Sio and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1479
•1 June 2023
Sio and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1479 (1 June 2023)
Division:GENERAL DIVISION
File Number(s): 2023/1056
Re:Trevor Lokeni Sio
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A George
Date:1 June 2023
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 8 November 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
..........................[Sgnd]..............................
Senior Member George
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No.99 – offending serious – decision under review set-aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Applicant S270/2019 v MIBP [2020] HCA 32
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pavey and Minister for Home Affairs [2019] AATA 4198
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v MHA [2022] HCA 17
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
1 June 2023
Mr Trevor Lokeni Sio (“the Applicant”) is a citizen of New Zealand and is aged 40 years.[1] He arrived in Australia as the holder of a Class TY Subclass 444 Special Category (Temporary) visa in 2004, aged 21 years.[2]
[1] Exhibit R2, G-Documents, G12, page 53.
[2] Exhibit R2, G-Documents, G12, page 55.
Following criminal offending and a resultant term of imprisonment, the Applicant’s visa was mandatorily cancelled on 21 January 2021 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
On 3 February 2021, the Applicant made representations seeking revocation of the cancellation decision.[3] On 8 November 2022, a delegate was not satisfied that the Applicant passed the “character test” and that there was not another reason why the cancellation decision should not be revoked.[4] This is the reviewable decision.
[3] Exhibit R2, G-Documents, G11, pages 48-65.
[4] Exhibit R2, G-Documents, G4, pages 11-25.
The Applicant lodged an application for review of the reviewable decision before the Tribunal on 12 November 2022.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit R2, G-Documents, G1, pages 1-6.
On 22 December 2022, the Full Court of the Federal Court delivered a judgement in Pearson v Minister for Home Affairs [2022] FCAFC 203 (“Pearson”).[6] The Full Court decided that an aggregate sentence did not fall within the definition of a “substantial criminal record” under s 501(7)(c) of the Act. Because of the judgement in Pearson, the Applicant was released from immigration detention on 27 December 2022.
[6] Pearson v Minister for Home Affairs [2022] FCAFC 203.
On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (“the Amending Act”) was enacted. The Amending Act inserted s 5AB into the Act:
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
Accordingly, the Applicant was again placed in immigration detention on 18 April 2023.
On 17 and 18 May 2023, the hearing proceeded by audio-visual means. The Applicant gave evidence on 17 May 2023. On 18 May 2023, the following witnesses gave evidence:
(a)Ms Daphne Sio, the Applicant’s mother;
(b)Ms Ashantae Stowers-Sio, the Applicant’s daughter; and
(c)Dr Emily Kwok, a Clinical and Forensic Psychologist.
The Applicant was represented by Ms M Maramot of Southwest Migration and Legal Services. The Respondent was represented by Mr C Burke of Sparke Helmore.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to make the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction), to revoke the cancellation.[7] Furthermore, claims of hardship that do not fall squarely within the structure the structure of the Direction cannot be overlooked.[8]
[7] On 23 January 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
[8] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471, [46].
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a “substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 8 December 2020, the Applicant was convicted in the District Court of New South Wales at Penrith of affray and reckless wounding – in company for which he was sentenced to an aggregate term of three years and two months imprisonment.[9]
[9] Exhibit R2, G-Documents, G6, pages 27-28.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the refusal of the Applicant’s visa application should be revoked?
In making its decision, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community
Paragraph 6 of the 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.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and 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 strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be considered. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND AND OFFENDING
The Applicant was born in New Zealand in January 1983. He migrated to Australia in 2004 at the age of 21 years. Despite a short period of residence outside Australia between June 2004 and February 2006, the Applicant has substantially resided in Australia since his return in 2006.
The Applicant was raised by his maternal grandmother in Samoa with whom he had a very close bond.[10] He resided in Samoa for nine years and said he had an “alright” relationship with his parents upon his return to New Zealand.[11] He reported that his father abused alcohol and was abusive to the children.[12]
[10] Exhibit A2, Applicant’s Tender Bundle, Statutory Declaration, pages 1-2 [12].
[11] Exhibit A2, Applicant’s Tender Bundle, Dr Kwok Report, page 13 [10].
[12] Exhibit A2, Applicant’s Tender Bundle, Dr Kwok Report, page 13 [10].
