Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1853
•23 June 2021
Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1853 (23 June 2021)
Division:GENERAL DIVISION
File Number: 2021/2070
Re:Saia Daniel Smith
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:23 June 2021
Place:Melbourne
The Tribunal affirms the decision under review.
.................[sgd].......................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – substantial criminal record – family violence – alcohol and drug abuse issues – anger management issues – right to silence and privilege against self-incrimination – whether another reason to revoke the mandatory cancellation – Ministerial Direction No. 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council, ‘Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
23 June 2021
INTRODUCTION
The Applicant, Mr Saia Smith, seeks review of a decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (the visa).
The hearing was held in Melbourne on 15 and 16 June 2021. Previous arrangements for a hearing in person were amended at late notice due to continuing restrictions from a state-wide, COVID-19 lockdown commencing in late May 2021. The parties appeared by audio visual means. The Applicant was self-represented, and the Minister was represented by Mr Orchard, a solicitor from Sparke Helmore Lawyers.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant was born in Tonga and is a 29-year-old citizen of New Zealand.[1] He lived with his grandparents and twin brother in Tonga until the age of six, before the family moved to New Zealand in 1997 to re-join the Applicant’s mother.[2] The Applicant arrived in Australia at the age of 10 with his mother, stepfather, and twin brother,[3] but has never applied for Australian citizenship.[4] The Applicant stated that his twin brother’s visa was cancelled approximately four years ago, resulting in removal to New Zealand.[5]
[1] Exhibit R1, 61; 68.
[2] Exhibit A1, 2 (4.c.).
[3] Exhibit R1, 118.
[4] Ibid, 68 [Question 2].
[5] Ibid, 83 [14]; 88 [48].
In December 2011, the Applicant married a woman in Australia who the Tribunal will refer to as Partner 1.[6] They had a daughter together in July 2012, but separated approximately a year later.[7] Partner 1 moved to Western Australia to be closer to her family, where she has since remained.
[6] Ibid, 108; Exhibit A1, 2 [4.j.].
[7] Exhibit R1, 84 [24]; Exhibit A1, 2 [4.k.].
In August 2019, the Applicant was convicted of Robbery and Fail to answer bail.[8] He was placed on a two-year good behaviour bond (GBB) and ordered to pay $2000 to the Court Fund. He breached the GBB through further offending.
[8] Exhibit R1, 35 [11]-[20]; Exhibit R2, 5-6.
In approximately March 2020 the Applicant began a romantic relationship with a woman who the Tribunal will refer to as Partner 2.[9] In June 2020 he was arrested, charged, and remanded in custody for violence against Partner 2.[10] On 9 October 2020, the Applicant was convicted in the Magistrates’ Court of Victoria on two counts each of Recklessly cause injury, Intentionally damage property, and Commit indictable offence whilst on bail. He was sentenced to an aggregate of 12 months imprisonment, to be served concurrently.[11]
[9] Exhibit A1, 2 [5.e.].
[10] Exhibit R1, 152.
[11] Ibid, 23.
On 6 January 2021, the Applicant’s visa was mandatorily cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act 1958 (the Act) (the cancellation decision).[12] The Applicant received this decision on 11 January 2021.[13]
[12] Ibid, 53-58.
[13] Ibid, 60.
In January 2021 the Applicant made representations to have the cancellation decision revoked,[14] but on 31 March 2021, the Respondent declined to do so (the non-revocation decision).[15] He was advised of this by letter dated 6 April 2021[16] and subsequently asked the Tribunal to review the non-revocation decision.[17]
[14] Ibid, 61-80; 115-117.
[15] Ibid, 6.
[16] Ibid, 4-5.
[17] Ibid, 1-3.
The Applicant is currently in immigration detention.[18] Pursuant to s 500(6L) of the Act, the Tribunal must make a decision on his application within 84 days of him being notified of the non-revocation decision in accordance with s 501G(1). The 84th day in this matter is 29 June 2021; eight working days after the hearing.
[18] Based on s 14 and s 189(1) of the Act.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review non-revocation decisions.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act, which states inter alia:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
A person whose visa is cancelled under s 501(3A) becomes an unlawful non-citizen within the meaning of s 14 of the Act and is liable to be detained under s 189. Section 198 of the Act provides:
198Removal from Australia of unlawful non‑citizens
…
(2B) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c) in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as Ministerial delegates and the Tribunal.[19] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and the Tribunal is bound to apply it in these reasons.
[19] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 noncitizens 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 noncitizens 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 measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must take into account clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia;
(ii)Impact on Australian business interests.
Clause 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[20]
[20] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant stated in his revocation request: ‘I think there has been a mistake in deciding that I do not pass the character test.’[21] In his most recent statement, however, he stated: ‘I accept I do not pass the character test.’[22] In oral evidence, the Applicant clarified that he did challenge the contention that he did not pass the character test.
[21] Exhibit R1, 62.
[22] Exhibit A1, 1 (2.a.).
By virtue of his sentence of 12 months’ imprisonment on 9 October 2020, the Tribunal finds the Applicant does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. In Viane v Minister for Immigration and Border Protection[23] the Federal Court reflected on this task as follows:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[23] (2018) 162 ALD 13, [64] (Colvin J).
Documentary evidence
The documents taken into evidence were:
(a)G-documents numbering 177 pages;[24]
[24] Exhibit R1.
(b)Tender bundle of material obtained under summons numbering 121 pages;[25]
(c)Six-page undated statement of the Applicant;[26]
(d)Letter dated 20 May 2021 from Anglicare Victoria;[27]
(e)Certificate dated 28 May 2021 for attendance at Dealing with Anger Sessions;[28]
(f)Photocopy of first two pages of Applicant’s New Zealand passport;[29]
(g)Letter of support dated 8 February 2021 from a married couple who are friends of the Applicant’s family;[30]
(h)16-pages of photocopied photographs;[31]
(i)Two statements of support from a woman who claims to have known the Applicant for a year.[32] One is unsigned and undated, while the other is unsigned and dated 7 April 2021;
(j)Three letters dated between 3 – 6 May 2021 relating to the Applicant’s request for a travel exemption from immigration authorities to enable attendance at his grandfather’s funeral;[33] and
(k)Second page of an undated letter signed by an Assessment and Referral Practitioner of the CISP Remand Outreach Program, referring to preparations for the Applicant’s bail.[34] The Applicant was afforded an opportunity to tender the first page but advised the Tribunal he could not locate it.
[25] Exhibit R2.
[26] Exhibit A1.
[27] Exhibit A2.
[28] Exhibit A3.
[29] Exhibit A4.
[30] Exhibit A5.
[31] Exhibit A6.
[32] Exhibit A7.
[33] Exhibit A8.
[34] Exhibit A9.
Witnesses
The Applicant was the only witness who give oral evidence at the hearing, which took up most of the first day. When asked why family members and friends who provided supportive statements were not called as witnesses, the Applicant said he wanted to ‘take full accountability…I wanted to take this upon myself today.’ He expressed confidence, however, that if these family members and friends were called, they ‘would have nothing but good words to say’.
Applicant’s evidence
The Applicant adopted his statement as true and correct. His submissions focussed on the interests of his family in Australia, particularly his daughter. He expressed remorse for his past conduct and said he had addressed his addictions and anger through rehabilitation.
Background and family in New Zealand and Australia
The Applicant confirmed the factual background at the commencement of these reasons. He had most recently returned to New Zealand in March 2019 for a cousin’s wedding. [35] When asked the cousin’s name, he initially claimed not to have it and then that he could not recall it. The Applicant was also unable to recall where he travelled during other international departures from Australia prior to 2019.
[35] Exhibit R1, 118.
The Applicant said all his immediate family and other members of his extended family reside in Australia. In response to questions about family members in New Zealand, the Applicant said his twin brother, who was deported from Australia four years ago, lived in New Zealand but was currently imprisoned. He could not count on his brother for any support if repatriated. The Applicant claimed he did not know why his brother was imprisoned, despite confirming they spoke by telephone periodically. During subsequent questioning, the Applicant disclosed that he has a married maternal aunt in New Zealand with several children, and a married cousin with children. He claimed not to communicate with these relatives and said he had last seen them when permitted to attend his grandfather’s funeral under immigration escort in May 2021.
