Snowden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4504
•2 December 2021
Snowden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4504 (2 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/6647
Re:Shane George Snowden
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:2 December 2021
Place:Sydney
The decision under review is set aside and in substitution, the Applicant’s visa cancellation is revoked.
......................................[sgd].................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – consideration of cases involving significant mental health issues – acquired brain injury – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – expectations of the Australian community – impediments to removal – impact on victims – strength, nature and duration of ties to Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 501 and 501CA
CASES
Ahmed and Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1185
Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 372
BLSL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4177
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
Edwards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2985
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Mukiza v and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1503
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708
Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) & Anor [2018] VSCA 155
Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
XFZC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3385
XMBQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 853
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
2 December 2021
INTRODUCTION
Mr Shane George Snowden (the Applicant) is a citizen of New Zealand (Aotearoa) who identifies himself and most of his family members as members of the Maori (Maoritanga) community.[1] He was born, the second eldest of five children, in January 1984. He and his father first arrived in Australia in December 1995[2] and his mother and siblings arrived shortly thereafter.[3] He has resided in Australia for most of his life, only making short trips outside the country.[4]
[1] G-documents at 106, 108.
[2] The Applicant was a holder of a Class TY subclass 444 Special Category (Temporary) visa which is available to citizens of New Zealand.
[3] Applicant’s Statement dated 27 October 2021.
[4] G-documents at 183.
The Applicant has a long history of criminal offending in Australia[5] culminating in his being sentenced on 15 December 2020 to an aggregate period of imprisonment of 18 months.[6]
[5] Ibid 272-278.
[6] Ibid at 34-35.
Subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) provides that the Minister (the Respondent) must cancel the visa of a visa-holder who has been convicted to a term of imprisonment of 12 months or more on the basis that they are defined as thus having “a substantial criminal record”.[7] Being so convicted and having a substantial criminal record means that a person has failed the “character test” set out in subsection 501(6) of the Act. Visa cancellation in these circumstances is mandatory and the cancellation occurred on 7 January 2021.
[7] Sections 501(6)(a) and 501(7)(c).
The Act goes on to provide that where a person has had their visa cancelled on character grounds they may appeal to the Minister for a revocation of that visa cancellation if there is “another reason” why that should occur.[8] In doing so they are invited to make representations in support of the cancellation revocation, and on 15 January 2021 the Applicant did so.[9]
[8] Section 501CA(4)(b)(ii).
[9] Section 501CA(4)(a).
Those representations were considered by a Delegate of the Respondent who, on 13 September 2021 found that there was no other reason why the visa cancellation should be revoked.[10]
[10] G-documents at 15-33.
On 16 September 2021 the Applicant applied to this Tribunal for a review of that decision. The matter was heard on 17 and 18 November 2021 using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. As required by paragraph 500(6L)(c) of the Act a determination of this matter must be made by the Tribunal by 9 December 2021, otherwise the decision under review is taken to be affirmed.
VISA CANCELLATION: PROCESS AND THRESHOLD
Cancellation of a visa in these circumstances is a two-stage process. The first involves a determination, as a matter of fact, that a visa-holder has been sentenced to a term of imprisonment of 12 months or more. If that is the case, then the person is deemed to have failed the character test and their visa is cancelled automatically. The second stage is a consideration of whether “another reason” exists for that decision to be revoked.
There is no disagreement that the Applicant fails the character test by reason of his sentencing on 15 December 2020, which led to his “substantial criminal record” and so the only task now before the Tribunal is consideration of the Applicant’s representations that “another reason” exists why that decision should not be affirmed.
Before turning to consider the claims made by the Applicant in support of his application for the visa cancellation to be revoked it is necessary to set out in considerable detail the facts regarding the Applicant’s life history, his medical history and his offending history.
APPLICANT’S PERSONAL LIFE STORY AND FAMILY ARRANGEMENTS[11]
[11] Information from both Applicant’s and Respondent’s Statements of Facts Issues and Contentions (SFICs); psychologist reports of Mr Visser and Ms Cullen; and medical reports from Liverpool Hospital.
