Simon Te Mahia Phoenix Aramoana and Minister for Immigration, Citizenship, and Multicultural Affairs
[2022] AATA 3591
•27 September 2022
Aramoana and Minister for Immigration, Citizenship, and Multicultural
Affairs (Migration) [2022] AATA 3591 (27 September 2022)
| Division: | GENERAL DIVISION |
| File Number(s): | 2022/5593 |
| Re: | Simon Te Mahia Phoenix Aramoana |
| APPLICANT | |
| And | Minister for Immigration, Citizenship, and Multicultural Affairs |
| RESPONDENT | |
| Decision | |
| Tribunal: | Member Andrew McLean Williams |
| Date: | 27 September 2022 |
| Date of Written Reasons: | 24 October 2022 |
| Place: | Brisbane |
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 5 July 2022 not to revoke the mandatory cancellation of the Applicant's visa, and substitutes a decision to revoke the mandatory cancellation of the Applicant's visa.
.............................[SGD]...........................................
Member Andrew McLean Williams
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Subclass 444) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Andrew McLean Williams
24 October 2022
Introduction
1. On 3 December 2021 a Delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) under s.501(3A) of the Migration Act 1958 (Cth) (“the Act”), on the basis the Applicant did not pass the character test, and was serving a full-time custodial sentence.
2. On 16 December 2021 the Applicant requested revocation of the visa cancellation decision (“revocation request”).
3. On 5 July 2022 a Delegate of the Respondent decided not to revoke the cancellation. The Applicant then lodged an application for review before this Tribunal, on 7 July 2022. The Tribunal has jurisdiction to review that decision, pursuant to s.500(1) (ba) of the Act.
4. The hearing of this application for review took place on 12 and 13 September 2022. At the hearing, the Tribunal heard oral evidence from the Applicant by means of videoconference. The Applicant’s wife Ms Julia Haddad, and sister, Ms Dayna-Brook Ngametua also gave evidence, by means of telephone. The Tribunal also received evidence from a clinical psychologist, Dr Jacqueline Yoxall, by means of video conference.
5. The Tribunal also considered the documentary evidence submitted by each of
the Applicant and the Respondent, detailed in the attached Exhibit Register, now marked
as “Annexure A” to these reasons.
FACTUAL BACKGROUND AND OFFENDING HISTORY
6. The Applicant is a 27 year old male citizen, from New Zealand. In November
2008, when the Applicant was aged 13, he moved to Australia together with his family.
7. The Applicant then completed high school, to Grade 12, in Australia. After school,
the Applicant started doing manual labouring work, initially with a pool/landscaping
company.
8. In 2013, the Applicant met his now wife Ms Julia Haddad through the rugby club where they were both players. They were married, at a young age, in May of 2015.
9. In November 2015 the Applicant’s first child, EJA was born. EJA suffers from severe respiratory problems that have necessitated multiple hospitalisations:
So [EJA], he has a chronic asthma problem, constantly in and out of hospital, right from – you know, he was a young age, right up till today or we just don’t know when it’s going to happen, he could be fine in an hour and then an hour later he is, you know, he is in the back of an ambulance.
10. In March 2017 the Applicant and his wife had their second son, ZTA. ZTA also
suffers from health issues, including similar asthma problems as plague his older brother
EJA (albeit not as severe), such that ZTA has also required regular hospitalisation.
11. The Applicant and his wife also have two daughters: ATA, now aged two years; and SAA, aged five months and born whilst the Applicant was incarcerated. The Tribunal will return to a discussion of the best interests of the Applicant’s four young children, later in these reasons.
The Applicant’s Criminal Offending
12. In September 2015, the Applicant commenced working at the Calamvale Hotel as a security guard. In mid-2016, the Applicant transitioned to another role at the Calamvale Hotel that involved mowing lawns. Eventually the Applicant’s role transformed again, to become one whereby the Applicant was responsible for general maintenance, including his performing minor repairs.
13. As part of this employment the Applicant was required to purchase hardware items, using a petty cash system. This entailed either the Applicant paying for the
required items with his own money and then being reimbursed by his employer upon
presentation of a receipt; or the Applicant being given an amount from petty cash, and
then returning to his employer with the receipt, and change.
14. The Applicant’s offending occurred over a four year and four month period during the course of his employment at the Calamvale Hotel and entailed his either fictitiously creating - or otherwise falsifying - a number of invoices and receipts for hardware purchases; which the Applicant presented to his employer for reimbursement. Between 8 September 2015 and 30 January 2020, the Applicant used a computer at the Hotel to forge 286 invoices and receipts, to a total claimed value of $94,285.20.
15. In early 2020 the Calamvale Hotel undertook an audit of the petty cash expenditures at the Hotel, which identified the Applicant’s stealing. In February 2020 the Applicant was dismissed from the Calamvale Hotel. On 3 March 2020 the issue was reported to the police. On 14 May 2020 the Police attended the Applicant’s home in order to speak with him about these offences. The Applicant agreed at that time to accompany the officers to a police station and to participate in a record of interview. In the process of his speaking with the police the Applicant made full admissions regarding his having created fictitious invoices and receipts, or otherwise modifying legitimate invoices and receipts, using a computer located at the Hotel. Later enquiries by police confirmed there was a folder on the hard drive of this computer, still containing several falsified receipts. The Applicant informed the police that he would make a legitimate hardware purchase with petty cash, but then falsify an invoice, inflating the purchase amount, usually by a further of $30 to $40, in order to then keep the rounded-up amount. The Applicant stated that any receipts allegedly paid by card were entirely false, and no payments were in fact made by him on behalf the Calamvale Hotel. The Applicant’s personal debit card number was the number displayed on the falsified invoices.
16. The Applicant also told police that he had a chronic gambling problem, and had been losing a lot of money, and that his stealing from the Calamvale Hotel was the means by which he was continuing to fuel his gambling addiction. The Applicant told the police that he “did it once and got away with it”, so then just “kept doing it”.
17. The Applicant explained to the Tribunal that his gambling habit was the sole reason that had led to his committing the charged offences:
My gambling addition, my gambling addiction was the number one reason, it led to the, you know, the (indistinct) of my life, the trying to support my family, and yes, it just spiralled right out of control.