Partner 1 and minor children in Australia
The Applicant said he was very close to his daughter from a relatively short-lived marriage to Partner 1 during 2011-2012. He recalled being 20 years of age when married and said his priorities at the time were not conducive to ‘settling down.’ He ‘wanted to play sport and be with the fellas,’ which caused arguments and a ‘lot of head clashes’ with Partner 1. When asked about a clinical psychologist’s reference to a ‘disgusting’ relationship with Partner 1, including fighting and attacking each other,[36] the Applicant insisted there was no violence.
[36] Ibid, 84 [23].
After separation, the Applicant said Partner 1 returned to her family in Western Australia with their child. He said they did not separate ‘on best terms,’ which resulted in no contact for a period. He contextualised this as: ‘co-parenting with an ex is a challenge.’ He now claimed to have a cordial relationship with Partner 1 ‘for our daughter.’ The Applicant said he and Partner 1 were not divorced but thought she was in a new relationship.
The Applicant said there was no custody order regarding his daughter, who he communicated with ‘every couple of weeks.’ He did so either through Partner 1 or his daughter’s iPad. He did not know what school his daughter attends and claimed to have last physically seen her about four years ago when she was permitted to visit him in Melbourne. The Applicant tendered a bundle of family photographs into evidence, some showing him with a baby and an infant child in 2017, who the Applicant claimed was his daughter.[37] When asked why there was no evidence from Partner 1 to corroborate his claims about their relationship and communication with their daughter, the Applicant said he requested her involvement about four months ago, but this was not provided. He assumed ‘she may be busy.’ When asked about the things his daughter needed him for, the Applicant responded generally: ‘she needs her father in every way’.
[37] Exhibit A6.
The Applicant was asked about his claims about paying child support. He agreed there was a $7000 child support debt recorded against him,[38] but could not recall how long it had taken to accrue, or when Partner 1 ‘first put child support onto me.’ He accepted the debt had most likely accumulated throughout his daughter’s life. When asked why he did not pay child support while working for around a decade, the Applicant conceded he was ‘being selfish and feeding [his] addiction’.
[38] Exhibit R1, 106-107.
When asked about references to his stepsiblings and the minor children of his aunts and uncles, the Applicant responded generally that he had ‘been there’ since his stepsiblings’ birth and considered them his real ‘brothers and sister.’ He claimed to talk with them daily. He also claimed to have a ‘deep connection’ with his nieces and nephews but conceded: ‘I can’t say I play a particular role.’ He agreed his role in the lives of his stepsiblings and other minor children, whose interests he did not particularise, was non-parental. He said they could approach him for advice about ‘life in general or whatever they need’.
Offending
The Applicant did not dispute the convictions in his criminal history[39] or the sentencing remarks of the Melbourne Magistrates’ Court dated 13 October 2020.[40] He expressed remorse about his past conduct on several occasions.
[39] Ibid, 23-24.
[40] Ibid, 25-52.
When asked by the Tribunal about records suggesting the Applicant and his twin brother were involved in criminal offending together, the Applicant initially responded this was ‘not correct’. During later questioning from Mr Orchard, however, he agreed that his brother was a co-accused for a robbery in April 2016,[41] for which the Applicant was convicted in 2019. The Applicant said this offending was one reason why his brother was imprisoned and deported four years ago. The Applicant agreed he subsequently breached a bail order despite claiming he was no longer under the ‘bad influence’ of his brother,[42] and committed further offences despite what should have been the salutary impact of his brother’s removal.
[41] Exhibit R2, 105-108.
[42] Ibid 20.
The Applicant claimed not to understand why he was found guilty of Robbery, stating that he was merely present when the offending occurred. He said that he ‘accepted…what was given to me,’ which is why the Court only sentenced him to a $2000 fine and a GBB. He claimed there were no weapons involved as claimed in the police report, stating: ‘My brother got involved in an altercation where no weapons were involved – just a fist fight.’ When given a further opportunity to explain why he was convicted of Robbery, the Applicant again insisted he was only present and did not intervene. When challenged that the elements of robbery under s 75 of the Crimes Act 1958 (Vic) involve more than being present or failing to intervene, the Applicant insisted this was the case.
The Applicant agreed he had previously been aggressive, violent, and abusive in a family context, but would not repeat this behaviour if released. When asked by Mr Orchard why he previously limited references to his offending to the 2020 convictions, and termed them a ‘domestic verbal misunderstanding,’[43] the Applicant said at the time he wrote this in January 2021, he had not yet accepted responsibility for his actions, conceding: ‘things in there are incorrect.’ He accepted the events reflected in the sentencing remarks were far worse than those comments suggested. When asked by Mr Orchard if he accepted this was an attempt to mislead the Department about the severity of his offending, the Applicant responded: ‘I was trying to mislead myself and not taking accountability for anything, but I had no intention to mislead the Department’.
[43] Exhibit R1, 65.
When asked about the Court’s specific findings, the Applicant accepted he smashed Partner 2’s mobile telephone, choked her in a wardrobe with her dressing gown, and hit her in the face with a toy. When asked about the reference to her blacking out because of the latter, the Applicant responded: ‘That’s what’s been stated, but what she stated and what happened are two different things.’ The Applicant also agreed he forced Partner 2 to take him to her employer’s home, verbally abused her on the way, and then hit the employer’s garage door with a hockey stick while yelling at him and continuing to manhandle Partner 2. The Applicant explained that he was unemployed at the time and hiding his drug use. He stated his actions were ‘disgusting’ and no one deserved to be treated in this way. He disagreed, however, with the timeline portrayed in the evidence, saying it made his conduct appear to have been over a longer period, whereas it happened ‘just on the day.’
The Applicant was asked by Mr Orchard if pending charges for Unlawful assault and four counts of Criminal damage (Intent damage / destroy) had yet been heard.[44] The Applicant explained these related to an incident involving a girlfriend in January 2020,[45] who took out an intervention order against him, but otherwise exercised his right to silence and privilege against self-incrimination. He confirmed these charges were yet to be answered in court. The Tribunal curtailed further questioning. No weight is placed on charges yet to be heard and no negative inference is made from the Applicant exercising his rights.
[44] Ibid, 24.
[45] Exhibit R2, 110-111.
The Applicant was asked, in light of his evidence about pending charges, why he circled the ‘No’ response in his January 2021 revocation submissions, to the effect that he had none.[46] He said this was a ‘misunderstanding…a mistake’ and conceded he had not filled the form out to the ‘best of my knowledge.’ He again disagreed it was an intentional attempt to mislead the Department or diminish the seriousness of his conduct.
[46] Exhibit R1, 80.
Addictions
The Applicant attributed his offending to involvement with drugs since a teenager, commencing with marijuana and progressing to methamphetamine. He claimed this began after the death of his stepfather when the Applicant was 15 years of age, which caused him to ‘question life’ and his religious faith. The Applicant also referred to the death of a close friend in about 2008, claiming it was a further impetus to his drug use. He said his addictions grew quicky and he was ‘in denial’ for refusing to accept that he had a problem.
The Applicant explained that addiction with methamphetamine ‘is quick and hard to shake’. He agreed with the assessment of clinical psychologist Ms Mynard, that he tended to be anxious when not using methamphetamine and violent when he did. He referred to periods of daily methamphetamine and marijuana use in the past, but at other times, including after a family intervention, his drug use was periodic. He continued to hide this from employers and those closest to him, because he was ashamed of what they might think. He estimated that in the year or so prior to his offending he used illicit drugs three times a week. The Applicant claimed that methamphetamine was the ‘hardest drug [he had] come across.’ He agreed, however, consistent with the report of Ms Mynard, that he also tried GHB and cocaine,[47] but stated methamphetamine was his drug ‘of choice’. The Applicant said while he previously ‘enjoyed’ methamphetamine and the highs it delivered, he now realised it led to his offending and caused him to lose his ‘work and family’.
[47] Ibid, 84 [22]; Gamma-hydroxybutyrate.
When put to the Applicant that notwithstanding the absence of any drug-related convictions in his criminal history, his evidence reflected approximately a decade of illicit drug use, which constituted serious conduct, he exercised his right to silence and privilege against self-incrimination.
Intervention orders
The Applicant agreed that an intervention order was taken out by Partner 2 after his offending against her, which remains in place until further order of the court.[48] He thought the intervention order taken out by his former girlfriend after the January 2020 incident had now expired.
[48] Ibid, 51 [24].
