RPQB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3192
•3 October 2022
RPQB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3192 (3 October 2022)
Division:GENERAL DIVISION
File Number: 2020/4849
Re:RPQB
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Deputy President Britten-Jones
Date:3 October 2022
Place:Melbourne
The decision of the Tribunal is to affirm the decision made on 6 August 2020 to not revoke the mandatory cancellation decision dated 1 March 2019.
....[sgd]....................................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – convictions for domestic violence – whether there is ‘another reason’ to revoke mandatory cancellation decision – applicant has strong links to the Australian community and would face significant impediments and serious risk of harm if removed to Somalia – the primary considerations of the protection and expectations of the Australian community outweigh the countervailing considerations - the decision under review is affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
3 October 2022
This application arises from a decision of the Federal Court of Australia remitting an earlier decision of the Tribunal for re-hearing due to jurisdictional error. It is the second time that the Federal Court has set aside the decision of the Tribunal with respect to this applicant.
The original decision (the non-revocation decision) which is the subject of this review application was made by a delegate of the Minister on 6 August 2020 pursuant to s 501CA(4) of the Migration Act 1958 (Cth).[1] The delegate decided not to revoke the mandatory cancellation of the applicant’s Refugee (Class XB) (Subclass) visa (the visa). The mandatory cancellation of the visa (the cancellation decision) was made on 1 March 2019 under s 501(3A).
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The applicant seeks again to set aside the non-revocation decision and to substitute it with a decision that the cancellation decision be revoked. This would have the effect of reinstating his visa and allow him to be released from detention.
Legislative Framework
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that “another reason” exists is an evaluative exercise and might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia; and
(iv)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims; and
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia; and
b)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
SOME BACKGROUND FACTS[7]
[6] Direction 90 at 7.
[7] These facts are not contentious and are derived from the applicant’s Statement of Facts, Issues and Contentions dated 15 August 2022.
The applicant was born in Somalia in 1997 and fled with his mother, stepfather and older brother to a refugee camp in Eritrea when he was about two years old. The applicant does not have any memories of nor a relationship with his biological father and considers his stepfather to be his father.
After fleeing Somalia, the applicant spent approximately 11 to 12 years living in a refugee camp in Eritrea. Life was extremely difficult for the applicant as a child in the refugee camp and resulted in the applicant being exposed to both violence and trauma.
The applicant resettled in Australia as a refugee in June 2011 with his mother and stepfather and has remained in Australia since. The applicant got married but has since separated from his wife. The applicant’s older brother migrated to Australia in 2017 after leaving the refugee camp earlier in an attempt to support the family. The applicant’s older brother is married and has five Australian children.
The applicant’s son, mother, brother, sister-in-law and five nieces and nephews currently reside in Australia. He has no meaningful connections to any country other than Australia. He has no knowledge or experience of living in Somalia due to leaving the country as an infant. The only relatives the applicant understands live in Somalia is his elderly aunt, with whom the applicant does not have contact, and presumably his biological father, with whom the applicant has never had a relationship or contact.
The applicant’s mother and stepfather separated after coming to Australia due to domestic violence. The applicant has a very close relationship with his elderly mother who has been experiencing health issues and he intends to care for her upon his release.
The applicant’s son was born in Australia and is five years old. Prior to 2022, his son was being cared for by the applicant’s mother and the son’s biological mother. In 2022, the applicant’s mother has taken primary responsibility for caring for the son.
CRIMINAL HISTORY AND WARNINGS
The report of the applicant’s criminal history[8] records many offences committed from 2014 to 2018, including numerous contraventions of domestic violence orders, the first of which was on 4 April 2014.
[8] Exhibit 2, Respondent’s Tender Bundle, RB6, pp 33 to 37.
On 28 July 2015, the applicant was convicted of 12 charges including contraventions of domestic violence orders, assault occasioning bodily harm, driving unlicensed, fraud and stealing. The sentencing Magistrate described the breach of the domestic violence order as “serious” and imposed a four-month prison sentence. The assault was described as “particularly violent” and a 12-month prison sentence was imposed. The Magistrate said to the applicant that if he was fair dinkum about changing his ways and looking after his mother then he would change his behaviour when released.[9] The applicant promised the Magistrate that he would change his behaviour.
[9] Respondent’s Tender Bundle, RB9, page 55.