18. In a statement provided to the Tribunal dated 7 September 2022, the Applicant stated his gambling problem had first commenced at around the time that his first child EJA was born, at a time when he was personally struggling to cope with the responsibility of providing for the family and at a stage when he was very worried about the health of his son. The Applicant said that, in 2016, when EJA was only a few months old he was hospitalized, for asthma. EJA’s condition deteriorated suddenly, and the Applicant and his wife were informed that EJA only had a 50% chance of survival. EJA was then transferred to the Lady Cilento Hospital and intubated, in intensive care for three days. The Applicant said:
“…that was the worst time in my life. Again, prison was bad but that was – when you’re going – when you have a feeling of losing your own child, you know, there is nothing, nothing in this world that can compare to that.”
19. During the Tribunal Hearing, when asked to clarify at which point his gambling had started, the Applicant confirmed that he had started gambling in 2015 prior to EJA’s birth - initially as a form of recreational diversion in response to stress about financial issues, but the gambling then spiralled out of control shortly after EJA’s critical asthma attack:
Well, my gambling had started but I didn’t believe I had a problem until, you know, it became more of a problem once, you know, my son had his problem with his – his respiratory problem. That’s when it got out of control.
20. At around this time the Applicant had to take a lot of time off work, in order to support and care for his children, as his wife was preoccupied with the need to provide immediate care for EJA. This resulted in reduced household income, which caused even further financial stress, such that the Applicant used gambling as an “escape” from his anxieties and other negative emotions. At around this time the Applicant started gambling more than he could afford and to ‘chase his losses’ in the hope he could make these up with a “big win”.
21. When asked to describe his gambling habits the Applicant stated:
MEMBER: What sort of gambling/ - was it online gambling, or pokies, or the horses, or, what?---Pokies, pokie machines, started off with pokie machines, then, you know, just got worse into sports betting, horse racing, and yes, nothing other than those.
So, were you doing it on your phone, or were you going down to the TAB, how was it happening?---Phone, TAB, and venues and pokies, yes, basically, every access I had to it, I would use it.
22. The Applicant advised that he didn’t seek any help for his gambling, as at the
time he felt he still didn’t have a problem. This led to the following exchange during the
Hearing with the Respondent’s representative:
And you must have realised, though, that forging the invoices and receipts was a
criminal activity?---Yes.
Did you realise that if you got caught you could be convicted of a crime and
sentenced to gaol?---Yes.
And you said before that you were the sole breadwinner for the family. Is that
right?---Yes. That’s correct.
So, you must have realised then that if you went to gaol you’d be leaving behind
your wife and children without financial support?---Yes. That’s correct.
But you persistently took that risk, didn’t you?---That’s correct. But, in my head I
had a feeling that I’d never be caught. That was how I felt.
But would you accept though that you were pretty reckless about the risk that - -
- ?---Yes. I - - -
Risk to your family’s welfare?---Yes. I was.
23. The Applicant later advised that his wife knew about his gambling, however she was never aware of the true extent of the problem.
MEMBER: Had you been keeping your gambling secret from your wife the whole time, or did she see you gambling?---Yes, no, she knew I was gambling, but she didn’t know the extent of the gambling.
All right, [I] understand ---Yes, it was, you know, it was an inside guilt problem that I had that I didn’t want that confrontation with someone that I had a problem because, you know, deep down inside I thought I didn’t have a problem but I definitely did and it took that, you know, it took all this to happen before, you know, I realised that it was a huge problem.
24. The Applicant was released on bail in March 2020, pending sentencing for his offences. While on bail, the Applicant maintained employment between April 2020 right up until his sentencing in November 2021. After his dismissal from the Calamvale Hotel the Applicant found work with a moulding firm, and then in a warehouse role at AutoProtect. The Applicant stated that he:
Just continued working, you know, normal job, just trying to get help through counselling with my problem, you know, I had my family and my wife talking to me about it, trying to understand the gambling regime, you know, I stopped gambling all together and I made sure that with my wife, you know, (indistinct) all the time, and then, yes, just work, work, supporting my family, went to a few groups, men’s talk groups to talk about each other’s problems, yes, took a lot out of it and then, yes, right up till the date that I was sentenced I was working for auto protect, I was a warehouse hand, forklift driver as well.
And were your friends and family aware about the charges you were facing at the time?---Yes, yes, once I lost my job I was fired, that’s when I knew I had to just tell everyone, you know, it was a big secret I had been holding to myself for a while and, you know, it was hard trying to keep it from everyone but no one ever realised, you know, the problem that I had. So when I was charged with it, when I was fired, you know, I had no other reason, you know, I had lost my job, I had done all the wrong things, so it was time to, you know, tell everyone what was happening and they were supporting, which was surprising, you know, they wanted me to get the help that I needed.
25. In March 2020 the Applicant’s third child with Ms Haddad, a daughter, ATA was
| born. |
26. On 16 November 2021 the Applicant was convicted on his own confession in the District Court at of “Fraud – dishonestly obtains property from another by employee value of or over $30,000 but less than $100,000” and “Fraud – dishonestly obtains property from another by employee” (the Index Offending).
27. During sentencing on 16 November 2021, the learned sentencing judge stated
| that: |
| In sentencing you today, the law is clear that these types of offences are serious, having regard in your case to the amount of money defrauded and the duration of the offending. This is a gross breach of trust as a longstanding employee of the same company who, obviously, saw you as a responsible employee. It involved forging and creating false receipts. I accept that it was not sophisticated for a number of reasons … but it was persistent conduct. |
28. The Applicant was sentenced to concurrent terms of imprisonment of four years,
and 12 months respectively for the offences which were each to be suspended for four
years after the Applicant had served eight months.
29. Other than the two offences for which the Applicant was convicted on 16 November 2021, the Applicant has no other criminal history.
30. On April 2022, and while the Applicant was serving his sentence of imprisonment, his fourth child and youngest daughter, SAA, was born.
31. The Applicant is currently in immigration detention having been transferred in July 2022 after having served his required term of imprisonment.