Remorse, rehabilitation, conduct in custody, and recidivism risk
The Applicant said he had been abstinent from illicit drugs for approximately a year since his imprisonment. He claimed to have ‘put steps in front of [him] not to relapse’. This included the courses and counselling sessions referred to in his evidence. He claimed to have previously been unwilling to make changes and take responsibility for his actions but had now done so. This included recognising he has a problem and acknowledging that remaining in Australia with his family is a privilege. He had asked to attend rehabilitative programs while in custody and intended to continue this if released. The Applicant referred to being allowed by immigration authorities in May 2021 to attend his grandfather’s funeral, albeit under escort from detention centre staff, as a positive indicator of his recidivism risk if allowed to return to the community.[49]
[49] Exhibit A8.
The Applicant said he had contacted organisations outside of custody to enquire about assistance that could be provided. He agreed the treatments recommended by Ms Mynard were yet to commence, stating that in custody ‘you get what you’re given’. When asked about correspondence from Anglicare about a drug and alcohol assessment,[50] the Applicant said this was undertaken and discussions are ongoing. He was ‘only just finding out’ where to get help and had been ‘introducing [himself] to these programs.’ The Applicant said the process was commenced but ‘there are lines’ and he is ‘waiting for [his] time.’
[50] Exhibit A2.
When asked if he had been well-behaved and compliant in custody, the Applicant conceded there had been ‘smoke alarm’ incidents and he was also involved in an ‘altercation’. He said the latter involved a fight in 2020 with another inmate, causing the Applicant to be transferred from Melbourne Remand Centre (MRC) to Port Phillip Prison. When asked what caused the fight, the Applicant responded: ‘a few comments were made.’
Protective factors
The Applicant referred to the support of his immediate family in Australia, stable accommodation, love for his daughter, fear of removal, and realistic prospects of immediately returning to work, as protective factors mitigating his future recidivism risk. Notwithstanding Ms Mynard’s reference to the Applicant having several psychological diagnoses,[51] he said there was nothing stopping him from returning to the sort of building work he did prior to being arrested.
[51] Exhibit R1, 86.
The Applicant accepted that the protective factors he relied upon were previously in place but did not stop his drug-taking or offending, including after a family intervention and the deportation of his twin brother. The Applicant said he had not previously accepted or asked his family for help but intended to do so in future. In relation to his twin brother’s removal, the Applicant agreed he should have heeded this warning and regretted not doing so:
I didn’t think it would happen to me. I’m not a career criminal. I slipped up. I didn’t think my actions would take me this far. It wasn’t ‘OK I’m going to offend so I can be sentenced and deported.’ In the anger and rage my mind was lost. At the time I didn’t have any regard for the repercussions.
Contribution to Australia
The Applicant said he had worked since the age of 19 in the construction industry and paid his taxes and child support. He worked for several companies in fulltime roles and said he was paid weekly. Superannuation payments were made to him, but he is unable to recall the balance. He also claimed to have played for a ‘local footy club’ in Melbourne and was an active member of his religious faith community. It was put to the Applicant, consistent with Ms Mynard’s report, that his churchgoing ways were predominantly as a child and in his teenage years he ‘rebelled against [his] strict and more conservative upbringing.’[52] The Applicant agreed the death of his stepfather caused him to doubt his faith and he did ‘fall off’ from attending church in his late teens, but claimed never to have left it.
[52] Ibid, 82 [9].
Concerns about repatriation
The Applicant referred to his almost twenty-year residence in Australia, stating that his family and life were here. His predominant concern was leaving his daughter and other immediate family members in Australia, and a lack of comparable support in New Zealand.
Tribunal consideration of Applicant’s evidence
The Tribunal found aspects of the Applicant’s evidence inconsistent, overstated, and less than forthright, notwithstanding his explanations. This includes, for example:
(a)The Applicant previously claimed that all his family apart from his twin brother, who was deported from Australia four years ago, reside in Australia.[53] In his oral evidence, however, he conceded that he has a married maternal aunt and a married cousin in New Zealand, who he had seen most recently at his grandfather’s funeral;
(b)The Applicant agreed he travelled to New Zealand in March 2019 for a cousin’s wedding. He claimed to be unable to recall his cousin’s name or where he went during other international departures from Australia;
(c)The Applicant claimed he was convicted of Robbery in 2019 just for being present and failing to intervene. His evidence conflicts with the elements needed to establish a conviction for Robbery under s 75 of the Crimes Act 1958 (Vic);
(d)The Applicant claimed he did not know the reason for his twin brother’s imprisonment in New Zealand, despite speaking with him periodically. His evidence about whether he and his brother were previously involved in Australian offending together changed during the hearing;
(e)In his revocation representations in January 2021, the Applicant stated that apart from a ‘domestic verbal misunderstanding’ resulting in his 2020 convictions, he had otherwise been ‘a lawful abiding citizen without breaking any Australian laws’. This is factually inconsistent with his criminal history;
(f)In his documentary evidence the Applicant claimed he has a ‘close relationship’ with his daughter, who he cared for and paid ‘child support regularly.’[54] In his oral evidence, however, the Applicant said he last physically saw his daughter about four years ago, had no corroborating evidence from his daughter or Partner 1, did not know the school his daughter attended, and had accrued a $7000 child support debt,[55] which had been in arrears for many years;
(g)In his written evidence the Applicant claimed: ‘we all attend’ church ‘every Sunday,’[56] which is inconsistent with other evidence before the Tribunal; and
(h)In his revocation request the Applicant stated there were no further charges yet to be dealt with.[57] In his oral evidence he agreed he was yet to answer a charge of Unlawful assault and four counts of Criminal damage (intent damage / destroy).[58]
PRIMARY CONSIDERATIONS
[53] Ibid, 66; 70 [Q9]; 71 [Q13].
[54] Ibid, 66; 75.
[55] Ibid, 106.
[56] Ibid, 69; 72.
[57] Ibid, 80.
[58] Ibid, 24
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:
(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 197 A 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 reoffended 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).
The Applicant was convicted of Robbery and Fail to answer bail in August 2019. The former related to an incident in April 2016. He was placed on a GBB until August 2021 and ordered to pay $2000 to the Court Fund. He breached this condition soon after through further offending. Approximately a year after his 2019 convictions he was convicted of two counts each of Intentionally damage property, Recklessly cause injury, and Commit indictable offence whilst on bail. He was sentenced to an aggregate of 12 months imprisonment, to be served concurrently. The sentencing remarks for his most recent convictions detail an agreed set of facts to which the Applicant pleaded guilty as follows:[59]
[59] Ibid, 35 [3].
(a)In approximately mid-2020, the Applicant had been in a defacto relationship for approximately three months with Partner 2, towards whom he was abusive, aggressive, and violent;
(b)Partner 2 described the Applicant as ‘becoming increasingly jealous and controlling during their three-month relationship’ about ‘the nature of her relationship with others, especially other men, and limited her movements.’[60] She claimed that every time she left the house the Applicant wanted to accompany her;
(c)Incidents recorded in the agreed facts include the Applicant:
(i)stomping on and smashing Partner 2’s mobile telephone;[61]
(ii)striking Partner 2 in the face with a toy that had a hard, plastic base, causing her to black out and cry in pain;
(iii)pursuing Partner 2 and choking her with her dressing gown;[62]
(iv)forcing Partner 2 to take the Applicant to the home of her work supervisor, a man he suspected she was romantically involved with; and
(v)further assaulting and attempting to restrict Partner 2’s movements, and damaging property at the work supervisor’s home with a hockey stick.
(d)A summary of Partner 2’s injuries by the Victorian Institute of Forensic Medicine, include an open wound to her left cheek, central red marks on her neck and cheek, bruising to the inner left arm and upper arms, and facial swelling.[63]
[60] Ibid, 28 [28] – 29 [3].
[61] Ibid, 29 [22].
[62] Ibid, 30-31.
[63] Ibid, 34.
In sentencing the Applicant, her Honour said the Applicant engaged in ‘acts of extreme violence and control within a domestic environment’ and had become a ‘tyrant within the context of a domestic relationship.’ Her Honour considered the Applicant’s conduct ‘a serious example’ of this type of offending, which caused ‘considerable harm within the community’. Her Honour continued:
The violence described is concerning and, as I say, frightening. Striking someone with sufficient force to render them unconscious is deeply concerning. To throttle someone to the point that they become breathless again is a serious example of this type of offending and it’s no excuse in my view to say, “Well, listen, this is all occurring in the context of personal grief and an inability to know and understand how one ought to conduct oneself and that every opportunity ought to be afforded to Mr Smith to come to his senses and to address his offending behaviour.”
