Seddon and Minister for Home Affairs (Migration)
[2019] AATA 4361
•24 October 2019
Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361 (24 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/4722
Re:Wiremu Seddon
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:24 October 2019
Place:Melbourne
The Tribunal affirms the decision under review.
...........................[sgd]........................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass character test – criminal history between 2003 and 2015 – convictions for multiple violent offences -– whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FYBR v Minister for Home Affairs [2019] FCA 500
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Umi and Minister for Home Affairs [2019] AATA 2316
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
24 October 2019
The applicant, Mr Wiremu Seddon, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
The hearing was held in Melbourne on 14 and 15 October 2019. Mr Seddon appeared in person. Although assisted by Refugee Legal during the pre-hearing stage, including with preparation of his statement, his mother’s statement and other documents, Mr Seddon was self-represented at the hearing. The Minister was represented by Mr Brown from the Australian Government Solicitor.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
The factual background to this application is as follows:
(a)Mr Seddon is a 34 year old citizen of New Zealand,[1] who migrated to Australia in December 1996 when aged 11. He has lived in Australia permanently since;
[1] Exhibit R1, 52.
(b)Mr Seddon attended school in Sydney but left during Year 9 and subsequently undertook an apprenticeship as a butcher. He has worked predominantly in that trade since, including in managerial roles;
(c)Mr Seddon has been convicted of multiple crimes since arriving in Australia, including violent offences such as ‘Robbery in company, Resist or hinder police officer in the execution of duty, Aggravated assault (no weapon) against child or spouse, Make threat to kill, and Unlawful assault.[2] His most recent convictions were in the Horsham Magistrates’ Court on 18 September 2019;
[2] Ibid, 15-19.
(d)There are four personal relationships in Mr Seddon’s life that are relevant to his application:
(i)During what he submitted was a ‘brief affair in 2004,’ Mr Seddon fathered a child who is currently 14 years old and living in Queensland.[3] Mr Seddon initially thought the child was not his, but said he accepted paternity in 2008 after a DNA test;
[3] Exhibit A1, 16 [89].
(ii)At age 21 Mr Seddon married a co-worker. That relationship ended in 2009, followed by divorce in 2010. Mr Seddon submitted he was verbally but not physically abusive to this woman during their relationship;
(iii)Mr Seddon said he had an approximately year-long relationship after moving to South Australia in October 2010, which ended in late 2011. He agrees he was convicted in February 2012 of assaulting this woman; and
(iv)Mr Seddon’s longest relationship was from approximately late 2011 until 2018.[4] The couple had four children who are currently under seven years of age and live with their mother and her new partner in Victoria. Mr Seddon accepts that he committed multiple acts of domestic violence against his former partner in the presence of their children, resulting in multiple intervention orders.[5]
[4] Ibid, 16 [96].
[5] Ibid, 16-17 [95]-[97].
(e)On 16 November 2018 Mr Seddon’s visa was cancelled on character grounds by a delegate of the Minister for Home Affairs. At the time of visa cancellation,
Mr Seddon was serving a term of imprisonment;(f)Mr Seddon was invited to make representations to have the visa cancellation revoked and did so on 17 November 2018;[6]
(g)On 17 December 2018, at the conclusion of his prison sentence, Mr Seddon was taken into immigration detention where he has since remained;[7]
(h)On 2 August 2019, after considering Mr Seddon’s revocation request, a delegate of the Minister decided not to revoke the visa cancellation decision;[8] and
(i)Mr Seddon was notified of the non-revocation decision on 6 August 2019.[9] He lodged his application to the Tribunal on the same day,[10] stating as the reason for his application:
‘I wish to get it reviewed as for my criminal history most of it happen while I was younger and didn’t know any better i was young naïve immature drugs and alcohol played a big part in my wrong doings as for the last 7 years I have had problems with my mental heath alcohol and drug problems I have tried to fix my past wrongs and i want to be a good role model for my 5 kids…all my kids and family are here in austalia and i have no one left in new zealand no more as they have all moved here over the years that i have been here since 1996.’[11]
(errors in original)
[6] Exhibit R1, 51.
[7] Ibid, 126.
[8] Ibid, 140.
[9] Ibid, 5.
[10] Ibid, 1.
[11] Ibid, 6.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 29 October 2019.
STATUTORY FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test by virtue of having a substantial criminal record and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or if there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[12]
[12] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied to determine whether to revoke a mandatory visa cancellation:
a. Protection of the Australian community from criminal or other serious conduct;
b. The best interests of minor children in Australia; and
c. Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
a. International non-refoulement obligations;
b. Strength, nature and duration of ties;
c. Impact on Australian business interests;
d. Impact on victims;
e. Extent of impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
CHARACTER TEST
On 17 June 2005 Mr Seddon received sentences of two years imprisonment in the Sydney District Court for each of two counts of Robbery in company.[13] Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
[13] Exhibit R1, 16-17.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of Mr Seddon’s visa should be revoked. The task of identifying ‘another reason’ was recently elaborated upon by the Full Court of the Australian Federal Court in Viane:[14]
‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’
[14] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
EVIDENCE BEFORE THE TRIBUNAL
“G-documents” numbering 722 pages were taken into evidence.[15] Statements from
Mr Seddon[16] and his mother,[17] prepared with the assistance of Refugee Legal, were tendered into evidence. A statement from Mr Seddon’s grandmother[18] and an email from his former partner[19] were also tendered into evidence. The Tribunal heard oral evidence from Mr Seddon in person and from his mother by telephone.[15] Exhibit R1.
[16] Exhibit A1.
[17] Exhibit A2.
[18] Exhibit A3.
[19] Exhibit A4.
On the second day of the hearing, in light of frequent uncorroborated references about the perspectives of Mr Seddon’s former long-term partner, the Tribunal telephoned her. She had previously expressed willingness via an email to be contacted ‘for any reason.’
Mr Seddon’s former partner provided oral evidence and was cross-examined. When asked about the origins of her email in support of Mr Seddon, she explained that a lawyer from Refugee Legal had contacted her and requested that she provide it. Relevant aspects of her evidence are discussed later in these reasons.Criminal History Check
Mr Seddon does not dispute the information contained in his Criminal History Check,[20] which the Tribunal accepts is an accurate record of his convictions.
[20] Exhibit R1, 15-19.
Sentencing Remarks
The Tribunal has considered the sentencing remarks in evidence from the Magistrates’ Court of Horsham, dated 18 September 2018[21] (“2018 sentencing remarks”) and from the District Court of New South Wales dated 17 June 2005[22] (“2005 sentencing remarks”).
[21] Ibid, 27-40.
[22] Ibid, 41-50.
Medical Evidence
Mr Seddon has lodged medical evidence in conjunction with his written statement, consisting of:
(a)a two-page medical record from Lyell McEwin Hospital relating to his admission during a five day period in January 2016;[23]
(b)five medical records from Lyell McEwin Hospital relating to his presentations at the Hospital’s Emergency Department on 21 May 2011, 1 July 2012, 27 September 2012, 20 September 2016 and 2 October 2017;[24] and
(c)eight pages of clinical notes from the International Health and Medical Services (IHMS), recording consultations with Mr Seddon between 18 December 2018 and 24 July 2019.[25]
[23] Attachment to Exhibit A1.
[24] Ibid.
[25] Ibid
PRIVILEGE AGAINST SELF-INCRIMINATION
During his oral evidence, in light of some of the questions asked, the Tribunal reinforced to Mr Seddon that pursuant to s 62 of the AAT Act, he could refuse to answer questions that he felt might tend to incriminate him, which he confirmed that he understood.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed very seriously.
