Shortland and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2019] AATA 5604
•24 December 2019
Shortland and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5604 (24 December 2019)
Division:GENERAL DIVISION
File Number: 2019/6395
Re:Joseph Shortland
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:24 December 2019
Place:Sydney
The Tribunal decides that:
1. The Reviewable Decision dated 1 October 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside;
2. In substitution, the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of that Act.
............................[sgd]...........................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – Mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – character test – whether there is any other reason why the visa cancellation decision should be revoked – Ministerial Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – where offending behaviour does not constitute a normal pattern of behaviour for the Applicant – where Applicant is considered to be at low risk of re-offending – decision under review set aside and new decision substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Dalley and Minister for Home Affairs [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCFAC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member Linda Kirk
24 December 2019
INTRODUCTION
Mr Joseph Shortland (‘the Applicant’), a citizen of New Zealand, was born in 1988.[1] He came to Australia to join his father in August 2004 when he was aged 15 years.[2] Prior to its cancellation, the Applicant held a Class TY Subclass 444 Special Category visa.[3]
[1] Exhibit R1, G2, p 9.
[2] Exhibit R1, G4, p 377.
[3] Exhibit R1, G4, p 378.
On 20 October 2017, Judge Williams SC of the District Court of New South Wales convicted the Applicant on three counts of Sexual intercourse without consent and sentenced him to two years imprisonment (suspended) on each count.[4] On 9 March 2018, the Court of Criminal Appeal (by majority, Hidden AJ dissenting) re-sentenced the Applicant to imprisonment for two years with a non-parole period of 15 months.[5]
[4] Exhibit R1, G2, p 32.
[5] Exhibit R1, G2, p 32; R v Shortland [2018] NSWCCA 34.
On 24 May 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[6] On this date, the Applicant was serving a sentence of full-time imprisonment at Glen Innes Correctional Centre in New South Wales.
[6] Exhibit R1, G2, p 9.
On 13 July 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[7]
[7] Exhibit R1, G2, pp 104-107.
On 1 October 2019, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[8]
[8] Exhibit R1, G2, p 16.
On 7 October 2019, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of this decision.[9]
[9] Exhibit R1, G1.
The matter was heard by the Tribunal at a hearing in Sydney on 2 and 3 December 2019. The Applicant attended the hearing in person and was represented by counsel.
The following persons gave oral evidence at the hearing:
- The Applicant;
- Ms Ruby Ryan (the Applicant’s partner);
- Mr Sam Borenstein, Clinical psychologist.
The material before the Tribunal consists of:
· Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 28 November 2019;
· G documents (G1 to G5, pages 1 – 378) – Exhibit R1;
· Extracts from summons material (pages 1 – 670) – Exhibit R2;
· Supplementary summons material (pages 1 - 3) – Exhibit R3;
· Applicant’s Statement of Facts, Issues and Contentions dated 11 November 2019;
· Statutory Declaration of the Applicant dated 11 November 2019 (Exhibit A1);
· Statutory Declaration of Ruby Jane Meri Ryan dated 9 November 2019 (Exhibit A2);
· Letter from Tony Lombardo, Quickfix dated 14 November 2019 (Exhibit A3);
· Letter from Felicia Wuatai dated 25 November 2019 (Exhibit A4);
· Report by Sam Borenstein, Clinical psychologist, in relation to the Applicant dated 17 November 2019 (Exhibit A5);
· Report by Sam Borenstein, Clinical psychologist, in relation to Ruby Ryan dated 17 November 2019 (Exhibit A6).
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Subsection 501CA(4) provides:
(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.
Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter provides the framework within which the considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
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.
The following Principles are set out in paragraph 6.3:
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 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) sets out how the discretion under s 501 is to be exercised:
1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(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.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The Other considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties [to Australia];
(c) Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that “[b]oth primary and other considerations may weigh in favour of, or against … cancellation of the visa.” Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[10] the Full Court of the Federal Court of Australia made the following observations in relation to s 501CA(4):
... 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 ...[11]
[10] [2018] FCAFC 151.
[11] 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).
The issues for determination are whether:
(a)the Applicant passes the character test; and
(b)there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Arrival in Australia and work history
The Applicant arrived in Australia in August 2004 at the age of 15 years. He was first employed in the metal industry and later worked with his father who had a removalist business.[12] He worked as a removalist for thirteen years and never had long periods of unemployment.[13]
[12] Exhibit A1, para [2].
[13] Transcript, 2 December 2019, p 22.
Shortly after the Applicant started work, his father and his step mother moved back to New Zealand to raise their adopted daughter. They returned to Australia in 2014 and the Applicant’s mother also came to live in Australia towards the end of 2014.
Relationship with partner
The Applicant met his partner in 2007 and they have been a couple for 13 years. They have three children, two sons and a daughter, ‘R’ born in 2008 (age 11), ‘J’ born in 2010 (age 9) and ‘M’ born in 2017 (age 2). The Applicant and his partner have a very strong relationship and she has been very supportive of him during his time in custody and immigration detention.[14]
[14] Exhibit R1, G2, p 177.
