Seupule and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 527
•3 March 2021
Seupule and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 527 (3 March 2021)
Division:GENERAL DIVISION
File Number: 2020/8283
Re:Walter Seupule
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 3 March 2021
Date of written reasons: 17 March 2021
Place:Brisbane
The Tribunal sets aside the decision made by the delegate of the Respondent dated 9 December 2020 to not revoke the cancellation of the Applicant’s visa and substitutes a decision that this Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
Senior Member Theodore Tavoularis Catchwords
MIGRATION – Non revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa under the Migration Act 1958 – where Applicant does not pass the character test – where there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Khalil v Minister for Home Affairs [2019] FCAFC 151
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Table of Contents
Decision
Catchwords
Legislation
Cases
Secondary Materials
Table of Contents
REASONS FOR DECISION
An important procedural aspect of this matterISSUES
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian CommunityThe Nature and Seriousness of the Applicant’s Conduct to Date
General overview of the Applicant’s offending history
Application of factors in Paragraph 13.1.1(1) of the DirectionThe risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s initial “Risk of Reoffending” assessment by QCS
The Applicant’s SFIC
Other written evidence from the Applicant
The Applicant’s oral evidence
The written report of Dr Jacqueline Yoxall
Dr Yoxall – evidence in chief
Dr Yoxall’s evidence – cross-examination
Dr Yoxall’s evidence – questions from the Tribunal
Other witness – Mr C B
Other witness – Mr S T
Other written material – Statement of Ms M S U (half-sister of the Applicant)Findings about the Applicant’s risk of recidivism
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s SFIC
The Applicant’s other written evidence
The Applicant’s oral evidence at the hearing
Evidence of Child K
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration BPrimary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration COther Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removedConclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
17 March 2021
Mr Walter Iese Seupule (the “Applicant”) is a 44 year old citizen of New Zealand.[1] Movement records indicate that the Applicant first arrived in Australia on 29 August 1997, with the date of his most recent arrival being 27 February 2019. During the intervening period, the Applicant arrived and departed from Australia on a large number of occasions. For ease of reference, I have composed the following table which reads as follows. In the “Arrive” and “Depart” columns, I have recorded the respective dates of the Applicant’s arrivals and departures from Australia. The periods of time in Australia between those arrive/depart dates are expressed in both years and days in the next two columns. His age upon the date of each of his arrivals back into Australia appear in the final column.
[1]Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [2].
Time in Australia Arrive Depart Days Years
(approximate)
Approximate Age On Arrival 29 August 1997 12 September 1997 14 0 21 4/12 6 November 1997 4 December 1997 28 0 1/12 21 7/12 31 December 1997 29 August 2000 972 2 8/12 21 8/12 4 September 2000 14 May 2003 982 2 8/12 24 5/12 31 May 2003 16 December 2004 565 1 7/12 27 1/12 3 January 2005 25 December 2007 1086 3 28 9/12 8 January 2008 27 January 2013 1846 5 1/12 31 9/12 11 February 2013 6 May 2014 449 1 3/12 36 10/12 12 May 2014 30 August 2014 110 0 4/12 38 1/12 7 September 2014 27 November 2014 81 0 3/12 38 5/12 30 November 2014 19 December 2014 19 0 1/12 38 7/12 27 December 2014 7 May 2015 131 0 4/12 38 8/12 10 May 2015 27 May 2015 17 0 1/12 39 1/12 6 June 2015 11 September 2015 97 0 3/12 39 2/12 14 September 2015 30 October 2015 46 0 2/12 39 5/12 10 November 2015 16 December 2016 402 1 1/12 39 7/12 20 December 2016 13 January 2017 24 0 1/12 40 8/12 15 January 2017 5 May 2017 110 0 4/12 40 9/12 7 May 2017 20 February 2019 654 1 9/12 41 1/12 27 February 2019 3 March 2021
(date of decision)735 2 42 10/12 Total 8368 days 22 11/12
Suffice it to say that for present purposes, the period 29 August 1997 (his first arrival) to 27 February 2019 (his most recent arrival), spans over 23 years. In that 23 year period, the Applicant has spent approximately 219 days outside Australia. It is therefore safe to find that the Applicant has predominantly resided in Australia from the time of his first arrival here on 29 August 1997.
At the time of his most recent arrival, the Applicant entered Australia on a Class TY Subclass 444 Special Category (Temporary) Visa (the “visa”).[2] It is the destiny of that visa that engages the instant application before the Tribunal.
[2]Exhibit G1, G
The Applicant’s SFIC contains a helpful short-form summary of the offences he has committed in Australia since June 2000. That short-form summary[3] may be stated thus:
[3]See Exhibit A1, pages 2–4, paragraph [8].
Date Event 07.06.2000 The Applicant is sentenced by Penrith Local Court for the following offences:
· Use unregistered vehicle on road area (not a trailer);
· Fail to display “L” on car as required;
· Use uninsured motor vehicle; and
· Driver/rider refuse to produce license.
He is fined and is disqualified from driving for four (4) months.
26.07.2000
The Applicant is sentenced by Penrith Local Court for the following offences:
· Assault occasioning bodily harm; and
· Assault occasioning bodily harm.
He is fined and received a section 9 Bond for 12 months.
26.04.2002
The Applicant is sentenced by Penrith Local Court for the following offence:
· Drive on road etc. when license is cancelled.
He is fined.
18.05.2004
The Applicant is sentenced by Penrith Local Court for the following offences:
· Use uninsured motor vehicle;
· Use unregistered vehicle on road area (not a trailer); and
· Unlicensed for Class, Class C/R/LR/MR – 1st offence.
He is fined.
26.03.2007
The Applicant is sentenced by Mt Druitt Local Court for the following offence:
· Common assault.
He is fined and subject to a section 9 Bond for 12 months.
27.02.2009
The Applicant is sentenced by Mt Druitt Local Court for the following offence:
· Never licensed person drive vehicle on road – 1st offence.