Other Evidence before the Tribunal
32. Other than the Applicant, the Tribunal also received evidence from the Applicant’s
wife Ms Haddad and from his sister Ms Dayna-Brook Ngametua, and from Dr Jacqueline
Yoxall, clinical psychologist. In summary, their evidence was as follows:
Ms Julia Haddad
33. Ms Julia Haddad has provided statements dated 9 December 2021, and 9 August 2022, and also provided oral evidence by means of telephone during the Tribunal hearing. In summary, her evidence was that:
Her relationship with the Applicant is very strong, ‘beyond that of partner, a
best friend’.
The Applicant is a great father to their children who always supported all of them and the Applicant is their main source of income.
Ms Haddad only became aware of the Applicant’s offending and the extent
of his gambling addiction at the time when her husband was charged. Prior to this she was aware that he would play pokies and sports bet, but thought this was purely recreational gambling and had not realised it had become an
addiction for her husband.
Ms Haddad firmly believes that addiction and financial stress were
contributing factors to her husband’s offending, and said that the Applicant was
under a lot of financial stress following the diagnosis of EJA’s chronic respiratorycondition, in 2016.
Ms Haddad has been really struggling to cope when looking after their four
young children without the Applicant’s support – “Just coping with the four kids is
draining. Every day is difficult to even get through. It’s hard to keep myself
together”.
Ms Haddad feels that the absence of the Applicant whilst he has been in
either prison or immigration detention is having an adverse impact on the
children: - “Yes, they come home and just question me, question me, questionme. They can’t sleep. They have nightmares constantly. They’re stressed out”.
Ms Haddad is unable to work due to her child care responsibilities and
currently subsists on Centrelink, augmented by financial contributions from her
parents and the Applicant’s parents. Ms Haddad feels that she is facing genuinefinancial hardship in consequence of the loss of the Applicant’s earnings.
EJA and ZTA continue to have health issues and have been admitted to
hospital multiple times this year alone. Ms Haddad has had to handle all of this
by herself.In the event that the Applicant were to be deported, Ms Haddad would not
accompany the Applicant to New Zealand. She cannot leave her father who is
unwell, and who has suffered from multiple heart attacks, and her two eldest
children cannot live in New Zealand, due to their health. Ms Haddad also does
not think it would be practical or possible for her and the children to regularly
travel to New Zealand, as it would be too difficult given her limited finances.
Ms Haddad plans to support the Applicant in recovering from his gambling
addiction, and is now very confident that he would not re-offend.
Dayna-Brook Ngametua
34. The Applicant’s elder sister Ms Dayna-Brook Ngametua provided evidence
before the tribunal in the form of a letter dated 8 December 2021, and by means of oral
evidence given over the telephone. In summary, her evidence was that:
Ms Ngamteua is the older sister of the Applicant, they grew up together and moved to Australia together with their parents.
Ms Ngamteua has four children who are the nieces and nephews of the
Applicant. The Applicant is the godfather to all her children, and he has a close
relationship with each of them. The Applicant’s relationship with her children is“Caring. Patient…and Loving”.
Ms Ngamteua’s children have been really sad and constantly asking about
the Applicant since he has been incarcerated, they are “definitely not the same
little happy children they were prior to him being in prison.”
Ms Ngamteua has been impacted by the cancellation of the Applicant’s visa - “Yes, it’s hard. It’s hard. Yes, just knowing that, like, we could potentially not
have that support. Yes, we’ve always been close as a family so, yes, it’s – yes, it
would be devastating”.
Ms Ngamteua is aware of the nature of her brother’s offending and was
devasted to hear of it. She believes that the Applicant won’t offend again, as the risk of the Applicant being sent back to New Zealand has ‘sharpened his focus’, and that now, the family is aware of what he’s done they would look out for signs of any further wrongdoing.
Ms Ngamteua assists Ms Haddad in the absence of the Applicant by
providing emotional support and helping her out with the children, including with
meals and cleaning.
Ms Ngamteua does not keep in contact with any relatives in New Zealand,
with the exception of one cousin, and was not sure if relatives in New Zealand could be expected to provide financial or emotional support to the Applicant in New Zealand in the event that he were to be deported.
Dr Jacqueline Yoxall
35. Dr Jacqueline Yoxall gave evidence before the Tribunal by means of video-link on the second day of the hearing, Tuesday 13 September 2022. Prior to the hearing, Dr Yoxall had a consultation with the Applicant on 8 August 2022 and had prepared a report on the Applicant, dealing predominantly with the issue of the Applicant’s risk of re- offending, which is dated 5 September 2022. In her report, Dr Yoxall expressed the following opinion:
Mr Aramoana’s score on the LSI-R is 8 (5.1st %ile). This means that 94.9% of the normative male sample (North American norms are commonly used in Australia for this measure) scored higher than him. There are static (historical and unchanging) factors, as well as dynamic (changeable factors) that impact upon his risk of reoffending. People who score at 13 or below are considered to be in the low risk of reoffending and low level of treatment needs. Overall 11.1% those who scored at 13 or below in the normative sample reoffended (conviction within 12 months).
36. In her report, Dr Yoxall stated the following opinions:
10. SUMMARY AND CONCLUSION:
Mr Aramoana is a 27 year old citizen of New Zealand who is currently in
immigration detention after his visa was cancelled because of his criminal history.
Mr Aramoana was born in New Zealand on 12 June 1995. He moved to Australia
on 23 November 2008 with his family. He was 13 years old. On 16 November
2021, Mr Aramoana was convicted in the District Court of Queensland at
Brisbane of: Fraud – Dishonestly obtains property from another by employee
value of or over $30,000 but less than $100,000; and Fraud – Dishonestly
obtains property from another by Employee. He was sentenced to concurrent
terms of imprisonment of a total of four years and 12 months, to be suspended
after 8 months. His visa was subsequently cancelled. Mr Aramoana was referred
for psychological assessment with specific focus on risk of reoffending/ harm to
the Australian community. The psychological assessment findings are as follows:
1. Mr Aramoana had no criminal history prior to commencement of employment
with the Calamvale Hotel in September 2015. Between then and January 2020
(when Mr Aramoana was between the ages of 20 and 24 years of age) he
engaged in fraud, taking money from his employer though a process of creating
false receipts.