The Applicant told the Tribunal his partner gives him reassurance about them going forward into the future and reminds him they are waiting for him to come home.[15] Whenever they talk she tells him how much she misses and cares about him. As parents they have an equal role. They do a lot of activities and family outings with their children. She visited him with their children every week when he was in gaol and they visit him in Villawood and spend about 4-5 hours with him.[16]
[15] Transcript, 2 December 2019, p 13.
[16] Ibid p 14.
Alcohol consumption and mental health
The Applicant told the Tribunal that he first started drinking alcohol at the age of 18 years. He has drunk alcohol to the point of intoxication consuming 10 drinks or more where he was not in control of his actions on approximately four or five occasions.[17] He ceased drinking alcohol in 2011 as it caused a lot of arguments between him and his partner.[18] He did not consume alcohol between 2011 and 2014.[19]
[17] Ibid p 29.
[18] Ibid p 31.
[19] Ibid p 34.
The Applicant was asked about an incident in 2008[20] in which the police records state he was involved in a fight and punched an individual in the jaw and face a number of times. He was not charged or convicted of an offence. The Applicant denied that he punched this individual.[21]
[20] Exhibit R2, p 22.
[21] Transcript, 2 December 2019, p 34.
The Applicant agreed that on 2 October 2011 an incident[22] occurred when he returned home after a night of drinking and had an argument with his partner about money and he flipped up a coffee table and it broke into pieces.[23]
[22] Exhibit R2, p 44.
[23] Transcript, 2 December 2019, p 32.
The Applicant explained that at this time he was feeling very isolated from his family in New Zealand who he had not seen for three or four years and he was not coping.[24] This separation had a negative impact on his mental health, and in December 2011 he attempted suicide. His partner found him hanging and cut him down.[25] Shortly after this, he returned to New Zealand and spent 18 months living there. His partner and children joined him after three months and they lived there together as a family. His partner suffers from depression and she found it difficult to adjust to living in New Zealand, particularly being away from her relatives, and her mental health deteriorated.[26] The Applicant and his partner decided it was better for them and the children to return to live in Australia and they did so in June 2013.[27]
[24] Exhibit R1, G2, p 176.
[25] Exhibit R1, G2, p 191.
[26] Exhibit R1, G2, p 192.
[27] Exhibit R1, G2, p 177.
The Applicant told the Tribunal that since the date of his offences in 2014 he has only consumed alcohol on one occasion. It was about eight months after the events and he had a sip of beer and it made him feel sick.[28] Since then when opportunities have arisen to drink he has just said ‘no’. He said that he keeps active with his kids and when he is with them he does not feel like drinking. If he is released from immigration detention he ‘will not have another drink because he does not want to not be in control and because of the hurt he has caused to his kids’.[29]
[28] Transcript, 2 December 2019, p 42.
[29] Ibid p 21.
Criminal History
A Nationally Coordinated Criminal History Check dated 8 March 2019[30] issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.
[30] Exhibit R1, G2, p 31.
Early offending
In May 2007 and August 2007 the Applicant was convicted of the offence ‘Learner not accompanied by driver/police officer/tester’ and fined $250.[31]
[31] Exhibit R1, G2, p 33.
In May 2011 the Applicant was convicted of the offences ‘Fail to notify Authority of change of address within 14 days’, ‘Learner driver not display ‘L’ plates as required’ and ‘Learner not accompanied by driver/police officer/tester’ and was fined $550.[32]
[32] Ibid.
In September 2016 the Applicant was convicted of the offences ‘Possess unregistered firearm’, ‘Possess ammunition without holding licence/permit/authority’ and ‘Possess unauthorised pistol’ but received no separate penalty.[33] The Applicant told the Tribunal this charge related to his possession of a plastic BB gun which he thought was a toy.[34]
[33] Exhibit R1, G2, p 33.
[34] Transcript, 2 December 2019, p 28.
Sexual offences
On 20 October 2017 the Applicant was convicted in the District Court of New South Wales of three counts of ‘Sexual intercourse without consent’ and received a two year suspended sentence. On 9 March 2018 the Court of Criminal Appeal imposed a custodial sentence of two years imprisonment with a non-parole period of 15 months.
From 29 March 2014 to 20 October 2017 the Applicant was on bail. From 20 October 2017 to 9 March 2018 he was serving his two year suspended sentence.
