Rowe and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 617
•21 February 2024
Rowe and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 617 (21 February 2024)
Division:GENERAL DIVISION
File Number: 2023/8963
Re:Andrew Michael Rowe
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:21 February 2024
Date of written reasons: 5 April 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 28 November 2023 not to revoke the cancellation of the Applicant’s visa.
..............[SGD]............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – failure to pass the character test – criminal offending involved threats to distribute intimate images and visual recordings – contravention of domestic violence order– Ministerial Direction 99 applied -whether there is another reason why the mandatory visa cancellation should be revoked –– decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister For Immigration, Citizenship And Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway V Minister For Immigration, Citizenship And Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
5 April 2024
INTRODUCTION
Mr Rowe seeks review of the Respondent’s delegate’s 28 November 2023 decision not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (the Visa).[1] For the purposes of these reasons, the decision made on 28 November 2023 by a delegate of the Respondent will be referred to as the ‘decision under review.’
[1] Exhibit R1: G documents, G3, page 14. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on Wednesday 7 and Friday 9 February 2024. Dr Donnelly of counsel represented Mr Rowe. Mr Hawker of Sparke Helmore Lawyers represented the Respondent.
On 21 February 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48]. This decision emphasises that there is a distinction between the Tribunal’s decision, publication of which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons which can be delivered later.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Rowe is a 52-year-old[4] citizen of the United Kingdom (UK) who first arrived in Australia on 22 October 2002.[5]
[4] Exhibit R1: G2, page 5.
[5] Exhibit R1: G10, page 52.
On 27 February 2023, Mr Rowe was sentenced by the Hervey Bay Magistrates Court for threats to distribute intimate image or prohibited visual recording - domestic violence offence and contravention of domestic violence order (aggravated offence) (Index Offending). He appealed his sentence in the Brisbane District Court and was resentenced to 12 months on each offence. He was granted immediate parole upon re-sentencing. [6]
[6] Exhibit R1: G6, page 39.
On 17 March 2023, Mr Rowe’s Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test given his ‘substantial criminal record’.[7] As a result of this cancellation decision, Mr Rowe was invited to make representations to the Respondent’s Department towards getting his Visa cancellation decision revoked. Mr Rowe made the requisite representations to the Respondent’s Department on 25 March 2023.[8]
[7] Exhibit R1: G3, page 18 and pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
[8] Exhibit R1, G14, pp 59-62.
On 28 November 2023 a delegate of the Respondent decided not to revoke the mandatory cancellation decision made on 17 March 2023.[9]
[9] Exhibit R1: G3, page 14.
Section 501(7)(c) of the Act provides that for the purposes of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
OFFENDING HISTORY
Mr Rowe has been convicted of 7 different offences.[10]
[10] Exhibit R1: G6, pages 39 – 40.
His offending can be categorised as follows:[11]
·The Index Offending described above.
·Unlawful stalking.
·Distributing intimate images.
·Contravening domestic violence orders
[11] Exhibit R1: G6, pages 39 – 40.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with section 501(6), obliges the Respondent Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment. The character test is defined in s 501(6) of the Act.
Under s 501CA(4), the Respondent Minister may revoke the original decision if:
(a)representations have been made by the person in accordance with the invitation;[12] and
(b)the Minister is satisfied that:
(i)the person passes the character test;[13] or
(ii)there is another reason why the original decision should be revoked.[14]
[12] Pursuant to s 501CA(4)(a) of the Act.
[13] Pursuant to s 501CA(4)(b)(i) of the Act.
[14] Pursuant to s 501CA(4)(b)(ii) of the Act.
MATTERS FOR CONSIDERATION
Mr Rowe’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and then applied section 501(6)(a) to the facts of this matter.
The Tribunal’s first task is to consider whether Mr Rowe fails to pass the character test.
If Mr Rowe fails the character test, then the Tribunal’s second task is to consider the issue of whether, under section 501CA(4)(b)(ii) of the Act, it is satisfied of there being another reason to revoke the mandatory cancellation decision.[15] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[16]
[15] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[16] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
To assist its consideration, the Tribunal has created the following summary chronology of events:
Date
Event
14 March 2019
The Hervey Bay Magistrates’ Court heard a charge of Contravention of Domestic Violence Order (between 8 February 2019 and 12 February 2019) against Mr Rowe. No conviction was recorded, with a recognisance of $300 imposed and a good behaviour period of 6 months.
11 April 2019
The Hervey Bay Magistrates’ Court heard a charge of Contravention of Domestic Violence Order (between 30 January 2019 and 8 March 2019) against Mr Rowe. No conviction was recorded, Mr Rowe was fined $500 and given 28 days to pay.
19 September 2019
His Honour Magistrate Guttridge of the Hervey Bay Magistrates’ Court heard charges of Unlawful Stalking – Domestic Violence Offence (between 24 December 2018 and 26 March 2019), Distributing Intimate Images (between 20 February 2019 and 25 April 2019), Contravention of Domestic Violence Order (Aggravated Offence) (between 19 April 2019 and 25 April 2019), Contravention of Domestic Violence Order (Aggravated Offence) (between 7 March 2019 and 22 March 2019) and Contravention of Domestic Violence Order (Aggravated Offence) (between 30 March 2019 and 6 April 2019).
In relation to the Unlawful Stalking – Domestic Violence Offence (between 24 December 2018 and 26 March 2019) charge, Mr Rowe was convicted, then sentenced to 3 months’ imprisonment suspended for 12 months.
In relation to the other charges, Mr Rowe was convicted and given a probation period of 12 months.
27 February 2023
Her Honour Magistrate McGarvie of the Hervey Bay Magistrates’ Court heard charges of Threats to distribute intimate images or prohibited visual recording Domestic Violence Offence (on 9 November 2022) and Contravention of Domestic Violence Order (Aggravated Offence) (between 16 November 2022 and 25 November 2022).
Mr Rowe pled guilty[17] and was convicted on both charges and sentenced to 15 months’ imprisonment.
20 June 2023
Mr Rowe appealed his sentence. On 20 June 2023 the Brisbane District Court allowed his appeal and reduced his term of imprisonment to 12 months (Emphasis added).
[17] Exhibit R1: G5, page 36.
Mr Rowe’s record of Queensland traffic offending is also relevant.[18] It shows five speeding offences between 2009 and 2022. Each offence is the same – “Exceed speed limit in speed zone by at least 13 KM/H not more 20 KM/H”. This is an unusual consistency of traffic offending.
[18] Exhibit R3: Tender Bundle 6, page 246.
The Tribunal finds that Mr Rowe fails the character test as a matter of law.[19] He has received, after appealing, a sentence of imprisonment of 12 months or more and thus has a ‘substantial criminal record’ which compels this Tribunal to find that he is a person who does not pass the character test.[20]
[19] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
[20] Sections 501(7)(c) and 501(6)(a) of the Act.
IS THERE ANOTHER REASON WHY MR ROWE’S VISA CANCELLATION SHOULD BE REVOKED?
The Tribunal’s second task is to consider whether, under section 501CA(4)(b)(ii) of the Act, it is satisfied of there being another reason to revoke the mandatory cancellation decision. The Tribunal’s substantive task here is to understand and evaluate the evidence, oral testimony and representations made by Dr Donnelly and Mr Hawker as to why there was 'another reason' for the cancellation of Mr Rowe’s Visa to be revoked and to then determine, on the merits, whether it is satisfied that there is another reason.[21]
[21] Amodu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 10 at [5] (Colvin J).
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving Justice Colvin’s reasoning in Viane,[22] identified the following principles as being relevant to the statutory task conferred by Section 501CA(4):
‘If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation….’
[22] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[23]
[23] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
THE DIRECTION
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[24]
[24] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[25]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[25] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[26] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[27]
[26] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[27] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal in this matter. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and Mr Rowe’s lawyers as well as testimony given by Mr Rowe, Dr Emily Kwok, Ms Angela Miller, Mr Mark Goulding and Mr Steven Jones.
Documentary evidence
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
·G Documents.[28]
[28] Exhibit R1.
·Mr Rowe’s statement of facts, issues and contentions (SFIC).[29]
[29] Exhibit A2.
·The Respondent’s SFIC (RSFIC).[30]
·Mr Rowe’s 29 December 2023 statement.[31]
·Mr Rowe’s tender bundle.[32]
·Ms Angela Miller’s 29 December 2023 statement.[33]
·Ms Evelyne Goulding’s 29 December 2023 statement. [34]
·Mr Mark Goulding’s 29 December 2023 statement. [35]
·Mr Steven Jones’ 29 December 2023 statement.[36]
·Dr Emily Kwok’s 31 January 2024 report. [37]
·Mr Rowe’s reply to Respondent’s SFIC.[38]
·The Respondent’s tender bundle.[39]
[30] Exhibit R2.
[31] Exhibit A1.
[32] Exhibit A3.
[33] Exhibit A4.
[34] Exhibit A5.
[35] Exhibit A6.
[36] Exhibit A7.
[37] Exhibit A8.
[38] Exhibit A9.
[39] Exhibit R3.