2. Information available indicates that Mr Aramoana’s offending was motivated by
a need to fund his Gambling Disorder which is a mental disorder as identified in
the DSM5 TR, and to manage debts arising from the gambling. To my
knowledge, his Gambling Disorder was not identified until the current criminal
matter arose.
3. In my view there is a clear nexus between the offending and his psychological
disorder – that is Gambling Disorder, in that if not for the Gambling Disorder, it is
unlikely that Mr Aramoana would have engaged in the offending.
4. Whilst the percentage of problem gambling in Australia is small, individuals
with Gambling Disorder contribute to a substantial amount of total gambling
expenditure and gambling related fraud has increased substantially in the last
two decades, particularly with the advent of more accessible forms of gambling
such as online gambling (Sakurai & Smith, 2003; May-Chahal, et al, 2017). It has
been estimated that around 10 to 25% of problem gamblers commit gambling-
related offences (Lahn, 2005).
5. Mr Aramoana’s historical risk factors for reoffending is primarily the convictions
for this dishonesty offending. He has an education and a work history. His
dynamic risk factors are relapse to Gambling Disorder. Protective factors include
some initial treatment for Gambling Disorder, family support, and prospects for
employment. The key risk factor for reoffending is the Gambling Disorder.
Resolution of this disorder substantially reduces Mr Aramoana’s risk of
reoffending. He spent 21 months in the community, after he was fired from the
Calamvale Hotel in February 2020, wherein he did not reoffend and on self-
report, did not engage in gambling. Thus he would be considered to be in
sustained remission. However the primary concern is the amount of rehabilitation
and treatment that he has had access to, to date.
6. In my opinion he still requires evidence based psychological treatment to
address the Gambling Disorder (even if he has been in remission) and to ensure
that there is a strong relapse prevention plan in place. This can be achievedthrough individual counselling with a suitably qualified and experienced
psychologist. He is motivated to engage I such treatment.
7. In my opinion Mr Aramoana’s risk of reoffending is specific and is related to
fraud. He is not at risk of other offending. His specific risk of reoffending (fraud) is
directly related to his risk of relapse to Gambling Disorder. If he engages in the
recommended treatment, and responds well, the risk would be low.
37. During her evidence before the Tribunal Dr Yoxall elaborated on some of the
things expressed in her report in relation to risk prevention once the Applicant is living
back in the wider community, saying the following:
MEMBER: Dr Yoxall, it’s the Member here. Just on that point, it seems to me from what I’ve seen of Mr Aramoana, he does have the resolve to engage in further treatment. But he also seems to me to be a man of very limited financial means and that’s going to be a practical problem going forward in terms of accessing, you know, gold standard treatment. It’s going to be costly and it may be beyond his budget.
In the event that Mr Aramoana - for purely financial reasons - could only access something like, for example, Gamblers Anonymous and nothing more, would that be sufficient going forward?---It wouldn’t be optimal. It could be sufficient.
All right. I understand?---Yes. And look, very, very aware of the issues of access in our communities. I think one of the differences from – as a clinician, what I can see now post COVID is that during COVID, some services closed down for a period of time or went to skeleton staff. Many services took time to move onto the telehealth videoconference space. So that was one of the reasons there was such a delay. Post-COVID, there’s a lot more (indistinct) intervention that wasn’t there during the COVID period. And obviously, you know – and I’m more than happy to provide Ms Samuta and Mr Aramoana with some of the, you know, key links and contacts, but of course so would be Gamblers Anonymous be able to. So, I mean – and why I say that it would be potentially be sufficient but not optimal is because he 40 managed to be in the community for 21 months under what one would argue, substantial strain knowing he was facing criminal charges and the information that I have is that he didn’t relapse. And so that is quite a substantial indicator of his resolve. But we all know resolve doesn’t fix a psychological disorder. But he’s highly motivated and so I would say if after 45 exhausting all options, he can’t – from a financial point of view – access one on one evidence based intervention with a psychologist, Gamblers Anonymous and keeping that prevention plan going could well be sufficient.
Under Medicare, he could access – I think it’s mental health sessions?---Correct. Would that cover gambling addiction?---Absolutely. Absolutely. It’s a diagnosis and, you know, yes, it’s a diagnosis. So he would be able to have that access as well. Again, I wouldn’t like to sit here and say that access to a bulk billing psychologist is easy either. Many people have long wait lists but he would certainly be able to manage things through that avenue.
But in all events, that means there’s a baseline. There’d be 10 clinical sessions
that he could have bulk billed - - - ?---Per year.
- - - and not to have pay for. And then he could segue from that into a group
therapy situation such as Gambler’s Anonymous?---Correct. Yes.
38. The Tribunal accepts the opinions expressed by Dr Yoxall, particularly the opinion
that the Applicant now represents a very low risk of re-offending. This is discussed
further below in these reasons.
Issues
39. Revocation of the mandatory cancellation of visas is governed by s.501CA(4) of the Act. Relevantly, this provides that:
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.
40. I am satisfied that the Applicant made the 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. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.
41. There are therefore two issues before the Tribunal:
whether the Applicant passes the character test; and
if not, whether there is ‘another reason’ why the decision to cancel the
Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
42. The character test is set out 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 defined by 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”.
43. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.
44. The Tribunal therefore finds that, because of s.501(7)(c), the Applicant has a “substantial criminal record”, and cannot pass the character test. In these circumstances, the Applicant cannot rely on s.501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be
Revoked?
45. 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 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Ministerial Direction”) has application.
46. For the purposes of deciding whether or not to revoke the mandatory cancellation
of a non-citizen’s visa, paragraph 5.2 of the Ministerial Direction contains several
principles that must inform a decision maker’s application of Part 2 of the Direction.