January 1984
Applicant born in New Zealand.
14 December 1995
Applicant arrived in Australia.
11 August 1999[12]
Applicant involved in serious motor vehicle accident (MVA). Taken to St George hospital and remains in a coma for two months. He sustained “a severe traumatic brain injury likely to give him permanent impairment particularly in areas of planning and organisation, impulse control and executive functioning.”[13]
14 September 1999
Applicant transferred to Liverpool Brain Injury Rehabilitation Unit.
March 2000
Applicant makes attempt at suicide. There are further such attempts in 2002 and 2008.[14]
Approx. year 2000
Applicant (then aged 16 years) in relationship with “Ribena”. Relationship lasted approximately one year during which time Applicant converted to Mormon faith.
Approx. year 2001
“Ribena” killed in a car accident. This left the Applicant traumatised and “I was suicidal big time” leading to him turning to alcohol to cope.[15]
Approx. year 2000/2001
Applicant enters into relationship with Samantha Cremen who is ten years his senior and who he describes as “a stripper”.
Approx. year 2005/2006/2007 (unclear)
Applicant enters into relationship with Linda Sadek with whom he has four sons
· KH – born April 2006
· JE – born May 2012
· EL – born July 2013
· CO – born August 2014
21 May 2014
Applicant taken to Prince of Wales Hospital by Police and admitted after displays of delusional behaviour, setting fires and throwing water on power points.[16]
1 December 2014
Applicant is Scheduled under NSW Mental Health Act following drug induced psychosis.[17]
29 November 2016 Applicant’s sister dies. [12] This date is given variously: 11 August 1999 (Neuropsychological Report of Dr Kim Ferry, Brain Injury Rehabilitation Unit, Liverpool Hospital dated 8 July 2003 and Neuropsychological Report of Dr Andrew James, Brain Rehabilitation Unit, Liverpool Hospital dated 8 October 1999) or March 1999 (Psychologist Report by Alison Cullen dated 19 June 2020 at [1.5]).
[13] Medical Report of Dr Adeline Hodgkinson, Brain Injury Rehabilitation Unit, Liverpool Hospital (Hodgkinson Report) dated 1 October 2002.
[14] Psychologist Report by Alison Cullen dated 19 June 2020 (Cullen Report) at 9.
[15] Cullen Report at [1.2].
[16] Mental Health Discharge Transfer Summary dated 4 February 2020 at 3.
[17] G-documents at 77.
The simple narrative above belies the inherent complexities of the Applicant’s life.
The report by the psychologist Ms Alison Cullen (discussed in more detail below) indicates that the Applicant had something of a troubled childhood prior to his MVA in that he had a “pretty hard” upbringing in New Zealand where his father was “alcoholic and abusive” towards his wife and a physically strict disciplinarian with his children.[18] This resulted in the Applicant leaving home at age 11 years to live with family friends.[19] The psychologist Mr Matt Visser identifies the Applicant as exhibiting elements of “conduct disorder” before the MVA.[20] At around age 13 the Applicant started drinking heavily and his level of alcohol consumption increased steadily until he was aged about 26 years when he was drinking up to 24 “stubbies” (33.6 standard drinks) a night.[21]
[18] Cullen Report at 1.1.
[19] Letter of Jake Tumra (undated), G-documents at 142-143.
[20] Psychologist Report by Matt Visser (Visser Report) at lines 46-47.
[21] Visser Report at lines 296-301.
Around age 26 (c. 2010) the Applicant switched from the use of alcohol to the use of methamphetamines which he claims were first provided to him by his then partner Ms Linda Sadek. It was the Applicant’s evidence that he had generally abstained from alcohol since that time, although he admits to two serious lapses back into alcohol use in 2013 and 2015.