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Mr Seddon accepted that his criminal offending and involvement in family violence incidents was serious. He attributed his conduct to persistent abuse of drugs and alcohol, which he says started at the age of 14 with marijuana and escalated to consumption of ‘ecstasy, speed, pure speed, and pure base cocaine.’ He said that he has also used methylamphetamine, known as ice, but only for the ‘last six or seven years.’ Mr Seddon referred to associations with negative peers as contextually-relevant to some offending, including multiple counts of ‘Robbery in company.’ Mr Seddon concedes there were ‘some elements of violence’ in those robberies, but submits the victims did not sustain physical injuries:
‘This violence was very wrong, but it was not so serious that I was charged with separate assault offences…I realise the victims would have been traumatized and am sorry for that but I don’t believe they sustained physical injuries…’[26]
[26] Exhibit A1, 8 [46]
Mr Seddon states he was convicted of ‘Resist or hinder police’ and ‘Resist officer in execution of duty’ in 2003 because he was ‘concerned…police were harassing my mate’s little brother.’ He explained during his oral evidence that the person he was seeking to protect was a co-accused from previous offending.
In response to questions about the extent of his involvement in domestic violence, Mr Seddon claimed he was verbally but not physically abusive to his former wife. He agreed that he was convicted in February 2012 for assaulting another woman with whom he was in a relationship at that time, referring to her on a number of occasions as a ‘psycho’ with drug and alcohol problems. Mr Seddon agreed he has also been involved in multiple incidents of family violence against his former long-term partner, including ‘Make threat to kill’ and ‘Unlawful assault,’ for which he was convicted in April 2018. He said that violence arose because he was feeling ‘very stressed’ and ‘under the influence of drugs and alcohol’.[27] Mr Seddon claimed that the unlawful assault conviction was ‘the least serious of the assault offences’ against his former partner, but accepted that ‘any form of family violence is totally wrong.’[28] Mr Seddon submitted he had not been sentenced to prison for any family violence offence, showing ‘that the offences were not at the serious end.’[29] He stated, however: ‘I am truly sorry to all of my victims, including [former partner] and the children.’[30]
[27] Ibid.
[28] Ibid, 8 [48].
[29] Ibid, 9 [56].
[30] Ibid, 11 [65].
At the time of Mr Seddon’s 2018 sentencing, the Tribunal notes that a ‘full exclusionary order’[31] issued by the Magistrates’ Court at Horsham (“2018 intervention order”) was in place, preventing Mr Seddon from seeing his former partner and children.[32] That intervention order did not expire until 3 April 2019.
[31] Exhibit R1, 36 [22].
[32] Ibid, 129-130.
The respondent’s submissions can be summarised as follows:
(a)Mr Seddon has lived in Australia for 22 years, during which he has been convicted of 24 offences in three states;[33]
(b)Mr Seddon has committed multiple violent offences, including against police;[34]
(c)Mr Seddon has offended while on conditional liberty;
(d)In addition to his criminal convictions, Mr Seddon has engaged in domestic violence, resulting in family violence intervention orders being issued on 15 November 2012, 12 October 2016 and 4 April 2018, the latter being in force at the time of his mandatory visa cancellation.[35]
[33] Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 25 September 2019, 3 [16].
[34] Ibid, 9 [40].
[35] Ibid, 5-6 [19].
Tribunal findings: The nature and seriousness of the conduct
The following aspects of paragraph 13.1.1(1) of the Direction are relevant to the specific circumstances of Mr Seddon’s case:
(a)13.1.1(1)(a): Mr Seddon has multiple convictions for offences involving violence or the threat of violence, most recently in 2018, which are viewed very seriously;
(b)13.1.1(1)(b): Mr Seddon has been convicted of violent crimes against two women, including at times in the presence of some of his children. Such offending is viewed very seriously;
(c)13.1.1(1)(c): Mr Seddon has been convicted of offences against police officers performing their duties, which are viewed seriously;
(d)13.1.1(1)(d): Imprisonment is the last resort in the Court’s available sentencing options. Mr Seddon has been sentenced to periods of imprisonment in 2005 and 2018, reflecting the objective seriousness of his offending. As has more often been the case, however, Mr Seddon’s offending has been dealt with leniently by the courts, which have imposed Community Correction Order’s (CCO’s), bonds, fines, or other conditional liberty arrangements. Mr Seddon has not taken advantage of that leniency, as reflected by convictions such as: ‘Commit indictable offence whilst on bail,’ ‘Contravene a conduct condition of bail’ in 2018, and ‘Fail to comply with bail agreement’ in 2016.
(e)13.1.1(1)(e): Mr Seddon’s criminal history encompasses multiple offences in three states. His offending is frequent, repeated, and cannot be regarded as isolated or impulsive. Although the Tribunal accepts there was a relatively stable period in
Mr Seddon’s life between 2005 and 2010, with only one drug-related conviction in 2006, the frequency of his offending since 2010 has been high; and(f)13.1.1(1)(f): The cumulative effect of Mr Seddon’s convictions has imposed costs and consequences on his victims and the broader community, including through the costs of intervention by police and the courts.
It follows that Mr Seddon’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Direction acknowledges the community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage, at [111], related to unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
Mr Seddon submits that his offending relates primarily to drug and alcohol use, linked to an ‘unhappy childhood’[36] and the ‘need to block out…emotional damage…[and]…feelings of depression.’[37] During his oral evidence, Mr Seddon traversed the difficult circumstances of his youth, which included feeling a sense of abandonment by his biological mother, and being cared for by his grandmother, who he regarded as a mother. They lived for a while with his aunt and uncle, but he claims that he and his grandmother were often ‘left behind.’ He had trouble at school in Australia despite receiving assistance and recalled being bullied and ‘mixing with the wrong crowd’ from year 7. His repetitive truancy got him into trouble. He was eventually suspended and moved to a different high school, but his truancy continued. He said it was eventually decided he would leave school and undertake a trade.
[36] Exhibit A1, 10 [61].
[37] Ibid, 12 [73].
Mr Seddon recalls that ‘hanging around the wrong crowd’ led him ‘astray.’ He became ‘increasingly involved with drugs and alcohol,’[38] submitting that these associations and the misconduct they engaged in gave him a sense of self-worth:
As a teenager, I think crime became a way to make me feel empowered. I had never felt empowered in other ways before…it was a way to make me feel better temporarily.[39]
[38] Ibid, 4 [21].
[39] Ibid, 12 [68].
Mr Seddon says he subsequently realised that the sense of empowerment he felt was misconceived[40] and he felt remorse for his actions. Mr Seddon was referred to robbery in company offences he committed in 2005. He claimed one of the victims touched his friend’s girlfriend ‘on the arse,’ so Mr Seddon decided to ‘teach them a lesson’ by taking ‘away their valuables.’ Mr Seddon agreed he told one victim to hand over his wallet or risk being stabbed, but claimed he wasn’t armed and just wanted to ‘scare the shit out of them.’ Mr Seddon says a Good Samaritan intervened, grabbing his ‘mate by the throat.’ Mr Seddon returned the victim’s wallet, but stated he kept ‘two $20 notes.’ Mr Seddon explained he had been drinking alcohol all day prior to this offending, had smoked marijuana and hashish, and was ‘pretty sure’ he was ‘on ecstasy a few hours before,’ which caused him to be ‘full of confidence and not thinking.’ After being arrested he was remanded in custody for six weeks and recalled telling the sentencing judge he would ‘change [his] ways and become a good citizen.’ The sentencing judge suspended his sentence and imposed a two-year bond, which required attendance at ‘drug and alcohol counselling’ and urine testing, which Mr Seddon claimed was of assistance.[41]
[40] Ibid, 4 [22].
[41] Ibid, [23]
When asked why he committed the 2005 robberies during what he claimed was a more settled period in his life, Mr Seddon stated: ‘I was wrong. I responded badly.’ Mr Seddon claimed that following these convictions, he had a ‘clear record’ until April 2010. He explained this arose from having a ‘good relationship…a good job….feeling well respected…[and his]….alcohol use was more under control.’[42] The Tribunal notes during this period, however, that Mr Seddon’s record was not entirely ‘clear,’ given his conviction of ‘Possess prohibited drug’ in 2006.
[42] Ibid, 10 [59].
