10 years I have never felt scared or intimidated by Wayne in any way.
Do you still maintain that statement?
Ms R T: Yes, absolutely. He never - you know, never - I’ve seen him - as another partner during that time for about two months when we did break up at one very time and I experienced violence and things like that in that two months, but Wayne had never ever shown me in nine years, so. I know that Wayne is not a violent person - definitely not towards me and he doesn’t - he was brought up in, you know, very sort of violent areas in the north island of New Zealand and things like that and considering how he did grow up he knows violence all too well and he knows against it and me and him both, we don’t agree with violence. It’s not something we want to be a part of and something we’ll always try and diffuse because we know very well what it can accomplish.”[34]
[34]Transcript, page 48, lines 25–47; page 49, lines 1–3.
In its SFIC, the Respondent raised three specific bases as to why limited weight should be allocated to Ms R T’s statutory declaration. I agree with each of those bases.
·First, to the extent Ms R T may now suggest that she simply does not recall the circumstances of the Applicant’s domestic violence offending committed in November 2014, such evidence should be rejected. It is difficult to accept Ms R T’s contention that she does not recall conduct as extraordinary and serious as (1) the Applicant striking her twice on the head; (2) the Applicant smashing himself over the head with a beer bottle, shattering it into multiple pieces and causing a small cut to the top of his head; (3) the Applicant holding a piece of broken glass to his neck and repeatedly saying “I’ll cut my throat, I’ll slice my throat and die and then you’ll be happy”; and (4) the Applicant picking up a large 20cm carving knife, holding the knife up to his throat and telling her “You watch, I’m gonna kill myself”. According to her written evidence, Ms R T does not even recall her own conduct in running from the house in fear. The disparity as to credibility between Ms R T’s evidence about failing to recall things and the content of the police report about this incident can only be resolved in favour of the Tribunal now accepting what was recorded by the police.
·Second, while I will, later in these reasons, explore and analyse the nature and extent of the interpersonal relationship now propounded by the Applicant and Ms R T, it suffices to say that her asserted proximity to the Applicant does her evidence no favours in terms of allocating any weight to her evidence about, for example, the Applicant not representing a threat to her or that he has now overcome his predisposition to abuse illicit drugs. Clearly, Ms R T has an interest in seeing the Applicant succeed in these proceedings. She openly spoke of them resuming their inter-personal relationship upon his return to the community. This personal proximity, to my mind, imperils her capacity to characterise her evidence as some kind of “touchstone” as to the Applicant’s propensity to violently offend against her or other women. As noted by this Tribunal (albeit in a different statutory context) in Back and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1105:
“14. It is of particular significance in the context of the material presented on the applicant’s behalf in the present case to bear in mind […] that the good standing or repute of an applicant in the eyes of his or her friends, relatives, neighbours or employers does not provide the ultimate touchstone for character assessment.
15. Such individual appraisals by persons well known to the applicant will often be relevant, but the weight of any such appraisal will normally be found in the detail which it provides of specific activities involving the applicant which can be recognised by the Tribunal as indicating present good character […]”
[Internal citations omitted]
·Third, in her statutory declaration, Ms R T says the Applicant “is now clean and sober. He is a very different person sober.” Likewise, in her oral evidence, she said:
“Ms Law: And how long do you say that he has been completely off all drugs?
Ms R T: Well, over a year. Yes, I’m not sure exactly. I think it was March last year, so just shy of a year.
Ms Law: Yes?
Ms R T: 11 months or so, yes.”[35]
It is difficult to accept Ms R T’s evidence about the state of the Applicant’s drug sobriety in circumstances where (1) she is not clinically qualified to provide any such opinion; and, in any event, (2) she has not lived with the Applicant for many months.
[35]Transcript, page 50, lines 13–17.
The material contains a number of references to additional violent conduct by the Applicant against women. For example, (1) I have earlier referred to the conduct on 5 June 2011 relating to the Applicant’s domestically violent conduct (in Australia) against a female;[36] and (2) in March 1985 (in New Zealand) the Applicant was convicted of the offence of “Male Assaults Female (Manually)” at the Hastings District Court. The Applicant can have no contest with the reality that this Tribunal (and indeed, the Australian community) has repeatedly commented about the intolerable nature of both domestically violent offending by men against women and violent conduct perpetrated upon women more generally.
[36]The identity of the victim of that offending is redacted from the material before the Tribunal. See: Exhibit G2, G33, pages 314–315.
In terms of generalised violence by men against women, Deputy President Kendall (as he then was) of this Tribunal[37] said in XKFR and Minister for Immigration and Border Protection [2017] AATA 2384 that: “[…] in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable”[38] In terms of violent offending against women in a domestic context, Senior Member Sosso (as he then was)[39] said: “Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed.”[40]
[37]As he then was, now His Honour Judge Kendall, Federal Circuit Court of Australia.
[38]At paragraph [45].
[39]Now Deputy President Sosso.
[40]At paragraph [53].
I am thus of the view that the Applicant’s offending in a domestic context constituting respective breaches of then extant DVOs as described in the material, and as described above, does constitute the commission of crimes of a violent nature against women. As such, this offending must be viewed very seriously. The necessary consequence is that this sub-paragraph (b) militates very strongly in favour of a finding that the totality of the Applicant’s offending has indeed been of a very serious nature.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed
I certify that the preceding 230 (two hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
[sgd] Associate Dated: 22 February 2021
Dates of hearing:
4 & 5 February 2021
Applicant:
Self-represented
Advocate for the Respondent:
Rachael Law
Solicitors for the Respondent:
Clayton Utz
ANNEXURE A
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED G1 Section 501 G-Documents
(paged 1–292)- 14 December 2020 G2 Supplementary G Documents
(paged 293–738)- 27 January 2021 R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1–29) 20 January 2021 20 January 2021 A1 Applicant’s Statement of Facts, Issue and Contentions (paged 1–18) 5 January 2021 5 January 2021 A2 Report of Dr Gavan R M Palk, forensic psychiatrist (paged 1–15) 25 January 2021 29 January 2021 A3 IHMS Clinical Record authored by Ms L W, Mental Health Nurse
(1 page)15 January 2021 31 January 2021 A4 6 IHMS Clinical Records authored by Mr D D, Mental Health Nurse
(6 pages)Various 31 January 2021
0
7
0