…
I note that in the relatively recent past Mr Smith has come before a Court and has pleaded guilty to the very serious charge of robbery and got the benefit of a good behaviour bond and he didn’t keep to his undertaking on that occasion. He didn’t remain free of violent behaviour. In fact he engaged in further offending of a violent character.
So often the Court hears or I hear people who say, “Look, this offending has to be viewed in context and it is offending that is so far out of character that the person charged ought to be extended every opportunity and every leniency.” But I don’t know. I suspect there’s every chance that this explosion of violence is very much in keeping with Mr Smith’s character. These are offences that, as I say, are deeply serious and are of increasing concern within this domestic danger field of controlling and violent behaviour, needs to be condemned in the strongest terms and it’s the type of offending that in my view ought to attract general and specific deterrent penalties that act as a warning, not only to the persons involved, but others that this type of behaviour is unacceptable and will be punished and there’s a feature of just punishment in relation to these matters as well.
…
I have made the intervention order in the form sought. The interim order has been extended. The order that I make today continues for an indefinite period, that is it will remain in place until further order.
Notwithstanding the absence of any drug-related convictions, the evidence discloses the Applicant’s decade-long illicit drug use.
Tribunal findings: The nature and seriousness of the conduct
The Tribunal adopts the Court’s finding that the Applicant was given a ‘most lenient penalty’ for Robbery in 2019, an offence involving violence.[64] The Applicant subsequently breached judicial orders through violence against Partner 2.[65] These were not his first conditional liberty offences, reflecting a lack of respect for Australia’s legal framework. The Tribunal similarly adopts the references in the sentencing remarks about the Applicant’s crimes of a violent nature against a woman in a domestic setting, which is regarded as very serious offending under cl 8.1.1. (a) (ii) and (iii) of the Direction, regardless of whether a conviction is recorded, or sentence imposed. The Tribunal rejects the Applicant’s claim regarding Partner 2 blacking out. that: ‘what she stated and what happened are two different things.’ The Tribunal prefers the Court’s findings.
[64] Crimes Act 1958 (Vic), s 75.
[65] Exhibit R1, 43 [27] – 44 [2].
The Applicant’s property crimes are not considered as serious as those involving violence and breaches of judicial orders.
It cannot be said the Applicant has offended frequently. His Robbery offence was committed in April 2016 and the totality of his convictions span an approximately two-year period. There is a trend of increasing seriousness, however, with the Applicant ignoring the conditional liberty afforded him after his 2019 convictions, by committing more serious, violent crimes.
The Tribunal accepts the Applicant’s submission that this is the first time he has found himself in this position and has not previously received a formal warning, although the absence of a warning should not be considered in the non-citizen’s favour: cl 8.1.1(1)(g) of the Direction.
The seriousness of the Applicant’s conduct is evidenced by the imposition of a sentence of imprisonment, which is the most severe sentencing order available in Victoria.[66]
[66] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
The Applicant has used illicit drugs like cannabis and methamphetamine persistently during the past decade.[67] His evidence is also that he was involved in a fight with another inmate at the MRC last year, causing the Applicant to be transferred to another custodial setting. Both the decade-long illicit drug use and fight while in custody are relevantly considered under the chapeau of ‘other conduct’ at cl 8.1.1(1) of the Direction.
[67] Exhibit A1, 2 [4.i.].
The Tribunal finds the totality of the Applicant’s offending and other conduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
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.
Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk 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:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence 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).
Expert evidence
The Tribunal has considered a psychological assessment report dated 23 November 2020, prepared by clinical psychologist, Ms Alison Mynard.[68] This appears to have been commissioned by the Applicant’s previous legal representative ahead of an appeal to the County Court regarding the severity of the Applicant’s sentence. Ms Mynard was not called to give evidence.
[68] Exhibit R1, 81-90.
The psychological assessments Ms Mynard undertook were the Beck Depression Inventory II, Beck Anxiety Inventory, Anger Management Questionnaire, and Prolonged Grief Questionnaire. No actuarial instruments are referred to specific to assessing the Applicant’s risk of recidivism, and it appears Ms Mynard applied her clinical judgement to this issue. She stated in the last paragraph of her report:[69]
In the writer’s opinion, his risk of reoffending will remain moderate if he does not engage in treatment. If he remains in Australia with accountability for his treatment, the writer believes that his risk of recidivism will reduce significantly.
[69] Ibid, 89.
Ms Mynard referred to the Applicant’s inability to get over his stepfather’s death in approximately 2006.[70] She said his cannabis use commenced in approximately 2010 when he was 18, becoming a daily habit.[71] Reference is also made to the Applicant experimenting with other drugs like GHB and cocaine, but he denied regular use. At the time of his remand, the Applicant was reportedly smoking 2-3 grams of cannabis daily.[72]
[70] Ibid, 82 [10]-[11].
[71] Ibid, 83 [20].
[72] Ibid, 84 [21].
Ms Mynard stated the Applicant’s methamphetamine use commenced in 2013 after his relationship with Partner 1 ended, eliciting ‘familiar feelings of loss and grief’.[73] This escalated to daily use until his family intervened, but he continued using on weekends[74] and hid this from his family.[75] Ms Mynard recorded the Applicant’s claims about how his drug addiction contributed to the offending against Partner 2: [76]
He denied that he had been violent in that relationship prior to the offending and explained that the methamphetamine and cannabis had a major effect upon his behaviour. He identified that he was not thinking clearly and his judgment was impaired, with paranoid thoughts and catastrophising thoughts.
…
Regarding his offending, it appears that several factors were impacting his behaviour. Mr Smith took full responsibility for his actions, saying that it was his own thoughts and mind that took him to a place of paranoia and acting out his anger upon his partner. He admitted that he was fearful that his partner would abandon him and was another loss that he felt was unbearable. In the writer's opinion, when he feels vulnerable and unable to express himself, he manifests in anger.
…
[73] Exhibit A1, 2 [4.k.].
[74] Exhibit R1, 83 [21].
[75] Exhibit A1, 3 [5.f.].
[76] Exhibit R1, 84 [26]; 88 [49]; [52].
Ms Mynard assessed the Applicant was suffering from Persistent Complex Bereavement Disorder, Generalised Anxiety Disorder, Stimulant Use Disorder, Cannabis Use Disorder, and Drug Induced Psychosis.[77] It was recommended he would benefit from:
[77] Ibid, 86.
(a)Targeted psychological treatment to assist him with his psychological issues;
(b)Attending a Men's Behaviour Change Program;
(c)Undertaking psychological interventions with the following goals:
(i)Cognitive Behavioural therapy to address anxiety and depressive symptoms to challenge his negative thoughts and beliefs and learn more adaptive ways of coping (other than abusing substances);
(ii)Schema therapy and/or Dialectical Behaviour Therapy to learn about regulating his mood, tolerating distress, interpersonal skills and understanding his negative core beliefs;
(iii)Counselling around early attachment patterns to develop more healthy and secure attachments with his family and in future relationships;
(iv)Counselling using psychoeducational techniques for managing emotions, poor impulse control, learning consequential thinking and self-monitoring and adjusting behaviour with thoughtful planning and problem solving; and
(v)Trauma focused therapy such as trauma-focused CBT ( challenging negative beliefs associated with trauma), Sensori-motor psychotherapy (body focused trauma therapy) and/or Eye Movement De-sensitisation and Reprocessing (EMDR), to assist in processing early traumas and moving forward in life.
The Tribunal has considered a letter from psychologist Ms Melissa Smoker of Caraniche counselling services dated 17 August 2020.[78] Caraniche provides drug and alcohol programs under contract to the Victorian Department of Justice. Ms Smoker stated the Applicant completed six individual counselling sessions at the MRC from 13 July 2020. He is reported to have ‘continued to participate and engage appropriately; consistently demonstrating motivation for change relating to his substance use and offending behaviour.’
[78] Ibid, 105.
The Tribunal has considered a letter from Anglicare Victoria, stating the Applicant was referred for a ‘Drug and Alcohol Comprehensive Assessment’ on 20 May 2021, which has been undertaken. The Applicant’s oral evidence is that this is yet to progress to any rehabilitative courses or counselling.