On 8 October 2015, the applicant’s visa was cancelled under s 501(3A) and he was placed in detention. That decision was later revoked on 20 September 2016 with a warning that “this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you”.[10]
[10] Respondent’s Tender Bundle, RB18, page 85.
On 23 March 2016, the applicant was convicted on a guilty plea of numerous charges including a breach of a probation order, going armed so as to cause fear, wilful damage, contravention of domestic violence order and stealing. The sentencing Magistrate noted that he destroyed an innocent person’s property chasing a person into their store and smashing everything up which “hurt them very much and frightened them very much”.[11] It was described as very serious behaviour. With respect to the domestic violence, the Magistrate said that it was a serious way that the applicant had behaved to his girlfriend and noted that “you did not treat her well”.[12] A sentence of six months imprisonment was imposed.
[11] Respondent’s Tender Bundle, RB8, page 45.
[12] Respondent’s Tender Bundle, RB8, page 47.
On 29 August 2018, the applicant was convicted in the Brisbane District Court of assault occasioning bodily harm, a domestic violence offence, and was sentenced to a term of 18 months imprisonment. The offending was committed on 30 April 2017 against the applicant’s wife who was 21 years of age and pregnant at the time. The applicant was taken into custody that night where he remained until 3 October 2017. The circumstances of the offending were described by the sentencing judge:
“…the offences arose in the context of what started off as a verbal argument … She tried to leave the house. You told her to go to the living room. You approached her and punched her to the face. She also at that time felt some pain to her stomach and obviously felt a movement, as she described it, in her left eye. Count 4 arose in the context of – the common assault that followed was that you slapped her to the face and spat in her face. You told her to go to the bedroom, and she was apologising to you. And, ultimately, not long after another verbal exchange, she packed up and ultimately left.
Police and ambulance arrived. They noticed, amongst other things, severe swelling and bruising to the left side of her face as well as bruising to her arms.”[13]
[13] Respondent’s Tender Bundle, RB7, page 39.
On 10 December 2018, the applicant was convicted in the Brisbane Magistrates Court of stealing, assault or obstruct a police officer, contravention of domestic violence order (aggravated offence) and wilful damage domestic violence offence. He was sentenced to nine months imprisonment.
On 19 March 2019, in the District Court of Queensland, the applicant was convicted of assault occasioning bodily harm and sentenced to 12 months imprisonment. That offence occurred on 4 November 2017 and involved alcohol. The sentencing judge said:
“I sentence you on the basis that it was initially a consensual fight but once the complainant was incapacitated on the ground, you delivered a number of blows to him which caused bodily harm. In my view that makes this offence serious in that it was an attack on an unconscious person and, as I said to your barrister, you are lucky that you did not cause more serious injuries.”[14]
[14] Respondent’s Tender Bundle, RB32, page 325.
The assault on 4 November 2017 took place only one month after the applicant was released from prison after committing the domestic violence on 30 April 2017.
The applicant has been in prison or detention since 24 September 2018.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 90, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant’s offending is very serious. The District Court Judge in March 2019 summarised the history of his previous offending:
“…you have got a long history dating back to 2014. Particularly for offences of breaching, of domestic violence and violent offences. There are other offences in your history. There are two previous convictions for assault occasioning bodily harm.…
You have been imprisoned in the past for a variety of offending behaviour, including wilful damage, going armed in public. On 23rd March 2016 in relation to a breach of probation, going armed in public, a wilful damage in the context of domestic violence, you were in effect sentenced to 18 months imprisonment with parole … After the commission of this offence, you were dealt with in the Magistrates Court for obstruction to police and public nuisance and placed on a three month sentence which was wholly suspended for three years. That was later breached and activated in full.”[15]
[15] Respondent’s Tender Bundle, RB32, page 325
The Australian Government and the Australian community views very seriously crimes of a violent nature against women. The offending from 2014 to 2018 was frequent with a trend of increasing seriousness. The cumulative effect of repeated offending is significant noting that there were five separate sentences of imprisonment of between 6 months and 18 months length.