In his sentencing remarks on 20 October 2017, Judge Williams SC provided the following summary of the circumstances in which the offences occurred:
The complainant had known the offender and his wife Ruby Ryan for a number of years. They were out with a group of other people celebrating Ruby Ryan's birthday. After consuming a considerable amount. of alcohol the offender was cut-off by the bar staff and he went home on the courtesy bus. Ruby Ryan stayed at the bar until about 3.30am with the complainant and then they both went back to the residence at Doonside.[35]
[S]ometime after 3.30am on the following morning there were a number of people present at the home at Doonside, that was the offender, his wife, Mr Cook, Ms Craig and the complainant. Mr Cook and Ms Craig were in a bedroom sleeping when the complainant and Ruby Ryan arrived at the house. Ruby Ryan then went to bed. Shortly after that the complainant used the toilet, and accessed it through the laundry. After finishing in the toilet and while in the laundry the offender and the victim kissed. The Crown says, and I accept, that the evidence of that was that the accused kissed the complainant and the complainant thought that she kissed him back.[36]
The offender then inserted his penis into the victim's vagina for a matter of seconds, that is the subject of Count 1 on the indictment. He was standing in front of the complainant and said, "If you suck me off I'll do you harder" and he placed his penis near her mouth, pressed his penis against her lips and pushed his penis into her mouth for a few seconds. That is the subject of Count 2 on the indictment. She stood up and he inserted his penis into her vagina. The victim said "Enough" and the offender stopped. They then dressed and went into the backyard. At some point a taxi was called to collect the complainant. The complainant and the offender went out the front to wait for a taxi and the taxi took the complainant home. She made a complaint to her aunty and mother soon after arriving home and reported the matter to the police on the morning of 29 March 2014. She was seen shortly after by a sexual assault doctor but there were no relevant findings made. There was some evidence that the offender wore a condom but no evidence that he ejaculated.[37]
[35] Exhibit R1, G2, p 78.
[36] Ibid pp 78-79.
[37] Ibid p 79.
Judge Williams SC considered that the Applicant’s offending was ‘at the lower end of the range of seriousness’.[38] He accepted that ‘a finding of special circumstances should be made in the event of the imposition of a period of full-time custody … namely, the lengthy period of compliance with bail orders since [the Applicant’s] arrest; his demonstrated rehabilitation and the fact that it would be his first time in full-time custody and the fact that he is unlikely to re-offend.’[39]
[38] Ibid p 85.
[39] Ibid p 88.
On appeal to the Court of Criminal Appeal, Basten J found that the trial judge understated the seriousness of the offending and stated that cases which involve actual penile penetration rarely fall at the lower end of the spectrum as such non-consensual activity has a significant element of coercion and will be generally degrading to the victim.[40] He found that the suspension of the sentences was unduly lenient and that the Applicant should serve a period of imprisonment. He agreed with the finding of the trial judge in relation to special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act1999 (NSW) and that it should be reapplied on resentencing.[41] The Court imposed a sentence of two years imprisonment with a non-parole period of 15 months.
[40] Ibid p 42.
[41] Ibid p 45.
Remorse and responsibility for offending
In his Statutory declaration the Applicant stated:
I have been reformed after I served my sentence and I am committed to provide for my family financially and emotionally.[42]
I am sorry for what I did to the victim and to my own family, to my children and Ruby, to my parents and siblings. I have learned from my punishment in prison and I will never do anything illegal again.[43]
…
I have not had a drink since 2014 and I will continue to abstain from drinking in the future. Drinking that night helped put me in the place where I am now, but in the end, I am responsible for what I did. I have had 5 years to think about and live with the consequences of that night and that will never happen.[44]
[42] Exhibit A1.
[43] Ibid [68].
[44] Ibid [71].
Programs and courses
The Applicant told the Tribunal that when he was in gaol he wanted to do the SMARTS Addictions and EQUIPS Foundations course but he was unable to do so because he was moved half a dozen times during his ten months in gaol. At Villawood he has applied for a course to address violent behaviour, emotional intelligence and cognitive behaviour.[45]
[45] Ibid [72].
The Applicant told the Tribunal that if he were to re-enter the community he wants to do an alcohol and addictions course. He has looked at on-line courses but currently he does not have the funds to do them. He also will enrol in Alcoholics Anonymous and he has found there is one in Blacktown. He wants to do this because it will give him the tools to better himself. He has discussed this with his partner and she is very supportive. She encouraged him to seek counselling which he has found very helpful.[46]
[46] Transcript, 2 December 2019, p 50.
Future employment
The Applicant told the Tribunal that he has offers of full-time employment with numerous employers as a removalist,[47] including with his former employer where he worked for seven years. He would like to be a removalist for a short period and he wants to study to become a tradesperson such as a plumber or electrician.[48]
[47] Exhibit A1, [70] and Exhibits A3 and A4.
[48] Transcript, 2 December 2019, p 22.
Impediments on return to New Zealand
The Applicant claims that if he is returned to New Zealand he will face difficulty in obtaining employment as he does not have any close friends or relatives in New Zealand who can assist him.