During his oral evidence, Mr Seddon said his wife effectively ended their marriage in 2009 because of his drug and alcohol abuse. He disagreed with her reasons, however, submitting it had more to do with unsuccessful IVF attempts, the revelation in 2008 that Mr Seddon had fathered a child with another woman during a brief affair some four years earlier, and because Mr Seddon ‘said something about [his wife’s] mother,’ who was living with them. Mr Seddon claimed he was verbally abusive to his wife but never hit her. After they broke up, he became depressed and started ‘drinking more and taking more drugs,’ estimating that he smoked $200 to $300 worth of marijuana daily ‘just to calm down.’
Mr Seddon said his drug habit ‘started to take control’ and he lost his manager’s job at the butcher shop, because he found it ‘hard to balance the divorce with work.’ Mr Seddon claimed his former wife told the mother of his son in Queensland about his drug addiction, making it harder for him to see his son. Mr Seddon recalled his alcohol abuse worsening. After drinking at a mate’s place and accidently backing the vehicle he was driving into a parked car, Mr Seddon said he was convicted of drunk driving (mid-range PCA)[43] and driving without a licence. After moving to South Australia he also recalled getting into a fight after a ‘pub crawl,’ which required hospital treatment.[43] Exhibit R1, 523.
Mr Seddon claimed he had a year-long relationship with another woman after moving to South Australia in October 2010. He agreed that he assaulted her in late 2011 by pushing her head into a hallway mirror, and was subsequently convicted of ‘Commit assault’ in February 2012. Mr Seddon said he met his long-term partner soon after and moved in with in her in early 2012.
Mr Seddon contextualised his domestic violence between 2012 and 2018 as arising from multiple factors. He claimed to have been ‘mentally unwell’ on occasions, requiring several hospital presentations and medication to improve his mood.[44] He identified persistent relationship stress, unemployment, low pay, substance abuse, and an inability to see his children due to intervention orders, as contextually relevant.[45] When his partner fell pregnant with their first child in 2012, Mr Seddon claimed he was sober for some months and attended a four to five day residential rehabilitation program and Alcoholics Anonymous. He also ‘tried to get back into [his] trade again,’ but claimed that after discovering his partner’s infidelity, he relapsed and ‘never forgave her.’ Mr Seddon explained he was a different person when under the influence of drugs or alcohol:
‘On alcohol and drugs, my abusive side comes out…if she gets in my face I push her…she snaps at me I snap at her…On days I wasn’t drinking, I was reasonable to be around. When I was drinking, I was an arsehole to be around’
[44] Exhibit A1, 13 [79].
[45] Ibid, 10 [59]-[61].
Mr Seddon stated he found it particularly hard to resist his addiction when unemployed during which he engaged in ‘bingeing.’ Even when employed, he recalled taking too many days off without a sick certificate, and recalled losing a job in May 2012. This exacerbated his financial and relationship stressors. He remembered assaulting his partner, which resulted in an intervention order (IVO) in September 2012, approximately six weeks before their first child was born.[46] When asked if he could remember squeezing his partner’s throat for five seconds, Mr Seddon agreed he could. He claimed to be angry at the time, affected by drugs and alcohol, and had called his partner ‘every name under the sun.’ He was arrested, refused bail, spent some weeks on remand, and recalled experiencing suicidal ideation. Although his former partner refused to press charges, an IVO was issued,[47] preventing him from living with his former partner. He said that he nevertheless attended the birth of their first child.
[46] Exhibit R1, 519.
[47] Ibid, 325.
Mr Seddon claimed he found another job as a butcher in January 2013, which included managerial responsibilities. When asked about his drug and alcohol issues at this time,
Mr Seddon claimed it was ‘under control’ because he only smoked marijuana at home. However, the company he was working for closed down during a period he spent on remand, and he again found himself unemployed. His arrest at the time resulted from breaching the terms of a November 2012 IVO,[48] because he ‘wanted to spend time with the kids.’[48] Ibid, 550.
Mr Seddon agreed he again breached IVO conditions on 15 November 2014[49] and assaulted his partner, resulting in a charge of ‘Aggravated assault against child or spouse,’ for which he was convicted in February 2015. He agreed that he pushed his partner against the wall and grabbed her twice by the throat,[50] which ‘scared the shit out of her and the kids.’ He also agreed that the following day he called his partner and threatened to ‘cut her throat and the throats of their children.’[51] Mr Seddon explained he was abusing drugs and alcohol at the time, felt humiliated about being arrested at work, and had lashed out. A further IVO was issued and Mr Seddon pleaded guilty to his offending. He claimed that after this he ‘tackled’ court-ordered counselling ‘full on,’ and learned about the ‘best way to handle situations’ and how to avoid drug and alcohol relapse. He and his long-term partner subsequently reconciled.
[49] Ibid.
[50] Ibid, 320.
[51] Ibid.
Mr Seddon recalled that he lost another job in January 2016 after only a few months. When asked if he was dismissed for stealing as reflected in a medical record he had provided, Mr Seddon disagreed, claiming it was because he had donated meat from the shop, which his employer objected to. He was subsequently hospitalised with mental health issues for four days, claiming he wasn’t thinking straight and felt he had become someone he ‘didn’t want to be.’ Mr Seddon claimed the hospital staff adjusted his medication and introduced him to a rehabilitation service, which helped. He subsequently returned to his partner’s house, but the relationship remained tumultuous.
In August 2016, when his partner wanted to end their relationship and asked Mr Seddon to leave, Mr Seddon agreed he again assaulted her by grabbing her around the throat on two occasions and squeezing her neck, causing pain. One of these incidents was in front of their eldest child.[52] When asked to explain his conduct, Mr Seddon stated he was drinking all day and withdrawing from marijuana. A further IVO was issued preventing
Mr Seddon from contacting his partner and four children between 12 October 2016 and11 October 2017. Mr Seddon agreed this was ‘the beginning of the end’ of their relationship. He relapsed into drug and alcohol abuse, requiring further hospital treatment. He attributed a fit he experienced at the time to drug-taking and not epilepsy as noted in the medical evidence. He claimed to been visited by his former partner in the hospital’s intensive care unit, during which he recalled unfairly blaming ‘her for my stupid wrongdoings.’[52] Ibid, 407.
Mr Seddon submitted that his partner moved to Victoria with the children in November 2017. He said that after managing to control his drinking, he asked his former partner if he could move back in with her. He was surprised that she agreed and Mr Seddon opined it was because she still loved him. Mr Seddon explained he was unable to find work during this period and relapsed into drug and alcohol abuse. On one occasion he recalled his former partner attending a parent-teacher interview, leaving him to care for their children. Mr Seddon recalled ‘drinking all morning,’ fell asleep and when his partner returned, she discovered one of their young children on the road and the stove on. He recalled that his former partner was upset and tipped out the rest of his alcohol. She called him a bad father, gathered their children and left. Mr Seddon stated he was annoyed about the disposal of his alcohol and remonstrated with his former partner through abusive text messages. He remembered still being hung over and agreed it was a ‘pretty aggressive exchange,’ as reflected in the police record.[53] He was subsequently arrested at a hotel with a 30cm knife concealed in his sleeve. When asked why he was carrying a concealed knife, Mr Seddon claimed he was worried that his partner’s female friend might have incited others to ‘deal with him.’ Mr Seddon was convicted in April 2018 of ‘Unlawful assault’ and ‘Make threat to kill’. A further IVO was issued for the period 4 April 2018 until 3 April 2019,[54] preventing Mr Seddon from contacting or approaching his former partner and their four children.
[53] Ibid, 438.
[54] Ibid, 129-130.
Mr Seddon recalled being given a two-year alcohol exclusion order at his trial, and also being required to abide by several CCO and IVO conditions. Approximately five weeks after these convictions, on 4 April 2018, he recalled being detained by police after driving into the back of a parked car. He was unlicenced and over three times the legal alcohol limit at .169.[55] Mr Seddon recalled he had engaged in prolonged drinking to celebrate his birthday. A further 18 days after that he was caught stealing a bottle of spirits from a retailer and a few months later with stealing three bottles of spirits from another store. Soon after he was again picked up while driving unlicenced and was found to be under the influence of drugs. Mr Seddon said he had been ‘smoking weed’ and was driving because he needed to go to the dentist. After being bailed on 13 September 2018 and ordered not to return to the store where he had committed the previous theft, Mr Seddon was apprehended at the same store the next day while trying to steal two bottles of spirits. Mr Seddon claimed this was a ‘cry for help’ after being in crisis accommodation, missing his children, and encountering a ‘mate with ice.’ He was subsequently convicted on
18 September 2018 of a number of offences relating to the above incidents and sentenced to an aggregate of three months’ imprisonment.[55] Ibid, 633.