He is fined and subject to a section 10 bond.
24.03.2020
The Applicant is sentenced by the Richlands Magistrates Court for the following offences:
· Enter premises and commit indictable offence;
· Stealing by clerks and servants;
· Enter premises and commit indictable offence; and
· Stealing by clerks and servants.
He is convicted on all charges and sentenced to a terms of imprisonment to be served concurrently and suspended after serving 9 months.
While the Applicant was serving a term of imprisonment (i.e., criminal custody) a delegate of the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or “Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”) decided, on 24 April 2020, to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[4] He was notified of this mandatory cancellation decision on 27 April 2020.
[4]Exhibit R1, page 5, paragraph [2].
On 9 May 2020, the Applicant applied for the mandatory cancellation decision relating to his visa to be revoked. A further delegate of the Minister decided on 9 December 2020, pursuant to s 501CA(4) of the Act, not to revoke the mandatory cancellation of the Applicant’s visa. The Applicant received notification of the delegate’s decision made pursuant to s 501CA(4) on 14 December 2020.[5] On 15 December 2020, the Applicant made application to this Tribunal seeking review of the delegate’s decision made pursuant to s 501CA(4), specifically, the decision to refuse to revoke the mandatory cancellation decision made on 24 April 2020.
[5]Ibid.
The hearing of the instant application proceeded before me on Tuesday 16 and Wednesday 17 February 2021. The hearing received oral evidence from (1) the Applicant; (2) the Applicant’s daughter, Ms K S; (3) a long-time friend and work colleague of the Applicant, Mr S T; (4) another long-time friend of the Applicant, Mr C B; and (5) the psychologist, Dr Jacqueline Yoxall.[6] For reasons I will outline below, after the two-day hearing mentioned above was completed, the parties agreed to re-open the hearing for a third day which proceeded before me on 26 February 2021.
[6]Dr Yoxall formally records her professional description as “Psychologist & Associate Professor in Allied Health”.
The Tribunal also received written evidence. This written evidence was categorised into an agreed Exhibit List, a true and correct (anonymised) copy of which is attached hereto and marked “Annexure A”.
An important procedural aspect of this matter
As mentioned, this matter was originally listed for a two-day hearing on 16 and 17 February 2021. The applicable 84th day[7] was 3 March 2021. The two-day hearing concluded on 17 February 2021 whereupon I reserved the matter for consideration and for the writing of a decision to be published on or before the 84th day (3 March 2021). On 18 February 2021, the Tribunal received certain correspondence from a party purporting to have an interest in the matter and expressing an intention to give evidence apparently adverse to the Applicant.[8] Receipt of this correspondence resulted in the holding of an urgent telephone directions hearing on the afternoon of the Tribunal’s receipt of that correspondence (18 February 2021).
[7]Pursuant to s 500(6L) of the Act.
[8]See Exhibits R3–R5.
Following this urgent telephone directions hearing and upon receipt of further correspondence from the parties, I made further directions on 23 February 2021. A true and correct copy of those directions is attached to these reasons and marked “Annexure B”. Those directions:
·afforded the parties an opportunity to respond to the issues sought to be ventilated by the abovementioned person who wrote to the Tribunal on 18 February 2021;[9] and
·facilitated a re-opening of the hearing for a further (and third) day on 26 February 2021.
[9]Note: in making these further directions on 23 February 2021, the Tribunal took into account the requirement that any further material to be received from the Applicant did not offend ss 500(6H) and 500(6J) of the Act.
On 24 February 2021, the abovementioned person who had earlier written to the Tribunal on 18 February 2021 and who sought an involvement in the matter, apparently adverse to the Applicant, forwarded yet further correspondence to the Tribunal expressing, inter alia, a “wish to not appear in the hearing on Friday 26th February”.[10] Consequent upon the Tribunal’s receipt of this further communication from the subject person, a further urgent telephone directions hearing was held on 25 February 2021.
[10]Exhibit R5.
This further urgent telephone directions hearing did not result in the making of any additional directions. However, the parties agreed to nevertheless re-open the hearing on 26 February 2021 and to make certain oral submissions addressing the developments transpiring in this matter following the initial conclusion of the hearing on Wednesday 17 February 2021.
As directed, the third hearing day proceeded before me on 26 February 2021. Given the loss of over a week of writing time for production of a decision in this matter, I formed the view that the most thorough review of the evidence and the production of the most detailed written reasons could not be safely completed in time to meet the 84 day deadline. For all practical purposes, only three days of writing time remained after conclusion of the third hearing day on 26 February 2021.
Based on my intention to consider the material as fulsomely as possible and to deliver an appropriately detailed decision, I caused the Tribunal to publish its Decision in this application pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) on Wednesday 3 March 2021. In so doing, the Tribunal also met the requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure C” is a true and correct copy of that Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271-273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[12]
[11][2018] FCAFC 151.
[12]Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[13] I will address each of these grounds in turn.
[13]Ibid.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant’s ”Check Results Report” prepared by the Australian Criminal Intelligence Commission dated 15 May 2020 (the “ACIC Report”) refers to a sentencing episode before His Honour Magistrate Simpson SM at which certain offences were dealt with by way of sentencing:
·“Enter premises and commit indictable offence”;[14]
·“Stealing by clerks and servants”;[15]
·“Enter premises and commit indictable offence” (second charge);[16]
·“Stealing by clerks and servants” (second charge).[17]
[14]Pursuant to s 421(2) of the Criminal Code Act 1899 (Qld) sch 1 (“Criminal Code”).
[15]Criminal Code, s 398.6.
[16]Criminal Code, s 421(2).
[17]Criminal Code, s 398.6.
There are some discrepancies in the material before me as to what charges were before Magistrate Simpson at this sentencing episode. There are at least two conflicting possibilities available on the evidence. First, the “Check Results Report” prepared by the Australian Criminal Intelligence Commission dated 15 May 2020 which was before the delegate indicates that the Applicant was sentenced to two counts each of both “Stealing by clerks and servants”, and “Enter Premises and Commit Indictable Offence”.