THE TRIBUNAL’S ASSESSMENT OF MR ROWE AS A WITNESS
In his closing submission, Dr Donnelly contended that Mr Rowe was a credible witness, who was forthright in his evidence and who did not try to evade questions.[40] In contrast, Mr Hawker contended that the Tribunal should be slow to accept much of what Mr Rowe has said and that he was, in some important junctures, evasive on being questioned. [41]
[40] Transcript, page 73, lines 6-10.
[41] Transcript, page 82, lines 12-18.
The Tribunal observed Mr Rowe as he gave his testimony. When answering questions about his businesses and his skills, he appeared honest and forthright. This did not appear to be the case when he was answering questions about his ties to Australia, his relationships and his offending. He did not appear credible on these aspects of the matter.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because 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 with 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 consider:
(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 Mr Rowe’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)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 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended 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).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal’s Consideration: The nature and seriousness of Mr Rowe’s conduct
The Tribunal has considered both parties’ respective submissions as summarised below and the other relevant material before it in this matter.
In summary, Dr Donnelly on behalf of the Applicant contends that:
·Mr Rowe’s offences, including his threats to distribute intimate images and stalking, may not directly classify as violent or sexual crimes but certainly border on violence, especially given their context in domestic settings.
·His repeated offences, predominantly in the form of threats and stalking, are crimes against women.
·His offences, particularly his contraventions of domestic violence orders, directly indicate acts of family violence.
·His sentences, including imprisonment and probation, reflects the seriousness with which the courts view his offending.
·His criminal history of repeated and escalating domestic violence-related offences evidence a concerning offending trend. His repeated offences also demonstrate a pattern implying a continued threat.
·There is no evidence to suggest that Mr Rowe has provided false information to the Respondent’s Department, that he received a formal warning about the consequences of further offending in terms of his migration status before offending or that he has committed an offence in another country.
·Considering the above, it is evident that Mr Rowe’s criminal conduct, primarily comprising domestic violence offences, is of a serious nature and viewed gravely by both the Australian Government and community. The pattern of his offences, their severity, and the implications they hold in terms of public safety and the values upheld by Australian society necessitate a stringent review of his migration status. The recurring nature of his offences, especially against women, also aligns with the types of conduct the government and community consider very seriously.
·Given his history of domestic violence, including threats to distribute intimate images and stalking, the primary concern is harm to individuals, particularly his intimate partners or family members. Such conduct can lead to significant psychological, emotional, and potentially physical harm to victims.
·The Australian community values safety, particularly in domestic settings. The nature of the applicant’s offences undermines these values and could instil fear and unease, particularly among victims of domestic violence and the broader community aware of his history.
·His criminal history shows a pattern of repeated offences, suggesting an escalating aspect to his conduct. This raises concerns about the potential severity of future offences and the increased risk of physical harm. Continued offences by Mr Rowe could strain public resources, including law enforcement and judicial systems, which are already burdened with addressing domestic violence cases.
·Based on past conduct, further offending by Mr Rowe could involve serious psychological harm to his victims. The nature of his offences also suggests a potential for escalation to more physically violent acts.[42]
[42] Exhibit A2: Applicant’s SFIC paras [10] – [24].
In essence the Mr Hawker on behalf of the Respondent contends that:
·Mr Rowe’s convictions arise in circumstances where he has produced over 1000 intimate images and videos of his ex-partner during their relationship.[43] Once this relationship has broken down, he threatened the victim, her father and her current partner with the public release of those intimate images.[44]
·After the relationship broke down, he engaged in a campaign of harassment against the victim, her new partner and her father. He sent a large volume of emails, texts and left letters at the victims’ address threatening and taunting to disseminate the images. In one instance, he threatened to hold ‘a viewing party with the boys' and invited her father to attend the viewing party.[45]
·During this period, Mr Rowe also engaged in unlawful stalking by continuously appearing at the workplace and at the residence of the victim and her partner.[46] He has also breached a temporary domestic violence order when he offered to pay the victim $10,000 to withdraw her application for a protection order.[47]
·For two of his threats to release intimate material (against the victim’s father and partner) and the unlawful stalking, he was sentenced to 12 months’ imprisonment. For the remaining threat to release intimate material (against the victim) and the breach of a domestic violence protection order, he was sentenced to 15 months’ imprisonment.[48] On 20 June 2023, Mr Rowe successfully appealed his sentence of 15 months’ imprisonment. The District Court of Queensland re-sentenced him to 12 months’ imprisonment.[49]
·Mr Rowe also has a traffic history containing five instances of speeding.[50] The Respondent contends that driving offences, which have the potential to injure and possibly kill innocent road users, are serious.
·Ten of the twelve applicant’s criminal convictions were committed in the context of family violence, which should be viewed very seriously.
·The other two convictions for which Mr Rowe was sentenced to 12 months’ imprisonment, should be viewed seriously as custodial sentences are the last resort in the sentencing hierarchy.
·Regard must also be had to the frequency and cumulative effect of Mr Rowe’s offending. The Respondent contends that his offending has been frequent, as he has committed 12 offences over a three-year period. Further, there has been a trend of increasing seriousness which has escalated from affecting a single victim to another victim’s family. His offending has had serious mental, emotional and physical impact on its victims.[51]
[43] Exhibit R3: Tender Bundle 2, page 13; Tender Bundle 3, page 30.
[44] Exhibit R1: G7, page 42.
[45] Exhibit R3: Tender Bundle 2, pages 17-19.
[46] Exhibit R3: Tender Bundle 4, pages 60 and 71.
[47] Exhibit R1: G7, page 43 and Exhibit R3: Tender Bundle 2, page 16.
[48] Exhibit R1: G7, page 45.
[49] Exhibit R3: Tender Bundle 1, page 6.
[50] Exhibit R3: Tender Bundle 6, page 246.
[51] Exhibit R3: Tender Bundle 4, pages 144 and 187 and Exhibit R2: RSFIC Paras [25] – [32].
The Tribunal has considered both parties’ respective submissions on Paragraph 8.1.1 above and now turns to the individual elements of paragraph 8.1.1.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence are viewed very seriously by the Australian Government and the Australian community.
The Tribunal concludes, having considered the evidence, that Mr Rowe’s stalking offences constitute acts of family violence as that term is defined in the Direction.[52]
[52] Paragraph 4(1)(c) of the Direction.
Considering his other offences, it is less certain whether they constitute violence per se. While the offences clearly involved Mr Rowe’s former female partners (and their family in one set of circumstances) they did not involve physical violence.
A substantial component of Mr Rowe’s offending involved threatening to distribute intimate images or actually distributing such images.
The chapeau to paragraph 8.1.1(1)(a) provides that conduct described in its three sub-paragraphs is viewed ‘very seriously’ by the Australian Government and the Australian community. There is little or nothing to dispute with the finding that Mr Rowe has committed family violence falling within the auspices of paragraph 8.1.1(1)(a)(iii) of the Direction. The Tribunal finds that applying the ‘very serious’ descriptor to Mr Rowe’s offending is validated on the basis of the evidence. This paragraph carries a degree of weight in favour of affirming the delegate’s decision to not to revoke the mandatory cancellation of Mr Rowe’s Visa.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant. The Tribunal did not see any evidence that Mr Rowe has committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is enlivened and relevant. Having considered the evidence of the totality of Mr Rowe’s offending, the Tribunal further considers that Mr Rowe has committed crimes against vulnerable members of the community – in this case, women, based on the reasoning applied by the Full Court of the Federal Court in Garland v Minister for Immigration, Citizenship and Multicultural Affairs at paragraphs [45] to [48].[53]
[53] Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144.
The Tribunal finds that this paragraph, considered by itself, consequently supports a finding that Mr Rowe’s offending has been of a serious nature. This paragraph carries a degree of weight in favour of affirming the delegate’s decision to not to revoke the mandatory cancellation of Mr Rowe’s Visa.
Paragraphs 8.1.1(1)(b)(iii) and (b)(iv)
This paragraph refers to conduct forming “...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”. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of Mr Rowe’s conduct. Given the formulation of the character test referable to the instant decision, which test Mr Rowe fails as a matter of law,[54] the Tribunal is not required to make any finding about whether any of his conduct forms the basis for a finding that the he does not pass an aspect of the character test that is dependent on my opinion.[55] Paragraph 8.1.1(1)(b)(iv) is not relevant as the material contains no reference to any crime committed by Mr Rowe during his time in immigration detention.
[54] See para [20].
[55] See paragraph 8.1.1(1)(b)(iii) of the Direction.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Rowe for:
(i)any violent offending that he may have committed against women or children;
(ii)acts of family violence; and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
Mr Rowe’s 27 February 2023 convictions included charges of Threats to distribute intimate images or prohibited visual recording Domestic Violence Offence against his former partner’s father and then current partner. Acknowledging that his former partner’s father may be considered to fall within the broad concept of ‘family’, the threat to his former partner’s then current partner remains relevant and enlivens this paragraph.
The Tribunal finds that the sentences imposed by the courts for this crime supports a finding that Mr Rowe’s offending has been of a very serious nature. This paragraph carries a degree of weight in favour of affirming the delegate’s decision to not to revoke the cancellation of Mr Rowe’s Visa.