The Applicant is now reconciled with his father. He has always remained close with this mother. His father is now suffering major heart problems, has been fitted with a number of heart-pacemakers and is on the waiting list of St Vincent’s Hospital for a heart transplant. His mother suffers from Type 2 diabetes and requires regular insulin injections and medication.
Despite their age and illness, the Applicant’s parents have the care and control of his four sons. The exact details of all the arrangements are not clear in the material available to the Tribunal but it appears that the following is the case:
(a)The two older boys (KH and JE) are legally under the control of the NSW Department of Family and Community which has placed them with the Applicant’s parents. They have been in this situation since just after Jeffrey’s birth in 2012 when they were taken into departmental care.
(b)The two younger boys (EL and CO) were removed from the control of their parents almost immediately upon birth and placed initially with foster-parents (through Bernardos Children’s Charity). The grandparents made an application to the Children’s Court for the two younger children to be reunited with their siblings and this was granted so that they (the grandparents) have all four living boys with them. The Applicant’s father told the Tribunal that steps were being taken by him and his wife to seek legal guardianship for all four children and that this matter was pending.
The grandparents are assisted in providing this care by their elder daughter Amanda Snowden who is her father’s designated carer.
The Applicant has a brother (Kyram) and two sisters, Amanda and Kim. Kyram and Amanda live in Australia and Kim in New Zealand. In addition, he has a step-sister Nicole Acominis[22] who also resides here. Between them they have numerous children to whom reference will be made later.
[22] Spelling unclear from hand-written documentation.
The Applicant had another sister, Renee, who passed away in November 2016 in circumstances which caused him and all members of his family considerable trauma. [23]
[23] Statutory Declaration by Jeffrey Snowden dated 25 October 2021.
The members of the family all report being close to one another and further details are discussed below.
APPLICANT’S MEDICAL HISTORY
Prior to the Applicant’s motor vehicle accident (MVA) he appears to have been a fit young man with an active involvement in sport.[24] His sister, Amanda describes him as “a golden child”.[25] This all changed as a result of the MVA. Diagnoses of his condition following the MVA indicate:
·“Shane was referred by the family to the acute care team at St George Hospital on 17th January 2001. He had experienced an acute decline in his mental health state with prominent disorganization and bizarre behaviour. He needed a lot of directing to shower and attend to activities of daily living, prompting to eat his meals etc. He was occasionally wandering and behaving unusually like responding to sounds, standing in the yard in his underwear and being awake at various times during the night… Shane has a past history of a significant brain injury following a motor vehicle accident (October 1999) and neuropsychological testing has shown frontal lobe impairment… He presents as being frontally impaired and has difficulty on focussing on the interview… He once seemed distracted by what could be auditory hallucinations. His affect is quite labile, being teary and then smiling within a short period of time.”[26]
·“[the recent neuropsychological assessment] identifies deficits in working memory, divided attention, speed of processing, planning and organisational skills. He also had impaired reasoning and a concrete thinking style. Working memory and new learning was adequate when the information is structured and repeated. He had good problem solving skills but was slow to adapt to a new style in problem solving.”[27]
·“…Shane stated he had difficulty adding and subtracting and that since his accident he found it difficult to stay focused. After his injury he was more angry and aggressive… A conservative estimate of Shane’s premorbid level of general intellect would place him within the low average range.”[28]
·“The medical information is sufficient to say that he has sustained a severe traumatic brain injury likely to give him permanent impairment particularly in areas of planning and organisation, impulse control and executive functioning. It is also noted that this is on a background of problems prior to his traumatic brain injury. Characterised by conflicts within the home and poor attendance at school.”[29]
·“Overall intellectual functioning was measured in the borderline range and may have represented a mild reduction from premorbid levels. Speed of information processing was abnormally slowed. No specific visual-perceptual disturbance was noticed and there was no significant discrepancy between his verbal and nonverbal skills. A particular weakness was demonstrated on a task of social understanding and practical reasoning.”[30]
[24] Letter from Jeffery Snowden, G-documents at 134.
[25] Statutory Declaration from Amanda Snowden dated 27 October 2021.