Reasons for offending
During the Applicant’s court appearance in October 2020, his lawyer stated the Applicant ‘has a drug issue, an anger issue and a trauma issue that need treatment.’[79] It was submitted his drug use was ‘very much out of control…when the robbery incident occurred.’ It was claimed this was linked to the death of the Applicant’s stepfather when the Applicant was 15 years of age, which had:
…set him on an unfavourable trajectory and ultimately led him to meet negative peers and become introduced to drugs. In his early 20s he was able to overcome that addiction in a great degree, but it has always been present.
Unfortunately it has reared its head once more and led to this behaviour which is most unfortunate and something that Mr Smith recognises entirely he needs to eradicate from his life.
…
He understands there’s a close relationship between his drug use and his behavioural issues that he needs to control and he also accepts a need to attend a program such as the men’s behaviour change program.
…
…Ultimately he needs treatment and assistance in eradicating that from his life and preventing relapse. He can only do that meaningfully in the community and with supportive family, with stable accommodation that is something that would give Your Honour some confidence that he’ll be able to achieve that.
Your Honour may note that at the time of this offending he wasn’t living with his family. He was living with his partner at the time. Having the support of his family, having to be accountable to them is something that certainly would support his rehabilitation.
[79] Ibid, 38 [17].
The Applicant referred to paranoia arising from drug use, and feelings of abandonment and loss causing his anger.[80] He claimed life events, like being bullied at school in New Zealand led him down ‘rocky paths,’ and would be ‘triggered’ if he was returned.[81] He continues to attribute his drug-taking to emotionally difficult times like the death of his stepfather,[82] a close friend,[83] and separation from Partner 1. Ms Mynard said the Applicant had consequently engaged in self-destructive and addictive behaviours, being unable to move through stages of grief and remaining in ‘a state of anger.’[84] He also claimed to have been adversely affected by having to repeat Year 7 twice in Australia,[85] and seeing his twin brother repatriated to New Zealand after visa cancellation / non-revocation. Ms Mynard stated in relation to the latter:
Another loss occurred when Mr Smith's twin brother who had been very close to him all of his life, was experiencing issues with offending and was deported four years ago, only a few years after his separation from his partner. Mr Smith's feeling of loneliness, and sinking into drug abuse had been compounded even more. Mr Smith is aware that his brother has declined even further in New Zealand and is now incarcerated there, with no family support and a decline in his mental health. He feels fearful that this may be his future.[86]
[80] Exhibit A1, 3 [5.m.].
[81] Ibid, 2 [4.e.]; 5 [9.c.]; 5 [12].
[82] Ibid, 2 [4.g].
[83] Ibid, 2 [4.h.].
[84] Exhibit R1, 87 [47].
[85] Exhibit A1, 2 [4.f.].
[86] Exhibit R1, 88 [48].
Risk and rehabilitation
The Applicant conceded his alcohol, drug, and anger management problems are persistent features of his life[87] but claims to have been ‘constructively rehabilitated’.[88] The Tribunal notes his evidence, however, that he engaged in a fight with another inmate at the MRC in 2020 because some ‘comments were made’, causing his transfer to Port Phillip Prison.
[87] Ibid, 79.
[88] Exhibit A1, 1 [1a.].
In terms of risk and rehabilitation, the Applicant submitted in his documentary evidence:
I am not a risk or harm to the community, my criminal history is of domestic verbal misunderstanding.
I reside in Australia since 2002 to 2021, I have lived as a lawful abiding citizen without breaking any Australian laws. Unfortunately in 2021 due to a domestic verbal misunderstanding that resulted in a 12 month sentence…I belive I have been rehabilitaded and have bettered myself through courses I have completed whilst in custody such as:
· Drug and alcohol program
· Anger manigment courses
· Number of work certificates that have given me the tools and confidance to not commit an offence of that nature again in future or any at all but to move forward in the community.[89]
(Errors in original).
[89] Exhibit R1, 65.
The Applicant now resiles from the reference to ‘domestic verbal misunderstanding’ stating that at the time it was made in January 2021 he had incomplete insight and was yet to accept full responsibility for his past conduct.
The Applicant referred to a travel exemption he received from immigration authorities to attend his grandfather’s funeral in May 2021, under escort from detention centre staff, as a positive indicator of his reduced risk and capacity to re-engage in the community.
The Tribunal has considered the following certificates in evidence:
(a)A Certificate of Attendance for ‘Dealing with anger sessions’ in May 2021; and
(b)Units of study in 2020 towards certificates in Kitchen Operations.[90]
[90] Ibid, 111; 113.
Remorse and protective factors
The Applicant submitted in his written and oral evidence that he is remorseful, rehabilitated, and has improved himself through courses in custody. He claimed to have abstained from drug and alcohol use since his incarceration. The Applicant said he aspired to return to his faith community and become a ‘youth speaker,’ warning young people about repeating his mistakes.[91] He referred to continuing strong support from family and friends.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[91] Exhibit A1, 3 [5.p.].
If the Applicant were to repeat his offending, serious physical or psychological harm, or property damage could result. The seriousness of harm is most concerning regarding violent offending against women. Notwithstanding the Applicant’s claims, the Tribunal notes that s 75(1) of the Crimes Act 1958 (Vic) requires an element of violence to have been involved in his April 2016 offending, leading to the 2019 Robbery conviction. The community’s tolerance for such conduct, or the risk that it may be repeated, is understandably very low. The Tribunal is also concerned, in the context of ‘other conduct,’ about the Applicant’s persistent drug use over a decade and evidence about a relatively recent fight with another inmate in 2020, resulting in his transfer from MRC. Although there is no other report about this, the Applicant’s evidence raises concerns about his continuing involvement in violence while in custody.
The brevity of Ms Mynard’s comments about the Applicant’s risk of reoffending suggests she relied on her clinical judgement alone. That said, the Tribunal has no reason to doubt the reliability of Ms Mynard expert assessment given its recency and dearth of other expert evidence.[92] She considers the Applicant constitutes at least a ‘moderate’ risk of reoffending, with the potential for this to be further reduced if he were to meaningfully engage with the treatment recommendations made.
[92] The Tribunal is satisfied Ms Mynard is a currently registered psychologist under the Australian Health Practitioner’s Regulation Agency, including during the date of her assessment and report.
Ms Mynard’s evidence is that after years or being ‘closed down and shut off with drug use’ and repressing his emotions,[93] the Applicant needs extensive treatment and psychological interventions to address his rehabilitative needs. The Tribunal notes her reference to the Applicant previously having ‘little or no experience of psychological interventions to assist him to improve in his mood and repair his emotional state’, leading to an inability to regulate his anger and emotions.[94] She also referred to a psychological barrier arising from the Applicant’s longstanding problems with loss, and his anger manifesting when he ‘feels vulnerable and unable to express himself.’ The extent to which he has managed to overcome this barrier or learn how to better control his anger remains undetermined. Any progress made since imprisonment is yet to be tested while at liberty in the community, where the Applicant’s commitment to meaningful change has been found wanting. That is despite an intervention from his family and what should have been a salutary lesson resulting from his twin brother’s removal from Australia.
[93] Exhibit R1, 84 [28]-[29].
[94] Ibid, 85 [32].
The Applicant said he has attended a ‘men’s behaviour change program’ in July 2020,[95] but on the evidence currently before the Tribunal, most of the targeted interventions recommended by Ms Mynard are yet to be commenced. Moreover, it remains unclear what effect the Caraniche counselling or any other sessions undertaken since Ms Mynard’s report have had on the Applicant’s recidivism risk. The Tribunal accepts an Anglicare assessment has recently been undertaken, but there is no evidence this is yet to progress to material engagement. The Tribunal acknowledges that decisions should not be delayed for rehabilitation to be undertaken: cl 8.1.2(2)(b)(ii) of the Direction.
[95] Exhibit A1, 3 [5.h.].