Paragraph 8.1.1(1)(d)
This paragraph raises two specific factors around the characteristics of a non-citizen's offending for consideration: the offending’s frequency and/or whether there is any trend of increasing seriousness.
Frequency
Mr Rowe’s criminal history[56] and convictions between 2019 and 2022 demonstrate that he has been a frequent offender in the period between 2018 and 2022.
[56] Exhibit R1: G4, pages 35-36.
Trend of increasing seriousness
The Tribunal considers that Mr Rowe’s criminal history[57] and convictions demonstrate a trend of increasing seriousness which has escalated from affecting a single victim to that victim’s father, her current partner and the ex-partner’s animal.
[57] Exhibit R1: G4, pages 35-36.
The Tribunal finds that Mr Rowe’s criminal history[58] and convictions have been frequent and have demonstrated a trend of increasing seriousness. The Tribunal further finds that this sub-paragraph 8.1.1(1)(d) contributes substantively to characterising the totality of Mr Rowe’s offending in Australia as very serious.
[58] Exhibit R1: G4, pages 35-36.
This paragraph weighs in favour of affirming the delegate’s decision to not to revoke the mandatory cancellation of Mr Rowe’s Visa.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Mr Rowe’s repeated offending.
The cumulative effects of Mr Rowe’s offending on the Australian community involve him imposing disproportionate and material financial and resourcing imposts and costs on the policing, judicial and jail systems.
The cumulative effects of Mr Rowe’s offending on his victims have likely involved significant emotional, psychological and social costs. While untested before the Tribunal, one of his victim’s police witness statements contains the following description of these costs:
‘[37] As a result of Andy’s [the Applicant] actions, I am in a situation where firstly I do not believe that Andy has deleted any of the explicit photos/videos of myself. Secondly, I do not have any control over what Andy does with these images. I am fully aware that these images have the ability to severely compromise my new personal relationship, my work environment and my family relationships. I have never at any point given Andy consent to display, exhibit, show or otherwise distribute any of these explicit photos/videos of myself to any other person. Andy threatening to do this is a very serious threat to myself, and it has had a number of impacts on my life.
[38] As a direct result of Andy’s behaviour and threats to myself, I now suffer from a heightened level of anxiety requiring stronger medication than what I have previously taken. I have had to take off a considerable amount of time from work, which has resulted in a loss of my income. I am now paranoid about where Andy is and what he is doing. I find myself looking over my shoulder whilst completing normal everyday tasks such as shopping etc. In fact, I avoid going out as much as I possibly can. I have had to re-structure my work environment in order appropriately respond to any of Andy’s actions whilst I am at work. I am not sleeping well, and cannot remember the last time I had a good night’s sleep. I am very embarrassed about the situation that I now find myself in. I feel like dignity has been totally stripped from my life. My self-worth has been affected and my relationship with my parents has been strained because of what Andy has done. I have experienced a number of migraines in the past month in particular. I feel helpless and vulnerable whenever I think about the events described in this statement’.[59]
[59] Exhibit R3: Tender Bundle 4, pages 186-187.
The Tribunal is also cognisant that once intimate images of the type involved in Mr Rowe’s offending are distributed digitally, his victims are likely to have little to no control over who sees the images.
The Tribunal’s consideration of this paragraph supports a finding that the totality of Mr Rowe’s repeated offending in this country has been of a very serious nature.
This paragraph weighs in favour of affirming the delegate’s decision to not to revoke the mandatory cancellation of Mr Rowe’s Visa.
Paragraphs 8.1.1(1)(f), (g) and (h)
There is no evidence before the Tribunal that enlivens these paragraphs.
Consequently, these paragraphs are not relevant to any assessment of the nature and seriousness of Mr Rowe’s conduct.
Tribunal’s finding: The nature and seriousness of Mr Rowe’s conduct
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds after a holistic consideration of Mr Rowe’s offending that it should be characterised as very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk Mr Rowe poses to the Australian community if he reoffends or engages in other serious conduct, taking into consideration the nature of any consequential harm and its probability.
Paragraphs 8.1.2(1) and 8.1.2(1)
Paragraph 8.1.2 (1) states:
‘In considering the need to protect the 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.’
(Emphasis added)
Paragraph 8.1.2 (2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)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.
Tribunal’s Consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the risk to the Australian community, the Tribunal has assessed the parties’ submissions and the relevant information and evidence before it in this matter in relation to paragraph 8.1.2.
Dr Donnelly contends:
·Mr Rowe attributes his past offending to a confluence of personal stressors. These include father’s death in November 2022, extensive work hours (12 to 14 hours daily), and infidelity in his relationships.
·Mr Rowe’s cousins’ submissions highlight his emotional turmoil following his father's cancer diagnosis during the COVID-19 pandemic, a situation compounded by travel restrictions preventing a final farewell.
·In 2022, Mr Rowe experienced significant physical exhaustion and stress, adversely impacting his health and decision-making capabilities, as evidenced by substantial weight loss.
·Mr Rowe experienced the emotional impact of a relationship dissolution in October 2022, exacerbating his distress given the financial and housing support he had provided her.
·Mr Rowe acknowledges acting impulsively in response to the end of an earlier relationship in 2019, a decision he now recognises as misguided.
·While his father's illness and death caused significant emotional strain, his pattern of offending predates these events, as documented in the National Criminal History Check dated 24 March 2023. This chronology suggests that other factors contributed to his earlier offences.
·His history of disseminating or threatening to disseminate intimate images appears closely linked to relationship breakdowns, driven by feelings of betrayal and a desire for retaliation, as per his own representations.
·It is evident that his actions were often motivated by a desire for revenge and manipulation. Although the death of his father in November 2022 was a factor, it does not fully account for his earlier pattern of behaviour.
·He professes deep regret for his actions and the distress they have caused. The sentencing remarks from 27 February 2023 set out his guilty plea, indicative of some level of acknowledgment of his offences.
·He has completed various online courses addressing relevant issues like domestic violence and stress management and engaged in domestic violence intervention sessions.
·Mr Rowe presents a minimal risk of recidivism, as evidenced by a lack of an enduring lifelong criminal history. He has demonstrated a significant commitment to rehabilitation, indicating a sincere effort to rectify past misconduct. The implications of Visa cancellation, coupled with the applicant’s tenure in immigration detention and the looming possibility of future Visa revocations, collectively constitute formidable deterrents, effectively mitigating the likelihood of any future offences.
Summarising the Respondent’s arguments:[60]
[60] Exhibit R2: RSFIC, [33] - [35.7].
·Mr Rowe’s criminal history has directly affected his former partners and in one instance, their family. As the sentencing judge outlined, his conduct subjected its victims to ‘a campaign that was designed as being emotionally and psychologically abusive’ and was ‘disreputable conduct that was designed to make the aggrieved feel scared’.[61]
[61] Exhibit R1: G7, page 42.
·His victims have outlined lingering emotional and psychological issues stemming from his conduct.[62] Any future offending of a similar nature would have the potential to cause psychological or emotional injury and/or financial harm to members of the Australian community. Any risk of his reoffending in a similar nature is completely unacceptable.
[62] Exhibit R3: Tender Bundle 4, pages 144 and 186-187.
·There is insufficient evidence to support a conclusion that Mr Rowe is now rehabilitated. The Tribunal should instead conclude that the risk of his further offending is unacceptable. In this regard the following matters are relevant:
oIn 2019, Queensland Corrective Services (QCS) conducted a risk assessment which scored Mr Rowe as a 7 out of 20 for his risk of reoffending.[63] QCS also assessed him as having a high risk level as a domestic violence perpetrator in 2019. In that assessment, it was noted that the applicant was unwilling to attend counselling and believed he would not benefit from it.[64] During his most recent time in custody, QCS assessed Mr Rowe’s risk of reoffending, scoring his risk as 13 out of 22.[65]
oThe entirety of Mr Rowe’s criminal conduct has involved him engaging in forms of family violence with an intention to coerce and control his former partners. This pattern has occurred in two separate relationships. The applicant states that when his second relationship broke down in 2022, he was under extreme work stress, he had invested a lot of money to support his partner at the time and his father had died.[66] He provides a limited explanation regarding the circumstances of his first relationship which broke down in 2019. He states ‘[the applicant] was extremely hurt, felt disrespected, and resentment, about being lied to...’.[67]
oMr Rowe has provided a report dated 19 May 2023 from a psychologist, Mr Bruce Hamilton, which outlines Mr Rowe’s engagement with Mr Hamilton for three one-hour intervention sessions in May 2023.[68]
oMr Hamilton did not provide an expert assessment of Mr Rowe’s risk factors or treatment for such risk factors. While this demonstrates an engagement with rehabilitation, the Respondent contends that less weight should be given in circumstances where a central motivation of an applicant’s engagement with rehabilitation was to support his Visa application instead of a genuine desire to reform. Mr Hamilton’s report states that ‘He was referred for treatment with specific regard to his domestic violence offending, with an understanding that he was seeking to address his offending behaviour and obtain the option of remaining within Australia".[69] The history of Mr Rowe’s offending, imprisonment and detention means that the efficacy of his rehabilitation efforts has not been tested in the community.