The Applicant’s father and maternal grandmother both passed away in 2018. He reported that he experienced depression after their deaths. His father’s death had a significant impact on him. They had not spoken since a “nasty interaction” in 2016 until just days before his father’s death when he called the Applicant and asked for forgiveness.
The Applicant’s mother resides in Liverpool, New South Wales. She has a disability and suffers from various medical conditions.[13] All three of the Applicant’s siblings and their children reside in Australia.[14]
[13] Exhibit A2, Applicant’s Tender Bundle, Statutory Declaration, page 4 [34].
[14] Exhibit A2, Applicant’s Tender Bundle, Statutory Declaration, page 1 [3].
The Applicant has three daughters with his ex-partner, two of which are minors. The Applicant describes his relationship with his ex-partner as, “very civil and friendly to each other for sake of our children.”[15] He plays a parental role in his daughter’s lives, despite them residing with his ex-partner. He acknowledged that while there was no violence in his relationship with his ex-partner, his alcohol problems contributed to their relationship breakdown.
[15] Exhibit A2, Applicant’s Tender Bundle, Statutory Declaration, page 2 [19].
Upon his arrival into Australia, the Applicant started work as a kitchen hand. He mainly worked in the construction industry and “maintained good relationships with my previous employers.”[16] Prior to his period of incarceration, he “mainly operated a forklift and scaffolding.”[17]
[16] Exhibit A2, Applicant’s Tender Bundle, Statutory Declaration, page 2 [21].
[17] Exhibit A2, Applicant’s Tender Bundle, Statutory Declaration, page 2 [23].
The Applicant has a criminal history that spans between 2014 and 2020. Prior to his offending in 2020, the Applicant became known to police. From 2006, New South Wales Police Force records contain several incidents involving allegations of violence and alcohol use.[18]
[18] Exhibit R3, Tender Bundle, TB3, pages 40-62.
The Tribunal notes that the Applicant did not have negative contact with the New South Wales Police Force after April 2020, when he was on bail for the index offending. Further, there is no record of any police interactions when the Applicant was returned to the community on parole in December 2022 (following the decision in Pearson) and before his return to immigration detention in April 2023.
On 26 August 2014, the Applicant was fined $600 in the Magistrates Court of Queensland at Gladstone for commit public nuisance and fail to leave licensed premises.[19] On 16 December 2014, the Applicant was convicted in the Magistrates Court of Queensland at Gladstone of contravention of banning order which was imposed on 26 August 2014.[20] The evidence indicates that, at the time, the Applicant was employed on the APLNG Gas Plant project.[21]
[19] Exhibit R2, G-Documents, G6, pages 27-28.
[20] Exhibit R2, G-Documents, G6, pages 27-28.
[21] Exhibit R2, G-Documents, G14, page 74.
On 26 April 2016, the Applicant was fined and disqualified from driving for a period time in the Local Court of New South Wales at Blacktown for drive licence suspended.[22] On 28 October 2016, the Applicant was fined in the same Court for negligent driving (no death or grievous bodily harm).[23] Although facts before the Court did not deal with issues of intoxication, it is apparent from police records that the Applicant was suffering an “extreme level of intoxication” around the time of the offence.[24]
[22] Exhibit R2, G-Documents, G6, pages 27-28.
[23] Exhibit R2, G-Documents, G6, pages 27-28.
[24] Exhibit R3, Tender Bundle, TB3, page 48.
On 8 December 2020, the Applicant was sentenced in the District Court of New South Wales at Penrith to an aggregate term of three years and two month’s imprisonment for the offences of affray – T1 and reckless wounding – in company – T1.[25]
[25] Exhibit R2, G-Documents, G6, pages 27-28.
In the sentencing remarks dated 8 December 2020, his Honour Judge Bourke SC described the offences of affray – T1 and reckless wounding – in – company T1 in the following terms:
10. The offences of 6 February 2019 involved a 28-year-old victim [Name] who lived in Glenwood. At about 8:30pm on 6 February 2019, [the Victim] went riding on his bicycle around the neighbourhood. About the same time the six offenders were drinking alcohol together on some stairs at a railway underpass at Marayong Railway Station. Unfortunately for [the Victim] his bicycle ride took him to the are where the offenders were drinking and he had a short conversation with one of the offenders.