The applicant has received warnings about the consequences of his conduct in particular when an earlier cancellation of his visa was subsequently revoked, but even after this indulgence he committed further crimes.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I 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.[16] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:
(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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[16] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[17] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
[17] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the violent nature of the offending and because of the repeated acts of domestic violence.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that there is a low risk of re-offending. Upon release he will have the support of his family and rehabilitative organisations and is expected to be able to get a job because he has offers of employment. This will create a stable environment which will assist him to not re-offend. Further, he relies upon a psychological assessment made by Mr Ian Mackinnon, Consultant Psychologist, dated 11 August 2022. Mr Mackinnon noted that the applicant had been adversely influenced by the many violent male role models that he had grown up with in the Eritrean refugee camp and because his own stepfather engaged in domestic violence against his mother when in Australia. This is likely to have encouraged the same behaviour in the applicant. However, Mr Mackinnon noted that the applicant had an extensive period to reflect upon his prior conduct and that he had matured and now recognises the wrongfulness and destructive nature of his own past poor behaviour and violence against women. Consequently, he considered that there was only a low chance of the applicant reoffending in any serious manner. This opinion is supported by earlier reports from Dr Zimmerman, a Forensic Psychiatrist who originally assessed the applicant in September 2020. In her report of October 2020, she noted that the key strategies for reducing the risk of the applicant reoffending were to engage him in work with a drug and alcohol service and to attend the men’s behaviour change program.
The reports from the psychologist and psychiatrist are independent and authoritative and accordingly I give them appropriate weight.[18]
[18] Direction 90 at 7(1).
In assessing the likelihood of the applicant engaging in further criminal conduct, under paragraph 8.1.2(2)(b)(ii) of Direction 90, I must take into account the evidence of rehabilitation achieved by the time of the decision. The sentencing Judge in August 2018 indicated that the parole authorities would provide the applicant with courses to assist in his rehabilitation including relationship courses, but the applicant was unable to access this assistance because he was taken into immigration detention and his ability to access courses and other opportunities for self-betterment were thereafter limited. It was noted in the Refugee Legal letter dated 1 July 2020 that the applicant instructed, in relation to his recent offending, that he was only incarcerated for approximately five months and that he did not have the opportunity to access rehabilitation courses during his relatively short time in prison.
Since the Refugee Legal letter was written, the applicant, whilst at Yongah Hill detention centre, engaged in some formal rehabilitation by participating in Men’s Group and weekly Lifeskills in August 2020. These courses were limited both in time and in content.[19] The topics covered were change, relapse prevention, letting go, understanding triggers, how to control emotions and institutionalised thinking. I do not consider that they had an adequate focus on domestic violence. I accept that those courses had a positive effect on the applicant, but he has shown over many years that he has a real problem with domestic violence. I do not consider that he has adequately addressed that issue by attending appropriate courses.
[19] See Certificates of Participation dated August 2020 in Exhibit 2, Respondent’s Tender Bundle at RB44.
I note that Dr Zimmerman in her report dated 30 July 2021 at [124] stated as a positive factor that he was “able to identify areas where he would benefit from support in the future (alcohol counselling, trauma counselling and relationship counselling)”. I accept that this is a positive factor in favour of the applicant, but it remains the case that he has not adequately addressed these areas as at the date of my decision. Since the applicant was about 17 years old he has committed physical violence against each of the three women with whom he had a relationship over a four year period. He also committed domestic violence towards his mother. The violence did not come to an end until he was incarcerated. He has not been tested in the community since he undertook the very limited rehabilitative courses in August 2020. To release him into the community without adequate rehabilitation would put the Australian community at risk of further harm. There is a real, albeit low, risk of further offending which I consider to be unacceptable.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[20] Due to the seriousness of the potential harm that would arise from further similar offending, the Australian community has a very low tolerance for any risk of future harm by the applicant. He has committed serious crimes of a violent nature including against women in the domestic context. I consider that even a low risk of further offending is unacceptable. The inherent nature of family violence is very serious and therefore, I consider that the protection of the Australian community is a factor which weighs very heavily in favour of not revoking the cancellation decision.
[20] Direction 90 at 8.1(1).
Family Violence – 8.2 of Direction 90
The applicant has engaged in family violence which would be viewed very seriously by the Australian Government and community.
Domestic violence was reported and recorded in police records as follows:
(a)On 24 February 2014, multiple punches to the head of his girlfriend which only stopped when a passer-by intervened. The applicant gave evidence that there was a physical altercation whilst driving with his ex-girlfriend but he does not remember if he punched her. No conviction arose from this event.
(b)On 4 April 2014, the applicant pulled his ex-girlfriend by the hair and struck her in the head and face. The applicant accepted that he hit her but could not remember if it was a slap or a punch. I note that the police statement records injuries consistent with multiple punches.
(c)On 28 May 2014, the applicant contravened the domestic violence order by attending at his ex-girlfriend’s house. The applicant denies carrying a weapon but admits that on the way out he kicked the car and smashed the side mirror.