At his trial on 18 September 2018, Mr Seddon’s mental health issues were characterised as arising from the 2018 intervention order, which had ‘led him into depression…[and]… alcoholism.’ The Tribunal notes Mr Seddon’s mother also refers to her son having mental health issues ‘caused by alcohol and drug use.’[56] That nexus between drugs, alcohol and offending was referred to almost 15 years earlier, when in the June 2005 sentencing remarks, the court accepted Mr Seddon’s submission that his violent offences ‘were based on his use of drugs and that alcohol played the major role in his conduct…’[57]
[56] Ibid, 85.
[57] Ibid, 44.
In his November 2018 Personal Circumstances Form (“PCF”), Mr Seddon stated that he suffered from Post-Traumatic Stress Disorder (PTSD), depression, and anxiety, for which he is medicated.[58] He contextualised these mental health issues as ‘in the past,’[59] however, having last occurred in 2018 following a domestic violence incident:
‘my fiance had placed an intervention order on me and was unable to see my Kids or talk to them I began to take drugs and consume alcohol again and was suffering from mental health issues…’[60]
[58] Ibid, 80.
[59] Ibid, 82.
[60] Ibid, 126.
The Tribunal notes that during Mr Seddon’s sentencing in 2018, his counsel agreed there was ‘no material’ to corroborate Mr Seddon’s claims about diagnosed psychological conditions.[61] Moreover, notwithstanding the reference to Mr Seddon continuing with ‘drug and alcohol counselling,’[62] consultation ‘with a GP,’[63] and efforts to ‘find a detox facility,’[64] there is no corroborating evidence before the Tribunal about the specific outcomes of any counselling, or as a result of consultations with his GP, or whether Mr Seddon benefitted from any previous ‘detox’.
[61] Ibid, 37 [11]-[14].
[62] Ibid, [2]-[3].
[63] Ibid, [4]-[5].
[64] Ibid, [20]-[21].
When asked to provide the names and contact details of any treating physicians in his 2018 PCF, Mr Seddon stated: ‘Doctor in Loddon Prison.’[65] The Tribunal has previously referred to the medical records provided by Mr Seddon from the Lyell McEwin Hospital, which disclose a history of significant mental health issues; consumption of approximately 20 to 30 standard drinks a day, ‘with barely no alcohol free days;’ smoking approximately half an ounce of marijuana a week; and ‘heavy methamphetamine use (injecting and smoking) in July 2015 but none since.’ This record also refers to Mr Seddon having ‘poor insight and judgement; could not recognise the impact drug use was having on his mood and affect.’
[65] Ibid, 65.
The Tribunal notes Mr Seddon’s more recent consultation with an IHMS psychiatrist on 28 January 2019,[66] which records Mr Seddon’s drug history as encompassing cocaine, heroin, ice and cannabis. The psychiatrist diagnosed Mr Seddon as suffering from ‘Severe depression with psychotic features.’ A transition from the anti-psychotic drug Chlorpromazine to Seroquel is ordered, as is Circadin to help with Mr Seddon’s sleep.
[66] Exhibit A1, IHMS record dated 28 January 2018.
In relation to recidivism risk, Mr Seddon claimed he is ‘confident of not reoffending again,’ because he has too ‘much to lose.’ He explained that he has received treatment during his current period of imprisonment and is now rehabilitated:
‘During my time in prison i have received mental health support for my prior addictive behaviours. I have also matured and realise I am regretful for my mistakes. I believe i am rehabilitated….’[67]
[67] Exhibit R1, 126.
In relation to rehabilitation, the Tribunal notes that when asked in his 2018 PCF about whether he had completed any courses or programs to help him avoid further offending, Mr Seddon responded: ‘No.’ The Tribunal also notes Mr Seddon’s claim that he has applied for a number of vocational and job-ready courses, but was unsure if he would be selected.[68] He aspires to do further such courses if released. The Tribunal notes, however, from documents more recently lodged by Mr Seddon, that he has undertaken the following courses:
(a)August 2018: Completed 12 sessions of a ‘Men’s Behavioural Change Program’[69] and the ‘Work Planning and Life Skills Training Program’;[70]
(b)December 2018: Completed a ‘3hr Stress Reduction Program’[71] and a ‘3hr Communication Program’ on 6 December 2018.[72]
[68] Ibid, 82.
[69] Exhibit A1.
[70] Ibid.
[71] Exhibit R1, 88.
[72] Ibid, 87.
Mr Seddon described his drug-taking and efforts to beat his addiction as a persistent ‘cycle’ since his teenage years.[73] He had ‘tried many times to sort [himself] out and stop drinking and taking drugs but kept falling back into it.’[74] When asked by Mr Brown what factors previously contributed to relapses, Mr Seddon explained: ‘Sometimes I probably didn’t get my way, so I turned back to alcohol or drugs.’ He stated that in the past, he had taken ‘two steps forward, one step back,’ but in the future ‘can’t afford to take that step back.’ Mr Seddon claims to have been ‘sober since September 2018.’[75]
[73] Exhibit A1, 12 [70].
[74] Ibid.
[75] Ibid.
Mr Seddon claimed he now understands the ‘key’ to staying off drugs is to get ‘professional supports in place’ to deal with his past, so he can ‘focus on a positive future.’[76] Although previously unable to ‘successfully engage with a psychiatrist or counsellor long term,’ because of ‘moving quite a bit,’ Mr Seddon submitted: ‘This time I will keep up with treatment, will locate the right services.’[77] He expressed a commitment to get ‘professional support from mental health and drug and alcohol services,’ and to continue with medication and counselling, rather than ‘turning to alcohol or drugs under stress.’[78] Mr Seddon stated he was currently in a ‘happy place…on different medications now…I’ve been doing OK since…I’ve accepted my past…I’m feeling pretty much alright.’ When asked by the Tribunal how he currently received his medication, Mr Seddon stated there was a routine in detention, where his medication was dispensed by IHMS staff at 8:30am daily. Staff then observed him taking the medication. When asked by the Tribunal about his former partner’s evidence that he was non-compliant with prescribed medications when at liberty in the community, Mr Seddon said he would be compliant in the future. He said that living with his mother would provide additional support. When asked by Mr Brown about the influence of previous negative associations in the area he would be living in if released, Mr Seddon claimed he would cut all ‘loose ends’ and ‘stay away from them.’ He agreed with Mr Brown’s follow-on proposition, however, that he had been unable to do so in the past, causing him to fall back into drug and alcohol abuse.
[76] Ibid, 12 [68].
[77] Ibid, 13 [74].
[78] Ibid, 11 [66].
Mr Seddon claimed he was unaware prior to going to prison in late 2018 that his visa could be cancelled, but now understands the serious implications, which constitute a ‘very strong incentive for [him] to change [his] life’.[79] He stated that his resolve is now ‘much greater,’[80] that he would stay ‘occupied and focussed’ through work, and aspired to ‘rebuild a close relationship’ with his children.[81] He stated that if he were to ‘mess up again’ he ‘may never see [his] children,’[82] and did not want them to grow up without a father.
[79] Ibid, 10 [63].
[80] Ibid, 12 [70].
[81] Ibid, 11 [66].
[82] Ibid, [65].