11. According to the agreed facts, this conversation continued for a few minutes but then, for some reason which remains unknown, things got a little heated and all of the offenders surrounded and started pushing [the Victim]. At that point, at least one of the offenders started punching [the Victim] to the face…
12. After this, [an Offender] pinned the victim to the ground on the stairs while two others punched him to the face, with another offender punching him from behind. [an Offender] also punched the victim a few times while he was on the ground.
13. After this, the victim, who was still surrounded, was thrown around and punched numerous times then dragged down some stairs where one of the offenders stood over him, pinning him to the ground while a number of the other offenders stood behind, effectively backing up the first offender. About that time Trevor Sio stood over the victim holding a piece of broken bottle towards the victim’s neck and said, “I’ll cut you. After I cut you I’ll throw you off the bridge.” Mr Sio was, whilst still holding the broken bottle, holding the victim down by his neck making it difficult for him to breathe. The victim attempted to defend himself by taking hold of the bottle neck and trying to stop Sio from cutting his face. The offenders again, at this point, surrounded the victim while he was on the ground and Mr Sio and a few of the other offenders punched and kicked him to various parts of his body. Mr Sio also stomped on the victim’s face multiple times while the victim attempted to protect himself.
14. At some point the victim managed to push away from the offenders but they kept coming towards him, punching and throwing him to the ground. Eventually he managed to get away to the stairs at the bottom of the platform where he wrestled with one of the offenders but was still surrounded by a number of them. One of the offenders, who was holding a broken piece of glass, pinned the victim down on the stairs saying, “I’ll cut you,” and then attempted to cut the victim’s face with the piece of glass. In the ensuing struggle, the victim received cuts to his right arm and right cheek. This is the act which constitutes the offence of reckless wounding for which each of the offenders is to be sentenced.[26]
[Emphasis added]
[26] Exhibit R2, G-Documents, G8, pages 30-45.
The Victim suffered serious injuries as a result of the offending on 6 February 2019. The wound to his right arm required eight stitches and the wound to his cheek was treated with medical glue. He also suffered severe bruising to his face, torso and back.
Although it is not clear which offender committed each specific act of violence, his Honour’s remarks are clear that the Applicant played an active role in the attack upon the Victim. Without provocation, the Applicant pinned the Victim to the ground and held a broken bottle to his neck. He also repeatedly stomped on the Victim’s face.
Under cross-examination, the Applicant did not clearly remember his offending of 6 February 2019. However, he did accept his Honour’s sentencing remarks of that offending. This is consistent with the psychological assessment report of Mr Navin Goonniah dated 9 May 2020, which reported:
Mr Sio reported that on the date of the incident he acknowledges that he consumed alcohol in excess to numb the emotions he was feeling. Mr Sio reported that he drunk an amount of alcohol that he cannot recall the incident but takes responsibility for what he did.[27]
[27] Exhibit R2, G-Documents, G15, page 108 [3.6].
The Applicant’s alcohol abuse was part of a maladaptive coping strategy. Mr Goonniah stated the Applicant’s mental health conditions were developed following the deaths of his maternal grandmother and father in a short period of time:
Mr Sio experienced significant difficulty coping with his grief and loss, and the adjustment resulting in unmanageable depressive and anxiety related symptoms. Mr Sio used alcohol and other substances as a maladaptive coping strategy to manage his symptoms… I am of the opinion, on the balance of probabilities, that there was a causal connection between Mr Sio’s mental condition and his offending.[28]
[28] Exhibit R2, G-Documents, G15, pages 105-111.
Mr Goonniah also stated that the Applicant “represents no threat to the community and he will not reoffend.”
Mr Goonniah’s report was relied upon in a Sentencing Assessment Report of 20 July 2020, completed by Ms Adcock of Blacktown Community Corrections Office. Here, the Applicant was assessed as “at a Low-Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”. The Applicant was assessed as being suitable to undertake community service work.[29]
[29] Exhibit R3, Tender Bundle, TB1, pages 11-12.
His Honour decided a period of imprisonment was required,[30] albeit he expected that the Applicant would be released on a lengthy period of parole.[31] In the sentencing remarks, his Honour accepted that the Applicant was likely impaired by alcohol resulting from a coping mechanism for the grief and loss he was experiencing at the time:
The psychologist formed the view that Mr Sio was affected by an adjustment disorder and acute intoxication at the time of his offences and expresses the opinion that his actions were out of character and the psychologist further says that this conclusion is supported by psychological testing.