[26] Psychiatrist Report by Dr David Cheang (Psychiatry Registrar), Acute Care Team, St George Hospital dated 19 January 2001.
[27] Medical Report by Dr Adeline Hodgkinson, Liverpool Hospital (Hodgkinson Report) dated 10 July 2003.
[28] Neuropsychologist Report by Dr Kim Ferry, Brain Injury Rehabilitation Unit (Ferry Report) dated 8 July 2003.
[29] Hodgkinson Report dated 1 October 2002.
[30] Neuropsychologist Report by Andrew James, Brain Injury Rehabilitation Unit, Liverpool Hospital (James Report) as assessed on 7 and 8 October 1999.
Two separate and more recent reports were prepared by expert psychologists.
Ms Alison Cullen prepared a report dated 19 June 2020 to be tendered to the Court when it dealt with an offence which was committed by the Applicant in April 2019. In her Mental Status Examination (MSE) Ms Cullen noted that the Applicant was “a poor historian and appeared to be below average in intelligence” and that his “form of thought was both tangential and, at times, derailed.[31]
[31] Cullen Report at [2.1].
Ms Cullen found that making an assessment of the Applicant “has been challenging due to his apparent memory and cognitive defects… Nonetheless it does appear that his offending misconduct and psychological decompensation corresponds to the timing of his brain injury.”
She concluded:
“The combination of cognitive, emotional and behavioural difficulties detailed above most probably relate directly to Mr Snowden’s offending misconduct with respect to the index offence/s. He reports that he remained unaware of what was transpiring or why he was under arrest (this is consistent with the Facts Sheet as well as Mr Snowden’s difficulty associated with the speed of information processing and social understanding, which is likely to be hindered further when emotionally regulated/distressed).
Should the Magistrate choose to deal with this matter pursuant to Section 32 of the Mental Health (Forensic Provisions) Act 1990, Mr Snowden can be considered suitable. It is clear that, at the time of the alleged commission of the offence to which the proceedings relate, Mr Snowden’s well documented and long-standing Acquired Brain Injury would have rendered him cognitively impaired. It appears, on the basis of probability, that there is a direct nexus between his limited comprehension, poor reasoning, and impaired judgement and the index offence/s.”[32]
[32] Cullen Report at 5.
Mr Matt Visser was engaged by the Applicant to provide a report for this hearing, and he gave oral evidence in support of his findings. In summary and oral evidence, it appears that:
·prior to the MVA there was some evidence of the Applicant exhibiting signs of Conduct Disorder (“a condition where adolescents demonstrate significant violation of social rules”);
·the Applicant has a well-documented history of psychotic episode including disorganised and bizarre behaviours, hallucinations and delusions; and
·while it was not possible to derive interpretable results from the psychometric tests administered (due to the incompleteness of answers), his profile was closest to that of patients with Schizoaffective Disorder (coefficient of fit = .380).[33]
[33] Visser Report at lines 60 and 358-359.
In oral evidence Mr Visser elaborated upon some of his written findings, in particular stating that:
·if asked to assess the Applicant’s propensity for reoffending he would place this in the “moderate” range provided that the Applicant abstained from the use of drugs or alcohol and in the “moderate to high” range if he did not;
·he agreed with the Respondent’s proposition that past behaviour and conduct was a major predictor of future behaviour and conduct;[34]
·were the Applicant to be deported to New Zealand, while he did not doubt the quality of mental health care available in that country he was firmly of the opinion that this course of action “would increase his risk of relapse into drug and alcohol use” and that the severing of effective ties of family support would have a significant negative effect upon him;
·the Applicant was more strongly motivated to pursue courses of rehabilitation because of his relationship with and commitment to his four young sons;
·he found the Applicant to be generally “outcome directed”, displaying what he termed “Machiavellian thinking” but without exhibiting any signs of grandiosity or inflated-ego thinking; and
·he noted that the Applicant was in receipt of the Disability Support Pension (DSP) and that one necessary qualification for this was that the Department accepted that the Applicant was unlikely to be able to obtain or sustain full-time employment at the rate of at least 15 hours per week over a two-year period. He agreed with this assessment.