oHe has also engaged in a range of online course, including a domestic violence course.[70]
oMr Rowe’s core explanation as to why he offended was that his decision-making process was affected by stress relating to his father’s November 2022 death and an extreme work commitment.[71] His sister stated that he was unable to see his sick father during the COVID-19 pandemic which contributed to his stress.[72] Mr Rowe began his offending before the 2020 pandemic and before his father died. The Respondent contends that this explanation is inadequate to account for his pre-2020 offending and should raise doubts about his insight and causes of his 2022 offending. In the absence of clinical insight into what causes Mr Rowe’s offending, the Tribunal should not be satisfied that he has adequately identified the factors influencing his offending and has taken appropriate steps to reduce his risk.
oDuring the supervision period for his 2019 offending, QCS highlighted that Mr Rowe had showed an unwillingness to engage with rehabilitation.[73] Mr Rowe resisted attending intervention throughout the order and reported his new relationship (his second victim) was going well at the time.
oTraditional protective factors are not present for Mr Rowe. His work cannot serve as a protective factor, as it was a central risk factor which significantly contributed to his offending. He has no family where he plans to reside and his group of friends should be treated cautiously given their threatened role in the ‘boys viewing party’.[74] Furthermore, while Mr Rowe has an existing domestic violence order active until 2028, it is the Respondent’s position that the previous orders have been ineffective in deterring Mr Rowe. His offer of $10,000 to the victim to get her to withdraw her complaint suggests a degree of awareness about the potential consequences of a further domestic violence order. [75]
oMr Rowe has expressed remorse on several occasions, but it is the Minister’s position that any remorse and insight should be treated cautiously.[76] He has displayed a complete disregard for what effect his actions have on his victims and he asserted in the 2019 QCS assessment that he did not believe his actions ‘constituted the Order being placed and denied that his actions would have caused distress to the victim’.[77] In this assessment, he characterised his conduct as an attempt to reconsider and recommence their relationship. This was alongside a consistent attempt to blame exterior factors via a break-up and work stress.
[63] Exhibit R3: Tender Bundle 5, page 225.
[64] Exhibit R3: Tender Bundle 5, page 221.
[65] Exhibit R3: Tender Bundle 5, page 216.
[66] Exhibit R1: G16, page 90.
[67] Exhibit R1: G16, page 89.
[68] Exhibit R1: G33, page 119.
[69] Ibid.
[70] Exhibit R1: G36, pages 281-287.
[71] Exhibit R1: G16, page 90.
[72] Exhibit R1: G36, page 164.
[73] Exhibit R3: Tender Bundle 5, page 221.
[74] Exhibit R1: G7, page 42.
[75] Exhibit R1: G7, page 43.
[76] Exhibit R1: G16, page 90.
[77] Exhibit R3: Tender Bundle 4, page 221.
Summarising the following additional contentions contained in Dr Donnelly’s Reply in relation to paragraph 8.1.2:[78]
[78] Exhibit A9.
·In relation to Mr Rowe’s motivation for undertaking rehabilitation, the distinction between intrinsic and extrinsic motivation is important, but it does not diminish the value of the rehabilitation efforts. His motivation to engage in rehabilitation, even if initially influenced by the desire to support his Visa application, does not negate the potential benefits of the rehabilitation process. The fact that he has taken concrete steps towards addressing the issues, regardless of the initial motivation, is itself commendable and indicative of a positive change in behaviour.
·The primary goal of rehabilitation is to bring about behavioural change and ensure compliance with societal norms. If Mr Rowe has successfully completed a rehabilitation program and demonstrated a change in behaviour, this is a positive outcome that serves the interests of both the individual and the community, irrespective of the initial motivation.
·Mr Hamilton’s report indicates that Mr Rowe was seeking to address his offending behaviour. This acknowledgement in a professional assessment should carry significant weight. The report does not explicitly state that the sole motivation for seeking treatment was Visa retention, rather it suggests a broader goal of addressing the offending behaviour.
·It is not uncommon for individuals to have multiple motivations for engaging in rehabilitation. The desire to remain in Australia could have been a catalyst for Mr Rowe to take the necessary steps towards reform. This does not necessarily detract from the genuineness of their efforts or the sincerity of their desire to reform.
·The focus should be on the outcomes of the rehabilitation and the potential for future conduct. If Mr Rowe has shown improvement and a lower likelihood of reoffending, these are the critical factors that should be weighed in assessing their rehabilitation efforts.
·Engaging in rehabilitation, regardless of the initial motivation, serves a preventive function. It demonstrates Mr Rowe’s willingness to comply with legal and social expectations and reduces the risk of future offenses.
·In conclusion, while the Respondent raises concerns about Mr Rowe’s motivations, the key consideration should be the effectiveness of the rehabilitation in bringing about behavioural change and reducing the risk of future offences. His engagement in the rehabilitation process, as evidenced by Mr Hamilton’s report, is a positive step towards this goal and should be given appropriate weight in assessing their case.
·The Respondent submitted as follows:[79]
[79] Exhibit R2: RSFIC, paragraph [35.4].
‘It is the Minister’s position that this explanation is inadequate to account for his pre-2020 offending and should raise doubts about his insight and causes of his 2022 offending. In the absence of clinical insight into what causes the applicant’s offending, the Tribunal should not be satisfied that the applicant has adequately identified the factors influencing his offending and has taken appropriate steps to reduce his risk.’
·The Tribunal now has the benefit of Dr Emily Kwok’s 31 January 2024 report.[80] Dr Kwok has opined that it is likely that Mr Rowe was suffering from Major Depressive Disorder with anxious distress at the time of his more recent criminal offences.
[80] Exhibit A8.
·It is contended that the Tribunal assign diminished weight to Mr Rowe’s recent criminal offences, in light of their association with his mental health concerns (the Mukiza contention). The Mukiza contention is not a prohibited consideration for the purposes of s501 CA(4)(b)(ii) of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR24 at 40.
·In Mukiza and Minister for Home Affairs (Migration) at [44], the Tribunal concluded:[81]
‘On that basis, it is proper to conclude, in accordance with well accepted principles of criminal justice, the criminal behaviour of a person who is affected by mental illness and whose mental health contributed to his offending in a material way, should be regarded as less culpable than an ordinary person so unaffected: R. v Hemsley [2004] NSWCCA 228 at [33] per Sperling J. The Tribunal takes the view that this is the proper approach to take when considering the seriousness of the Applicant’s offending.’
·The precedent set in Hemsley acknowledges that individuals affected by mental illness, who commit offences influenced by their condition, should be considered less culpable. Here, there is a real prospect Mr Rowe’s more recent offending was materially linked to his ongoing mental health issues.
·As Dr Kwok explained:[82]
‘Based on his pattern of emotional responses to stressors, it is likely that he was suffering from Major Depressive Disorder with anxious distress as defined by the Diagnostic and Statistical Manual of Mental Disorders - 5th Edition (DMS- V) at the time of his more recent criminal offences. He stated that his symptoms at the time also included significant weight loss, fatigue and loss of energy, and diminished ability to exercise rational thinking and judgement.’
Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were Mr Rowe to engage in further criminal or other serious conduct.
[81] Mukiza and Minister for Home Affairs (Migration) [2019] AATA 4445.
[82] Exhibit A8, at [88].
The Tribunal considers that the evidence before it demonstrates the nature of the harm to both the victims and the Australian community arising from Mr Rowe’s past offending is both significant and material.[83]
[83] See Exhibit R3: Tender Bundle 4, pages 186-187.
If Mr Rowe was to reoffend in the same manner as his past convictions for Distributing Intimate Images (between 20 February 2019 and 25 April 2019) and Threats to distribute intimate images or prohibited visual recording Domestic Violence Offence (on 9 November 2022), the nature of the resulting psychological and emotional harm and the consequences for affected individuals would be extremely serious and of likely indefinite duration. The secondary consequences of such offending in terms of counselling, policing and any court proceedings would have an impact on the Australian community.
Tribunal’s Finding: The nature of the harm to individuals or the Australian community were Mr Rowe to engage in further criminal or other serious conduct.
The Tribunal finds that further future criminal conduct of the categories Mr Rowe has previously engaged in could result in extremely serious and long-term psychological, emotional and financial harm for the likely victims and, to a lesser but still material extent, the Australian community.
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the parties’ contentions, oral testimony and documentary evidence addressing the likelihood of Mr Rowe engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s.501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[84]
[84] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (Baker), at 194 stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
(Emphasis added)
[86] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The Direction’s clear legislative intention is that the threshold is whether there is ‘a’ risk.[85]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[86]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[85] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’In Sabharwal the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[87] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, a finding that there was a risk of Mr Sabharwal re-offending.
[87] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575):[88]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Emphasis added)
[88] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[89]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[89] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, applying the reasoning described in Baker, Sabharwal and Guo to this matter, the Tribunal’s task is to assess whether there is “a risk” or a likelihood of Mr Rowe engaging in further future criminal or serious conduct.