Second, the ‘Verdict and Judgment Record’ authorised by the proper officer of the Richlands Magistrates Court on 24 March 2020 (See Exhibit G1, G2, pages 32–33) suggests there were three offences before the learned sentencing magistrate: 1 count of “Fraud – dishonestly gain benefit/advantage”; 1 count of “stealing by clerks and servants”; and 1 count of “enter premises and commit indictable offence”. That appears to be in accordance with the learned Magistrate’s sentencing remarks, wherein he referred to charges “1”, “2”, and “3” (See Exhibit G1, G2, page 31, lines 15–18).
The “Queensland Person Histories” produced by Queensland Police Service on 25 March 2020 and 12 January 2021 (See Exhibit R2, SM2, page 5; SM 11, pages 49–50) partially corroborate this second version of the charges laid against the Applicant and dealt with by the learned sentencing magistrate.
In all the circumstances, I do not consider that the discrepancies in the evidence about the Applicant’s offending sentenced in 2020 would have materially affected my finding that the Applicant’s offending is “serious” for the purposes of paragraph 13.1.1(1) of the Direction. Therefore, I will proceed on the basis of the evidence contained in the ACIC Report for the remainder of these reasons. I note that (1) this is the basis upon which the Applicant approached the matter (See Exhibit A1, page 4); and (2) the cumulative sentence represented in the ACIC Report is more adverse to the Applicant than the formulation propounded by the Respondent (See Exhibit R1, pages 4–5).
The learned sentencing Magistrate imposed the following sentencing regime on the Applicant for the abovementioned four charges before the court on 24 March 2020:
“[…] For charge 1, you’re sentenced to three years imprisonment but I’ll order the period of imprisonment be suspended after you’ve served nine months for an operational period of three years. I order you to pay compensation of $61,146.20 referred to SPER. For charge 2, you’re sentenced to 12 months imprisonment wholly suspended after you’ve served nine months for three years. And charge 3, 18 months imprisonment suspended after you’ve served nine months of condition that you not commit another offence punishable by imprisonment for the next three years. So the effective head sentence is three years, sir. You will serve nine months. You will be released after you’ve served the nine months and the balance of the term will be suspended for three years. The conviction’s recorded.”[18]
[18]Exhibit G1, G2, page 31.
In his SFIC, the Applicant makes the following concessions:
“3. The Applicant concedes that:
(a) the decision to cancel his visa under s 501(3A) of the Act was made according to law; and
(b) he does not satisfy the character test as prescribed by s501 of the Act for the purposes of s 501CA(4)(b)(i) of the Act.
4. The Applicant concedes that, as at the date of the Original Decision, he:
(a) had a substantial criminal record as defined through s 501(7)(c) of the Act;
(b) did not pass the character test as prescribed by s 501(6)(a) of the Act;
(c) was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the state of Queensland.
5. The Applicant therefore concedes that the Original Decision was properly made under s 501(3A) of the Act.”[19]
[19]Exhibit A1, pages 1–2; paragraphs [3]–[5].
I am consequently satisfied (and agree with the Respondent’s contention)[20] that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[20]See Exhibit R1, page 7, paragraph [14](a).
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[21] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[22]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[21]On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[22]The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[23]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[23][2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
General overview of the Applicant’s offending history
Stated generally, the Applicant has an offending history in Australia that spans (in terms of sentencing episodes) the period June 2000 through March 2020. He has committed 17 separate offences that have been dealt with at seven separate sentencing episodes. Ten of these offences involve offending relating to the ownership and/or operation of a motor vehicle.
To my mind, it is fairly contended that the Applicant’s offending does not involve “[…] a specific pattern of criminal offending in relation to any specific type of crime.”[24] The Applicant’s offending has been disparately committed and appears to have been influenced by certain very significant factors impacting on his life at various times during the approximately 23 years he has been here. Those impacting factors have, in my view, been so significant that they warrant mention here:[25]
[24]Exhibit A1, page 10, paragraph [33].
[25]The following is an adaptation of the table appearing at Exhibit A1, pages 2–5, paragraph [8].
Date
Event
[Date redacted].04.1976 The Applicant, Walter Iese Seupule, is born in Auckland, New Zealand. 31.12.1997 The Applicant arrived in Australia and was granted a Class TY Subclass 444 visa. 1999 The Applicant lost his first child who was stillborn. 05.03.1999 The Applicant’s child, [Child K] is born. 08.02.2001 The Applicant’s child, [Child T S], is born. 27.09.2003 The Applicant marries [Ms B S] [maiden name redacted] 17.11.2006 The Applicant’s child, [Child NS-M], is born. 10.02.2011
The Applicant’s daughter, [Child A S], is born. 27.11.2015
The Applicant’s daughter, [Child NS-F], is born. 24.08. 2017 The Applicant’s daughter, [Child NS-F], suddenly passes away due to a viral illness aged two-years-old. 14.02.2018 The Applicant’s child, [Child C S], is born 2018 The Applicant’s marriage breaks down.
It is possible to broadly categorise the Applicant’s offending into, first, offending he committed prior to the tragic death of his two-year old child, Child NS-F in August 2017; and second, offending committed prior to that time. In his SFIC, the earlier offending is referred to as “the earlier historical offending” which comprises respective convictions for:
·June 2000 – driving related offending;
·July 2000 – assault occasioning actual bodily harm (2 counts);
·April 2002 – driving related offending;
·May 2004 – driving related offending;
·March 2007 – common assault (domestic violence);
·February 2009 – driving related offending.