Mr Seddon repeatedly invoked the interests of his children as a protective factor, stating their interests strongly motivated him to remain law-abiding, to return to work, and to ‘put money away’ to provide for their future. He aspired to ‘gradually rebuild’ his relationship with the children, claiming he had been talking to his former partner and their four children by telephone, and would be allowed to see them at his mother’s residence:
‘I expect that I will be able to see the children…and things then develop from there. This is the most important thing to me.’[83]
‘I recommenced telephone and Facetime contact with the children with [former partner’s] permission…about three times a week from detention…If my visa is restored I would want to build my relationship with the children as agreed with [former partner]… [Former partner] and I are amicable at present. I accept that she has moved on in another relationship and I will always respect her.’[84]
‘[former partner] tells me that she wants me to be here for the kids.’[85]
[83] Ibid, 15 [87].
[84] Ibid, 16-17 [97]-[99].
[85] Ibid, 17 [103].
Mr Seddon claimed that upon release he would live with his mother and step-father until he ‘gets on his feet.’ They live in country South Australia with two of Mr Seddon’s sisters, one of whom is married. Each sister has a child living with them at the property. Mr Seddon stated he has the support of his extended family, claiming:
‘My mother is strict with me not drinking or having drugs in her house. This will also keep me in line.’[86]
[86] Ibid, 13 [77].
Mr Seddon considers his ‘good work record’ as a butcher would enable him to get work ’reasonably soon,’ referring to a number of previous roles encompassing managerial responsibility.[87] He stated that he would be eligible for Newstart payment while looking for work, but there was no current impediment to him returning to work.
[87] Ibid, 15 [89].
The oral evidence of Mr Seddon’s former partner in respect of this primary consideration can be summarised as follows:
(a)Mr Seddon persistently committed domestic violence against her throughout their relationship, including in the presence of their children;
(b)He was only abstinent from alcohol during their relationship ‘for a little bit – a few months …[which]… was his way of dealing with things;’
(c)Mr Seddon was not compliant with his anti-depressant and mood stabiliser medications during their relationship, due to his drug and alcohol abuse;
(d)Since leaving Mr Seddon, she has enjoyed a happy relationship with another man for approximately a year;
(e)She and Mr Seddon had talked by telephone since the IVO ended in April 2019. They were ‘civil’ with each other and she wanted him to have a relationship with their children;
(f)She no longer had any safety concerns about Mr Seddon, because he had accepted the realities of her new relationship and there was no prospect of reconciliation. Mr Seddon had shown her that further violence was ‘not going to be an issue – he’s shown me he’s changed;’ and
(g)She described Mr Seddon’s attitude now as ‘completely different,’ because he no longer got angry or annoyed when talking to her. She believed that Mr Seddon had been abstinent from alcohol and drugs, and was on the ‘right medication for his mental health.’
Mr Seddon’s mother stated during her oral evidence that she would provide him with stable accommodation if released. Her daughter, who lived at their property and had a car, would help take Mr Seddon to appointments. There was no corroborating evidence before the Tribunal from the daughter referred to. Mr Seddon’s mother reflected on her son’s past conduct and prospects of living a law-abiding life, which is summarised as follows:
(a)Mr Seddon had been affected by growing up without his father and ‘some counsellor’ had told him that if his father had been present in his life, he ‘wouldn’t have turned out the way he did;’
(b)When not affected by drugs and alcohol, Mr Seddon was a good father who spent time with his children;
(c)The ‘only way’ Mr Seddon ‘knew how to cope’ during the frequent ‘rocky’ periods in his life was to drink more than he should or turn to drugs. She opined that the relationship with his long-term partner was rocky for about half the time they were together;
(d)
There had been a ‘bad impact’ on the couple’s two older children as a result of
Mr Seddon’s circumstances, particularly the eldest child who had been diagnosed with autism;
(e)She was aware Mr Seddon had gone to some Alcoholics Anonymous meetings and to the Modbury Hospital, after which he said ‘everything’s good,’ but then relapsed into the ‘same cycle;’
(f)There was a strict no drugs or alcohol policy at her home. Although Mr Seddon had previously lived at their home and subsequently relapsed, she didn’t think he was previously ready to make the necessary changes, but thought he would now stay on the ‘straight and narrow;’
(g)She would make her home available for visitation by Mr Seddon’s children and was in communication with both mothers to coordinate mutually-convenient times. Mr Seddon’s eldest child also had a grandmother in Sydney, so it was still uncertain which location would be selected for the Christmas and New Year holiday period; and
(h)She had returned to New Zealand once in 1995 for a wedding and confirmed there were no close relatives who Mr Seddon could rely on if repatriated.
Mr Brown’s submissions for the respondent can be summarised as follows:
(a)There is a real risk Mr Seddon will commit further violent offences, particularly ‘in the family violence context,’[88] and it is a ‘risk the Tribunal should not take;’
(b)The harm that would be caused by Mr Seddon committing further violent offences is ‘serious;’ and
(c)There is an absence of corroborating evidence regarding rehabilitation.[89]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[88] RSFIC, 9 [44].
[89] Ibid, [42].
Mr Seddon’s persistent criminal offending, particularly offences involving violence or the threat of violence weigh heavily against his application. His involvement in family violence against two women is of particular concern and enlivens consideration of the principle at 6.3(3) of the Direction that:
‘A non-citizen who has committed a serious crime, including of a violent…nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The Tribunal finds that:
(a)If Mr Seddon committed further violent offences, his victims may suffer serious physical or psychological harm. Similarly, if Mr Seddon was again to drive a vehicle while more than three times over the allowable alcohol limit, serious injury or death may result to members of the Australian community;
(b)Mr Seddon’s submissions about not being imprisoned following a number of his violent convictions, or that some of his victims did not suffer physical harm, are unpersuasive and self-serving. Psychological harm inflicted during a robbery or through domestic violence, can nevertheless be very damaging. That is plainly evident from the testimony of Mr Seddon’s former partner, whose eldest child requires continuing psychological care to deal with past exposure to Mr Seddon’s domestic violence;
(c)The High Court has previously held that past actions are legitimate predictors of future behaviour.[90] In Mr Seddon’s case, his repetitive cycle of relapse and recidivism provides little cause for optimism. He has reoffended despite lenient treatment by the courts, which have dealt with much of his offending through fines, control orders, bonds, programs, counselling, and other conditional liberty arrangements. Mr Seddon continued to reoffend after being sentenced to a term of imprisonment in 2005 for ‘Robbery in company.’ He was convicted of further offences in 2006, 2010, 2012, 2013, 2014, 2015, 2016 and 2018. His conduct reflects a persistent contempt for Australia’s law enforcement framework.[91]
(d)Despite Mr Seddon’s previous submissions to the court in 2005 about remorse, reduced alcohol intake and abstinence from drugs, which informed the court’s conclusion that he had ‘good prospects of rehabilitation,’ Mr Seddon continued to abuse alcohol, drugs, and committed multiple further offences. The Tribunal does not accept that drug and alcohol abuse, or relationship issues, in any way justify or reduce Mr Seddon’s responsibility for his offending;
(e)The Tribunal does not accept that Mr Seddon’s mental health issues are now ‘in the past’ as he contends. He was diagnosed by a psychiatrist in January 2019 with ‘Severe depression with psychotic features (disorder),’ requiring continuing medication. Moreover, while the Tribunal accepts that the changes in Mr Seddon’s medication earlier this year may have improved his mental health, this has occurred within a controlled environment, within which routine and supervision ensure detainees are compliant with prescribed medications. The Tribunal is concerned by Mr Seddon’s previous non-compliance with mental health medications when at liberty in the community;
(f)The Tribunal acknowledges that Mr Seddon has again take stock of his life as a result of the visa cancellation process. The Tribunal accepts he may have remained abstinent from alcohol and drugs since September 2018, and notes his latest intentions about living a law-abiding life if released. But his claims are aspirational at best and similar past claims have not been realised;
(g)There is little reliable evidence to corroborate Mr Seddon’s rehabilitation claims, particularly regarding his addictions and propensity for violence. That is not to dismiss the positive steps he has taken or the changes observed by Mr Seddon’s mother or his former partner, but the context in which any progress has been made is relevant. Mr Seddon may have achieved a level of sobriety and stability in his mental health within the structured and controlled environment of immigration detention. That has not previously been demonstrated for any enduring period when he has been at liberty in the community. Apart from relatively brief periods where no convictions were recorded against him, Mr Seddon has consistently relapsed and reoffended. He has been unable to maintain sobriety, or, on his own evidence, ‘successfully engage with a psychiatrist or counsellor long term.’ That is a poor basis on which to accept, largely on his own account, his current claims about enduring rehabilitative gains. Any such gains are relatively recent and untested in the community;
(h)The Tribunal accepts the evidence from Mr Seddon’s mother that she is aware of some steps she and other family members can take in supporting Mr Seddon’s sobriety and rehabilitation if released. That includes accommodation and transport to access rehabilitation, counselling and allied health services nearby. But the evidence shows that Mr Seddon has previously lived with his mother at the same property and benefitted from strong family support, but nevertheless relapsed. His evidence reflected at least one past occasion where his family ‘kicked [him] out.’ The Tribunal is unpersuaded that again placing himself under his mother’s ‘strict ways’ constitutes a compelling protective factor mitigating Mr Seddon’s risk of relapse and recidivism; and
(i)There is no reliable evidence of any job in prospect for Mr Seddon if released and his evidence in this regard is aspirational at best. The Tribunal notes in particular Mr Seddon’s evidence that a lack of work in the past was contextually-relevant to his relapse into substance abuse and reoffending. Under such circumstances, the Tribunal does not consider Mr Seddon’s claim about intending to return to work as a butcher constitutes a persuasive protective factor.