… In the psychologist’s opinion the offending behaviour was the product of the offender’s adjustment disorder arising from the deaths of his father and maternal grandmother combined with his intoxication at the time which itself was a form of coping mechanism. As the psychologist notes and as I accept, “Alcohol has likely impaired Mr Sio’s ability to control his actions.” And, “Anger is a prominent feature of grief and loss and depression.”[32]
[30] Exhibit R2, G-Documents, G8, page 41 [99].
[31] Exhibit R2, G-Documents, G8, page 43 [111].
[32] Exhibit R2, G-Documents, G8, page 39 [76]-[77].
With respect to the Applicant’s prospects of rehabilitation, his Honour remarked:
In my opinion, Mr Sio’s prospects of rehabilitation are reasonably positive given his lack of criminal history, family supports, good work prospects, steps towards abstinence, and his willingness to engage with treatment.[33]
[33] Exhibit R2, G-Documents, G8, page 39 [78].
After the Applicant was imprisoned, the New South Wales Department of Corrective Services made the following annotations to his record:
Trevor stated he has been in Australia for over 20 years, he has a long term partner and 3 children who remain supportive, he has a work history in scaffolding. Alcohol was a contributing factor in his offending behaviour, he reported that he was on bail for 2 years and did not abuse alcohol during that period.[34]
[Emphasis added]
[34] Exhibit R3, Tender Bundle, TB5, page 80.
The Applicant has consistently attributed his offending to his alcohol consumption. In his written evidence provided to the Tribunal, the Applicant said the following about his offending:
… made a bad choice I was going through the lowest point of my life at the time I was going through depression because of my father’s death less than a year later my grandmother past away as well and I closed myself off from everyone and I was going through real bad depression but I am very sorry.[35]
[35] Exhibit R2, G-Documents, G13, page 71.
The Applicant’s mother, Ms Daphne Sio, provided a written statement to the Tribunal that further outlined the Applicant’s “drinking problem”:
I believe that my son has had problems with drinking alcohol in the past. I believe that he would use alcohol to supress his feelings. At the time, his father and grandmother passed away I believe he was depressed. [the Applicant] was very close to both his father and grandmother and they were the last of his immediate family and ties to New Zealand.
I believe that the main reason why my son [the Applicant] committed the terrible violent offence is because of his drinking problem.[36]
[36] Exhibit A2, Applicant’s Tender Bundle, page 20.
Whilst imprisoned, the Applicant reported some physical health issues such as an overactive thyroid and lower back issues, however his mental health was otherwise good. Corrective Services reported that:
Trevor is supported by his partner, family and friends and maintains contact through AVL visits and phone calls. He is focused toward gaining employment and achieving an offence free future. Trevor spends his leisure time playing chess, walking and maintaining his fitness in custody at Glen Innes correctional Centre.[37]
[Emphasis added]
[37] Exhibit R3, Tender Bundle, TB5, page 82.
Shortly after the Applicant’s paternal grandmother passed away in February 2021, and despite his noticeable grief, he was reported on as follows: “Trevor has started work down at timber products and has a great work ethic, despite having a sore back he gives 100% everyday”.[38] In July of that year, the Applicant was reported as “always very polite and respectful get along with other inmates is excellent nil issues”.[39] Such comments were common until March 2022 when a staff member reported the following conduct after shouting at the Applicant and reprimanding him for the manner in which he was using a forklift:
Inmate SIO began to abuse me telling me that “You are a Fucking dog” several times. SIO told me to “shut the Fuck up and not to talk to him like that”.[40]
[38] Exhibit R3, Tender Bundle, TB5, page 84.
[39] Exhibit R3, Tender Bundle, TB5, page 89.
[40] Exhibit R3, Tender Bundle, TB5, page 101.