There followed a complete absence of offending from 2009 until 2017 at which time the Applicant committed the offences that came before the Richlands Magistrate Court on 24 March 2020. Significantly, it should be noted that Child NS-F passed away in August 2017. In the immediately following month (September 2017), the Applicant commenced the unlawful activity that eventually came before the Richland Magistrates Court in March 2020. That particular unlawful activity I have earlier particularised as:
·“Enter premises and commit indictable offence”;[26]
·“Stealing by clerks and servants”;[27]
·“Enter premises and commit indictable offence” (second charge);[28]
·“Stealing by clerks and servants” (second charge).[29]
[26]Pursuant to s 421(2) of the Criminal Code Act 1899 (Qld) sch 1.
[27]Criminal Code, s 398.6.
[28]Criminal Code, s 421(2).
[29]Criminal Code, s398.6.
It is plain from the historical sequence of the Applicant’s commission of the offences that the second category of his offending commenced very shortly or immediately after the tragic loss of Child NS-F. It is also plain from the nature of his offending history, that for the offences the Applicant committed during the ten or more years prior to September 2017 he received non-custodial terms primarily in the form of fines, good behaviour orders, probation service supervision; and bonds.
Viewed in its totality, the Applicant’s criminal history is not suggestive of any established pattern of very serious conduct that was serious from its outset, or became gradually more serious over time. On the contrary, the following observations can be made about the totality of the history. It starts in June 2000 with predominantly motor vehicle offending. While it can be accepted that there are two convictions for assault occasioning actual bodily harm in July 2000, the first of those convictions was sentenced by the imposition of a $500 fine and the second by way of imposition of a 12 month bond. I will refer to those two particular convictions later in these reasons.
Suffice it to say that for the purposes of obtaining an overview of the Applicant’s offending, for the period 2004–2009 he primarily committed motor vehicle offences. There is the singular conviction for common assault in March 2007 about which I will say more also later in these reasons. There followed a further single motor vehicle conviction in February 2009. There was no further offending between February 2009 until September 2017 at which time Child NS-F passed away.
In terms of a general overview, the Applicant’s offending can be basically comprehended by reference to a first phase of those offences committed pre-September 2017 and a second phase of offences committed after that date. In terms of his violent offending, he has, as mentioned earlier, two convictions dating from July 2000 for “assault occasioning actual bodily harm”. He has a further conviction (as also mentioned above) for common assault dating from March 2007.[30]
[30]SM41,
I will refer firstly to the nature of the offending culminating in the Applicant’s two convictions for assault occasioning bodily harm. These two assault convictions appear to derive from the Applicant’s life-long involvement with the rugby sporting code and an incident that occurred at a local rugby league clubhouse facility on 29 August 1999. With reference to the offending transaction, the police record initially referred to the offending thus:
“Police attendend and spoke to the victims and pois. Their particulars have been taken in the official notebook.As a result of an assault, ......... (Vic1), have sustained sever injuiry to his left cheek bone.Victim2 and 3 have sustained soreness to their heads in an assault. Then all the victims attended Nepean Hospital where only Victim 1 had received treatment because of his sever injuiry. Victims and Pois appeared to be intoxicated so their statements were not obtained at that time . . Police spoke to the Duty manager of the [redacted] club to view the video of the Survilence Camera of that night. He informed the police that [redacted] threatre got only one survilence camera. This camera is always fixed upon bar area during the night time and it has not covered an incident of an assault upon all the victims […]”[31]
[Errors in original]
[31]Exhibit R2, SM43, page 144.
The police eventually interviewed the Applicant on 19 December 1999 and, following that interview, he was charged:
“On Sunday the 19th December 1999 Police interviewed POI 1, Walter SEUPULEIn relation to this offence. During the interview he stated thay he was at Panthers on the night in question and remembers that he was involved in a fight but due to his level of intoxication was unable to remember exact happenings. He stated that he was informed by his friends that he "punched out" two blokes who he suspected of stealing his drinks. He was informed after the interview that he would be charged with A.O.A.B.H.The POI was charged accordingly.”[32]
[Errors in original]
[32]Ibid.
During the hearing, the Applicant was questioned about these two convictions in cross-examination. He was taken to the summonsed material that referred to this offending. He appeared to have a reasonable recollection of it and otherwise accepted that he had committed these offences.
“[Ms Ervin]:[33] So this is from 1999, so only two years after you arrived in Australia you were charged with two counts of assault; that's correct?
Applicant: Yes. Yes.
Ms Ervin: Yes. Do you recall - - -?
Applicant: Yes. Yes, that's correct.
Ms Ervin: - - -the incident that led to that?
Applicant: Yes, kind of. A little bit. It was a pretty long time ago.
Ms Ervin: Yes, it was. Do you not have (indistinct)?
Applicant: Sorry, what was that?
Ms Ervin: What do you recall happening on that occasion?
Applicant: This - on this night here I know it was a big group fight that happened outside of [name redacted] Leagues Club, in [suburb redacted] Sydney, and I remember being really drunk on that night as well, too. And I don't really recall much of what happened but I do know that, yes, we got into a fight. And there was me and my friends and against another group of guys too and then, yes, I was charged with assault. We don't - they didn't really pinpoint it was me doing the damage but I was just there on the fight and I do recall throwing punches, and I don't recall the individual that I threw punches at, so, you know, I pleaded guilty to it.”[34]
[33]Ms Kate Ervin, Lawyer, Clayton Utz, representative for the Respondent. Note: certain Transcript portions refer to Ms Ervin as ‘Ms Ervan’, which have been corrected.
[34]Transcript, page 9, lines 17–36.
The Applicant’s conviction for “common assault” in March 2007 was committed in a domestic context. The factual summary prepared by NSW Police leaves little room for doubt about the nature of the offending on the spouse/victim, committed, as it was, in the presence of their daughter:
“The victim and the accused are currently involved in a domestic relationship and have been married for the past three years. As a result of this relationship they have three children together.
On Thursday the 22nd of February 2007 the victim, the accused and their children were out. The victim and the children returned to their home address approximately 11:50pm on the 22rd of February 2007. The accused was not with the victim at this stage. About 12:30am on the 23rd of February 2007 the accused has returned home intoxicated. At this time the victim has got out of bed and opened the front door for the accused.