47. Those principles are:
| (1) | Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. |
| (2) | Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. |
| (3) | The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non- citizen poses a measurable risk of causing physical harm to the Australian community. |
| (4) | Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age. |
| (5) | Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. |
48. Paragraph 6 of the Ministerial Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
49. Paragraph 8 of the Ministerial Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
| (1) | protection of the Australian community from criminal or other serious conduct; |
| (2) | whether the conduct engaged in constituted family violence; |
| (3) | the best interests of minor children in Australia; and |
| (4) | expectations of the Australian community. |
50. Paragraph 9 of the Ministerial Direction sets out four Other Considerations which must be taken into account. They are:
| a) | international non-refoulement obligations; |
| b) | extent of impediments if removed; |
| c) | impact on victims; and |
| d) | links to the Australian community, including: |
i) strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests
51. These are “other” considerations, as opposed to ‘secondary’ or lesser
considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border
Protection:
“...Direction 65 [now Direction 90] 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.”
Primary Consideration 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
52. When considering Primary Consideration 1, paragraph 8.1 of the Ministerial Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm arising in consequence of criminal activity, or other serious conduct by non-citizens. Decision makers are required to have particular regard for the principle that entering or remaining in this country is a privilege, that Australia confers on non-citizens in the expectation that they are, and have been, law abiding; that they will respect important institutions; and that they will not cause or threaten harm to individuals, or to the Australian community.
53. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Ministerial Direction requires decision makers to have consideration for:
| a) | The nature and seriousness of the Applicant’s conduct to date; and |
| b) | The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. |
The Nature and Seriousness of the Applicant’s Conduct to Date
54. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Ministerial Direction specifies that decision makers must have regard for a number of further factors. These are set out, as sub-paragraphs (a) – (g) inclusive, of paragraph 8.1.1(1):
| (a) | without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: |
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the
types of crimes or conduct described below are considered by the Australian
Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage
(other than being a victim), regardless of whether there is a conviction for an
offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such
as the elderly and the disabled), or government representatives or officials
due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does
not pass an aspect of the character test that is dependent upon the decision-
maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non- citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)
(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or
crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending; (f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has 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).
55. The Respondent Minister contends, that the Applicant’s criminal offending is
‘serious’, involving as it did persistent dishonesty, such that it should be assessed by the
Tribunal as weighing ‘very heavily’ against revocation.
56. The Applicant submits, that whilst the seriousness of his offending must be implicitly accepted – particularly in recognition of the imposition of a head sentence of four years imprisonment - the Applicant’s offending has nonetheless not entailed any of the forms of conduct specifically nominated under the Ministerial Direction:
� violent or sexual crimes; or
� crimes against either women or children; or
� acts of family violence; or
� forced marriage; or
� acts directed against vulnerable persons, such as the elderly or the disabled; or
� acts perpetrated against government officials due to their position, or in the
performance of their duties; or
� acts committed in immigration detention, or whilst attempting to escape from
immigration detention.
57. The Applicant further submits that the overall objective seriousness of his offending needs to be considered in the context of:
� the Applicant’s gambling addiction;
� his having fully cooperated with the investigating police;
� the Applicant having given a very early indication of his willingness to enter a
plea of guilty;
� the complete lack of any prior - or subsequent - criminal history; and
� the Applicant’s relative youthfulness, given that his offending all transpired
between the ages of 20 and 24 years.
58. Stealing as a servant has always been treated under Australian criminal law in an objectively serious manner. This is reflected in the prison terms imposed for offences of this category. In light of the prison term imposed as a head sentence on the Applicant of four years the Tribunal accepts that the Applicant’s criminal offending must now be categorised as ‘serious’.
The Risk to the Australian Community Should the Applicant Commit Further
Offences or Engage in Other Serious Conduct
59. Paragraph 8.1.2(1) of the Ministerial Direction provides that, when considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
60. Paragraph 8.1.2(2) then provides that, when assessing the future risk that may
be posed by the non-citizen 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; | |||
| (b) | the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: | |||
| ||||
| (c) | where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa. |
Nature of harm should the Applicant engage in further criminal or other serious conduct
61. The Respondent Minister contends, that the nature of the Applicant’s prior offending and the harm that would be caused in the event that the Applicant were to remain in Australia and engage in similar offending in the future would have the potential to cause significant psychological and financial harm to members of the Australian community such as to now give rise to a risk that is ‘unacceptable’. In light of the evidence received before the Tribunal that submission is not reasonably maintainable, such that the Tribunal rejects it.
62. The Applicant submits, that the nature of any potential harm to the Australian community should the Applicant remain in Australia and then commit further serious or other criminal conduct is a matter that can only be assessed against the backdrop of the Applicant’s specific past offending, which was that the Applicant was a young father and the sole economic provider for his wife and children, two of whom have significant respiratory health problems. Against that backdrop the Applicant happened to become stressed by his parental and breadwinner responsibilities, and then commenced to gamble as a form of diversion from those obligations; yet in the process became addicted to gambling, and thereafter commenced to obtain funds from his employer by means of deception in order to fund his on-going addiction.
63. The Tribunal agrees with that submission and determines that the nature of the harm to either individuals or the Australian community that might arise in the future in the event that the Applicant is allowed to remain in Australia seems apt to be confined to a risk that the Applicant may once again steal from an employer: again, by means of fraudulent documentation. This is a very specific category of risk, that may be guarded against by measures that may be taken by future employers, in order to ensure that the Applicant does not have access to petty cash, or other means by which to steal as a servant. In a context wherein the Applicant now has a criminal history, and may be required to disclose that criminal history to a prospective employer, the nature of the harm is able to be known, and thus to be guarded against.
Likelihood of the non-citizen engaging in further criminal or other serious conduct in the future.
64. The Minister submits that there is a material risk that the Applicant will reoffend, by reason that his prior offending was motivated by his gambling addiction, which arose in response to ordinary life stressors. The Minister then further submits that the Tribunal cannot be confident that the Applicant has been sufficiently rehabilitated in the absence of objective evidence regarding the efficacy of any counselling undertaken by the Applicant in an effort to address his problems with gambling addiction. It is submitted that the Tribunal should have regard for the relative recency (January 2020) of the last offending; the fact that it entailed elements of dishonesty; and took place over a sustained period. Moreover, the Minister submits that claimed protective factors - such as the presence of stable employment and family support – should not now be considered by the Tribunal as likely to diminish the risk of the Applicant re-offending, by reason that these were factors that were similarly present in the past, yet these did not stop the Applicant’s offending. In this light, the Respondent Minister submits that consideration for the requirement of protection of the Australian community becomes a factor that weighs very strongly against revocation of the visa cancellation decision.