In conducting this assessment, the Tribunal has the benefit of Dr Kwok’s 31 January 2024 report, the QCS September 2019 Risk of Re-Offending Assessment[90] and the QCS 1 March 2023 Risk of Re-Offending Assessment[91]. Chronologically, the 2019 QCS report scored Mr Rowe as 5 out of 20 in terms of his risk of re-offending, the 2023 QCS report scored him at 13 out of 22 with a high risk of perpetrating domestic violence[92] and Dr Kwok found that Mr Rowe presented with a moderate risk of reoffending that would reduce to a low risk if he followed and responded to a recommended treatment plan if he returned to the community.
[90] Exhibit R3: Tender Bundle 5, page 225.
[91] Exhibit R3: Tender Bundle 5, page 216.
[92] Exhibit R3: Tender Bundle 5, page 223.
A consideration of the risk or likelihood of Mr Rowe engaging in further criminal or serious conduct should encompass the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Conducting this analysis enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.
Factors that facilitate the risk
Based on the evidence and the contentions it appears to the Tribunal that while workload and personal stress (for example, his father’s November 2022 death) present as risk factors for Mr Rowe, they are relevant but not essential to his reoffending risk crystallising. His 2019 convictions demonstrate that he offended without these factors between December 2018 and March 2019.[93] This is supported by Dr Kwok’s observations:[94]
‘According to Mr Rowe, he committed the offences because he “was mentally exhausted” and was “not coping” with the separation, his partner entering a new relationship, his father’s death, and other work-related stressors. However, since Mr Rowe’s offending began before his father passed away, it is reasonable to suggest that other factors also contributed to his problematic behaviours. Among other similar offenders, some of the motives behind the threats and actual sharing of images include getting back at an ex partner for dumping them, proving status in the relationship, exposure of ex-partner, repairing their damaged sense of masculinity, desire for humiliation and degradation of the ex-partner, and desire for control over the ex-partner.’
[93] Transcript, page 25, line 45.
[94] Exhibit A8 at [80].
The witness statement from his former partner that was not contested in the Tribunal hearing suggests that he likes to take intimate images in a relationship:[95]
[95] Exhibit R3: Tender Bundle 4, pages 181 – 184; See also Exhibit R3: Tender Bundle 2, Agreed Facts, pages 8 – 10.
‘[5.] In October 2019 Andy [the Applicant] and I were engaged to be married. I proposed to him and he accepted. We jointly purchased the engagement ring.
[6.] I would routinely go to bed before Andy, because he liked to stay up late. One night I went to sleep and I was only sleeping fairly lightly. I heard the noise of a photograph being taken. I stirred and saw that Andy was taking a photograph of me whilst I was sleeping. I asked him what he was doing and he told me that I looked so beautiful whilst I was sleeping that he wanted a photo. I found this to be unusual, but believed him.
[7.] In 2020, our relationship changed in that Andy occasionally asked me for naked photos of myself. This gradually changed to the point where Andy expected me to walk around the house naked, where he could take photographs of me in this state whenever he wanted to. It became a feature of our relationship that Friday nights and Saturday nights were ‘naked nights’. Andy would purchase lingerie for me, and I was expected to model these items. Then he would expect me to parade naked before him, in front of his wood-fire, lounge and kitchen. He expected sex from me, and would take more photos of me and then us having sex together. I also knew from time to time that Andy would take videos of me in this state. He would make me hang out the washing whilst I was nude. There were a couple of times that he wanted me to cook whilst I was nude.
[8.] I spoke to Andy numerous times about these photos and videos, and asked him to delete them. He always told me that they were for his eyes only. He would often show me his phone, and I could see that they had been removed from his phone and digital camera. I did not know that prior to deleting them from his phone and camera that he had downloaded them to his Ipad(s) [sic].’
and
‘[13.] After about a month, Andy apologised to me and offered that I could come back to live with him until I found a place of my own. I accepted this offer and moved back into his place. Having said that, I did not take much in the way of property back to Andy’s place, because it was only going to be a short-term arrangement. This would have occurred roughly in November 2021.
[14.] Andy was not shy about demanding that I pose for more naked photos and videos as soon as I moved back in. I reluctantly gave in to him. I offered to pay rent to stay there, but he declined my offer. We slept in separate beds at opposite ends of the house.’
and
‘[20.] Andy still came to my place up until about my daughter’s wedding in April 2022. The last time that I went to his place was in May/June 2022. Our sex-life had dramatically decreased. We totally stopped having sex about May/June 2022. Andy was still holding it over my head that I owed him money and that the bank still had the title of his place for collateral for my home-loan. As I mentioned in paragraph 17, Andy communicated that he wanted me to send me nude photographs of myself via a series of emails and texts. Andy was angry that I didn’t make myself available for producing explicit 2 minute videos of myself.
[21.] A feature of Andy’s messages to me were his use of emojis. I knew that if Andy sent me emojis of glasses of beer, a tv, a fireplace, black 8 balls, a camera and a pair of round eyes, that what he meant was that he wanted to see me naked, take photos/videos of me whilst I was naked, drink alcohol and have sex.
[22.] Some strategies that I used (unsuccessfully) to deal with this were that I would send him old photos of myself, but he would then complain that he already had a photo of me with that particular pose and lingerie. Another strategy that I tried was by telling him that I was out with the girls and couldn’t communicate with him then. He walked to my place and saw that I was home and then he was very upset with me.’
The Tribunal questioned Dr Kwok about Mr Rowe’s behaviour in terms of releasing or threatening to release intimate images as follows:[96]
‘Tribunal: Appreciating this is going outside the scope of your report, and you’ve qualified your report appropriately, and I thank you for that, but would you consider that to be a form of coercive control?
Dr Kwok: It may be. It may be a form of him wanting to still have an element of control in situations where he felt he has lost his control.’
[96] Transcript, page 49, lines 41 – 45.
The Tribunal considers, based on this information, that the key risk factor for Mr Rowe is his entering into and being in an intimate relationship.
Mr Rowe addressed this risk factor in his oral testimony:
‘Dr Donnelly: What confidence can the tribunal have that you won’t commit further offences, particularly family violence-related offences?
Mr Rowe: Say that again, please.
Dr Donnelly: What confidence can you have – what confidence can the tribunal have that you won’t commit further offences if you’re returned to the community?
Mr Rowe: I will absolutely – there will not be any further domestic violence offences, there will be no further involvement with police full stop.
Dr Donnelly: Can you explain to the tribunal a bit more about that assertion? I mean, that’s your view, but what confidence can the tribunal have apart from your assertion of that?
Mr Rowe: My main aim is just to get back to work and get on with my – sort out my health, and my mental health. That is my main concern.’[97]
And
‘Mr Hawker: But you don’t intend to spend the rest of your life avoiding relationships. There’s a possibility that you might end up in a relationship in the future, correct?
Mr Rowe: I’ve got no intention of ever being in a relationship again.
Mr Hawker: But there’s a possibility that you might end up in a relationship?
Mr Rowe: No. It would be next to zero. I’ve got no interest now. I’m too old.
Mr Hawker: You accept, don’t you, that the evidence suggests that there is a risk that you’ll reoffend, on the current state of the material?
Mr Rowe: I believe there’s zero risk. There’s absolutely – there is no risk.
Mr Hawker: All right. So you don’t accept your own psychologist’s opinion?
Mr Rowe: No, I do. I accept her report, but I’m just saying from me personally, there is – it will never ever happen again.’[98]
[97] Transcript, page 6, lines 22-34.
[98] Transcript, page 35, lines 1-20.
The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be applied here.
The Tribunal has assessed Mr Rowe’s credibility above. It notes from the material before it that Mr Rowe has been in at least three relationships since he arrived in Australia. Combining these factors with the principle drawn from Guo above regarding past conduct, the Tribunal finds it plausible that Mr Rowe will again enter into an intimate relationship, despite his assertions in his oral testimony, and consequently recreate what has been identified as his key risk factor.
The Tribunal identifies, from the evidence and Dr Donnelly’s contentions in this matter two other interlinked risk factors involved in Mr Rowe’s offending – the impact of stress on Mr Rowe and his tendency to work long hours and for long periods without breaks. While Mr Rowe asserts that he will be more conscious of these factors in the future, there is no evidence to support his claim beyond his assertion. To the contrary, Mr Rowe made it clear in his oral testimony regarding his work that from since Christmas 2013 until presumably his imprisonment he worked seven days a week.[99] As noted above, the Tribunal found Mr Rowe most credible when he was giving oral testimony about his businesses and his work.
[99] Transcript, page 9, lines 4-10.
Factors that hinder or retard the risk – Rehabilitation, Remorse and Risk Management Factors
Mr Rowe provided oral testimony and presented extensive documentary evidence[100] asserting the extent and nature of his rehabilitation, his enrolment in or undertaking rehabilitation courses[101] and his expressions of remorse about his offending:
[100] Exhibit A3.
[101] Ibid.
‘Dr Donnelly: All right. And what has life been like for you in Pinkenba the detention centre?
Mr Rowe: Very restrictive, but I have done a lot of courses and rehabilitated since I’ve been in here.
Dr Donnelly: All right. Well, let’s turn to those briefly. So at paragraph 9 to 15 of your statement, you refer to a number of the programs that you’ve undertaken. Now I just want you to bring that up on your laptop or iPad there. Let me know when you’ve done that, Mr Rowe?
Mr Rowe: Yes. My statement?