The accused has taken off his clothes as the victim has attempted to go back to bed. The accused started to pull the victims hair while also slapping her to the face area. The victim was covering her face with her hands protecting herself.
The accused has told the victim to get into the bedroom and the victim went into the room with her eldest daughter. The accused has followed the victim into the bedroom and pushed her against the wall. During this time the accused was yelling at the victim. The victim fell onto the wall and the accused as left the room and went to bed.
The victim contacted police who attended shortly after and obtained a signed statement from the victim. The accused found asleep in a bedroom and was woken and spoken to. He initially denied the offence, he was arrested and cautioned and conveyed to Mt Druitt Police Station where he was entered into custody. LEPRA provisions were complied with. The accused was not electronically interviewed due to his level of intoxication.
As a result of the assault the victim felt pain and at no time did the victim give the accused permission to assault her. A TIO was applied for and granted.”[35]
[35]Exhibit G1, G2, page 27.
The Applicant was taken to the circumstances of this offending during cross-examination and did not appear to cavil with the respective propositions that (1) he had committed the offences and (2) that they were committed upon a woman:
“Ms Ervin: So this states that you arrived home and then started to pull her hair and slap her in the face. So, do you recall this incident happening?
Applicant: I recall the lead up to, to the incident but I don't recall anything that happened during the incident. I know that my wife and I were at a party and she, she was accusing me of, of flirting with some girl but it was actually a friend of mine's wife. She was actually just saying hello. She left the party and went and picked up our daughter and then - our kids, both our kids and then went back to, to the house. I arrived some time later and yeah, and we must have got into an argument and all that. I remember waking up and, in the police station and they were charging me and that and I just said, 'yeah, I'll plead guilty to you to whatever she said to happen' because at the time I just, I couldn't believe that I did do that to her. We have never really, we argue like normal couples do but I have never raised my hand to her before or even after that incident. So, the police said I was, I was just too drunk for them to interview me as well too so I couldn't really remember why I had been in the house but I just took her word for it and I have apologised to her and remorseful about what I did to her and we're working on it together. Even speaking to the counsellor here - I have spoken to Darryl numerous times about it and we have dissected the issue and break it all down to, you know, my wife did the right thing by removing herself from the party and going home and I guess I did the wrong thing by going home but I thought at the time that I got home she will be all right but, no, I guess I wasn't.”[36]
[36]Transcript, page 11, lines 21–42.
The Applicant has 10 convictions for what may be generally be described as “traffic offending”. Some of those offences may appear to be trite or otherwise cursory. Oftentimes, this may have been the case. However, as I have observed in an earlier decision, a failure to properly observe the laws and rules governing the operation of an approximately two-tonne projectile that has the capacity to cause very significant personal injury and property damage, must be viewed with some level of seriousness. As I noted in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561:
“The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant.”[37]
[37]At paragraph [45].
The sheer number of offences relating to a motor vehicle committed by this Applicant is indicative that until 2010, at least, he failed to understand how, for example, operation of an unregistered vehicle by an unlicensed driver on an Australian public road increases other road users’ risk exposure. Motor vehicles are required to be registered because registration provides some measure of certainty about the vehicle’s roadworthiness and its level of necessary insurance to meet claims by third party road users for loss arising from personal injury.
The Applicant was questioned about his traffic offending and did not appear to cavil with the suggestion that his conduct does, at the very least, betray a demonstrated disregard for Australian road rules:
“Ms Ervin: So, Mr Seupule I suggest that you driving on Australian roads for such - across such an extended period of time without your licence would suggest a disregard for Australian traffic laws. Is there anything you can say to that?
Applicant: Sorry, you're breaking up on that one, sorry. What was the question?
Ms Ervin: Is there anything that you would say to the suggestion that driving on Australian roads without a driver's licence over an extended period of years would demonstrate a disregard for Australian road rules?
Applicant: Yeah, that's correct but not disregard but just, um, I was young and stupid at the time. Didn't realise the magnitude of not having a licence or thinking that, you know, I was all right to drive because I knew how to drive a car um, yeah, but, yeah, I don't really have an excuse for, for why I was driving without a licence but - - -”[38]
[38]Transcript, page 10, lines 15–27.
The phase of the Applicant’s offending committed after the passing of Child NS-F (September 2017–February 2019) is at least of equal seriousness, and perhaps even more serious, than his offending prior to that time. This offending was intentional, systematic, and deliberate. It purported to draw the Applicant’s ex-wife into its orbit. It involved a significant breach of trust that his then-employer had reposed in him. It is clear that the Applicant sought to obtain a quantifiable financial advantage as a result of his offending. For present purposes, the sentencing remarks provide a concise snapshot of the financial extent of the offending and how it was committed:
“However, over an extended period of time you committed a terrible act on your employer where you’ve been systematically stealing metal from the business and seeling [sic] it to recycling metal industries. You were using your ex-wife’s or your wife’s ABN as part of this process. She told police at no time did she give you permission to use her ABN. You were detected and you were asked to return your keys, which you did not, and the business had to change the locks on the business to effectively keep you out. You were observed in June 2019 to be travelling on the Ipswich Motorway and I’m not sure how that exactly fits in – just before the 19th transaction. You obtained $23,409.31 from recycling metal industries and the total sum of the value of the steel stolen was $61,146.20.”[39]
[39]Exhibit G1, G2, pages 29–30.