(d)On 20 December 2014, the applicant breached the domestic violence order by attending at his ex-girlfriend’s house and the police were called.
(e)On 9 April 2015, the applicant chased his ex-girlfriend, grabbed her by the hair and threw her to the ground and then began to punch and kick her in the body, head and face. The applicant admits that they argued and that he punched her in the face but denies the balance. The police statement records substantial bruising and swelling to her right cheek and left side of her face. An ambulance was called and the victim was transported to hospital for further medical assessment. The applicant says that he regrets this incident and realises now it was wrong. He pleaded guilty to assault occasioning actual bodily harm for which he was sentenced to 12 months imprisonment.
(f)On 15 July 2015, the applicant breached the domestic violence order. He admits that whilst driving, his ex-girlfriend had become fearful for her safety and that he told her “that she better do as he says as he is now beyond angry”. The victim ran away from the applicant while he was still in the car. The police were called.
(g)On 30 April 2017, the applicant argued with his wife and she tried to leave. He punched her in the face then slapped her and spat in her face. The police and an ambulance arrived. She had severe swelling and bruising to the left side of her face as well as bruising to the arms. The applicant knew she was pregnant at the time and pleaded guilty to assault occasioning bodily harm and common assault for which he was sentenced to 18 months imprisonment.
(h)On 24 September 2018, the applicant committed a further domestic violence offence involving the applicant’s mother and wilful damage to her property for which he received a term of imprisonment of nine months. The applicant admits arguing with his mother and smashing the windows of her house. He denies that he offended in front of his son. He regrets this incident and says that it was the first time he had behaved like that with his mother.
The applicant continuously breached domestic violence orders from 2014 to 2018. The dates of the particular breaches were 4 April 2014, 28 May 2014, 20 December 2014, 23 April 2015, 13 June 2015, 15 June 2015, 11 July 2015, 15 July 2015, 3 February 2017 and between 21 and 24 September 2018. I note that the applicant went into custody on 15 July 2015 and then went straight into detention on 8 October 2015. His time out of the community in prison and detention did not deter him from continuing to offend and to engage in domestic violence.
In a report dated 25 August 2015, the applicant’s parole officer stated that he failed to attend nearly 50% of his supervision appointments and offended repeatedly over the parole period. He was referred to a domestic violence program but failed to attend. He then assaulted his pregnant wife on 30 April 2017 and committed further domestic violence involving wilful damage to his mother’s property on 24 September 2018. After the domestic violence in 2015, there were numerous warnings given to the applicant about the consequences of re-offending but he continued to breach domestic violence orders and he engaged in further physical domestic violence against his wife.
The family violence is particularly serious because it was frequent and repeated and continued after warnings. The cumulative effect of the repeated acts of family violence is very significant. I take into account that the applicant has expressed remorse for his family violence and that he feels ashamed. I accept that he understands the hurt he caused to his victims. I note that his remorse and plans for the future are accepted as genuine and concrete by Mr Mackinnon and Dr Zimmerman but it remains the case (as I have found above in relation to rehabilitation under paragraph 8.1.2(2)(b)(ii) of Direction 90) that he has not adequately addressed the issues of his family violence.
The repeated acts of family violence committed by the applicant is a factor that weighs very heavily in favour of not revoking the cancellation decision.
Best interests of minor children – 8.3 of Direction 90
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that we must consider and are relevant to this application include:
(a)The nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account the ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has a son who was born in Australia and is five years old. The applicant was in prison when his son was born. After his release into the community the applicant had about 12 months during which he shared the care of his son with his wife until he went back into prison in September 2018. The applicant has been absent for most of his son’s life, but I do accept that he is likely to play a parental role in the future if he is released. The applicant’s role would be particularly important in the circumstances of his son who is not currently being looked after by his mother. The current arrangement whereby his son is being looked after by the applicant’s elderly mother is not sustainable. The risk of the son being exposed to future domestic violence reduces the weight I would place on this factor. The applicant submits that Australia will breach its international treaty obligations if the applicant is not reunited with his son. I accept that it is in the best interests of the applicant’s son that the applicant remain in Australia and that Australia’s reputational interests may be adversely affected by a decision resulting in the applicant being removed in contravention of Australia’s obligations under international law. I conclude that it is in the best interests of the son for the cancellation decision to be revoked so that the applicant can resume his parental role with respect to his son.