Dr Donnelly: Yes. Paragraph 9. So there’s reference to completing – sorry – participating in the Family Violence Foundation program and there’s also reference to the IDAS at paragraph 10, it’s basic awareness online training. And some other courses that are family violence-based. What brought you to do these rehabilitation program?
Mr Rowe: I just realised that I needed to change, my whole outlook needs to change. I need to show more consideration for others and more empathy to make sure I don’t repeat, which I won’t, I will not repeat the same – make the same mistake again.
Dr Donnelly: So can you tell the tribunal what, if anything, you learned from these family violence programs?
Mr Rowe: Why I did them?
Dr Donnelly: No. What, if anything, did you learn from these family violence programs that you completed?
Mr Rowe: Just to show more empathy, more consideration and more respect. And have concerns for other people.
Dr Donnelly: When you say (audio malfunction) are you referring to a particular kind of people, are you referring to (audio malfunction)?
Mr Rowe: What was that sorry?
Dr Donnelly: When you refer to show more empathy, more respect - - -?
Mr Rowe: Yes.
Dr Donnelly: Is that – give me some more context to that, what are you referring to?
Mr Rowe: Just have more consideration for other people, show them the respect that they deserve.
Dr Donnelly: (Audio malfunction)?---(Audio malfunction) go on.
Dr Donnelly: Sorry, go on, I missed that?
Mr Rowe: I just want to make this the turning point in my life.
Dr Donnelly: How many programs do you think you’ve done in immigration detention?
Mr Rowe: Since I’ve been in detention?
Dr Donnelly: Yes?
Mr Rowe: Overall, it’s about 25 or 26.
Dr Donnelly: And this is – in what area, what (audio malfunction) sort of rehabilitation have you been doing?
Mr Rowe: What sort of rehabilitation?
Dr Donnelly: Yes?
Mr Rowe: The majority are domestic violence, but also listening skills, there’s plenty of them. Hang on, I can get them out.
Dr Donnelly: No. I don’t want you off the phone, that’s fine. So let’s just come back to the listening skills, what was the listening skills program about?
Mr Rowe: Just about taking other people’s considerations into thought before you make your own up and go in the wrong direction.
Dr Donnelly: All right. Tell the tribunal how much time you think you’ve spent on rehabilitation in detention in terms of days or months or hours?
Mr Rowe: On rehabilitation alone?
Dr Donnelly: Yes?
Mr Rowe: It would be months, literally months. Because some of the courses are two and a half hours, some are eight hours, but fitting that in along with activities, yes, it takes a long time to do them.’[102]
[102] Transcript, page 4, line 32 – page 5, line 46.
Summarising the Respondent’s contentions for consideration:[189]
·Mr Rowe is 52 years of age and has declared in the past that he suffers from hyperthyroidism.[190] There is nothing to suggest that he would not have access to adequate medical treatment in the United Kingdom.
·While Mr Rowe may face some difficulty in re-establishing himself in the United Kingdom due to his residence in Australia, this would only present as a short-term hardship and would not preclude resettlement.
·There are no substantial language or cultural barriers for him to overcome.
·As a United Kingdom citizen, he has the same access to social, medical and economic support as other United Kingdom citizens.
·He was born and grew up in the United Kingdom and so it cannot be said that it is a country unfamiliar to him. He has also declared that he has some family members living in the United Kingdom, including his mother and brother.[191]
·Mr Rowe contends that the United Kingdom job market is not suited for him and he would struggle at his age to find employment. It is the Respondent’s position that Mr Rowe holds a useful trade qualification as a hydraulic fitter and has experience in that position, as a business owner and previously as a mechanic. Despite his age, he holds qualifications, skills and experience that will remain useful in the United Kingdom.
·The Respondent contends that any difficulties Mr Rowe may face in re establishing himself in the United Kingdom would be temporary and he would be able to establish and maintain a basic living standard. This consideration does not weigh either for nor against revocation and should be of neutral weight in the Tribunal’s decision.
[189] Exhibit R2: Paragraphs [66] – [70].
[190] Exhibit R1: G13, page 75.
[191] Exhibit R1: G13, page 72.
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Rowe, if removed from Australia to the United Kingdom, will face in establishing himself and maintaining basic living standards, while taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Rowe is 52 years old.
As stated by both parties, Mr Rowe suffers from hyperthyroidism. This condition is treated globally with antithyroid drugs, with carbimazole mainly used in the United Kingdom.[192]
[192] See Bartalena, L., Piantanida, E., Gallo, D., Ippolito, S., & Tanda, M. L. (2022). Management of Graves’ hyperthyroidism: present and future. Expert Review of Endocrinology & Metabolism, 17(2), 153-166 and page 154.
In his oral testimony, Mr Rowe stated that he suffers from arthritis. This was not contested but neither is there any supporting documentary evidence about his condition in this respect.[193]
[193] Transcript, page 10, line 47.
Dr Kwok’s assessment of Mr Rowe found that he experiences a broad range of psychological problems in the face of stressors. This includes an extremely high level of depression and anxiety, feelings of personal inadequacy, sense of devalued self-worth and intrusive distressing thoughts. She stated that cognitive behavioural therapy is an effective treatment for Mr Rowe’s condition. In response to the question posed to her and addressed in her report as to the likely impact on Mr Rowe’s mental health if he was removed from Australia, Dr Kwok observed that mental health services, including free services, are available across the United Kingdom through charities, private companies and not-for-profit organisations. She qualified this by taking into consideration that Mister Rowe will have competing priorities in the United Kingdom such as finding accommodation and employment which may interfere with his motivation to organise treatment.[194]
[194] Exhibit A8: Paragraphs [88], [91] and [95].
Mr Rowe said in his 29 December 2023 statement that:[195]
‘In addition to my professional and personal goals, I am focused on working on my health. I recognise that a healthy lifestyle is essential for my well-being and my ability to contribute positively to the community. This includes engaging in regular physical activity, maintaining a balanced diet, and ensuring that I attend to my mental health needs.’
[195] Exhibit A1: Paragraph [39].
He stated in oral testimony that his mental health was a priority for him:[196]
‘Dr Donnelly: All right. Well, let me put this proposition to you, obviously, it appears you have a good employment history in Australia, Mr Rowe, but the tribunal might be concerned that well, you’re going to go back to work, you might work crazy hours again, and your mental health could deteriorate, and you could engage in further criminal offending. How would you respond to that proposition?
Mr Rowe: Now what – being around my friends my whole – my whole life now is work and my health and that’s it, just solely my work, my house, my health and that’s my body health and mental health.’
[196] Transcript, page 13, lines 30-37.
Mr Rowe testified as to his personal assets:[197]
[197] Transcript, page 18, lines 1-38.
‘Mr Hawker: And you’ve accumulated machinery which is of some worth, $300,000 to $400,000 worth of machinery?
Mr Rowe: Yes.
Mr Hawker: And you own your own house?
Mr Rowe: Yes.
Mr Hawker: You’ve paid that off?
Mr Rowe: Yes.
Mr Hawker: You’ve got no mortgage on your house?
Mr Rowe: No.
Mr Hawker: You also say in some of the material that you own all your vehicles, and you say approximately nine vehicles?
Mr Rowe: I did have. I’ve sold some.
Mr Hawker: How many have you sold, and how many do you still have?
Mr Rowe: One, two, three – I’ve still got three road vehicles, road registered, and the rest I’ve – the excavators and stuff I’ve deregistered because they’re just parked in the shed, even though they were a concessional rego anyway.
Mr Hawker: And when you say three road vehicles, can you explain to the tribunal what they are, what you mean by three road vehicles?
Mr Rowe: I’ve got my truck that I use for the hydraulic business. I’ve got the ute, my personal ute, and I’ve got a classic car.
Mr Hawker: Okay. What would you say the total worth of those vehicles are?
Mr Rowe: Only – I don’t know, maybe a couple hundred thousand (indistinct).
Mr Hawker: And that’s on top of the three to four hundred thousand worth of machinery?
Mr Rowe: No, that price include my hydraulic truck with the work machinery.
Mr Hawker: All right, so what would you ‑ ‑ ‑?
Mr Rowe: (Indistinct) the car – my classic car and the ute is probably, I don’t know, couple hundred thousand.
Mr Hawker: All right. What do you value the current value of the house that you own at?
Mr Rowe: I haven’t – I’ve never had it valued to be honest with you. I know what I paid for it back in 2016.
Mr Hawker: How much did you pay in 2016?
Mr Rowe: Four sixty eight.’
The Tribunal concludes, after looking holistically at the available evidence of Mr Rowe’s general state of health in the past and currently, that he does not appear to suffer from any chronic physical health issue that would currently impede his ability to re-settle, then achieve and maintain basic living standards in the United Kingdom.
Dr Kwok has identified his mental health issues and Mr Rowe has stated that these are a priority for him. Despite its findings about his general credibility, the Tribunal is inclined to accept his testimony, at least in aspirational terms, in this respect.