Children
The Applicant has three children, two boys and a girl, aged eleven, nine and two years respectively.[49] His eldest son R goes to Lynwood Park Public School and likes playing cricket and touch footy. He likes doing math and loves reading. Before he went to gaol the Applicant helped R with his math homework and would take him to footy training and kick the ball around with him at the park. R does not want to go to New Zealand.[50]
[49] Ibid p 14.
[50] Ibid pp 15-16.
The Applicant’s second son J is also at Lynwood Park Public School and is in year 4. He is a very ‘hands on’ boy and loves doing work around the house such as lawn mowing and gardening. He enjoys riding bikes and loves football. He is quite down and emotional at the moment because he is worried that they are going to be sent to New Zealand and he does not want to go. The Applicant speaks to him a little bit extra to make sure he is alright.[51] He does not think that J would cope very well in New Zealand.[52]
[51] Ibid pp 16-17.
[52] Ibid p 18.
The Applicant’s daughter M is two years old. He has missed nearly all of her life because he has been in gaol and immigration detention. He was there to see her born and then for about five months of her life. It makes him feel bad, disappointed and down that he has not been around for M and has missed her first walks and her first words, and he has not been involved in her day-to-day parenting. He wants to be able to take her out to places and make some memories.[53]
[53] Ibid pp 18-19.
The Applicant told the Tribunal that he phones or video calls his children every day usually three to five times a day. He calls them before they go to school to say good morning to them, when they get home from school, and just before they go to bed.[54]
[54] Ibid pp 16-17.
Prior to the Applicant going into custody both his sons were doing well at school and had a lot of friends. R has since experienced behavioural problems at school and J has been diagnosed with anxiety. Both boys have been attending regular counselling sessions to assist them in coping with the separation from the Applicant.[55]
[55] Exhibit R1, G2, p 124.
The Applicant said that being separated from his family has impacted negatively on his own mental health.[56] The longest period he had been separated from his family before he went to gaol was two months when he went back to New Zealand in 2012.
[56] Transcript, 2 December 2019, p 19.
The Applicant told the Tribunal that he is very close to his partner’s two younger brothers who are a similar age to his sons. He also has two nephews who are aged four and two.
Evidence of Applicant’s partner – Ms Ruby Ryan
The Applicant’s partner, Ruby Ryan, told the Tribunal that she and the Applicant have been in a committed relationship for almost 13 years. Since they have been together he has worked the entire time. She does not work so they are dependent on his income for rent, shopping, bills, the kids and activities. Since he has been in gaol they have had to cut out some of the children’s activities including their music and swimming lessons. She currently is in receipt of Parenting Payment Partnered Separated and Family Tax Benefit. They get by with help from family.[57]
[57] Ibid p 53.
Ms Ryan told the Tribunal that the Applicant is a good partner and is there for her when she needs to talk and to rely on. They talk over the phone and make sure they share their feelings. He is a good father to the kids and supports her as a parent.[58] For almost two years she has been taking care of the three children by herself and it has been hard. If the Applicant returns home he will help a lot with the kids, with homework and sports, and just generally looking after them. He will provide her with emotional and financial support.[59]
[58] Ibid p 54.
[59] Ibid p 55.
Ms Ryan told the Tribunal that she has told the children that the Applicant might have to move back to New Zealand. R has said he wants to be where his Dad is and J has said that he does not want to leave Australia. Both boys have a very close relationship with their father.[60] Their daughter M was only six months old when the Applicant went to gaol. He helped a lot at nappy time, feeding and bath time. He has missed a lot of their daughter’s milestones. They have tried to include him in some of these moments by sending him videos or Facetiming.[61] M has a very close bond with her father even though he is not at home.
[60] Ibid p 55.
[61] Ibid p 57.
Ms Ryan said she has told the Applicant that if he has to return to New Zealand she will take the children there on a month long holiday there to see how they handle it. If they are unable to cope then she will return to Australia with them. She thinks there is a real risk that they will have to separate as a family because all her family and supports are here in Australia. They lived in New Zealand for a year in 2012-13 and they decided that Australia is better for the kids.[62] She did not handle very well being away from family and friends. She does not know anyone in New Zealand.[63]
[62] Ibid p 59.
[63] Ibid p 60.
Ms Ryan takes the children fortnightly to visit the Applicant in Villawood. They were going to see him weekly, but J’s counsellor thought it would be better if they went fortnightly because he was not coping well with saying goodbye to his father at the end of their visit. He is coping better now that they are seeing him fortnightly.[64]
[64] Transcript p 56.
Ms Ryan told the Tribunal she has two much younger half siblings who are very close to the Applicant. One of her brothers does not have his father in his life and he therefore looks to the Applicant as a father figure. Her brothers often come over to their house and sleep, and they do things with the Applicant that he does with their sons such as sports.[65]
[65] Transcript p 58.
Ms Ryan told the Tribunal that she has encouraged the Applicant not to drink and he has not done so since March 2014. She has reminded him that he doesn’t make great decisions under the influence of alcohol. They do things as a family that avoid alcohol such as family oriented activities and places.[66]
Psychological assessments and reports
[66] Transcript p 59.