In terms of the likelihood of the Applicant engaging in further crime or other serious conduct:
(a)He has engaged in illicit drug use for over a decade, notwithstanding the intervention of close family members in or about 2013. He has not previously seen a psychologist or counsellor in the community or applied himself to address his mental health issues.[96] He claims to become anxious when not using methamphetamine, and angry and aggressive when he does.[97] Ms Mynard points out that continued drug use could result in ongoing psychosis or schizophrenia;
(b)There is no evidence to suggest the Applicant has been other than abstinent from drugs and alcohol while imprisoned and in immigration detention. While there is no evidence as to its details, the Tribunal is concerned about the fight he was involved in while in MRC in 2020, causing his relocation to Port Phillip Prison;
(c)The Tribunal does not accept the Applicant’s claims that the escorted release he was granted by immigration authorities in May 2021 to attend his grandfather’s funeral, is probative to his recidivism risk. This is considered nothing more than an exemption granted on compassionate terms;
(d)The nexus drawn by the Applicant between emotional events in his life and his persistent addictions and offending is unpersuasive. Many people experience the death of a close relative or friend, or are bullied at school, or separated from a sibling. These events, while understandably difficult in an emotional sense, occurred over a decade ago. They in no way explain the commission of robbery, or recklessly injuring others, or repeated breaches of conditional liberty, or intentionally destroying other people’s property;
(e)It is accepted that prison and immigration detention have had some salutary effect on the Applicant. He has undertaken some courses and engaged in limited counselling. He appears to have applied himself, as evidenced by a practitioner’s reference at MRC that he: ‘continued to participate and engage appropriately; consistently demonstrating motivation for change relating to his substance use and offending behaviour.’[98] But this is no more than the leading edge of addressing the complex rehabilitative needs identified by Ms Mynard, and an unpersuasive counterweight to a decade-long addiction. It is while at liberty that the Applicant’s drug use has caused paranoia, uncontrolled anger, and other objectionable behaviours.[99] Any rehabilitative progress is untested in that context; and
(f)The Tribunal has residual doubts about the Applicant’s remorse and claimed insight, given his now retracted written characterisation of violence against Partner 2 and his criminal history as arising from a ‘domestic verbal misunderstanding.’ The explanation he gave about why he was convicted of Robbery is also implausible. Moreover, the Tribunal is concerned about the incorrect claims in his January 2021 revocation request, and assertion that aspects of what Partner 2 stated and ‘what happened are two different things’. These suggest incomplete insight and that the Applicant is yet to fully accept responsibility for his conduct.
[96] Exhibit R1, 86 [41].
[97] Ibid, 86 [38].
[98] Ibid, 105.
[99] Ibid.
In terms of protective factors:
(a)The Tribunal has considered the Court’s remarks on this issue.[100] It is accepted the Applicant can rely on stable accommodation if released, aspires to an immediate return to work, and has realistic prospects of doing so. It is noteworthy, however, that despite having stable accommodation and employment in the past, these were insufficient to assist him in remaining abstinent and law-abiding;
(b)The Tribunal accepts the Applicant has had the consistent care and support of close family members. He claims to have since ‘opened up’ to them and ‘told them the truth’ about why he ‘behaved in such a way.’[101] On his own evidence, however, he did not seek or accept his family’s advice in the past, and continued to hide his illicit drug use from them after an attempted intervention. He also claimed his family were unaware of what his twin brother was going through prior to being deported from Australia four years ago.[102] It is noteworthy that in a bail application made in September 2018, the Applicant relied upon his brother’s repatriation to New Zealand as removing a factor of concern: ‘The bad influence of his brother is no longer of concern as he was deported and can no longer influence him.’[103] It is also noteworthy the Applicant was not dissuaded from further illicit drug use or crimes by his status as a non-citizen, or his twin brother’s removal to New Zealand. This diminishes the force of his current claim that fear of removal will assist him in remaining abstinent and law-abiding if released;
(c)Unfortunately, neither the interests of the Applicant’s family, his daughter, or others prevented his drug use and crimes. Ms Mynard contextualised the Applicant’s difficulties partly as a struggle to ‘find meaning and feeling unfulfilled,’[104] which he now believes will be achieved by being a better father. In the absence of any evidence from the child or the child’s mother, however, the Tribunal has no persuasive basis to determine whether such a role is possible or desired. It therefore does not constitute a persuasive protective factor; and
(d)The Applicant referred in his statement to a desire to reconnect with his faith community as a protective factor. He said his grandparents raised him and his twin brother ‘on a strong Mormon faith’ requiring abstinence from ‘alcohol, tobacco, drugs, tea and coffee.’[105] Ms Mynard stated the Applicant’s involvement in the Church was as a child, but as a young man he ‘rebelled against the strict and more conservative upbringing he had.’[106] She also recorded the Applicant’s claim that he was ‘too ashamed to go back to church because everyone knows [his] story'. The Tribunal considers the Applicant’s reliance on reconnecting with his faith community as a protective factor is aspirational at best.
[100] Ibid, 49-50.
[101] Exhibit A1, 3 [5.j.].
[102] Ibid, 3 [5.l.].
[103] Exhibit R2, 20.
[104] Exhibit R1, 85 [34].
[105] Exhibit A1, 1 (4.b.).
[106] Exhibit R1, 82 [9].
The Tribunal finds that the Applicant’s risk of relapsing into drug and alcohol misuse and engaging in further criminal conduct, is real and at least moderate. This primary consideration weighs substantially against revocation.
Family violence committed by the non-citizen
Clause 4(1) of the Direction defines family violence as: ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful’.
Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.
In considering the seriousness of the family violence engaged in by the non-citizen, the Direction requires the following factors at cl 8.2(3) to 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 noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Tribunal consideration: Family violence committed by the non-citizen
The Applicant conceded in his oral evidence that he has committed violence in a domestic context. The court has found him guilty of multiple counts of Recklessly cause injury and intentionally damaging the property of Partner 2 in the context of a domestic relationship.
Mr Orchard submitted that the Applicant’s history of family violence is serious, and this consideration weighs heavily against revocation.
Tribunal findings: Family violence committed by the non-citizen
The Tribunal is satisfied the Applicant was convicted of several offences in a family violence context. More weight is placed on the contemporaneous police reports and judicial remarks than the Applicant’s recollections about what occurred between him and Partner 2.
The Applicant remains subject to a domestic violence order preventing contact with Partner 2 until further order of the Court. The Applicant claimed that an intervention order taken out to protect a former girlfriend in early 2020 has now expired, although there is no evidence to corroborate this and pending charges relating to it are yet to be heard. The Tribunal makes no finding about the pending charges or second intervention order.
On balance, this consideration weighs at least moderately against revocation.
Tribunal consideration: Best interests of minor children in Australia affected by the decision
Clause 8.3 of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.3(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the 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.
The Applicant has an eight-year-old daughter[107] who has lived in Western Australia with Partner 1 for the last eight years. The Applicant claims to have an amicable relationship with Partner 1 that enables a ‘great relationship’ with his daughter, who he speaks to ‘on a regular basis’.[108] The Applicant said the bond with his daughter has ‘grown and our parenting has developed over the years.’[109] He claimed his daughter needs his love, support, and guidance,[110] and he wants to return to work to save for her future.[111] If repatriated to New Zealand, the Applicant said this would adversely impact the relationship with his daughter who ‘will soon ask why [he] can’t travel to Australia’.[112]
[107] Ibid, 109-110.
[108] Exhibit A1, 4 [6.a.].
[109] Exhibit R1, 75.
[110] Ibid, 66; 75; 110.
[111] Exhibit A1, 3 [5.n.].
[112] Ibid, 4 [6 [d.].
There is no evidence from Partner 1 or the Applicant’s daughter. Ms Mynard recorded the following about the Applicant’s relationship with his daughter:
Mr Smith was in a relationship with his partner for under two years. They had a daughter, and they separated when his daughter was only eighteen months old. Mr Smith explained that their relationship was 'disgusting' and they were 'attacking each other' and had been fighting...
His partner moved to…Western Australia to be closer with her own family after the separation in 2012-3. He was devastated when they left, and he sunk into daily methamphetamine use and barely came home. Mr Smith has maintained a very close relationship with his daughter, seeing her on schools and talking to her, or doing a video link every day. He stated that he misses her a lot. His own younger siblings are close in age to his daughter and they are all close too. Mr Smith has an amicable relationship with his ex-wife.
Then when he was in his early 20's and he had conflict with his partner, he lost his relationship and close proximity to his daughter. When she moved back to Western Australia with his young daughter, Mr Smith was very distressed and struggled to cope. He then began using methamphetamines shortly after this and developed a daily addiction for around six months, until his family intervened. He had continued to use ice since then, but usually on a weekly basis, committing himself to work instead. He has maintained a close relationship with his daughter and sees her online every few days and she spends school holidays with him, which is a protective factor for him.[113]
(Errors in original).