The Respondent, in its SFIC, has helpfully summarised the method of how the Applicant committed these offences comprising some 19 separate incidents committed over a period of 19 months:
“27. A Queensland Police Service Court Brief provides further details, stating that:
(a) the Applicant worked at the victim company ([victim business]) between September 2017 and May 2019, when his employment was terminated;
(b) a manager at the victim company became suspicious after an associate informed him that the Applicant had been trading metal to [purchasing business] using the Applicant's ex-wife's ABN, and those suspicions increased when the Applicant refused to return a master key that had been issued to him in the course of his employment;
(c) the manager attended [purchasing business], a manager of which confirmed that the Applicant had conducted 19 trades between 30 September 2017 and 8 June 2019. During this conversation, the parties confirmed that each of those 19 trades was of metal that had been obtained from the victim company;
(d) Police spoke with the Applicant's ex-wife, who stated that she did not know the Applicant was using her ABN and had not given him permission to use her ABN;
(e) Police seized copies of the transaction reports from [purchasing business], which stated that the Applicant had traded in 4,494 kilograms of various metals and received $23,409.31 from [purchasing business]; and
(f) the manager of [victim business] told Police this amount of metal would have cost the company in excess of $50,000.”[40]
[40]Exhibit R1, page 11, paragraph [27].
During cross-examination, the Applicant did not cavil with the factual circumstances of the offending and readily conceded the nature and extent of his wrongdoing:
“Ms Ervin: So you started working at [victim business] in September 2017, is that right?
Applicant: September 2017?
Ms Ervin: Yes?
Applicant: No, I started working there on 8 February 2017.
Ms Ervin: Then you over time started – you took some metal from your employer and sold it to someone else, is that correct?
Applicant: Yes, I took it to a scrap yard in exchange for cash.
Ms Ervin: Then when your manager asked you to bring the master key to the business that you had you refused, is that correct?
Applicant: No, I didn’t refuse to bring the master key in. At the time I was in Hervey Bay when he called and I – I said to him that I will drop the keys off but I kept forgetting to drop it off to him.
Ms Ervin: When you sold the metal you used your wife’s ABN, is that correct?
Applicant: Yes, that’s true.
Ms Ervin: How did you get her ABN details?
Applicant: Sorry, what was that?
Ms Ervin: How did you get the information for her ABN?
Applicant: I was married to her, you know, before that.
Ms Ervin: Did she give you permission to use her ABN?
Applicant: No, she didn’t. She didn’t give me permission.
Ms Ervin: Did she know that you were using it?
Applicant: No, I don’t think so.
Ms Ervin: Then your employment was terminated in May 2019, is that correct?
Applicant: Sorry, you were breaking up.
Ms Ervin: Sorry, your employment with [victim business] was terminated in May 2019, is that correct?
Applicant: Yes. True.
Ms Ervin: Then I will get you to flip a couple of pages back in that bundle of documents to page 9?
Applicant: Yes.
Ms Ervin: The entries that I am going to draw your attention to is right at the bottom of the page, charge 21 of 21. That on 8 day of June 2019 at [suburb redacted] in the state of Queensland you dishonestly gained $5,035?
Applicant: Yes.
Ms Ervin: So is that the date that you made your last trade of metal for cash?
Applicant: Yes, I think so. I’m not sure but I think so. They would have got all that.
Ms Ervin: So that occurred after your employment was terminated?
Applicant: Yes, that’s true.”[41]
[41]Transcript, page 12, lines 2–45.
I will now apply the relevant sub-paragraphs to paragraph 13.1.1(1) of the Direction in order to arrive at a description of the nature and seriousness of the Applicant’s conduct to date.
Application of factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Those factors are as follows:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There can be no question that the Applicant’s respective convictions for “assault occasioning actual bodily harm” at a local rugby league clubhouse facility which the Applicant was sentenced for in 2000 squarely fall within the ambit of this sub-paragraph (a). While it can be accepted that the physical nature of the offending is not at the high end of seriousness for this type of offending, it is clear that the police nevertheless regarded the offending as violent and, as such, thought it necessary to charge him with two counts of “assault occasioning actual bodily harm”. An application of this sub-paragraph (a) to the factual circumstances surrounding these two convictions militates in favour of a finding that the Applicant’s offending is of a serious nature.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. I have earlier described the circumstances of the Applicant’s offending in a domestic context against his former spouse. He pulled her hair and slapped her face while she raised her hands to protect herself. He demanded that she get into the bedroom and he pushed her against the wall while yelling at her. She fell into the wall as he left the room and went to bed. Further to that, this offending transaction occurred in the presence of their daughter. The Applicant can find no solace in the non-custodial nature of the sentence imposed upon him for this offending. It was cowardly and violent offending perpetrated against a woman in the presence of their daughter. There can be no other finding than that this sub-paragraph (b) militates in favour of a finding that such offending must be viewed very seriously, regardless of the sentence imposed.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” To be fair to the Applicant, it is difficult to find, with any certainty, that any of his offending has been committed against people in the community who can be regarded as “vulnerable” such as elderly or disabled people. Likewise, his criminal history does not disclose any conviction for directly challenging or refusing a direction or request emanating from lawful authority.
That said, I am of the view that the Respondent makes an acceptable contention in relation to the Applicant’s offending involving the commission of significant fraud and theft from his former employer during the period September 2017–May 2019. As mentioned, his offending was systematic, deliberate, and obviously intended for financial gain. The offending occurred over 19 months, and the Applicant was shown to gain over $20,000 from the offending conduct. While it can be said that the former employer was a commercially sustainable enterprise and thus not necessarily a “vulnerable” person for the purposes of this sub-paragraph, the former employer nevertheless placed very significant trust in the Applicant in terms of controlling large quantities of its tradeable product (recyclable metal). It is not denied that the Applicant betrayed and abused that trust for the purpose of directly positioning himself to derive a very significant financial advantage.