Applicant
Dr Susan Pulman and Lisa Zipparo, clinical psychologists, produced a report dated 21 August 2017 in relation to the Applicant for the sentencing proceedings in the Court of Criminal Appeal. The authors analysed the Applicant’s clinical history, offending history and background and formed the following view:
[The Applicant] described a history of stable employment and close family networks. These factors, together with his apparently strong connection to his young children, are likely to provide a positive basis for his rehabilitation.[67]
Given no prior history of offending of this nature and [the Applicant’s] self-reported unusual level of intoxication at the time of the offence, it is likely that the offending behavior does not constitute a pattern of behavior for [the Applicant].[68]
…
[I]t is our opinion that [the Applicant] is likely to show much greater prudence with his future behaviour.[69]
[67] Exhibit R1, G2, p 237.
[68] Ibid.
[69] Ibid p 238.
Sam Borenstein, clinical psychologist, saw the Applicant on 7 September 2018 and prepared a report dated 9 September 2018 to assist the Applicant with his request for revocation of the Mandatory Visa Cancellation Decision. He noted that the Applicant’s offending occurred not long after he returned to Australia from New Zealand and when he was self-medicating with alcohol. In his view, the Applicant is ‘at very low risk of reoffending’.[70] He found that his ‘psychosexual development is normal’, and there is ‘no evidence of sexual aberrations or paraphilias’.[71] He noted that the Applicant felt ‘burdened by guilt and remorse’ about his offending.[72] In his opinion, the risk of the Applicant reoffending is 'extremely low'.[73] He has concerns for the Applicant’s mental health should he be returned to New Zealand and separated from his family.[74]
[70] Ibid p 247.
[71] Ibid p 244.
[72] Ibid p 240.
[73] Ibid p 247.
[74] Ibid.
In a further reported dated 17 November 2019, prepared for the review application proceedings,[75] Mr Borenstein reiterated his view that the Applicant ‘is at very low risk of reoffending’. He stated that he remained concerned about the ‘likely negative impact on [the Applicant’s] mental health if he was separated from his family … given [his] past history of lapsing into significant depression with suicidal ideation and intent, when forcibly separated from significant others, such as family members …’.[76] In finding that the Applicant ‘is highly unlikely to reoffend’, Mr Borenstein relied on the fact he ‘was on bail for some three years, during which time he self-corrected, abstained from alcohol, did not exhibit any antisocial behaviours and devoted his time and energies to the welfare of his family unit.’[77]
[75] Exhibit A5.
[76] Exhibit A5, p 5.
[77] Ibid p 6.
During his oral evidence at the hearing, Mr Borenstein told the Tribunal that the Applicant has been successful in abstaining from alcohol for a period of five years and that his former drinking behavior has to be considered in the context of his past battles with depression. In his opinion, now that the Applicant is no longer depressed he is ‘far less likely to use alcohol as a form of self-medication.’[78] He agreed that if the Applicant were to again develop a severe depression he would require treatment to ensure that he did not use forms of self-medication which could lead to a relapse of him using alcohol.[79]
[78] Transcript, 3 December 2019, p 76.
[79] Ibid p 83.
Mr Borenstein was asked what, in his opinion, would be the impact on the Applicant’s mental health if he were removed to New Zealand. He stated:
You know, I think that given - and in 2011 you would have to assume that he is at greater risk of lapsing into another similar episode of severe depression, and he would be at greater risk of contemplating, if not making an attempt on his life.[80]
[80] Ibid p 76.
Ms Ryan and the children
Mr Borenstein interviewed Ms Ryan and R on 12 November 2019 and provided a report dated 17 November 2019.[81] He reported that Ms Ryan had been diagnosed with post-natal depression and prescribed anti-depressant medication which provided her with some assistance.[82] Her symptoms returned when she was living in New Zealand in 2012-13 when she was isolated from her family. Following their return to Australia ‘they have functioned as a tight knit nuclear family, and enjoy the support of respective family members i.e. parents and grandparents.’[83] Since their forced separation from the Applicant since March 2018 she and the children have been suffering.
[81] Exhibit A6.
[82] Ibid p 3.
[83] Exhibit A6, p 9.
At the hearing, Mr Borenstein was asked what, in his opinion, would be the impact on Ms Ryan if the Applicant were removed to New Zealand. He stated:
Ms Ryan is very busy trying to make sure that her children are okay, so she’s devoting her attention to them, but she … has a history of depression and anxiety herself for which she has sought treatment, and she in all likelihood did suffer with post-natal depression. The point being is that even prior to entering a relationship with [the Applicant], Ms Ryan - psychological and emotional vulnerabilities. She currently reports symptoms of depression and anxiety, given forced separation from [the Applicant], and in particular the concern that she has for her children. And so being forcibly separated will - I think in all likelihood that potentially relapse into quite a severe depressive illness and require treatment.[84]
[84] Transcript, 3 December 2019, p 77.