[90] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578-579.
[91] Paragraph 6.3(1) of the Direction.
The Tribunal considers Mr Seddon’s best intentions would again be sorely tested if he was at liberty in the community. It cannot be reliably concluded that Mr Seddon will not relapse into substance abuse or reoffend. The evidence discloses multiple but unsuccessful past opportunities to break the repetitive cycle of relapse and offending. That is despite consistently lenient treatment by the courts and frequent rehabilitative opportunities. The nature and seriousness of Mr Seddon’s past offending, the risk of harm posed by any recidivism, and the likelihood of him committing further offences is considered unacceptable. This primary consideration weighs very strongly against visa revocation.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not to revoke the mandatory cancellation decision is expected to be made. It is not required that the applicant have a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at paragraph 13.2(4) to be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Mr Seddon is the father of five children in Australia with two different women. The eldest child is 14 years old and lives with his biological mother in Queensland. When asked during the hearing why there was no statement or other evidence from the child’s mother, Mr Seddon stated he had not asked her for one. Mr Seddon submits that he saw this child relatively often while living in Sydney, and ‘then a few times a year when he came to stay with my mother in South Australia.’[92] Since then he said that he talks to his son ‘on the phone from time to time’ and follows him on social media.[93] During his oral evidence, Mr Seddon elaborated further on the type of advice he offers his son, including in respect of relationships. Mr Seddon said he aspires to strengthen the relationship with his son if released and wants to become a positive role model for him. If repatriated to New Zealand, Mr Seddon fears never seeing his children again because of ‘financial issues’[94]
[92] Exhibit A1, 16 [90].
[93] Ibid [92].
[94] Ibid, [93]; 17 [103].
Mr Seddon’s other four children are under seven years of age and currently live with their mother in Victoria. Mr Seddon claimed that his repatriation to New Zealand would have an ‘extreme impact’ on his former partner and their four children.’[95] The Tribunal notes that the IVO preventing Mr Seddon from contacting or approaching his partner or their children only expired in April 2019. His evidence, and that of his former partner, is that
Mr Seddon then resumed contact with the children and they speak by telephone two or three times per week. When asked to reflect on his relationship with the eldest of the four children, Mr Seddon recalled taking him to the park quite often and being there during the child’s autism diagnosis. When asked to explain if any needs arose from that diagnosis,
Mr Seddon said they had to pay him more attention and try not to upset him.
[95] Exhibit R1, 59.
Mr Seddon submitted that his former long-term partner has a new partner who she was happy with, and who was ‘supposedly good with the kids.’ Mr Seddon stated he didn’t mind if his children called that person ‘Dad,’ because even though Mr Seddon was the ‘number 1 Dad,’ he was ‘not there.’ Mr Seddon reiterated that being able to remain in Australia in order to maintain some contact with his children was his principal motivation to maintain sobriety. He wanted to ‘change his ways’ and ‘develop a bond’ with his children. He does not want to miss any more of his children’s lives.
The oral evidence of Mr Seddon’s former partner in respect of this primary consideration can be summarised as follows:
(a)She finds it challenging to look after four young children, particularly because of the time required to respond to the needs of the eldest child with autism. The child remains under the continuing care of a psychologist, including for treatment to address his exposure to Mr Seddon’s domestic violence. This has manifested itself in incidents at school, separation anxiety, and other objectionable behaviour. She has had to teach her children ‘it’s not OK to hit Mum.’ The witness stated she did not realise the extent of harm on the children until after she left Mr Seddon;
(b)Notwithstanding their tumultuous relationship, she considers it important that the children have the opportunity of a relationship with Mr Seddon;
(c)Since the IVO expired in April 2019, Mr Seddon has called the children approximately two to three times a week, and most of the children were now old enough to realise it was their father calling;
(d)During the IVO in 2018-2019, lack of contact with Mr Seddon ‘had a big effect’ on their eldest child in particular. If Mr Seddon was repatriated to New Zealand, it would have a further adverse emotional impact on that child;
(e)The younger children were not similarly affected: ‘they don’t really understand...I don’t know if it would be different if they didn’t have regular contact;’
(f)If Mr Seddon was allowed to remain in Australia, she would make arrangements for visitation at Mr Seddon’s mother’s house, including the funding of those visits. When asked about the specific arrangements, she stated: ‘We’ll cross that bridge when we come to it.’ When pressed, the witness said neither she nor her current partner worked, but she could get loans from Centrelink to fund the interstate travel, and she could also call on Mr Seddon’s mother to make a contribution; and
(g)If Mr Seddon was repatriated to New Zealand, she would work with him to maintain telephone contact with their children.
The Tribunal notes a letter from Mr Seddon’s mother dated 21 November 2018, in which she claims Mr Seddon’s ‘children miss him terribly.’ Mr Seddon’s aunt refers to concerns about the children growing up ‘not knowing who their father is and can never be around.’[96]
[96] Ibid, 86.
The Tribunal has considered the respondent’s oral and written submissions[97] in respect of this primary consideration
[97] RSFIC, 9-10 [45]-[46].
Tribunal findings: Best interests of minor children in Australia
The Tribunal acknowledges Mr Seddon’s repeated and heartfelt submissions about wanting to rebuild his relationships with his children, about making a more meaningful contribution in their lives, and his determination to live a law-abiding life and become a role model. But the facts of this case disclose the best interests of Mr Seddon’s children have previously been insufficient to curtail his criminal conduct and domestic violence – including in the presence of some children. Moreover, there is no evidence before the Tribunal from Mr Seddon’s former partner and teenage son who live in Queensland, about the strength of the child’s relationship with Mr Seddon. There is evidence, however, from Mr Seddon’s long-term partner in Victoria, which tends to support his aspiration to rebuild relationships with their children.
It is clear that others have fulfilled the primary parental role for Mr Seddon’s children on those occasions when he has been in the thrall of his addictions, or was dealing with the consequences of his criminal offending, or was precluded from seeing his children due to IVO’s, or, as is currently the case, while he has been in immigration detention.
Mr Seddon’s relationship with his children has been characterised by extended periods of absence and limited meaningful contact. He has frequently denied himself the parental role he aspires to resume. The Tribunal is particularly concerned about the multiple incidents of domestic violence by Mr Seddon against his long-term partner and frequent contraventions of IVO’s designed to protect her and their children. It was clearly not in the children’s best interests that he hurt their mother in their presence. The consequences of that conduct continue to resonate, particularly in respect of the eldest child with autism, who requires continuing psychological care, in part to deal with exposure to Mr Seddon’s domestic violence.In light of the Tribunal’s finding that Mr Seddon’s rehabilitation is incomplete and he constitutes an unacceptable risk of recidivism, the Tribunal is unconvinced he is currently well placed to undertake the positive parental role he aspires to. The Tribunal cannot be satisfied that Mr Seddon’s former partner and children wouldn’t again be at risk if he relapses into drug and alcohol abuse. That is notwithstanding his former partner’s submission that she has ‘no saftey (sic) concerns or worry of him repeating his previous actions,’ or even if visitation with the children is supervised by Mr Seddon’s mother.