This has resulted in significant quantifiable loss for the former employer. In all the circumstances, the Applicant’s betrayal of the employer’s trust can, to my mind, be construed as conduct by this Applicant against an entity that he knew was “vulnerable” to fraudulent and theft-based conduct of the type he committed against it and for which he was sentenced to a cumulative custodial period of eight years.[42]
[42]Note: I underscore that this calculation is based on the assumptions I have earlier outlined at paragraphs [22]–[25], above.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort[43] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[44]
[43]See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[44]See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
As is very often seen in the criminal histories of Applicants in applications such as this, there is a significant period of benevolent and favourable sentences over a quite prolonged period. The first approximately 10 years of this Applicant’s offending was punished exclusively by non-custodial terms. While there was no offending between approximately 2009 and 2017, the offences he committed involving theft from his employer/former employer were of such magnitude that, according to the ACIC Report, the sentencing magistrate saw fit to impose a cumulative custodial period of eight years for the specific four offences that came before the court for sentencing on 24 March 2020.
Thus, while the totality of the sentences imposed on the Applicant across all of his offending history may not be regarded as serious or overly significant, it is safe to find that the nature and extent of the sentences imposed upon him for the four specific convictions for which he was sentenced on 24 March 2020, when conjoined with the sentences imposed on him prior to that date, means that the totality of his offending has been of a serious nature.
The Applicant came to Australia (and resided here on a predominant basis thereafter) in 1997. At that time, he was 21 years of age. He has spent the ensuing 23 years predominantly as a resident of this country. He commenced offending in Australia in August 1999, which is close enough to precisely two years after his initial arrival here. Having regard to paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances.
As against that finding, I have earlier recounted the Applicant’s strong employment history in this country. It runs from 2005–2020. This evidence was strongly corroborated by Mr S T. I have also recounted his very strong contributions to the community, particularly his local rugby union community club, which evidence was strongly corroborated by Mr C B. There can be little to cavil with the finding that his respective work and community contributions while in Australia most certainly attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
A stronger measure of weight in the Applicant’s favour can be found in paragraph 14.2(1)(b) of the Direction. Consistent with the commentary appearing at Principle 6.3(7) of the Direction, this paragraph 14.2(1)(b) requires decision makers to, inter alia, take into account the Applicant’s strength, nature and duration of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
I have earlier summarised the details of the eight children the Applicant and his ex-wife have had in Australia.[192] At the risk of repeating myself, two of those eight children have tragically passed away at very young ages. Two of them have reached and passed the age of 18 years. The remaining four children are aged 14 years and under, with the youngest being aged five months. There is also a Grandchild born approximately one month ago.
[192]See paragraphs [190]–[192], above.
Both of the Applicant’s parents died when he was aged just 11. While he has two sisters residing in New Zealand, it seems clear that his entire immediate family resides in Australia:
“Ms Samuta: At paragraph 81(e) he refers to his entire immediate family residing in Australia; and at paragraph 87 he makes contentions that he has an absolute lack of ties to New Zealand. The applicant (indistinct) factual error as he has two sisters how reside in New Zealand. In any case, the applicant (indistinct) by and large maintains (indistinct) Australia, and being removed from personal and professional network, but especially his children are an emotional and psychological impediment to his return to New Zealand.”[193]
[193]Transcript, page 3, lines 17–23.
As I have mentioned earlier, while the inter-personal relationship between the Applicant and his former wife may not remain on foot, the weight of the evidence seems clear that they have a good and solid working relationship in terms of the ongoing parenting arrangements for the children. I have earlier quoted relevant portions of the Transcript which make it clear that the Applicant is a regular attendee at events such as the children’s school sports day or a school awards day. He also attends parent-teacher nights for the children, and although there are no formal court orders or parenting plans in place for the children, the Applicant’s ex-wife does not have a closed mind to the children staying overnight with the Applicant or for him to spend a full day with the children on a given weekend.[194]
[194]See Transcript, page 22, lines 27–47, and page 23, lines 1–22.
Given the level of the strength, duration and nature of the Applicant’s family/social links with members of his immediate family in Australia, a strong measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, having regard to the totality of the evidence relevant to this Other Consideration (b), and the resulting levels of weight in his favour to be found in paragraphs 14.2(1)(a)(ii) and 14.2(1)(b), I am of the view that this Other Consideration (b) weighs strongly in favour of revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application. This finding is endorsed by both parties in their respective SFICs.[195]
[195]See Exhibit A1, page 20, paragraph [82]; see Exhibit R1, page 15, paragraphs [59]–[60].
(d) Impact on victims
There is no victim impact statement (or equivalent) before me that the Applicant’s continued presence in Australia would have an adverse impact on any of his victims. There is no evidence to indicate that this consideration is relevant to determination of the instant application. This position is endorsed by both parties in their respective SFICs.[196]
[196]See Exhibit A1, page 20, paragraphs [83]–[85]; see Exhibit R1, page 15, paragraphs [61]–[62].
Accordingly, I am of the view that this Other Consideration (d) is of neutral weight for the purposes of determining the instant application.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and therefore required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his SFIC, the Applicant contends that “this consideration should weigh strongly in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4).”[197] In his PCF, in response to the question about him having any concerns or fears about a return to New Zealand, the Applicant said “I have no immediate family living in New Zealand. Both my siblings live in Sydney. My childrens [sic] live here in Brisbane.”[198] I am mindful of the abovementioned correction made at the hearing by the Applicant’s representative to the effect that he has two sisters who reside in New Zealand.[199]
[197]Ibid, page 20, paragraph [88].
[198]Exhibit G1, G2, page 53.
[199]See paragraph [271], above.
The Applicant appears to be a relatively healthy man of 44 years of age. In response to the question in his PCF about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[200] I am of the view that the Applicant will be able to avail himself of a level of medical care and governmental social support in New Zealand[201] at or about the same level that the Applicant has experienced in Australia. Further, he will have access to those things in the context of what is generally available to other citizens of New Zealand. Thus, I am not of the view that the Applicant’s age and state of health are factors that attract any determinative measure of weight in his favour pursuant to this Other Consideration (e).
[200]Exhibit G1, G2, page 52; see also Section 14.5(1)(a) of the Direction.
[201]See section 14.5(1)(c) of the Direction.