In his report, having considered Part B of the Direction, Mr Borenstein provided the following opinion in relation to the best interests of each child if the Applicant is to be removed to New Zealand and they each accompany the Applicant back to New Zealand, and the effect if they remain in Australia with Ms Ryan:
In my opinion the best interests of the children is for [the Applicant] to remain in Australia, so they can pursue personal and educational goals agreed to by Ms Ryan and [the Applicant]. Based on review of documents and confirmed by way of interview and assessment of [the Applicant] and Ms Ryan, they have, over the years, formed a stable and functional family environment in which the children feel safe and have thrived.
It is evident the children have been effected since their father was forcibly separated, and they require regular counselling. In my opinion, the children’s mental health will improve when they are reunited with their father upon his release from detention, and hopefully be able to remain in Australia.[85]
[85] Exhibit A6, p 10.
At the hearing, Mr Borenstein was asked to provide his opinion on the impact on the children of the Applicant being returned to New Zealand. He stated:
Potentially devastating. I think that the children are … already being affected, but they live in hope that their father will be coming home soon, having served his prison term. And … if the separation is … permanent … then that would have potentially major devastating effect on the children. As things stand, the two older boys are sleeping in their mother’s bedroom, and sometimes in the bed. Evidence, I think, of separation anxiety and sensitivity to what’s going on in their lives, being forcibly separated from their father. And they of course then would be at greater risk of developing symptoms of depressed mood, and I would assume that that’s already the case; over and above the separation anxiety that they’re experiencing at the minute.[86]
[86] Transcript, 3 December 2019, p 77.
Mr Borenstein was asked what, in his opinion, would be the impact on the children if the Applicant were to remain in Australia. He stated:
I think that would be a desirable outcome in terms of their psychological and emotional development, of course is paramount. Their physical needs would be also met, as [the Applicant] is a hardworking man (indistinct) involved, and certainly the research is clear that a father is absolutely essential in a young boy’s development, particularly at this stage of those boys. As they approach and navigate adolescence it will be even more important. If we’re concerned about the psychological health and wellbeing of [the] children, it would be in their best interests if they are united as a family.[87]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[87] Ibid.
Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 9 March 2018 the Applicant was convicted of three offences and sentenced to two years’ imprisonment. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a), as he has “a substantial criminal record” as defined in s 501(7)(c). The Tribunal is also satisfied for the purposes of s 501(3A)(b) of the Act, the Applicant 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 New South Wales.
For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.
Is there ‘another reason’ why the Mandatory Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
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.
Paragraph 13.1(2) directs that 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 a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(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) …
(h) …
(i) …
(a) Nature and seriousness of the Applicant’s conduct to date
The Applicant accepts and the Tribunal finds that the Applicant’s criminal offending, particularly the convictions for Sexual intercourse without consent, is very serious. In making this finding, the Tribunal has had regard to paragraphs 13.1.1(1)(a) and (b) of the Direction which recognises that sexual crimes and crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed.
A sentence of two years’ imprisonment was imposed on the Applicant for the offences of Sexual intercourse without consent. This custodial sentence is an objective indicator of the seriousness of the Applicant’s criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50]. The seriousness of the Applicant’s criminal offending weighs heavily against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction, which states:
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 the rehabilitative courses to be undertaken).
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, the psychologists’ reports referred to above, and the evidence of his family members and those who provided letters of support.
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend as required by paragraph 13.1.2, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community, including women.
In attributing weight to Primary Consideration A, the Tribunal has had regard to the Applicant’s relatively limited criminal history which, until the offences in 2014, did not include offences of a violent or sexual nature against women. The sentencing judge, Judge Williams SC, noted that the Applicant ‘is of relatively good character and certainly has no violent or sexual offences on his record.’[88] Prior to the 2014 offences, the Applicant had not demonstrated a propensity towards sexual violence or violence against women. To this extent, the 2014 offences were uncharacteristic behaviour for the Applicant, and this decreases the likelihood of him committing a similar crime in the future.
[88] Exhibit R1, G2, p 81.
Judge Williams SC also stated that, in his view, the Applicant was ‘unlikely’ to re-offend and had ‘excellent prospects of rehabilitation’.[89] This finding was not questioned on appeal by the Court of Criminal Appeal. The evidence of the clinical psychologists is also consistent with a finding that the likelihood of the Applicant re-offending is low. Dr Pulman and Ms Zipparo found that given his lack of previous history of sexual offences and his unusual degree of intoxication at the time, it is not likely that the Applicant’s offending conduct ‘constituted a pattern of behaviour’.[90] Mr Borenstein’s opinion also is that the Applicant’s risk of re-offending is ‘extremely low’.
[89] Ibid p 87.
[90] Ibid p 237.