Under cross-examination, the Applicant accepted that this incident had occurred. However, the Tribunal notes it was isolated and that it occurred whilst the Applicant’s daughter was in hospital having surgery on her knee. By May 2022, the Applicant’s conduct had improved and he was reported on as follows:
Inmate has recently shown an improvement towards his work performance/ethic, and works to above standard, has no worries following direction and completing tasks with minimum supervision, always wear appropriate PPE complies with all SOP’s and LOP’s always at work on time to go with nil issues, he also works on his days off in other work locations, he is always very polite and respectful, get along with other inmates is excellent, nil issue.[41]
[41] Exhibit R3, Tender Bundle, TB5, page 104.
Consistent with the New South Wales Department of Corrective Services reports regarding the Applicant’s work ethic, the Applicant was employed as a scaffolder whilst in the community following his release from immigration and prior to his return. The Applicant’s employer was aware of his criminal history but described him as having an excellent work ethic and that he was reliable and safe. The Applicant is welcome back to his employer if his visa is returned to him.[42]
[42] Exhibit A2, Applicant’s Tender Bundle, page 37.
In a psychological report dated 4 January 2023 and provided to the Tribunal as evidence, Dr Kwok stated the following about the Applicant’s drug and alcohol history:
Mr Sio said he was exposed to alcohol at an early age through his father and extended family members, and he also grew up in an area where alcohol was widespread. He reportedly started using alcohol with friends every weekend at seventeen years old.
After arriving in Australia, Mr Sio said his alcohol consumption initially reduced because he could not afford it. After he started working in scaffolding, he reportedly “drank at the pub every day” with his co-workers.
… Mr Sio stated that he used marijuana in New Zealand when he was 19 to 20 years old. He reported that he used marijuana in Australia but did not use when he was working because the workplace had mandatory drug testing… In addition, he reportedly used crystal methamphetamine (‘ice’) in 2014 and 2015.
Mr Sio stated that he used ice on the day of offending on 6 February 2019 (I note that he worked that day since the offence was committed with co-workers after work), but claimed he was no longer using illicit drugs at the time he was sentenced. He reported that he attended AA (Alcoholic Anonymous) meetings for a month before he was imprisoned. Mr Sio stated that he required for drug and alcohol (AOD) treatment in prison, but the case manager in prison reportedly determined he did not require intervention.[43]
[43] Exhibit A2, Applicant’s Tender Bundle, pages 12-13.
In her report, Dr Kwok wrote that the Applicant expressed remorse for his offending:
Mr Sio expressed remorse for his behaviours towards the victim. He said “I feel bad for the victim… I have kids too. I don’t want people to hurt my family, or my brother, or my friend.” He recognised that the victim suffered physical injuries that required treatment at the hospital.
In the report dated 4 January 2023, Dr Kwok stated that the Applicant would require intensive treatment to reduce the likelihood of further criminal conduct. Dr Kwok stated that the Applicant poses a moderate risk of re-offending should he not obtain adequate treatment:
There is a moderate risk that Mr Sio will engage in further criminal conduct and be a risk/threat/danger to the Australian Community. This will likely reduce with intensive AOD treatment and psychological intervention to help him manage his emotional symptoms.
Dr Kwok clarified in her oral evidence that her assessment went to violent reoffending. Further, when presented with a fact scenario consistent with the evidence contained in parts of the New South Wales Police Force records, Dr Kwok opined that the assessed risk was at the higher end of the moderate scale.
The Tribunal notes that Applicant has recently commenced a rehabilitation programme at Odyssey House to address his problems with alcohol. He has so far engaged with Odyssey House on three separate occasions for 40-minute counselling sessions, two in-person and one on the phone.[44]
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
[44] Exhibit A2, Applicant’s Tender Bundle, page 43.
The Nature and Seriousness of the Applicant’s Conduct to Date
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 Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant was convicted of affray and reckless wounding – in company and the Tribunal views this conduct as very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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;
(i) 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));
(ii) 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.
There is no evidence before the Tribunal that the Applicant has committed offences of this nature. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[45]
[45] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant was sentenced to an aggregate term of imprisonment of three years and nine months, which reflects the objective seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s criminal history began in 2014 with relatively minor offences. The Respondent submits that although the Applicant’s offending between 2014 to 2016 was not as “serious as the violent offending in 2019”, it demonstrates that the Applicant “has now repeatedly acted with blatant disregard for Australian law”.[46]
[46] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 8 [34].