The applicant has five nieces and nephews who are under 18 years of age. Given the length of time out of the community, the applicant has had limited meaningful contact with these children. It is a non-parental role in circumstances where these children are being looked after by their parents. I accept the evidence of the applicant’s brother that he has a close relationship with his children and that they speak to their uncle on the phone. Consequently, I find that it would be in the best interests of the nieces and nephews if the cancellation decision was revoked but in the above circumstances, I give this factor very little weight.
I conclude that the best interests of minor children is a factor that weighs in favour of revoking the cancellation decision.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[21] I consider the circumstances of the applicant in this case present an unacceptable risk because of my findings with respect to the protection of the Australian community set out above.
[21] Direction 90 at 8.4(1).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, it will be necessary to assess the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[22] remain apposite to the expectations of the Australian community under Direction 90:
“[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.”
[22] (2019) 272 FCR 454; [2019] FCAFC 185.
I find that the character concerns arising from the applicant’s family and other violence mean that the Australian community would expect the applicant to not continue to hold a visa. It is clear from Direction 90 that the Australian community treats acts of family violence very seriously. It is even more serious in this case because the acts of family violence involved three separate partners and the applicant’s mother over a four-year period. Although the risk of further family violence is low, that risk is unacceptable in these circumstances.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs very heavily in favour of not revoking the cancellation decision.
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[23] I must consider and understand the representations received from the applicant.[24] I must also consider the consequences that would flow from not revoking the cancellation decision.[25]
[23] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[24] See above at [11].
[25] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244
International non-refoulement obligations – 9.1 of Direction 90
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[26]
[26] Direction 90 at 9.1(1).
The applicant has articulated the prospect of Australia breaching its non-refoulement and other human rights based treaty obligations as reasons for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if returned to Somalia.
I will consider separately the risk of harm if returned to Somalia, but I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The applicant submits that he is owed non-refoulement obligations and that a finding to that effect should be made by the Tribunal.
The respondent submits that the Tribunal ought to defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa. The applicant submits that it would not be appropriate to defer consideration of the non-refoulement claims.
The recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1) addressed this very issue:
“[21] It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.
Decision-makers’ approach to representations
[22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
… [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …
Decision-makers’ approach to non-refoulement
… [29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.”
(footnotes removed)
It follows that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[27] I intend to defer assessment because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1 makes it clear that a decision-maker must not do that,[28] but “one available outcome” is the deferral of the substantive assessment of such a claim.[29]
[27] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].
[28] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[29] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
The comments in Plaintiff M1 were made in the context of Direction 65 which has been revoked but they still apply to the decision I must make under s 501CA(4). The current direction is Direction 90 which provides at 9.1:
“(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.”
In this case the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1(6) of Direction 90 provides that it may not be possible at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues. Sub-paragraph (6) goes on to say that a decision-maker, in making a decision under s 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis. This approach to the task of a decision-maker is apposite to the case before me.
Applicant’s representations of risk of harm
The applicant has made representations concerning risk of harm in Somalia.
The High Court has provided the following guidance for this situation:[30]
“[37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason“ why the Cancellation Decision should be revoked.”
[30] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [37] and [39].
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (CKT20) makes it clear that I am required to consider facts underpinning the claim such as the applicant’s mixed ethnicity. In CKT20, the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity.[31]
[31] CKT20 at [97] to [106].
The applicant made representations as summarised in his Statement of Facts, Issues and Contentions at [95] concerning risk of harm in Somalia as follows:
“We refer to the Applicant’s statements [G documents, pp. 96, 422] and confirm the Applicant claims to fear being seriously harmed for the reason of:
a. His religion – namely that he does not practice nor agree with a strict interpretation of Islam as espoused by Al-Shabaab;
b. His ethnicity – namely the absence of his ties to a clan;
c. His actual and perceived political opinion – namely that he does not practice nor agree with a strict interpretation of Islam as espoused by Al-Shabaab or belong to a clan;
d. His membership of particular social groups – namely that:
i. He will be perceived as wealthy and/or a foreigner from a western country, due to his time spent in Australia, accent, dress style, haircut and the way he carries himself;
ii. He is a young male is at risk of being forcibly recruited by armed groups;
iii. He is the father of a child from a relationship with a Christian woman;
iv. He has never resided in Somalia nor has any social or familial support given all of his family are in Australia. He would be returned to a country that he has not visited since he was an infant.”