Based on the evidence of Mr Seddon’s former partner that she welcomes him having a future relationship with their children, and the possibility that as they get older Mr Seddon’s children may wish to have a closer relationship with him, the Tribunal accepts the best interests of all five children are generally served by Mr Seddon remaining in Australia, where he would be more accessible. More weight is placed in this regard on the interests of Mr Seddon’s son in Victoria who suffers from autism, although that is somewhat balanced by the child’s continuing psychological treatment to address the harm caused by Mr Seddon’s domestic violence.
On balance, this primary consideration weighs in favour of visa revocation, but only slightly so.
Tribunal consideration: Expectations of the Australian community
Paragraph 13.3 of the Direction states:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Bromwich J held in Afu v Minister for Home Affairs [2018] FCA 1311 at [85]:
‘The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms...’
The norm inherent in this primary consideration is reflected at paragraph 6.3(3) of the Direction, which states that non-citizens who commit serious crimes, including those of a violent nature, ‘should generally’ expect to forfeit the privilege of staying in Australia. But use of words like ‘generally’ conveys discretion. Paragraph 6.1(3) of the Direction requires decision-makers to consider the specific circumstances of each case. Paragraph 6.3(5) of the Direction states that a higher level of tolerance may be afforded to those who have ‘lived in the Australian community for most of their life, or from a very young age.’ Paragraph 6.3(7) of the Direction refers to the length of time ‘a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations.
In FYBR v Minister for Home Affairs [2019] FCA 500, Perry J stated at [42] that the primary consideration Expectations of the Australian community, as it related in that matter to a visa refusal decision, required a relatively narrow approach to determine the community’s expectations, which weighed in favour of refusal in most cases:
‘…is a statement of the Government’s view…for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.’
Griffith J adopted a broader approach in DKXY v Minister for Home Affairs [2019] FCA 495, at [23]; [31]; and [34] in holding that the Government’s views must be given due regard, as must all of the other circumstances relevant to a particular case:
‘…the ambiguity of the relevant reasoning in YNQY lends itself to either a broad or narrow approach. The AAT did not take the view that the primary consideration concerning expectations of the Australian community inevitably weighed against revocation. Rather, as the AAT expressly acknowledged at [33] of its reasons for decision, consideration had to be given to the broad range of the applicant’s circumstances when considering the expectations of the Australian community. The AAT then proceeded to implement that broad approach by reference to the totality of the applicant’s circumstances...’
Griffith J’s reasoning, which the Tribunal respectfully adopts, appropriately reflects the potential inherent in paragraph 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...whether or not to revoke a mandatory cancellation of a visa (emphasis added).’ The Tribunal has previously concluded that the ‘broad middle ground of our society,’[98] informed of the specific circumstances of a case, may consider an applicant should be permitted to hold a visa, or that this primary consideration has neutral effect.[99] On other occasions, the Tribunal has concluded the community would expect the non-citizen not to hold a visa.[100]
[98] LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].
[99] ZNBG and Minister for Home Affairs [2019] AATA 1872 at [125].
[100] Umi and Minister for Home Affairs [2019] AATA 2316 at [129].
The community’s underlying expectation of compliance with the law is tempered with a degree of tolerance and acceptance of some risk from the conduct of non-citizens, depending on its seriousness. The community also generally expects that people will be given an opportunity to realign their behaviour with expected social norms.
Mr Seddon submits that although people would be ‘very unhappy’ with his criminal history, if they knew the ‘background of [his] life and all of [his] circumstances they would give [him] one more chance.’[101] He points to his long residence in Australia with most family members now living here, his sense of abandonment when young, his five children in Australia, his contribution through work, his remorse, and a ‘commitment to rehabilitation through mental health.’ The Tribunal also notes the letters from Mr Seddon’s mother and aunt referring to Mr Seddon’s remorse, wanting to ‘make amends to his ex-partner and children,’ having a ‘good heart,’ and deserving a ‘second chance.’
[101] Exhibit A1, 17-18 [104].
Mr Brown for the respondent submits that Mr Seddon’s conduct ‘would be viewed seriously by the Australian community, and would substantially outweigh any sympathy for his situation. The Tribunal should assign significant weight against revocation of the visa cancellation decision.[102]’
[102] RSFIC, 10 [48].
Tribunal findings: Expectations of the Australian community
Given the specific circumstances of this case, the community would have some sympathy for the circumstances of Mr Seddon’s early life and as a long-term resident of Australia. They would also have considerable sympathy for the interests of Mr Seddon’s children and the women he has committed domestic violence against. While potentially prepared to overlook Mr Seddon’s early offending, which on its own may have reflected immaturity, poor decision-making, or impulsiveness, the community would be particularly concerned about the persistence of his offending well into adulthood. That includes multiple family violence incidents, offences against police, breaches of conditional liberty, and failure to take advantage of the court’s lenient treatment and rehabilitative opportunities. The community would be concerned by the repetitive cycle of relapse and recidivism, and Mr Seddon’s prolonged inability to change the course of his life despite numerous opportunities.
The Australian community would expect that Mr Seddon should not hold a visa and this primary consideration weighs very strongly against his application.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
(1) 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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non- refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non- refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Mr Seddon did not raise any claims, nor does the evidence disclose that Australia’s non-refoulement obligations are engaged as a relevant consideration in this matter.
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Tribunal has had regard for Mr Seddon’s written[103] and oral claims. The evidence discloses that Mr Seddon has lived in Australia for over 20 years, during which he has committed numerous serious offences.
[103] Exhibit A1, 18-19.
The Tribunal accepts most of Mr Seddon’s close family members, including his mother, step-father, five siblings, five children and extended family live in Australia. Mr Seddon’s unchallenged evidence is that his family members have an indefinite right to remain in Australia, which is accepted.
Mr Seddon refers to work as a butcher from 1999 to 2018, but there is no corroborating evidence about his claimed employment, or references or letters of support from former employers or work colleagues. When asked in his November 2018 PCF to list any positive contribution he has made to Australia, through activities like volunteering, participation in community and cultural activities, Mr Seddon wrote: ‘None.’ In his most recent statement, however, Mr Seddon claimed that he donated products whilst a butcher to various charitable causes, which the Tribunal accepts.
Tribunal findings: Strength, nature and duration of ties
Mr Seddon left school in Australia prior to completing Year 9 and has made a limited contribution since then through work as a butcher. In addition to his family, he has undoubtedly established friendships during his residence here, although there are no supportive statements in evidence from friends, or former employers, or work colleagues, or others who might reflect on the strength and nature of his ties to the community. The Tribunal is satisfied Mr Seddon has a close relationship with his mother and an aunt who provided supportive letters. The Tribunal is satisfied his mother, aunt and other family members in Australia would be impacted emotionally by his repatriation.
There is a brief statement in evidence from Mr Seddon’s long-term partner and the Tribunal has also had regard for her oral evidence. The Tribunal does not accept Mr Seddon’s claim that there would be an ‘extreme impact’ on his former partner and children.[104] The Tribunal accepts their two eldest children, particularly the eldest child who suffers from autism, will be impacted emotionally by an adverse decision in this matter, although there is no evidence that the telephone contact initiated by Mr Seddon after the expiration of the IVO in April 2019, could not continue if he was returned New Zealand. The evidence of Mr Seddon’s former partner was that she would work with Mr Seddon to maintain that telephone contact if he was repatriated.
[104] Ibid, 59.