The evidence does not support a finding that the Applicant’s offending has increased in frequency. However, the Applicant’s offending has increased in seriousness and this increase may broadly be described as a trend. Nevertheless, the Tribunal does not accept the submission that the Applicant’s offending constitutes a “blatant” disregard for Australian law.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
There is an insufficient link between the Applicant’s offending prior to his offence of 6 February 2019 for this offending to have an observable cumulative effect. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
On passenger cards dated 22 July 2018 and 18 November 2018, the Applicant failed to declare that he had a conviction in New Zealand. In a letter dated 19 August 2022, the Applicant described this conduct in the following terms:
It was not my intention not to declare the conviction and I honestly didn’t think that I had a criminal record in New Zealand. It has been 16 years from 2002 to 2018. If I did knew that I had a criminal history and it being so long ago and if I’d remembers, I wouldn’t have hesitated to have mentioned it on my passenger card. There was no reason to have held this information from the Australian authorities on my passenger card.
I thought that, because it was discharged and I never done time or went to prison for it that it was not a criminal conviction. It as a very long time ago and it’s now 2022 exactly 20 years and I truly forgot about it.[47]
[47] Exhibit R2, G-Documents, G14, pages 1-3.
The Applicant concedes that “he did provide misleading information on his incoming passenger cards on two occasions ticking he did not have a criminal record.”[48]
[48] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 4 [23].
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
On 17 December 2002, the Applicant was convicted and discharged in the District Court of New Zealand at Manukau (which is broadly the equivalent of a Magistrates’ Court in Australia) for the offence of Unlicensed Driver Failed to Comply with Prohibition.[49]
[49] Exhibit R2, G-Documents, G7, page 29.
The Tribunal does not consider that factors (b), (e) or (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in 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.
Paragraph 8.1.2(2) provides that in assessing the 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; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
oinformation and evidence on the risk of the non-citizen re-offending; and
oevidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(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
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The Applicant concedes that should he reoffend in a similar manner to his offences of affray and reckless wounding, the nature of harm to individuals and the Australian community could be deemed as serious.[50]
[50] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 4 [24].
The Applicant has acknowledged that alcohol is central to his criminal offending. The evidence is clear that the Applicant has long battled alcohol issues, as indicated by his lengthy contact with the New South Wales Police Force. However, it is not clear that this contact is of the type contemplated by the Direction as serious conduct. The Tribunal is not satisfied that this contact indicates contempt or disregard for the law or behaviour that represents a danger to the Australian community.
This matter presents a curious circumstance where the Applicant’s own expert witness has placed the Applicant’s risk of reoffending at a higher level than that otherwise revealed by the Respondent’s evidence. Dr Kwok has opined that the Applicant was of a medium risk of violent reoffending. Conversely, the Sentencing Assessment Report that relied upon Mr Goonniah’s report placed the risk of reoffending as low. The expert evidence relies on different sources, has been assessed at different times, and therefore does not lend itself to a clean dissection. Each report taken alone is neither comprehensive nor definitive. Accordingly, the Tribunal is satisfied that Applicant’s risk of violent re-offending is either low or medium.
It is material in this matter that neither Mr Goonniah, Ms Adcock, his Honour the sentencing judge, or Dr Kwok had before them the reports of New South Wales Corrective Services. These reports make it clear that the Applicant is, almost always, a diligent and respectful worker who acknowledges his alcohol issues and has expressed a desire to gain employment and not to reoffend. Indeed, in the time that the Applicant was released into the community he gained employment and he did not reoffend. The evidence before the Tribunal indicates that the Applicant has earnestly commenced his rehabilitation.
The nature of the harm to individuals or the Australian community, were the Applicant to engage in further violent offending, is potentially very serious. However, this is not a matter where the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated would be unacceptable. Accordingly, this consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Family violence does not arise on the evidence before the Tribunal, and therefore this consideration is not relevant.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
It is incumbent on the Tribunal to consider any impact of its decision on the non-citizen’s immediate family members in Australia who are either:
(a)Australian citizens,
(b)Australian permanent residents; or
(c)people who have a right to remain in Australia indefinitely.[51]
[51] Direction 99, paragraph 8.3(1).
The Direction requires that more weight be given to the non-citizen’s ties to his or her child and/or children who meet the same qualifiers.[52]
[52] Direction 99, paragraph 8.3(2).