The applicant gave evidence that his family is from a minority clan in Somalia which caused them to flee to a refugee camp in neighbouring Eritrea. The applicant says that people from minority clans are still being targeted and there is support for this in the DFAT Country Information Report Somalia dated 13 June 2017.
The applicant believes he would be at risk of violence and persecution from the Al-Shabaab Islamic terrorist organisation (Al-Shabaab) because he does not agree with or practise a strict interpretation of Islam and because of his western characteristics and history. He is particularly fearful of his perceived wealth, his history of using social media, consuming alcohol, marrying and having a son with a Christian woman and adopting western dress styles, features and characteristics. In addition to these particular concerns, there are more general risks of being forcibly recruited and of harm in Somalia due to ongoing deadly attacks by Al-Shabaab who seek to impose an Islamic state in Somalia.
The applicant would also be adversely impacted by the general poverty, lack of medical and support services and humanitarian crisis in Somalia.
The respondent contends that the applicant’s fear of harm is not supported by the country information. It is difficult to assess the likelihood that he will face harm (or the extent of harm) if returned because of the length of time that the applicant and his family have been away from Somalia. However, there is recent country information that supports the applicant’s claims of violence based upon failure to adhere to strict Islam in areas under control of Al-Shabaab. There was also evidence given to the Tribunal from a Somali community leader in Australia who had recently travelled to Somalia and considered it to be a very dangerous place with indiscriminate killings and a lack of control by the government. On the current evidence it is difficult to make a positive finding that the claimed harm will occur, but I consider that this is an appropriate case to assume in the applicant’s favour that the claimed harm will occur pursuant to sub-paragraph 9.1(6) in Direction 90. On that basis, I accept the evidence of the applicant that he would face serious harm if returned to Somalia.
As I have previously indicated, I make no finding as to non-refoulement obligations because it is open to the applicant to apply for a protection visa. However, I am prepared to assume in the applicant’s favour that the harm he claims, if returned, is likely. This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Consequences of cancellation and non-revocation
The consequence of the cancellation[32] of the applicant’s visa is that he is an “unlawful non‑citizen” as defined in s 14.
[32] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [45] to [49].
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person.[33] . A person so detained must be kept in immigration detention until he or she is (relevantly) removed from Australia accordance with s 198, deported under s 200, or granted a visa under s 196.
[33] Section 189(1).
If the cancellation decision is not revoked, s 198(2B) would require the applicant’s removal from Australia if he did not make an application for another visa. If he does make an application for another visa, he would be liable to be removed from Australia under s 198(6) if that application were to be refused.
If a cancellation decision is revoked, it is taken not to have been made.[34] In that event, the applicant would not meet the description of an unlawful non‑citizen and would not be subject to removal from Australia as mandated by s 198(2B) or s 198(6) as the case may be.
[34] Section 501CA(5).
The applicant contends that if the cancellation decision is not revoked that he will either be returned to Somalia or detained indefinitely. Further or indefinite detention appears more likely because of the practical difficulties in removing a person to Somalia who has a criminal record. In either event, the consequence for the applicant would be devastating. If a protection visa application were lodged, then it is asserted that the applicant will be trapped in detention in the intervening period.
If no protection visa application is made then the immediate legal consequence of a non-revocation decision may result in removal. However, the decision would not necessarily result in removal because the applicant could apply for a protection visa. Pursuant to s 197C(3), if a “protection finding” is made on any application for a protection visa, then the applicant would not be liable to be removed immediately.
I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Dr Zimmerman opined that prolonged or indefinite detention is known to contribute to adverse mental health outcomes which would have consequences adverse to the applicant. In WKMZ, Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:[35]
“… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.”
[35] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Somalia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant would face significant impediments if returned to Somalia because of those matters set out above in relation to risk of harm and non-refoulement obligations. The applicant would face language difficulties particularly because he speaks a different dialect and because he has lived almost the whole of his life away from Somalia. Further, the applicant has no real family or other support networks having left with his immediate family when he was about two years old. I accept the evidence of Mr Mackinnon that the applicant’s reactive depression and anxiety would probably worsen into a clinically significant condition for which there would be no adequate medical treatment available. The post-traumatic stress disorder he used to suffer would likely be triggered again if returned to Somalia.
The applicant would not be able to access the medical or counselling services he requires in Somalia. He would have great difficulty establishing himself and maintaining basic living standards.