65. The Applicant submits that the Applicant is a very low risk of re-offending, as the Applicant has now acknowledged and recognised his prior problem with gambling addiction, and has now undertaken telephone counselling in an effort to address that. Furthermore, even after the Applicant’s criminal conduct had been detected, the Applicant still remained employed with Schults, and at AutoProtect Pty Ltd in a warehousing role whilst on bail awaiting his sentencing. The Applicant’s post-offending employers have each provided references attesting to the Applicant’s good employment conduct, even in light of their knowledge of the Applicant’s offending whilst previously an employee of the Calamvale Hotel.
66. The question of future risk to the Australian community - in the event that the Applicant were to remain in Australia and re-offend in a similar manner – also now becomes a matter that must be assessed in light of the report and opinion provided by Dr Jacqueline Yoxall regarding that topic. Dr Yoxall was an impressive witness who emerged unscathed from cross examination, and the Tribunal now accepts her opinions and other evidence and attaches significant weight to the same.
67. Ultimately, the Tribunal accepts that the Applicant’s offending must be regarded as serious as is reflected in the head sentence of four years, as imposed by the District Court of Queensland. However, the Tribunal concludes that the Applicant does not present as any significant risk to the community and that any risk of the Applicant re- offending in similar manner in the future and causing harm to the Australian community is very low, and not at any level that could reasonably justify the need for the deportation of the Applicant in order to guard the Australian community against that risk.
68. Accordingly, the Tribunal determines that the ‘serious’ nature of the Applicant’s offending is not accompanied by any unacceptable risk to the community, such that Primary Consideration (1) attracts only minimal weight in favour of not revoking the visa cancellation decision.
Conclusion: Primary Consideration 1
69. Primary Consideration 1 weighs only minimally against revocation of the cancellation of the Applicant’s visa.
Primary consideration 2: FAMILY VIOLENCE
70. Paragraph 8.2(1) of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
| ||||
| (3) | In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant: |
a)
the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence; c)
rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.
the extent to which the person accepts responsibility for their family violence related conduct;
ii.
the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and d)
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non- citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
71. There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve elements of ‘family violence’. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of ‘family violence’. This Primary Consideration is not therefore relevant, and is weighed neutrally by the Tribunal.
primary consideration 3: The best interests of minor children in Australia
72. Paragraph 8.3(1) of the Ministerial Direction compels a decision-maker to make a determination about whether cancellation or refusal under s.501, or non-revocation under s.501CA is in the best interests of a child affected by the decision. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
73. The Ministerial Direction then sets out in paragraph 8.3(4) a number of factors to
take into consideration with respect to the best interests of minor children in Australia.
Those include:
| a) | the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/ |
or there is no existing relationship and/or there have been long periods of absence,
| or limited meaningful contact (including whether an existing Court order restricts contact); | |
| b) | the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; |
| c) | the impact of the non-citizen’s prior conduct, and any likely future conduct, and |
whether that conduct has, or will have a negative impact on the child;
| d) | the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; |
| e) | whether there are other persons who already fulfil a parental role in relation to |
the child;
| f) | any known views of the child (with those views being given due weight in |
accordance with the age and maturity of the child);
| g) | evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; |
| h) | evidence that the child has suffered or experienced any physical or emotional |
trauma arising from the non-citizen’s conduct.
74. The Applicant has four minor biological children in Australia, two older sons, Child EJA aged six and Child ZTA aged five; and two younger daughters, Child ATA now aged two, and Child SAA, who is aged just five months. All of the Applicant’s children are Australian citizens. As described in earlier parts of these reasons each of EJA and ZTA have significant asthma conditions.
75. In addition to his own children, the Applicant also has five minor nephews and five minor nieces in Australia, each in an age range between one year, and thirteen years. The evidence is that the Applicant is very close to his family in Australia and that he has a loving and protective relationship with all of his nephews and nieces, and would see those four whom lived close by on a daily basis, and the other six on an approximately weekly basis, as well as for birthdays and other family gatherings.
76. The Applicant submits:
| (a) | the Applicant is a “patient and compassionate father”; |
| (b) | the Applicant is the sole financial provider for his wife and family; |
| (c) | the Applicant’s visa cancellation has caused extreme difficulty and uncertainty for the Applicant’s wife and children; |
| (d) | Ms Haddad’s unchallenged evidence is that their children growing up without their father would have long-term impacts on the children; |
| (e) | Ms Haddad wishes for the Applicant to return home to her and the children; |
| (f) | There are various support letters from the Applicant’s friends and family before the Tribunal that show concern that a non-revocation outcome would be devastating for the Applicant’s wife and minor children; |
| (g) | With respect to paragraph 8.3(4)(a) of Direction No.90, the evidence suggests that the Applicant has been a positive, involved father to his children since their births and in all aspects of their lives (financial and non-financial); |
| (h) | With respect to paragraph 8.3(4)(b) of Direction No.90, given the Applicant’s history of being a positive and involved father to his minor aged children, the evidence suggests that this will continue into the future and the Applicant would |
| continue to be an involved parent to his four minor aged children until they each attain 18 years of age; |
(i) With respect to paragraph 8.3(4)(c) of Direction No.90, there is no evidence that the Applicant’s Index Offending has negatively impacted his minor children, and any negative impact of his incarceration on them is too remote to fall under the ambit of paragraph 8.3(4)(c) of Direction No.90.;
| (j) | With respect to paragraph 8.3(4)(d) of Direction No.90, the evidence of the Applicant’s wife, Mrs Haddad is relevant. Mrs Haddad’s evidence was that she believes that the separation of the Applicant and their minor aged children would have long term impact on their children; |
| (k) | With respect to paragraph 8.3(4)(e) of Direction No.90, it is submitted that whilst Mrs Haddad fulfils a parental role for their minor children, she cannot fulfil the role of both mother and father for their children, especially given that her evidence is that the Applicant was the sole provider for his family and that she is she is exhausted, overwhelmed, and struggling to keep herself and her children as a consequence of the Applicant’s incarceration and visa cancellation; |
| (l) | With respect to paragraph 8.3(4)(f) of Direction No.90, the children are too young to express their own views independently, such that the evidence of Mrs Haddad paraphrased above must be considered instead; |
| (m) | With respect to paragraph 8.3(4)(g) of Direction No.90, there is no evidence that the Applicant’s children have ever been exposed to, or are at risk of being exposed to, family violence, abuse or neglect by the Applicant. In contrast, Mrs Haddad’s evidence was that the Applicant is a “patient and compassionate father” to their children; and |
| (n) | Direction No.90 |
With respect to paragraph 8.3(4)(h) of , there is no evidence that trauma for his minor aged children, and that any negative impact of his incarceration on them is too remote to fall under the ambit of paragraph 8.3(4) (c) of Direction No.90.