There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[202] New Zealand is culturally and linguistically similar to Australia. He will not face significant linguistic or cultural barriers if compelled to return there. Any such difficulty would present as a short-term hardship and would not preclude successful resettlement in New Zealand.[203]
[202]Section 14.5(1)(b) of the Direction.
[203]Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at paragraph [101] per Senior Member Kelly.
According to his PCF, the Applicant has “no immediate family living in New Zealand.” While that is not entirely correct, there is little in the way or convincing evidence to suggest that he will be readily able to find some kind of safe or satisfactory haven by going to live with either of his sisters in New Zealand. I have previously found that the Applicant has a solid employment history in Australia. That said, in his oral evidence, he did not seem to cavil with the contention that he would be relatively able to find work in New Zealand if returned there:
“Senior Member: Okay. There’s also a chance, isn’t there, and a likely chance that if you can find – if you are deported to New Zealand and if you can find work in New Zealand, it is fair to presume that you will send – you would send money back to Australia to support the family, is that a fair assumption?
Applicant: Yes, that is. And I will be.”[204]
[My underlining]
[204]Transcript, page 21, lines 42–46.
I therefore accept that the Applicant will be able to find employment in New Zealand if returned to that country. Having regard to the totality of the evidence referable to this Other Consideration (e), I am thus of the view that it is, at best, of moderate weight in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: weighs strongly in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: of neutral weight; and
·extent of impediments if removed: weighs moderately in favour of revocation.
Conclusion
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Considerations A and C each carry a certain, but not determinative, weight in favour of non-revocation;
·Primary Consideration B weighs very strongly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations, specifically:
o Other Consideration (b) weighs strongly in favour of revocation;
o Other Consideration (e) weighs moderately in favour of revocation;
·I consider (and find) that the cumulative weight attributable to Primary Consideration B and Other Considerations (b) and (e) determinatively outweighs the certain, but not determinative, weights I have respectively attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours revocation of the decision to cancel the Applicant’s visa.
Consequently, I find that there is another reason to exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 9 December 2020 to not revoke the cancellation of the Applicant’s visa and substitutes a decision that this Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
I certify that the preceding 288 (two hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
Associate Dated: 17 March 2021
Date(s) of hearing: 16, 17 & 26 February 2021 Advocate for the Applicant: Ms Jennifer Samuta, Director Solicitors for the Applicant: Samuta McComber Lawyers Advocate for the Respondent: Ms Kate Ervin, Lawyer Solicitors for the Respondent: Clayton Utz ANNEXURE A – EXHIBIT REGISTER
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED G1 Section 501 G-Documents
(paged 1–217)- 21 December 2020 R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1–16) 4 February 2021 4 February 2021 R2 Bundle of material produced under summons (paged 1–144) - 11 February 2021 R3 Email from [redacted] to the AAT Registry sent at 10:23AM on 18 February 2021 (2 pages) - 18 February 2021 R4 Email from [redacted] to the AAT Registry sent at 2:47PM on 18 February 2021 (1 page) - 18 February 2021 R5 Email from [redacted] to the AAT Registry sent at 11:06AM on 24 February 2021 (1 page) - 24 February 2021 A1 Applicant’s Statement of Facts, Issues and Contentions (90 paragraphs over 21 pages) 22 January 2021 22 January 2021 A2 Applicant’s indexed bundle of evidence
(16 pages marked WS-1–WS-14)- 22 January 2021 A3 Applicant’s further indexed bundle of evidence, as amended to include updated report of Dr J Yoxall, dated 10 February 2021(41 pages marked WS-15–WS-54) - 10 February 2021 A4 Applicant’s Further Evidence for Resumed Hearing on 26 February 2021 (paged 1–111) - 23 February 2021 ANNEXURE B
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/8283
General Division )
Re: Walter Seupule
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDIRECTION
TRIBUNAL: Senior Member Theodore Tavoularis DATE: 23 February 2021 PLACE: Brisbane The Tribunal DIRECTS that:
- On or before 23 February 2021, the Applicant must lodge with the Tribunal and give to the Respondent:
- any written submissions arising from the written evidence of [redacted] received by the Tribunal and provided to the parties on 18 February 2021;
- any further witness statements and other evidence on which the Applicant intends to rely at the hearing.
- On or before 25 February 2021, the Respondent must lodge with the Tribunal and give to the Applicant:
- any written submissions arising from the written evidence of [redacted] received by the Tribunal and provided to the parties on 18 February 2021;
- any further witness statements and other evidence on which the Respondent intends to rely at the hearing.
- The matter be listed for a one (1) day resumed hearing on 26 February 2021.
- Leave is granted for the parties to appear by video-link at the hearing, and the Respondent undertakes to make these arrangements for the Applicant, provided the Applicant is in immigration detention.
NOTATIONS:
- The Tribunal NOTES that the two-day rule contained in sections 500(6H) and 500(6J) of the Migration Act 1958 (Cth) mean the Tribunal can only have regard to information presented orally in support of the Applicant's case at the hearing of this matter if that information was set out in a written document given to the Tribunal and to the Respondent on or before 23 February 2021.
- The Tribunal will use its best endeavours to publish its decision in this application by no later than 2pm on the date of publication. For the purposes of this Direction, “2:00pm” shall mean 2:00pm Australian Eastern Standard Time (AEST).
- If, on the proposed date of publication, the Applicant is being held in immigration detention, the Tribunal will use its best endeavours to provide 24 hours’ notice to the Respondent’s representative of its intention to publish its decision in this matter.
[sgd] Senior Member Theodore Tavoularis
ANNEXURE C
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2020/8283
General Division )
Re: Walter Seupule
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Senior Member Theodore Tavoularis DATE: 3 March 2021 PLACE: Brisbane DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 9 December 2020 to not revoke the cancellation of the Applicant’s visa and substitutes a decision that this Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
[sgd] Senior Member Theodore Tavoularis
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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Jurisdiction
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