[113] Exhibit R1 84 [24]-[27]; 88 [47].
During sentencing, the Applicant’s lawyer submitted:
The issues with drugs have also prevented him in the past from having a meaningful relationship with his child, but he was able to overcome that issue and form a valuable bond with that child. So while there are practical reasons for him to address this drug issue there are many other reasons such as a meaningful relationship with his child…[114]
[114] Ibid, 40.
In response to questions from the presiding magistrate, the Applicant’s lawyer was unable to say when the Applicant’s relationship with his daughter resumed following separation from Partner 1. The Court pointed to the Applicant’s drug use having ‘featured for some considerable time.’ The Applicant’s lawyer agreed, submitting ‘there are people that can function with a low level of drug use throughout their life.’
The Applicant referred to two stepsiblings who, on the birthdates provided, are 11 and 12 years of age respectively.[115] The Applicant said he has a close relationship with them, who are close in age to his own daughter.[116] In his oral evidence he made general claims about the interests of his stepsiblings, claiming they would experience hardship ‘at a pivotal age’ if he was removed. The Applicant also stated his mother is one of seven siblings and each of his aunts and uncles has between three and seven children.[117] He did not particularise the interests of any minor children within this broader family grouping during his oral evidence, despite being invited to do so.
[115] Ibid, 70.
[116] Ibid, 84 [25].
[117] Ibid, 69.
Tribunal findings: Best interests of minor children
It is clear the Applicant has not played a prominent parental role except for the first year of his daughter’s life. There is no evidence from Partner 1 or the Applicant’s child to corroborate his claims about a close and continuing relationship, or that either Partner 1 or their child are in any way reliant on his support. Other materials in evidence, however, enable rational inferences to be reasonably drawn.[118] This includes the evidence above and the existence of a $7000 child support debt. There is no persuasive corroboration of the Applicant’s claims that he saw the child ‘every school holiday’ or continuing close communication over the years. There is no evidence about any contact rights, or other informal arrangement with Partner 1. Given the age of the child, and the Applicant’s own comments in evidence to this effect, the Tribunal considers contact could only reasonably occur with the permission of the Partner 1 or other caregivers.
[118] BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6, [44]-[45] (Beach J).
There is no evidence the Applicant’s child, or any other minor child has experienced physical or emotional trauma arising from the Applicant’s conduct. The evidence of the Applicant’s lawyer at sentencing, however, was that the Applicant’s drug use had previously prevented him from having a meaningful relationship with his child. Ms Mynard’s evidence referred to a ‘disgusting’ short-lived relationship with Partner 1, where they were 'attacking each other' and fighting. This appears far from an ideal environment for a young child.
Of the other children referred to by the Applicant, the Tribunal accepts he has a close relationship with his stepsiblings and plays an avuncular role for his nieces and nephews, although these children have parents to care for them. There is a dearth of material to shed light on these relationships or to individualise the children’s interests, or to show they or their caregivers are in any way reliant on the Applicant for financial or other support.
There have been periods of escalated drug use by the Applicant and recent custody, resulting in absences from and limited meaningful contact with these children. Given the persistent nature of his drug addiction during the past decade, there is some uncertainty about how well-placed he is to play a positive role in their lives if released. If he can remain abstinent from drugs and law-abiding, there is the prospect of him playing a positive role, but this depends on meaningful engagement with his rehabilitative needs.
The general proposition is accepted that children deserve the presence of loving and supportive parents in their lives if possible. The highest the evidence gets in the present matter, however, is the potential that the Applicant’s child, who he last saw four years ago, as well as his stepsiblings and nieces and nephews, who have their own caregivers, may be saddened or otherwise emotionally affected by his repatriation to New Zealand. There is no evidence, however, that these relationships could not continue by telephone or video calls as they currently do, or through visits to New Zealand if their caregivers agreed.
The absence of any evidence from Partner 1 to corroborate the Applicant’s claims or shed light on the desirability of him playing a more prominent parental role, makes a reliable finding about whether revocation is in his daughter’s best interests difficult. On balance and admittedly based on some inference and speculation, the Tribunal finds it is in the best interests of the Applicant’s daughter, stepsiblings and unnamed nieces and nephews, that the cancellation decision is revoked. For the reasons expressed above, however, this primary consideration only weighs somewhat in the Applicant’s favour.
Tribunal consideration: Expectations of the Australian Community
Clause 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(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;
(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;
(f) worker exploitation.
Clause 8.4(3) states that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision makers to proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[119]
[119] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[120]
[120] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[121]
[121]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Tribunal findings: Expectations of the Australian community
The expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm: cl 8.4(3). The community would afford him a higher tolerance for his criminal and other serious conduct by virtue of him living in Australia from a young age and for most of his life: cl 5.2(4). The evidence discloses, however, that he has persistently used illicit drugs for a decade and engaged in serious criminal conduct in breach of community expectations. This includes committing robbery, multiple breaches of judicial orders, and violence against a woman. The latter gives rise to serious character concerns: cl 8.4(2)(a) of the Direction. The Applicant should therefore expect to forfeit the privilege of staying in Australia: cl 5.2(2) of the Direction.
Notwithstanding his long residence in Australia, having regard for the serious nature of the Applicant’s past offending, the Australian community would expect he should not be allowed to remain in Australia: cl 8.4(1). Given the specific circumstances of this case, the Tribunal finds this primary consideration weighs at least moderately against revocation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
The Applicant said if returned to New Zealand he would suffer ‘mental and emotional distress,’ experience difficulties getting the assistance he may need, and may be unable to maintain a ‘basic living.’
Tribunal findings: International non-refoulement obligations
The Applicant’s claims do not enliven cl 9.1 of the Direction. The practical and emotional concerns he raised are considered under Extent of impediments if removed.
Tribunal consideration: Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant said he does not have any diagnosed medical or psychological conditions and is not receiving any treatment from a doctor / health professional / counsellor.[122] This conflicts with the findings of Ms Mynard, who was not called as a witness and could not be cross-examined. The Applicant said that abstinence from drugs and alcohol in prison had helped him to be positive and healthy.[123] He aspires to immediately return to work if released and stated there was no reason he could not do so.
[122] Exhibit R1, 72.
[123] Ibid, 79.
The Applicant said he could work in New Zealand, but this was not the same as ‘coming home after a hard day of work to feel [his family’s] presence’.[124] He claimed to be unable to rely on his twin brother in New Zealand for practical support, because he is currently imprisoned there. He worries about being without family support or housing, which would accentuate his emotional and financial vulnerability.[125] At the hearing the Applicant conceded that apart from his twin brother in New Zealand he also has a maternal married aunt with children, and a married cousin with children, who he last saw at his grandfather’s funeral in May 2021. He said that he does not otherwise communicate with these relatives.
[124] Exhibit A1, 4 [8.g.].
[125] Exhibit R1, 71.
The Applicant said repatriation would ‘mentally devastate’ him,[126] including by evoking memories of bullying he experienced at primary school child in New Zealand.[127] He claimed these factors would collectively make it hard for him ‘to maintain a basic living’.[128]
[126] Exhibit A1, (1.b.).
[127] Ibid, 5, [9.c.].
[128] Ibid, 4 [8.e.].
Tribunal findings: Extent of impediments if removed
The Applicant is a relatively young man with a decade-long history of employment in labour-intensive roles. His evidence during the hearing is that he has an Australian superannuation account from his decade-long employment but is unaware of the current balance. The Tribunal is satisfied he has some funds to draw from providing he satisfies a condition of release. There is no evidence that repatriation to New Zealand would not satisfy a release or transfer requirement and may be a source of financial assistance for him.
There are no apparent language or cultural barriers to the Applicant’s repatriation. He last travelled to New Zealand in 2019 for a family member’s wedding but claims to be unable to recall that person’s name. Contrary to his pre-hearing evidence he has other relatives in New Zealand and is yet to ask them about the availability of practical or emotional support. He may also be able to call upon offers of support from relatives and friends in Australia.
There is no evidence the Applicant would be treated differently to other New Zealand citizens for public health, housing, social welfare, or other support. There is also no evidence any treatment requirements identified by Ms Mynard are unavailable in New Zealand.