77. In light of the foregoing, the Applicant submits, that the best interests of the Applicant’s children and nephews and nieces are best served by exercising the discretion in s.501CA(4) to revoke the decision to mandatorily cancel the Applicant’s visa and that the interests of these minor Australian citizens should now be given determinative weight in these proceedings.
78. The Respondent acknowledges, that that this primary consideration weighs in
favour of revocation of the visa cancellation decision, yet maintains that it should not be
afforded overwhelming or determinative weight, by reason that:
� Ms Haddad currently fulfills the primary parental role for the children, given that
the Applicant is in immigration detention. Ms Haddad will be available to continue
in that role in the future;
� The Applicant has extensive family network in Australia, living in close proximity
to Ms Haddad and the Applicant’s children;
� The Applicant could maintain contact with his children by telephone and
electronic means and by way of the children visiting him in New Zealand on
holidays; and
� Ms Haddad and the children could relocate to New Zealand to be with the
Applicant. Concerns regarding the asthma suffered by each of EJA and ZTA as factors working against that possibility should be discounted, by reason that there is insufficient/inadequate evidence now before the Tribunal regarding the severity of asthma suffered in New Zealand when compared to asthma symptoms suffered in Australia.
Consideration: Primary Consideration 3
79. Ultimately, the Tribunal remains unpersuaded by any of the Minister’s submissions regarding reasons why this Primary Consideration should attract lesser weight. Taking into account the best interests of the children mentioned above cumulatively, the Tribunal determines that this Primary Consideration now weighs very significantly in favour of the revocation of the cancellation of the Applicant’s visa.
primary consideration 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
80. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Serious conduct in breach of this expectation by a non-citizen, or an unacceptable risk of that by a non-citizen ordinarily gives rise to a community expectation that the Government will not then allow the non- citizen to remain in Australia
81. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns, or the offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
| (a) | acts of family violence; or |
| (b) | causing a person to enter into, or being party to (other than being a victim of), a |
forced marriage;
| (c) | commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect; |
| (d) | commission of crimes against government representatives or officials due to the |
position they hold, or in the performance of their duties; or
| (e) | involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or |
| (f) | worker exploitation. |
82. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply irrespective whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
83. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
84. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
85. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Ministerial Direction.
86. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
87. The Applicant contends, that minimal weight should now attach to this
consideration against revoking the mandatory cancellation of the Applicant’s visa, once
the Tribunal takes account of:
| (a) | the seriousness of the Applicant’s Index Offending; |
| (b) | that the Applicant’s Index Offending occurred in the context of a gambling addiction and ill health of two of his minor aged children; |
| (c) | the Applicant’s lack of prior or subsequent criminal offending in Australia, especially in view of his living in Australia since he was 13 years old; |
| (d) | the severe consequence on the Applicant’s wife and four very young children who are Australian citizens who ordinarily reside in Australia; and |
| (e) | that a majority of the Applicants immediate and extended family members ordinarily reside in Australia, many of whom are Australian citizens; |
88. The Respondent Minister submits that this Primary Consideration weighs strongly against revocation of the visa cancellation decision by reason that the nature of the Applicant’s offending is such that the Australian community would expect that the Applicant should not continue to hold a visa (paragraph 8.4(2)), regardless of whether the Applicant poses any measurable risk of causing physical and financial harm to the Australian community (paragraph 8.4(3), paragraph 5.2(5)).
Conclusion: Primary Consideration 4
89. Ultimately, whilst the Tribunal is required to accept that it is to be guided by the expectations of the Australian community as now expressed in Paragraph 8.4 of the Ministerial Direction, the question as to how much weight is to be allocated to this Primary Consideration remains a matter for the Tribunal.
90. In the Tribunal’s view the background circumstances of the Applicant’s offending, the nature of that offending and the Applicant’s overall social circumstances are such that only modest or minimal weight needs to attach in this case to a community expectation of visa cancellation.
91. Considering all relevant factors, the Tribunal therefore determines that Primary
Consideration 4 weighs only minimally against revocation of the cancellation of the
Applicant’s visa.
Other Considerations
92. It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the
Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and
(d).
International non-refoulement obligations
93. The Applicant does not make any claims with respect to Australia’s non-
refoulement obligations, and none arise on the evidence. This Other Consideration is not
relevant and is therefore assessed neutrally.
Extent of Impediments, if Removed
94. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and |
| (c) | any social, medical and/or economic support available to that non-citizen in that country. |
95. The Respondent Minister submits that the Applicant will be able to re-establish himself in New Zealand, and is relatively young and healthy, and will not face any substantial language or cultural barriers, by reason of his Māori background and culture, and his having already spent the first 13 years of his life in New Zealand. As such, the Minister submits that, although the Applicant may face some emotional and practical obstacles - which are apt to attract some weight in favour or revocation of the visa cancellation decision - these obstacles to resettlement are not likely to prove insurmountable; such that this Other Consideration should not be afforded overwhelming weight in favour of revocation.