In relation to the risk of the Applicant re-offending, the Tribunal notes that the Applicant’s serious criminal offending occurred while he was heavily intoxicated. The Applicant’s evidence, supported by that of his partner, is that he has not consumed alcohol since March 2014 and that he is now fully aware of the detrimental effects of alcohol on his behaviour. The Tribunal finds that the Applicant’s abstinence from alcohol for a period of nearly five years greatly reduces the likelihood he will engage in criminal offending as he appears to have developed a good insight into its effects and consequences. In making an assessment of the prospects of the Applicant continuing to abstain from alcohol, the Tribunal notes that there is no evidence that during his incarceration in gaol or immigration detention from March 2018 to the present time the Applicant was found to have failed any tests for the detection of alcohol use.
The Applicant has stated his commitment to engaging in counselling and undertaking courses and programs in the community to address his alcohol problem, including attending AA meetings. This indicates that the Applicant recognizes that, whereas he has not consumed alcohol for a period of nearly five years, he must remain committed and be vigilant to ensure he does not resume drinking and risk it causing him to again engage in criminal behavior. The support the Applicant has from his partner to remain alcohol free, and her reminders to him of its effects on his behavior in the past, are further indicators that he will likely remain committed to his sobriety going forward.
In assessing the risk to the community should the Applicant re-offend, the Tribunal has had regard to the evidence before it that while the Applicant was on bail from March 2014 to October 2017, a period of more than three years, he abstained from alcohol and did not engage in any criminal offending or anti-social behaviour.[91]
[91] Exhibit A5, p 6.
The evidence before the Tribunal is that the Applicant has already secured an offer of employment that he will take up if his visa is reinstated. The ability for the Applicant to resume his previous role as the breadwinner for his family will allow him to again provide financial support to his family and encourage him to take the steps necessary to continue his rehabilitation and abstinence from alcohol.
On the basis of the evidence before it, and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the low end of the scale.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A on balance weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – Best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
The Applicant has three minor children aged eleven, nine and two years. The evidence before the Tribunal is that the Applicant loves his children and has a very close father-son relationship with his two boys and is developing a close bond with his infant daughter. The evidence indicates that the Applicant has maintained daily phone contact with his children throughout his incarceration, and that they have visited him on a very regular basis since he has been in gaol and in immigration detention, being a period of almost two years.
In considering the best interests of the child, paragraph 13.2(4) provides:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) nature and the 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 the 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.
Having regard to paragraph 13.2(4)(a) of the Direction, the Applicant’s parental relationship with both his sons throughout their lives demonstrates that they have a strong emotional bond with their father. They have had no long periods of separation from their father during their short lives except for his absence from the family home caused by his incarceration and immigration detention. The nature and duration of the Applicant’s parental relationship with his daughter is necessarily affected by the fact he has been in gaol or immigration detention for more than half her life. However, despite this forced absence from her life, as with his sons, the Applicant has maintained meaningful contact with his daughter as a result of weekly visits to see him and daily telephone contact.
Having regard to the factors in paragraph 13.2(4)(b), the evidence is that the Applicant is most likely to play a positive parental role in his children’s lives if he is allowed to remain in Australia. He has played a positive role in his son’s lives prior to his incarceration by helping them with their homework, taking them to training, practicing sports and playing games with them. The Applicant played a positive role in his daughter’s life in the few months after she was born by attending to her daily needs and supporting his partner in caring for her as a newborn. The evidence before the Tribunal is that if the Applicant remains in Australia he will continue to play a positive parental role in his children’s lives by teaching them life skills, supporting them in their learning and educational goals, and encouraging and participating in their extracurricular activities, including sports.
Considering the factors in paragraph 13.2(4)(c), the evidence is that the Applicant’s only prior conduct that may have had a negative impact on his sons is the offences which resulted in his conviction. Given the ages of his sons and the very young age of his daughter, it is less likely that the negative consequences of the Applicant’s offending and his absence from their lives will have a significant lasting effect on his children. His role as a parent to date and his future role as an involved and loving father will have a positive impact on his children that will likely outweigh any negative impact on them of his offending.
Having regard to the factors in paragraph 13.2(4)(d), the evidence before the Tribunal is that the effect of the separation of the Applicant from his children has been very negative, particularly for his sons. Both boys have exhibited behavioural changes indicative of the detrimental impact on them of their father’s absence from their lives for almost two years. The evidence of Mr Borenstein is that the boys are showing signs of ‘separation anxiety and sensitivity to … being forcibly separated from their father’ and should this separation be permanent this may have a ‘potentially major devastating effect’ on them, putting them at ‘risk of developing symptoms of depressed mood.’ Although the boys have maintained their contact with their father by phone and video calls and visits to see him in gaol and immigration detention, they have not had the close and daily contact they had with him prior to him being incarcerated. Mr Borenstein’s evidence supports a finding that it is essential to both boys’ development, particularly as they approach adolescence, for their father to be physically present and an involved participant in their lives.