Given his mental health history and acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs,[198] the Tribunal considers that Mr Rowe faces a risk that the stresses and emotional hardships he will likely face if removed to the United Kingdom could cause mental health issues. Balanced against this risk is that Mr Rowe, as a United Kingdom citizen, can avail himself of the same level of mental health care as other UK citizens. His personal assets also offer the likelihood that he can afford to pay for additional mental health care and treatment given the priority he places on this aspect of his life, notwithstanding his oral testimony that his mental health would probably deteriorate in the United Kingdom due to waiting times.[199]
[198] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
[199] Transcript, page 11, lines 25-26.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that, based on the evidence and material before it, Mr Rowe will face few to no linguistic barriers in returning to the United Kingdom.
The Tribunal also considers that Mr Rowe is unlikely to face significant cultural issues for the same reason. The Tribunal acknowledges Mr Rowe’s contentions of emotional distress but observes that these are more personal than cultural.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence and material before it, Mr Rowe would have medical, social and economic support available to him.
In terms of medical support and addressing the potential for Mr Rowe’s mental health to become an impediment, the Tribunal again acknowledges the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs.[200]
[200] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
The Tribunal must consider both Mr Rowe’s health as broadly construed, and any social, medical and/or economic support available to him in the United Kingdom if he is returned there. Quoting from Justice Colvin’s decision in Holloway:[201]
‘Used in the phrase 'age and health', the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health.’
and
‘The error by the Tribunal was to confine the term 'health' to only include currently manifested health issues and difficulties.’[202]
and
‘Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment.’[203]
[201] Op.cit. [12].
[202] Ibid, [13].
[203] Ibid, [15].
Mr Rowe has identified his mental health as a priority, Dr Kwok has offered suggestions as to what he should do and what treatments to seek and, if returned to the United Kingdom, Mr Rowe can avail himself of the United Kingdom’s health system to address his mental health. As observed above, there is also the likelihood that he can afford to pay for additional mental health care and treatment if he wishes.
Mr Rowe’s social support situation if returned to the UK are more problematic. The Tribunal notes the evidence of an estranged relationship with his brother and the concerns of Mr Rowe and his sister over his mother’s health. Balanced against these issues are the Direction’s qualification in terms of establishing himself and maintaining basic living standards in the context of what is generally available to other United Kingdom citizens, his likely personal financial resources, and the combination of training expertise and experience that will enable him to earn a living.
Addressing the economic aspects of Mr Rowe’s return to the United Kingdom and establishing himself there, the Tribunal heard evidence regarding his well-regarded expertise in hydraulic repairs, his work ethic, his commendable approach to customer service, his fabricating of hydraulic parts when spares are not like widely available[204] and his experience and expertise in working with high pressure hydraulic systems.[205] Even if he is unable to start his own business again in the United Kingdom, his training experience and expertise are more likely than not to assure him of employment given the sophisticated nature of the UK economy and the likely usage of hydraulic equipment within it.
[204] Transcript, page 7, lines 19-36.
[205] Transcript, page 36, lines 12-31. Relevant ISO standards (18752, 19385 and 22547) indicate that 10,000 PSI hydraulic systems are considered to be high pressure.
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal considers and finds that Mr Rowe would face varying levels of emotional, practical, financial and medical hardship over the short-term if he was returned to the United Kingdom, achieved a basic standard of living and re-established himself there.
While there are risks that these difficulties and hardship may affect Mr Rowe’s mental health, the Tribunal considers that his stated focus on improving his mental health and his unquestioned business and technical skills are dynamic protective risk management factors that mitigate and manage these risks if he is returned to the United Kingdom.
The Tribunal finds that this consideration carries a moderate weight in favour of revocation of the Visa cancellation decision.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
‘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.’
Tribunal finding: Other Consideration (c): Impact on victims.
The parties submit that there is nothing before the Tribunal that enlivens this consideration. The Tribunal agrees with these submissions.
Consequently, the Tribunal finds that this Other Consideration (c) carries neutral weight.
Other consideration (d) Impact on Australian business interests if Mr Rowe cannot remain here.
Paragraph 9.4 (1) compels an assessment of Mr Rowe’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”, qualified by the words that ‘an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
Summarising Dr Donnelly’s contentions in regard to this consideration:[206]
·A decision against revocation would preclude Mr Rowe from resuming operations of his hydraulic fitting and earthmoving businesses in Australia.
·Reinstating Mr Rowe's businesses would yield significant positive impacts on the Australian community, including the potential for job creation for Australian residents, contributions to the Australian economy, and advantageous outcomes for the construction sector in Queensland (the business interests’ contention).
·The business interests’ contention is expressed as another reason [an Additional Consideration] to revoke the mandatory cancellation decision, regardless of whether it falls strictly within clause 9.4(1) of Direction 99.
·The business interests’ contention is not an irrelevant consideration for the purposes of s 501CA(4)(b)(ii) of the Act.[207]
[206] Exhibit A2: Applicant’s Reply, Paragraphs [25] – [26].
[207] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. See further Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA1179.
Summarising the Respondent’s contentions in regard to this consideration:
·The making of a decision preventing Mr Rowe from returning to the Australian labour market would not significantly compromise the delivery of a major project or an important service in Australia.
·While Mr Rowe has worked in several different jobs in Australia, his skills and experience are not such that his unavailability as a potential employee would have an adverse impact on Australian business interests more broadly.
·This other consideration should be assigned neutral weight.
In their closing submissions, both Dr Donnelly and Mr Hawker elaborated on these contentions at the Tribunal’s request.
Summarising Dr Donnelly’s closing arguments and incorporating the oral testimony he cites:
·The Tribunal should have regard to His Honour Justice Rangiah’s decision in Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [68]-[69], emphasising that the requirement in this consideration is to consider any impact on Australian business interests.[208]
[208] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311.
·Mr Rowe’s business interests come under this other consideration (d) as well as constituting an additional consideration.
·He has his hydraulic business and his earthmoving business.
·There are several specific and pertinent aspects to Mr Rowe’s hydraulic business:
oMr Rowe fabricates hydraulic parts that are otherwise unavailable in order to return imported machinery to working order.
oHe works on and repairs high pressure hydraulic systems that no other businesses in the Hervey Bay region are willing to work on, as stated by Mr Goulding’s testimony. Customers now seeking these skills now travel to Brisbane, some four hours away by road.
oHe has a strong sense of customer service and works hard.
oMr Goulding described Mr Rowe as a ‘one stop shop’.[209]
[209] Transcript, page 59, line 21.
oMr Jones gave the following oral testimony in cross-examination:[210]
[210] Transcript, page 66, line 31 – page 67, line 6.
‘Mr Hawker: Thank you. Sorry, Mr Jones. I was just saying, so Mark Goulding was telling us about customers at the moment asking about when Mr Rowe is coming back and what they do in the meantime using the other companies at the moment for what they absolutely need to have done that are keeping some of the other workers - - -?
Mr Jones: Yes.
Mr Hawker: Isn’t perhaps as urgent on the hope that Mr Rowe comes back. Do you interact with customers in the area or - - -?
Mr Jones: Yes, I have seen that.
Mr Hawker: Yes, you’ve heard that?
Mr Jones: No, I don’t really do a lot of – react with a lot of the customers, but I have heard a lot of them are waiting for Andy to come back.
Mr Hawker: Yes?
Mr Jones: Yes.
Mr Hawker: We were just asking Mark Goulding about, if he doesn’t come back, if he has to go to UK, whether he sees it is an area where the other companies will step in and essentially make a market for themselves. Do you interact with these companies that have been helping some of Mr Rowe’s other customers, or that’s not something that - - -?
Mr Jones: No.
Mr Hawker: You don’t speak to those companies?
Mr Jones: No, no. I try to keep to myself and the people around me.’
Summarising Mr Hawker’s closing arguments:
·Mr Rowe has the two businesses which are not currently operating. His account of the role and importance of these businesses was exaggerated. The more useful, more objective account comes from his former employees.
·Of the two former employees, Mr Goulding’s evidence on this point should be preferred over Mr Jones’ evidence as the latter is a drive-in, drive-out individual.
·Mr Goulding’s evidence is to the effect that there are people who are interested to know if Mr Rowe is coming back to the community. There are a number of untested statements to the same effect in evidence.[211] Mr Rowe’s businesses can be characterised by his work ethic and service levels. Notwithstanding this, Mr Goulding’s evidence in terms of impact of business interests, is that there are other companies that are stepping in to address the need for the services Mr Rowe’s businesses offered. This is an area where conceptually they can then grow their business.
·It should not be the case that someone can be engaged in very serious criminal conduct and leave women threatened or frightened in the Australian community, engage in family violence and then come to the Tribunal and say, ‘I have another reason why my visa cancellation should be revoked. Because I have a business, and it’s been a successful business’. This is particularly so when a former staff member gives evidence that other businesses are helping out the customers or can step in to offer similar services.
·The Tribunal should note that Mr Goulding has now found other employment.
[211] Exhibit R1: G Documents.
In addressing this consideration, the Tribunal acknowledges His Honour Justice Rangiah’s decision in Arachchi at [68]-[70]:[212]
‘[68] Paragraph 9.4.2 of Direction 90 commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia …”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.
[69] Paragraph 9.4.2 goes on to state that, “an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. Three observations may be made. First, this qualification applies only where there is a relevant “employment link”. Second, even where there is a relevant “employment link”, decision-makers are not relieved from their obligation to consider any impacts on Australian business interests. Third, while “generally” weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances.