96. The Applicant submits that the Applicant has spent all of his life – at least since the age of 13 - in Australia and that all of the Applicant’s immediate family and social network are now in Australia, and that the depth and quality of that support network is reflected in the numerous letters provided by the Applicant’s family in support of his request for revocation. In the event that the Applicant were to be deported, it would be exceedingly difficult for the Applicant’s wife and their children to also relocate to New Zealand, by reason of the health concerns for the asthma condition of the Applicant’s two eldest children and Ms Haddad’s carer responsibilities for her own parents, in Australia. If the result is that he is removed, the Applicant would become separated from his wife and children, and would be caused emotional and psychological hardship in New Zealand; as well as social isolation. In this light the Applicant submits that this Other Consideration weighs in favour of now revoking the mandatory cancellation of the Applicant’s visa.
97. In the Tribunal’s view the extent of any impediments that may be faced by the Applicant in the event that he was required to return to New Zealand are not apt to be insurmountable, yet these will still be far more significant than has been presumed by the Minister. Other Consideration (b) is assessed by the Tribunal to weigh moderately in favour of revocation of the visa cancellation decision.
Impact on victims
98. There is no evidence before the Tribunal relating to the impact that the
Applicant’s continued presence in Australia would have on any victims. This Other
Consideration is therefore not relevant and is assessed neutrally.
Links to the Australian Community
99. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction
requires that decision makers must have regard to the following two factors set out in
paragraph 9.4.1 and paragraph 9.4.2 respectively:
the strength, nature, and duration of ties to Australia; and
the impact on Australian business interests.
100. The Respondent Minister concedes that the Applicant arrived in Australia 15 years ago; and also concedes the Applicant to have extensive family connections to this country and to have made some positive contributions to the community, largely by reason of his past consistent employment history: yet contends that any positive contribution made by the Applicant are now eclipsed by his criminal offending; such that the requirements of community protection together with the expectations of the Australian community now outweigh any weight that may be attached to Other Consideration (d), in favour of revocation of the visa cancellation decision.
The strength, nature, and duration of ties to Australia
101. The Applicant submits that in circumstances where:
(a) the Applicant has lived in Australia since he was 13 years old, and he is now
27 years old;
(b) the Applicant’s wife and minor aged children are Australian citizens who
ordinarily reside in Australia and would be adversely impacted by the
Applicant’s removal to New Zealand;
(c) the Applicant has an extensive support network in Australia consisting of his
extended family (many of whom are Australian citizens), friends, and an
employer who believe he is of good character and should remain in Australia,
and some of whom have indicated that they would be adversely affected by hisremoval to New Zealand;
this consideration should weigh strongly in favour of revoking the mandatory
cancellation of the Applicant’s visa under s 501CA(4) of the Act.
Impact on Australian business interests
102. This other consideration is not relevant in the Applicant’s circumstances and is now assigned neutral weight.
Conclusion: Other Consideration (d)
103. The Tribunal does not accept that the requirements of community protection together with the expectations of the Australian community now outweigh other consideration (d). The Tribunal determines that the Applicant’s links to the Australian community now weigh moderately in favour of revocation of the mandatory visa cancellation decision.
CONCLUSION
104. In accordance with the foregoing elaboration of reasons, the Tribunal’s assessment in accordance with the Ministerial Direction, whilst conscious of the need specified in paragraph 7(2) of the Ministerial Direction to generally attach greater weight to the Primary Considerations than to the Other Considerations, is as follows:
| Primary Consideration 1 | Protection of the Australian Community |
Weighs only minimally against revocation of the visa cancellation decision.
| Primary Consideration 2 | Family Violence |
Not applicable: Weighs neutrally.
| Primary Consideration 3 | Best interests of minor children |
Weighs very significantly in favour of revocation of the visa cancellation decision.
| Primary Consideration 4 | Expectations of the Australian community |
Weighs only minimally against revocation of the visa cancellation decision.
| Other consideration (a) | International non-refoulment obligations |
Not applicable: Weighs neutrally
| Other consideration (b) | Extent of impediments, if removed from Australia |
Moderate weight in favour of revocation of the visa cancellation decision.
| Other consideration (c) | Impact on victims |
Not applicable: weighs neutrally
| Other consideration (d) | Links to the Australian community |
Moderate weight in favour of revocation of the visa cancellation decision.
105. In light of the foregoing, the Tribunal determines that in accordance with s.501CA(4)(b)(ii) of the Act there is now ‘another reason’ why the original decision to cancel the Applicant’s visa should be revoked.
DECISION
106. 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 5 July 2022 not to revoke the mandatory cancellation of the Applicant's visa and substitutes a decision to revoke the mandatory cancellation of the Applicant's visa.
I certify that the preceding 106 ( o n e h u n d r e d a n d s i x ) paragraphs are a true copy of the reasons for the decision herein of M e m b e r A n d r e w M c L e a n Williams
..............................[SGD]..........................................
Associate
Dated: 24 October 2022
| Date of hearing: | 12 and 13 September 2022 Ms Jennifer Samuta |
| Solicitor for the Applicant: | |
| Samuta McComber Lawyers | |
| Mr Harry McLaurin | |
| Solicitor for the Respondent | MinterEllison |
ANNEXURE A
| EXHIBI | DATE OF | DATE |
DESCRIPTION OF EVIDENCE PARTY
T DOCUMENT RECEIVED Section 501 G Documents (G1 to
| G1 | R | - | 20 July 2022 |
G38 paged 1 to 196)
Applicant’s Statement of Facts,
9 August 9 August
| A1 | Issues and Contentions (paged 1 to | A |
2022 2022
16)
Applicant’s Tender Bundle (1 to 4 7 September
| A2 | A | - |
paged SA-1 to SA-45) 2022 Respondent’s Statement of Facts,
26 August 26 August
| R1 | Issues and Contentions (paged 1 to | R |
2022 2022
9)
Respondent ’s Supplementary
25 August
| R2 | Documents (S1 to S18 paged 1 to | R | - |
2022
45)
Key Legal Topics
Areas of Law
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Administrative Law
-
Immigration
-
Statutory Interpretation
Legal Concepts
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Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Remedies
-
Statutory Construction
0
5
2