The evidence before the Tribunal also supports a finding that, for the purposes of paragraph 13.2(4)(d), the likely effect of the Applicant’s separation from his young daughter will be very negative as she will grow up without a father who loves her and who plays an active role in her life. In making this finding the Tribunal has had regard to paragraph 13.2(4)(e) which recognises the relevance of the special role that a father has in the life of a young girl.
Considering the factors in paragraph 13.2(4)(e), there is evidence that the children benefit from a strong network of extended family that includes the Applicant’s father and step mother and his mother, as well as Ms Ryan’s father, mother and grandmother. Ms Ryan is currently the primary carer to the three children due to the forced absence of the Applicant. However the evidence is that the children are not receiving the same support at home nor undertaking the same range of extra-curricular activities as they did when their father was living at home and providing them with financial support and giving them his time.
Considering the factors in paragraph 13.2(4)(f), the Tribunal has had regard to the views of R and J in relation to their father as expressed by them to their mother and their counsellors. Given their respective ages, the Tribunal has given these views due weight. The evidence of R is that he does not want his father to be removed from Australia, he misses his father, he wants his father to be back in his daily life, and he does not want to move to New Zealand.[92] The evidence of J is that he does not want his father to leave Australia and that he would not be able to join him in New Zealand as he wants to remain in Australia.
[92] Exhibit A2, [15].
Paragraph 14.3(1) of the Direction states:
(1) 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 an important service in Australia.
The Applicant’s employment prior to his incarceration was working as a removalist. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) 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.
On the evidence before the Tribunal, this consideration weighs neither in favour nor against revocation of the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
1) 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.
Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 31 years and has previously experienced severe depression leading to a serious attempt on his life. The circumstances that led to this psychological condition were the Applicant’s separation from his family, particularly his mother and father, who at the time were living in New Zealand, and whom he had not seen for several years. The Applicant’s mother, father and step-mother, as well as his partner and three children, two sisters, step sister, two nephews and cousin and their extended families are currently all resident in Australia. The Tribunal has had regard to the expert evidence of Mr Borenstein who opined that if the Applicant were to be returned to New Zealand this will likely have a very detrimental impact on his mental health ‘given [his] past history of lapsing into significant depression with suicidal ideation and intent, when forcibly separated from significant others, such as family members.’[102] The Tribunal therefore finds that the Applicant would suffer serious mental health consequences if he were to be removed to New Zealand.
[102] Exhibit R1, G2, p 247.
Guided by paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in New Zealand until the age of 15 and is familiar with life in his home country. It will however take time for him to readjust to life in a country in which he has not lived for all of his adult life. The Applicant’s evidence is that he has some extended family in New Zealand but that he has no significant relationship with these relatives.[103] He will not therefore have family to support him emotionally or financially if he was removed to New Zealand.
[103] Ibid p 170.
If the Applicant's partner and children decide to relocate to New Zealand, this will greatly assist the Applicant to overcome any impediments faced by him if removed from Australia. However the evidence before the Tribunal is that the Applicant’s partner has no firm plans to relocate to New Zealand and at this stage she intends only to take the children there for a short one month holiday to see how they cope. Accordingly, the evidence supports a finding that the Applicant is most likely to be without any familial or social support if he is returned to New Zealand.
Having regard to the evidence before it, the Tribunal finds the Applicant will face hardship if he is required to establish himself in New Zealand, having not lived there since he was a teenager. He has no friends or family in New Zealand and will struggle to find a home and re-establish his life.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. The economic and employment opportunities in New Zealand are similar to those in Australia. The Applicant is an experienced removalist with a consistent employment history and he should not have difficulties finding employment.
Having had regard to the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, particularly the three sexual offences against a woman, and despite the low risk of him committing future sexual offences, the protection of the Australian community is best served by non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s three children for him to remain in Australia.
Primary Consideration C weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as whereas the expectations of the Australian community are that the Applicant’s serious sexual offences should cause him to forfeit the privilege of remaining in Australia, the age at which he arrived in Australia, the duration of his residence in Australia, his positive contributions to the community, and the interests of his Australian citizen partner and three children, are such that the community would have greater tolerance for the Applicant’s offending and would accept that in the circumstances his visa should be reinstated.
In regard to the relevant Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision, as do the impediments he will face on return to New Zealand.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the decision to refuse to revoke the Mandatory Visa Cancellation Decision be set aside.
DECISION
(a) The Reviewable Decision dated 1 October 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside;
(b) In substitution, the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of that Act.
I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
..................................[sgd].................................
Associate
Dated: 24 December 2019
Date(s) of hearing: 2 and 3 December 2019 Counsel for the Applicant: Mr T Liu, 7 Wentworth Selborne Solicitor for the Applicant: Ms C Jankulovska, Legal Aid NSW Solicitor for the Respondent: Mr Z He, Clayton Utz
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