Paragraph 8.3(3) lacks clarity and seems to be a statement without any direction to the decision-maker:
8.3(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Although not expressly stated, the logical inference is that these factors must be considered.
Paragraph 8.3(4) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. When considering any other ties, the Tribunal must have regard to the length of time the non-citizen has resided in the Australian Community in accordance with the following weightings:
i. Considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. More weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. Less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Analysis – Allocation of Weight to this Primary Consideration 3
Accordingly, in assessing the weight attributable to Primary Consideration 3, it is necessary to have regard to the following matters:
(a)The Applicant first arrived in Australia in 2004 at the age of 21 years. Despite a short period of residence outside Australia, he has substantially resided in Australia since his return in February 2006.
(b)The Applicant has consistently made positive contributions to Australia through his employment, although this is somewhat offset by his criminal conduct and other negative interactions with the New South Wales Police Force.
(c)Since the death of his maternal grandmother and father, the Applicant no longer has any close ties in New Zealand.
(d)The Applicant’s mother, siblings and daughters all reside in Australia.
(e)The Applicant’s mother is disabled and suffers from various medical conditions. In both her oral and written evidence to the tribunal, she stated she relied on the Applicant for financial and physical support and would rely on him for support should his visa cancellation be revoked.
The balance of the evidence, in considering Primary Consideration 3, weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3), respectively, contain further stipulations. 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.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. The Tribunal will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.4(4) of the Direction requires the Tribunal to consider 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).
The Applicant has three biological daughters in Australia, two of which are minors. His youngest daughter “AS” is aged 15 years and turning 16 years in June. His daughter “TS” is aged 17 years and turning 18 years in October. The Applicant’s daughter Ashantae, who gave evidence in these proceedings, is turning 21 years in June and therefore, not a child for the purpose of this consideration.
The Applicant stated that during his period of incarceration and subsequent immigration detention, he has maintained regular communication with his minor children. He plays a parental role in their lives despite them residing with their mother, his ex-partner. The Tribunal is satisfied that the Applicant currently has a meaningful relationship with his two minor children.
There is some evidence that the Applicant has nieces and nephews,[53] however they remain largely unidentified.[54] Accordingly, little weight can be apportioned to the meaningfulness of the Applicant’s role as an uncle.
[53] Exhibit R2, G-Documents, G4, page 20.
[54] Exhibit R2, G-Documents, G15, page 96.
Sub-paragraph (b) of paragraph 8.4(4) of the Direction causes a decision-maker to examine 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.
In a statement provided to the Tribunal, the Applicant said the following about his minor children:
While I was in jail [Applicant’s ex-partner] constantly updated me regarding my daughters’ education and their day-to-day activities. I am very much involved with their lives. They are always my priority.
My money goes directly to their needs. They are the reason why I work hard. Since they were born, I made it a mission to give them a good life and be a good father to them. They are my reminder why I need to change my ways.[55]
[55] Exhibit A2, Applicant’s Tender Bundle, pages 4-5.
The evidence before the Tribunal is clear that the Applicant will play a meaningful role in the lives of both his minor children in Australia if he is released into the Australian community.
Sub-paragraph (c) of paragraph 8.4(4) of the Direction points to 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.
There is no evidence before the Tribunal that the Applicant’s prior conduct, and any likely future conduct, has, or will have, a negative impact on any minor children. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (d) of paragraph 8.4(4) of the Direction causes a decision-maker to consider 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. Where the evidence indicates that there may be ongoing harm to a child caused by separation from the non-citizen, the decision-maker should evaluate the significance of the harm, its quality and character.[56]
[56] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, [44].
The evidence before the Tribunal does not support meaningful findings as to the likely effect that any separation from the non-citizen would have on any child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (e) of paragraph 8.4(4) of the Direction points to whether there are other persons who already fulfil a parental role in relation to the child.
The Applicant’s ex-partner, who is the mother of both his minor children, currently fulfills a parental role in relation to the children.
Sub-paragraph (f) of paragraph 8.4(4) of the Direction causes a decision-maker to examine any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s youngest daughter, “AS”, provided a statement to the Tribunal expressing her current struggles:
My dad is a nice and caring person. We miss him very much and the support we got from him when he was with us. Ever since he left, we’ve been struggling and haven’t had the father figure to help and support us and I have realized that without my dad we have missed out on a lot of things with him and im afraid of when he misses big milestones in my life, I am still growing up and my childhood will be filled without him present in my life and I won’t be able to develop the father and daughter relationship everyone needs to have.[57]
[57] Exhibit R2, G-Documents, G16, page 116.