[70] The expression “employment link” must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa. It is unnecessary, in the absence of argument, to consider precisely what is meant by “employment” in this context, or to consider the nature of the link that is envisaged. It is enough to conclude that, in the present case, the applicant’s claim was not confined to any “employment link” but was that he had an ownership interest in a business and that his removal from Australia would affect his partner’s business interests.’
[212] Op.cit.
The parties also cited the Federal Court decisions of Tonga v Minister for Immigration, Citizenship and Multicultural Affairs and JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs.[213]
[213] Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179; JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168.
In assessing this consideration, the Tribunal notes (in no particular order), Mr Rowe’s skill in fabricating parts for imported hydraulic equipment when spare parts are not readily available,[214] his service ethic, his clear expertise in working with high pressure hydraulic systems[215] and the likely relative importance of these characteristics in a regional economy where commercial fishing and earthmoving are relevant industries.
[214] Transcript, page 7, lines 19-36.
[215] Transcript, page 36, lines 12-31. Relevant ISO standards (18752, 19385 and 22547) indicate that 10,000 PSI hydraulic systems are considered to be high pressure.
The Tribunal considers that a decision to affirm Mr Rowe’s Visa cancellation decision will impact on Australian business interests in different ways, assuming that such a decision will cause Mr Rowe to permanently close his hydraulics and earthmoving businesses. It is relevant to emphasise at this juncture that both businesses are presently not operating.
First, the Tribunal finds that Mr Rowe’s two businesses should be distinguished. Earthmoving, as attested to in Mr Goulding’s oral testimony, continues whether Mr Rowe’s business is operating or not.[216] The Tribunal considers and finds that the impact on Australian business interests of this business ceasing if a decision to affirm Mr Rowe’s Visa cancellation decision is made is minimal.
[216] Transcript, page 59, lines 38 – 44.
The testimony of Mr Goulding and Mr Jones indicates that the absence of Mr Rowe’s hydraulic business has led some customers to hold off seeking repairs, others to take their business to Brisbane and for some competitors to increase their services. This testimony aligns with the expected operation of general market economics around the supply and demand of services and goods.
Turning to Dr Donnelly’s business interests’ contention, the Tribunal understands the contention to be that if the Tribunal sets aside the Visa cancellation decision, Mr Rowe would put his businesses back into operation. This would result in significant positive impacts on the Australian community, including the potential for job creation for Australian residents, contributions to the Australian economy, and advantageous outcomes for the construction sector in Queensland.
The Tribunal considers that this contention does not apply well in terms of the earthmoving business. Earthmoving is somewhat fungible and there was no evidence before the Tribunal to the effect that earthmoving operations in the Hervey Bay region had ceased. Mr Goulding gave oral testimony to the contrary.[217]
[217] Transcript, page 59, lines 38-44.
The Tribunal considers that the impact on Australian business interests of the hydraulic repair and servicing business ceasing if a decision to affirm Mr Rowe’s Visa cancellation decision is made is more complex than that of the earthmoving business. In the short-term, as the situation is now with the business not operating, customers will hold back or seek alternatives until the situation resolves.[218] This state of affairs represents, to some extent, a negative impact on Australian business interests that used Mr Rowe’s services in line with Dr Donnelly’s business interests’ contention. Put simply, prices and availability of hydraulic services in the Hervey Bay region will likely already have changed and will continue to change in part due to the absence of Mr Rowe. But the price of a service or goods is a signal wrapped in information. Competitors will see the signal and decide whether to enter and fully commit to the market to replace Mr Rowe over the medium to long-term if a decision to affirm Mr Rowe’s Visa cancellation decision is made. Simple market economics suggest demand will be met with supply. As Mr Hawker observed, this is a net positive impact for Australian business interests.
[218] See transcript, Mr Goulding, page 58, line 45 – page 59, line 36.
The Tribunal finds, upon consideration, that the impact on Australian business interests from Mr Rowe’s earthmoving business ceasing if he is returned to the United Kingdom is minimal. It further finds that there will likely be a short-term impact on Australian business interests if Mr Rowe’s hydraulic repair and servicing business ceases.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Rowe cannot remain here.
This consideration provides a slight weight in favour of setting aside the Visa cancellation decision.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
·Other Consideration (a) – legal consequences of the decision:
oThis consideration has neutral weight.
·Other Consideration (b) - extent of impediments if removed:
oThis consideration has a moderate weight in favour of revocation.
·Other Consideration (c) - impact on victims:
oThis consideration has neutral weight.
·Other Consideration (d) – Impacts on Australian business interests:
oThis consideration has a slight weight in favour of revocation.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[219]
[219] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
Dr Donnelly has contended (the business interests’ contention) that setting aside the Visa cancellation decision would yield significant positive impacts on the Australian community, including the potential for job creation for Australian residents, contributions to the Australian economy, and advantageous outcomes for the construction sector in Queensland. Dr Donnelly further submitted that this constitutes an additional consideration that the Tribunal should assess.
To the extent that there are distinguishing circumstances around the potential future impact on Australian business interests of Mr Rowe’s recommencing business operations (as the businesses are currently not operating) if he is allowed to remain in Australia and that these create an additional consideration, the Tribunal considers that its analysis of the business interests and their impact on Australian business interests above under other consideration (d) can be applied to this additional consideration.
In addressing this additional consideration, the Tribunal also has regard to the following comments by the High Court in Viane at [28]:[220]
‘… Secondly, representations may be received which are no more than bare assertions about a course of future events. The Minister may simply not be persuaded that such assertions can constitute "another reason" for revocation. Such a conclusion does not require the Minister to make any factual findings.’
[220] Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41.
The suggested significant positive impacts would also likely result from Mr Rowe returning to the United Kingdom and Australian business interests moving to address his customer base once he had permanently left the market.
This additional consideration has neutral weight.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Rowe does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
·Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
oThis consideration weighs very heavily and substantively in favour of affirming the delegate’s decision not to revoke Mr Rowe’s mandatory Visa cancellation.
·Primary Consideration 2 - whether the conduct engaged in constituted family violence:
oThis consideration weighs very heavily and substantively in favour of affirming the delegate’s decision not to revoke Mr Rowe’s mandatory Visa cancellation.
·Primary Consideration 3 - the strength, nature and duration of ties to Australia:
oThis consideration carries a significantlevel of weight in favour of setting aside the delegate’s decision not to revoke Mr Rowe’s mandatory Visa cancellation.
·Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
oThis consideration carries a moderate weight in favour of setting aside the delegate’s decision not to revoke Mr Rowe’s mandatory Visa cancellation.
·Primary Consideration 5 – expectations of the Australian Community:
oThis consideration carries significant and material weight in favour of affirming the delegate’s decision not to revoke Mr Rowe’s Visa cancellation.
·Additional Consideration
oThe additional consideration has neutral weight.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
The Tribunal has assessed and considered the weights it has applied, applying the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[221]
‘[21] The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[221] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
A comprehensive, holistic and integrated view of the weights allocated to the Primary considerations, the Other considerations and the Additional consideration leads this Tribunal to a finding that the weights allocated to Primary Considerations 1, 2 and 5 outweigh the weights allocated to Primary Considerations 3 and 4 and Other Considerations (b) and (d). This led the Tribunal to be satisfied of there not being another reason to revoke the mandatory cancellation of the Applicant’s Visa. Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Mr Rowe’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 28 November 2023 to not revoke the cancellation of Mr Rowe’s visa.
I certify that the preceding two hundred and eighty-three paragraphs (283) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
........[SGD].....
Associate
Dated: 5 April 2024
Dates of hearing: 7 and 9 February 2024 Counsel for the Applicant: Dr Jason Donnelly (Direct brief)
Latham Chambers
Solicitor for the Respondent:
Mr Matthew Hawker (Partner)
Sparke Helmore Lawyers
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT SUBMISSIONS
R1
Section 501G documents
Various
11.12.2023
R2
Statement of Facts, Issues and Contentions (‘RSFIC’)
18.01.2024
18.01.2024
R3
Tender bundle
Various
18.01.2024
APPLICANT SUBMISSIONS
A1
Applicant’s statement
29.12.2023
9.01.2024
A2
Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’)
28.12.2023
9.01.2024
A3
Applicant’s Tender Bundle Part 1
Various
9.01.2024
A4
Statement from Angela Wendy Miller
29.12.2023
9.01.2024
A5
Statement from Ms. Evelyne Goulding
29.12.2023
9.01.2024
A6
Statement from Mr. Mark Goulding
29.12.2023
9.01.2024
A7
Statement from Mr. Steve Jones
29.12.2023
9.01.2024
A8
Report by Dr Emily Kwok
31.01.2024
2.02.2024
A9
Applicant’s reply to Respondent’s SFIC
2.02.2024
2.02.2024
ANNEXURE B: SHORT FORM DECISION
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2023/8963 GENERAL DIVISION ) Re: Andrew Rowe
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Member D. Cosgrave
DATE: 19 February 2024
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 28 November 2023 not to revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
….......[SGD]................
Member D Cosgrave
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