This is factor that weighs in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 90
The applicant’s wife (from whom he has separated) was one of the victims of the domestic violence. She provided a written statement dated 7 October 2020 in which she expressed her preference that the applicant be released to help her take care of their child. However, the negative consequences for family members who are also victims of the offending if the applicant is not allowed to remain in Australia are matters to consider under other aspects of Direction 90.[36] Accordingly, I take into account the impact on the applicant’s wife under the heading of links to the Australian community below. In any event, the applicant did not call the wife to give oral evidence before the Tribunal and therefore she was not available to be cross examined and less weight would be given to her evidence. There is no relevant evidence from the other victims of domestic violence. I find that this factor neither weighs for nor against revoking the cancellation decision.
[36] DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 [32] - [37].
Links to the Australian community – 9.4 of Direction 90
I must consider the impact of the visa cancellation decision on the applicant’s immediate family members, which in this case would include the applicant’s wife and their son, as well as his extended family. I accept the evidence in the written statement from the wife that it is difficult for her to care for the son on her own and that she would like the applicant to be released so he could help her to take care of him. I find that non-revocation of the cancellation decision would have a negative impact on the applicant’s wife because she would not have the benefit of his care and support for their son.
If the applicant is returned to Somalia, then it will impact negatively on his family in Australia particularly his five year old son and elderly mother. The applicant’s mother has some health conditions and she would benefit if her son was released and able to come and live with her. She currently looks after the applicant’s son but this is not sustainable in the near or distant future. The applicant’s brother would be devastated if the applicant were returned to Somalia or remained in detention.
The applicant has lived in Australia for about 11 of his 27 years. He arrived in Australia in June 2011 and commenced offending in 2014 by contravening a domestic violence order on 4 April 2014.
The applicant attended high school and left in year 12 to do an apprenticeship in automotive studies. He also possesses a Certificate III in logistics and forklift operation. He was employed as a halal butcher for about 6 months.
There would be no impact on any Australian businesses if the applicant is not allowed to stay in Australia.
The applicant has strong links to Australia because his son and the rest of his immediate family live here. I give some weight to his positive contribution to the Australian community by his studies and employment history, but this is not significant. I give less weight to his links to the Australian community because he began offending less than three years after arriving in Australia. In conclusion, I consider this to be a factor that weighs in favour of revocation of the cancellation decision, but I do not give it significant weight.
Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion to revoke the cancellation decision.
The primary considerations related to family violence and the protection and expectations of the Australian community weigh very heavily in favour of not revoking the cancellation decision. The applicant has engaged in repeated acts of family violence involving three different partners and his mother over a lengthy period of time and the Australian community expects that the applicant would not be allowed to stay in the community. I am required to weigh these very serious factors against any countervailing considerations, namely the best interests of minor children, non-refoulement obligations or risk of harm, indefinite detention, extent of impediments if removed and links to the Australian community. With respect to the countervailing considerations, I give most weight to the best interests of his son, the impact on his mother and the very real prospect of indefinite detention. These countervailing considerations are not insignificant, but I do consider that they are outweighed by the primary considerations of family violence and the protection and expectations of the Australian community. In circumstances where the applicant has committed repeat acts of family violence and has not achieved sufficient rehabilitation, the risk to the Australian community if he were released is unacceptable.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant who has committed serious crimes involving domestic violence, breach of community correction and intervention orders:
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is 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. By committing the crimes of domestic violence, together with stealing and the other violent assault, the applicant has not been law-abiding, he has shown disregard for Australia’s law enforcement network and he has threatened and caused harm to those in the community;
(b)The applicant, as a non-citizen who has committed serious crimes of a violent nature against women, should generally expect to forfeit the privilege of staying in Australia;
(c)The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such crimes in Australia which raise serious character concerns; and
(d)In the circumstances of this case, the nature of the applicant’s conduct and the harm that would be caused if it were to be repeated, is so serious that even strong countervailing considerations are insufficient to justify not revoking the mandatory cancellation.
I am not satisfied that there is “another reason” to set aside the cancellation decision.
Decision
The decision of the Tribunal is to affirm the non-revocation decision.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
....[sgd]....................................................................
Associate
Dated: 3 October 2022
Dates of hearing: 30 and 31 August 2022 and 2 September 2022 Advocate for the Applicant: N Merlino Solicitors for the Applicant: Carina Ford Immigration Lawyers Advocate for the Respondent: A Cunynghame Solicitors for the Respondent: Sparke Helmore
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