Sub-paragraph (g) of paragraph 8.4(4) of the Direction causes the Tribunal to consider any 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.
There is no evidence before the Tribunal that any 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. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (h) of paragraph 8.4(4) of the Direction causes the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence before the Tribunal that any child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. Accordingly, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider factors (c), (d), (g), (h) of paragraph 8.4(4) of the Direction apply to the Applicant’s offending or circumstances. The remainder of the relevant sub-paragraphs of paragraph 8.4(4) of the Direction, in their totality, weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(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 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.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(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 Direction.[58]
[58] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(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.
Analysis – Allocation of Weight to this Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
(a)The Applicant first moved to Australia in 2004 and is now aged 40 years.
(b)The Applicant no longer has any close ties in New Zealand and his mother, siblings and children all reside in Australia.
(c)The Applicant’s offending of affray and reckless wounding – in company was a violent and unprovoked attack upon the Victim.
(d)The Applicant was imprisoned for his offending of affray and reckless wounding – in company.
(e)The Applicant criminal offending is indicative of poor character.
(f)Prior to the index offending in 2019, the Applicant’s criminal and other conduct was of lesser seriousness.
(g)The Applicant has sustained employment whilst in both in the community and whilst imprisoned.
On balance, these considerations weigh heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) Legal consequences of the decision
The Direction divides the considerations to be applied into two sections: (1) ‘Non-citizens covered by a protection finding’, and (2) ‘Non-citizens not covered by a protection finding’.
The Applicant has not raised any claims based on non-refoulment obligations and no such claim arises on the evidence before the Tribunal.
Accordingly, this Other Consideration is not relevant.
(b) Extent of impediments if removed
As a guide for making the decision, 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.
The Applicant is aged 40 years, turning 41 years in January next year. He is in relatively good health; notwithstanding his history of alcohol abuse, a thyroid issue, lower-back issues, and psychological issues raised by Dr Kwok.
The Applicant would not suffer any language or cultural barriers if he were returned to New Zealand.
The Applicant states that he would face “emotional hardship upon being returned to New Zealand due to his separation from his children, mother, and siblings and family.” He also contends that he would suffer financially and practically due to a lack of social support and employment opportunities in New Zealand. However, under cross-examination he did concede that given his employment background in the construction industry, he could find employment in New Zealand.
Accordingly, this Other Consideration weighs moderately in favour of revocation of the cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration 9.3(1) requires that decision-makers must consider the impact of the s 501 or s 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims.
Accordingly, the Tribunal does not regard this consideration to be relevant.
(d) Impact on Australian business interests
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 or s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on the impact of Australian business interests.
Accordingly, the Tribunal does not regard this consideration to be relevant.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: not relevant.
(b)extent of impediments if removed: weighs moderately in favour of revocation of the cancellation of the Applicant’s visa.
(c)impact on victims: not relevant.
(d)impact on Australian business interests: not relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
(b)Primary Consideration 2 is not relevant.
(c)Primary Consideration 3 weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
(d)Primary Consideration 4 weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
(e)Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
(f)The weight attributable to the four-listed Other Considerations as found above.
A holistic view of the considerations in the Direction therefore favours the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal decides to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 8 November 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding [147] paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Associate
Date of Decision: 1 June 2023 Date of Hearing: 17 and 18 May 2023 Solicitor for the Applicant: Ms M Mamarot
Southwest Migration and Legal ServicesSolicitor for the Respondent: Mr C Burke
Sparke Helmore LawyersANNEXURE A
148. EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions.
R
28/04/2023
28/04/2023
17/05/2023
A1
Applicant’s Statement of Facts, Issues and Contentions
A
06/04/2023
06/04/2023
17/05/2023
R2
Section 501 G-Documents
R
Various
22/11/2022
17/05/2023
A2
Tender Bundle ‘Version 2’
A
Various
12/05/2023
17/05/2023
R3
Tender Bundle
R
Various
28/04/2023
17/05/2023
0
9
0