The Applicant’s submissions turn more on unfamiliarity with administrative processes in New Zealand, and a comparative lack of practical and emotional support, which the Tribunal accepts. The Tribunal also accepts that if the Applicant’s twin brother is currently imprisoned in New Zealand, he would not be an immediate source of support.
Notwithstanding the comparable nature of life in Australia and New Zealand, the Tribunal accepts the Applicant would encounter impediments in re-establishing himself in a country he last lived in as a child. These are not insurmountable, however, and on the most beneficial reading of the evidence, it weighs moderately in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a non-revocation 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 this information is available.
Tribunal findings: Impact on victims
The Federal Court has previously held this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[129] More recently in CGX20,[130] their Honours stated at [23] that this consideration referred to the ‘impact on the community, including victims, if the non-citizen were to hold a visa.’
[129] HVLC v Minister for Home Affairs [2019] FCA 616, [13] (Colvin J). Perram J has also recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
[130] CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69.
There is no evidence before the Tribunal about the impact of a non-revocation decision on any victim of the Applicant’s offending, or their family members. The Tribunal finds this consideration is not enlivened and it carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 of the Direction provides that decision makers must, reflecting on the principles at clause 5.2, have regard to cl 9.4.1 relating to the Strength, nature and duration of ties to Australia, and cl 9.4.2 relating to Impact on Australian business interests. In relation to the latter, the Applicant stated he does not have any such interests in Australia.[131] There is no evidence that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. The presumption in the Direction is therefore not displaced and cl 9.4.2 of the Direction carries neutral weight.
[131] Ibid, 5 [10.a.].
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant stated his mother, stepfather, and other relatives have an indefinite right to remain in Australia. They were not called to give evidence and although their current immigration status could not be tested, the Tribunal accepts their interests are enlivened under this consideration. The Applicant said Australia is his home, having lived here since the age of 10. He was educated to Year 9, has been in regular employment, and has a child with Partner 1. The Applicant does not currently have a partner,[132] but referred to close relationships with his parents and extended family members in Australia. He stated that his mother is one of seven siblings with ‘3 – 7 kids in their family,’ who are a ‘close-knit’ group that come together each month.[133] He claimed to have cared financially for his parents, and said that repatriation to New Zealand would take him ‘away from everything I know and love, this country and family forever’.[134]
[132] Exhibit R1, 77.
[133] Ibid, 69-70.
[134] Ibid.
In terms of a positive contribution to Australia, the Applicant referred to work in the building industry between 2010 and 2020[135] and to having paid taxes.[136] He also referred to past church attendance with his faith community, paying child support, and playing in his local football club.[137]
[135] Ibid, 80.
[136] Ibid, 72.
[137] Ibid, 72; 75.
The Tribunal has considered supportive references in evidence, predominantly from the Applicant’s family members, whose collective evidence is the Applicant’s criminal offending is out of character and he will be supported by family and friends in making meaningful and enduring changes in his life. This correspondence includes:
(a)Letters from the Applicant’s mother dated 6 October 2020 and 17 February 2021.[138] She said the Applicant was emotionally affected by the death of his stepfather in 2006, is remorseful for his offending, and, if released in Australia, would be assisted by family members in getting the help and support he needs;
(b)A letter from the Applicant’s stepfather dated 19 October 2020, in the context of the Applicant’s latest court appearance.[139] He said the Applicant is of good character, respectful, and caring of his younger siblings;
(c)A letter from one of the Applicant’s uncles dated 22 October 2020, in the context of the Applicant’s latest court appearance.[140] He offered to provide the Applicant employment as a ‘concrete labourer’ in South Australia;
(d)A letter from one of the Applicant’s uncles in Victoria dated 29 October 2020, in the context of the Applicant’s latest court appearance.[141] He stated the Applicant worked for him ‘on and off for the past eight years’ as a concreter, and was always ‘hard working and skilled…[and]…enthusiastic and energetic’;
(e)Letters from another of the Applicant’s uncles dated 29 October 2020 and 17 February 2021.[142] He described the Applicant as an ‘empathetic and caring young man,’ who ‘was always loving towards his little cousins.’ He knew the Applicant to be ‘calm light hearted and always gentle with everyone he comes in contact with’;
(f)An unsigned letter from a person purporting to be a Bishop of The Church of Jesus Christ of Latter-Day Saints dated 1 October 2020.[143] The author stated the Applicant has been an active congregant who was always willing to lend a hand and volunteer for projects. The author only knew the Applicant to be kind, gentle, considerate of others, and extremely hardworking. The author considered the Applicant is ‘ready to accept responsibility and emerge as a better person.’ It is noteworthy the evidence about the Applicant’s engagement with his faith community conflicts with that of the Applicant and as recorded by Ms Mynard;
(g)A letter from friends of the Applicant’s family dated 8 February 2021.[144] The authors consider the Applicant has ‘the kindest heart and personality’; and
(h)An unsigned and undated statutory declaration, and an unsigned letter dated 7 April 2021, purporting to be from a woman who claims to have known the Applicant for a year.[145] She referred to connecting with the Applicant through their ‘Tongan values,’ visiting him at the detention centre, and having ‘numerous calls.’ She believes the Applicant is now a ‘completely different person’ to the one who served his sentence. The author stated she has not met the Applicant’s family, but considers he needs their support to progress his rehabilitation. The author stated she is aware of the Applicant’s offending, but refers to as a singular ‘first offence,’ which is not otherwise particularised. The author said if returned to New Zealand, she fears the Applicant will relapse into drug use, suffer loneliness, and not have the opportunity to be a better father for his daughter. The author did not give oral evidence at the hearing. Given her limited association with the Applicant since his imprisonment, very general nature of the claims made, and incorrect characterisation of the Applicant’s offending, little weight is placed on this letter.
[138] Ibid, 95; 101.
[139] Ibid, 94.
[140] Ibid, 91.
[141] Ibid, 92.
[142] Ibid, 93; 99-100.
[143] Ibid, 97; 103.
[144] Exhibit A5.
[145] Exhibit A7.
Tribunal findings: The strength, nature, and duration of ties to Australia
Notwithstanding the absence of corroborating evidence, the Tribunal accepts the Applicant has made some contribution to the community through employment in the building industry and paying taxes. It is also accepted he has attended church in the past, involved himself with his ethnic community, and engaged in community sports. His claims about paying child support are less persuasive. As at November 2020 the Applicant has incurred a child support debt of $7000.[146] On his own evidence, this has accumulated over most of his daughter’s life, and does not attract the credit the Applicant claims.
[146] Exhibit R1, 106-107.
The Applicant did not call any witnesses. Many of the statements from family and friends were general and often did not reflect a complete understanding of his crimes. In considering such references, the Tribunal is mindful they can often provide the best possible perspectives about an Applicant’s conduct, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members and friends, particularly those with only a limited understanding of the Applicant’s past. Little weight is placed on unsigned references without contact details, where the purported author did not give oral evidence, or made factually inconsistent submissions.
The Applicant has spent most of his life in Australia and the relationships he has are predominantly here. On balance, this consideration weighs substantially in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties and I have not identified any ‘other considerations’ relevant to the specific circumstances of this application, as provided for by the non-exhaustive list of considerations at cl 9(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason, on the evidence specific to this case, to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant has caused serious harm to members of the community and constitutes a real and unacceptable risk of recidivism. Despite having lived in Australia since a child, because of which he would be afforded a higher level of tolerance, the totality of his conduct is such that the community would expect he should not hold a visa.
If repatriated the Applicant would understandably be confronted by a range of practical impediments. There is no evidence, however, that any support he may need is not available in New Zealand, or that he would be treated any differently to other New Zealand citizens. That said, what ties he has are predominantly in Australia. It is accepted his parents and other close family members and friends would be saddened by his removal, particularly in the context of the Applicant’s twin brother also having his visa cancelled and being deported to New Zealand four years ago.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community,’ Family violence committed by the non-citizen, and ‘Expectations of the Australian community,’ substantially outweigh the combined weight to be given to the primary consideration Best interests of minor children in Australia affected by the decision and the other countervailing considerations in this matter.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
................[sgd]........................................................
Associate
Dated: 23 June 2021
Date of hearing: 15 and 16 June 2021 Applicant, self-represented: Mr Saia Smith Advocate for the Respondent:
Solicitors for the Respondent:
Mr Christopher Orchard
Sparke Helmore Lawyers
Key Legal Topics
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