Consistent with the requirement of the Direction, Mr Seddon’s lengthy residence in Australia and any positive contribution he has made must be weighed against his criminal conduct, including multiple incidents of domestic violence. Less weight is consequently placed on this consideration as a result of his persistent offending.
The Tribunal accepts that Mr Seddon’s strongest family and social ties are to members of the Australian community. His family members would undoubtedly be saddened by his repatriation, but there is no evidence they couldn’t maintain contact in other ways, or continue to support him from Australia, or visit him if they wished. On balance, however, this consideration weighs in favour of revoking the cancellation of his visa.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Mr Seddon has not raised any claims, nor does the evidence disclose that this consideration is engaged in the present matter.
Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal’s experience is that it is rare in these matters for evidence to be tendered in relation to this consideration. On this occasion, Mr Seddon’s former partner, who is the victim of some of his domestic violence, was invited by Refugee Legal to lodge a submission in support of Mr Seddon and has chosen to do so. Importantly, her evidence is in the context of the relationship with Mr Seddon having ended and with no prospect of reconciliation. She reports being in a happy relationship with another man, but expresses the view that Mr Seddon should have the opportunity of a future relationship with their children. Moreover, Mr Seddon’s former partner submits she has discerned positive changes in Mr Seddon from their telephone conversations since the IVO was lifted in April 2019, and claims to no longer feel threatened by him.
Given the Tribunal’s previous findings, including Mr Seddon’s evidence that he was verbally abusive to his wife and was convicted of domestic violence against another woman in 2012, the Tribunal places less weight on the evidence of his former long-term partner. At best, this consideration weighs very slightly in favour of revoking the cancellation of Mr Seddon’s visa.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
When asked in his 2018 PCF if he has any fears about returning to New Zealand or about any problems confronting him, Mr Seddon responded: ‘No.’[105] Mr Seddon concurrently submits, however, that he has ‘nobody’ in New Zealand to rely upon for support.[106] In such circumstances he fears becoming homeless and ‘vulnerable to the influence of people who are using drugs and alcohol,’ causing him to ‘get back into that lifestyle.’[107]
[105] Ibid, 81.
[106] Ibid, 62.
[107] Exhibit A1, 19 [105].
The Tribunal has considered a letter from Mr Seddon’s mother dated 21 November 2018,[108] and from an aunt dated 2 December 2018,[109] in which they state he has no immediate family members living in New Zealand, and therefore no one to rely upon for support. His aunt submits ‘he will have no support there, wouldn’t know where to go or what to do, and once he’s on his own he will be a lot worse. Mr Seddon similarly points to an absence of support if returned to New Zealand,[110] submitting that his repatriation ‘would be hard on everyone.’[111]
[108] Exhibit R1, 85.
[109] Ibid, 86.
[110] Ibid, 77.
[111] Ibid, 66.
Mr Seddon contends in his latest statement that if repatriated to New Zealand he would become ‘depressed’ and when depressed, he becomes ‘suicidal,’ which causes him to ‘fear for [his] mental health and safety.’[112] He states:
‘It is true there are services in New Zealand that would be available to me but I need support and encouragement from my family to succeed in this.’[113]
[112] Exhibit A1, 19 [105].
[113] Ibid.
The key concerns expressed by Mr Seddon during his oral evidence relate to practical impediments like securing stable accommodation, work, and meeting his daily living expenses. He reiterated that the sort of environment he might end up in if repatriated would expose him to drugs and alcohol. He also wasn’t sure about how to access his medications. In response to questions from Mr Brown, Mr Seddon agreed that his skillset as a butcher was likely transferrable to New Zealand
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)Mr Seddon is a relatively young man at 34 with trade skills as a butcher. His many years of work in that trade are likely to stand him in good stead in returning to remunerative work and addressing his concerns about daily living expenses;
(b)There is no reliable evidence Mr Seddon would be unable to work because of any currently-diagnosed condition. His evidence is that he is in relatively good health, is on the right medications to stabilise his mental health issues, and aspires to immediately return to work if released, as a means of rebuilding his life and financially supporting his five children;
(c)There are no discernible cultural or language impediments to Mr Seddon’s repatriation;
(d)Having left New Zealand at the age of 11, Mr Seddon is nevertheless likely to confront practical impediments in re-establishing himself, like accessing stable accommodation, work or medical support. If he were unable to quickly do so, there is no evidence he would not have access to the same healthcare and support services available other New Zealand citizens;
(e)Perhaps the most notable impediment confronting Mr Seddon is separation from his family in Australia, and establishing new friendships and supports in New Zealand. The absence of close family support in Australia is a potential stressor with implications for his mental health. The Tribunal accepts there is no obvious source of family support in New Zealand, but his mother’s evidence about more distant family members still living there, may at least provide Mr Seddon an opportunity to test their willingness to re-connect;
(f)The Tribunal does not accept, as Mr Seddon contends, that he would almost inevitably find himself returned to the orbit of drugs, alcohol, negative peers and criminality on return to New Zealand. That of course is a choice Mr Seddon may be confronted with, but his evidence is that he has strengthened commitment to re-build his life in the interests of his children, and a determination not to relinquish the hard-won sobriety he claims since September 2018; and
(g)Notwithstanding Mr Seddon’s claims about financial impediments and being unable to succeed without family encouragement and support, there is no reliable evidence that his relatives in Australia could not visit him in New Zealand, or maintain contact in other ways, or provide him with continuing practical and emotional support should they wish.
On balance, this consideration weighs in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of Mr Seddon’s case, as provided for at paragraph 14(1) of the Direction.
CONCLUSION
Mr Seddon’s criminal offending is objectively very serious and there is no reliable basis to conclude he is rehabilitated as he contends. The consequences of him repeating the cycle of relapse and recidivism risks serious harm to members of the Australian community and is considered unacceptable.
Mr Seddon’s claims centre on the interests of his children and his aspiration to contribute more meaningfully in their lives. But the force of that submission is reduced by the persistence of his offending despite their interests, and the desperately sad narrative of occasions when he was violent in their presence. Others have fulfilled the primary parental role during Mr Seddon’s extended absences. When he has been present, the evidence shows he has often been unable to perform the parental role he aspires to resume. The consequences of his addictions and violent conduct continue to resonate, particularly in respect of the child with autism. Based on the evidence of Mr Seddon’s former partner, however, and the possibility his children may want a closer relationship in the future, the Tribunal accepts their best interests are generally served by revoking the visa cancelation decision, but only slightly so.
Acknowledging the challenges in Mr Seddon’s life, the Australian community would be somewhat tolerant of his earlier criminal conduct. But the persistence of his offending, failure to respond to the court’s leniency, and inability to take advantage of numerous rehabilitative opportunities, has exhausted the community’s sympathy and tolerance. The community would be particularly concerned about Mr Seddon’s propensity for violence, including multiple incidents of family violence, and his breaches of conditional liberty. The Australian community would expect that Mr Seddon should not hold a visa.
Of the other considerations relevant in this matter, Mr Seddon’s strongest family and social ties are to members of the Australian community, who the Tribunal accepts will be emotionally impacted by his repatriation. The Tribunal also accepts Mr Seddon has no comparable source of practical or emotional support to draw on in New Zealand, and would be challenged by re-establishing himself in a country he last lived in as a child. That includes finding stable accommodation, work and meeting his daily living expenses. There is the potential his mental health may deteriorate as a consequence. That being said, Mr Seddon is a relatively young man at 34 with well-established trade skills and years of experience as a butcher. If he could not quickly re-establish himself, he would have access to the same health and support services available to other New Zealand citizens.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason why the cancellation of Mr Seddon’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These considerably outweigh the primary consideration of ‘Best interests of children,’ which weighs slightly in favour of revocation, and the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which weigh in favour of revocation, and ‘Impact on victims,’ which weighs very slightly in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.
129.
I certify that the preceding 128 (one hundred and twenty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
…………[sgd]………………….
AssociateDated: 24 October 2019
Date of hearing: 14 & 15 October 2019 Advocate for the Applicant: Self-Represented Advocate for the Respondent: Mr David Brown Solicitors for the Respondent: Australian Government Solicitor
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