[34] Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105 at [194].
Both Ms Cullen and Mr Visser make very clear in their reports that the Applicant’s record of the use of alcohol (reported by Mr Visser from the age of about 13 years) and then the replacement of alcohol by methamphetamines in about 2010 was a critical factor in determining the behaviour of the Applicant at any time. This coincides with an assessment by Dr Anne Camac (a psychiatrist) that:
“My assessment is that when Mr Snowdon is drug free he is well, when using alcohol or drugs he can be violent and/or psychotic. He will only remain well (and not violent) if he continues to abstain from alcohol and drugs.”[35]
[35] Psychiatrist Report by Dr Anne Camac, South East Sydney Local Health District, St George Division of Mental Health (Camac Report) dated 3 December 2015.
She had previously written:
“The prognosis for the psychosis is good, so long as he stays on medication and off drugs.”[36]
[36] Camac Report dated 2 October 2014.
APPLICANT’S RECORD OF OFFENDING
The Applicant’s relevant record of offending is one of truly lamentable length and is set out as Annexure A to these Written Reasons.
The record itself evidences a cocktail of minor offences such a shoplifting and using offensive language, through a number of offences related to property theft moving up to offences involving resisting police officers and at the highest level, acts of both domestic and otherwise gratuitous violence. There are numerous breaches of Apprehended Violence or Community Corrections Orders.
In extensive cross-examination the Applicant was taken through a large number of these offences. In some instances, he was unable to recall relevant details; in others he presented alternative versions (or outright denials) of matters contained in police records. He did not dispute any of the convictions recorded against him. It is worth discussing some of these exchanges in more detail.
However, before doing so, the Tribunal recognised that on 18 August 2004 the Applicant was convicted of three offences (one contravene AVO and two common assault) for which he received three nine-month sentences, suspended for nine months on entering supervised probation and a separate 18 month section 9 bond.
Subsection 501(7A) of the Act provides:
Concurrent sentences
(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
The three nine-month sentences constitute, under this section, a sentence of 27 months. This is well in excess of a sentence of 12 months or more and should, as a result, have triggered the automatic cancellation of the Applicant’s visa at that stage. The Tribunal put to the Respondent’s representative the question of whether any such action had been taken in this regard and she received Instructions to the effect that the Department had not been aware of this earlier conviction and, as a result, no action had been taken. While nothing in these proceedings turns on this point it may well have been that had action been taken at that stage, and perhaps resulted in a warning to the Applicant about offending behaviour and risk of visa cancellation, some of these proceedings would have thereby been rendered otiose.
Sentenced offences
The Applicant has been sentenced for a number of offences over many years[37] but there are several of those which are of particular relevance for the Tribunal.
[37] See Annexure A.
On 1 December 2014 the Applicant appeared before Magistrate Haskett in the Kogarah Local Court on charges related to obtaining financial advantage by deception and breach of a section 9 bond. After considering evidence about the Applicant’s mental health the Magistrate dismissed the charges and instead issued an order under section 32 of the Mental health Act 2007 (NSW) discharging the Applicant into the care of the St George Community Mental Health Centre and imposing conditions related to treatment and medication, for a period of six months.[38]
[38] G-documents at 77.
On 11 December 2015 the Applicant appeared before Magistrate Williams in the Downing Centre Local Court on charges related to offences of assault occasioning actual bodily harm, common assault, assault police and resist arrest.[39] These offences resulted from the Applicant being “so drunk he really did not know what he was doing” leading to him assaulting patrons in a bar. This was compounded by the fact the Applicant was under a Good Behaviour bond at the time. Nevertheless, the Magistrate stated:
Most importantly, since the commission of these offences Mr Snowden has done something about the underlying issues that he has with alcohol and drugs and he’s done quite a lot.
He has not committed any further offences this year and he has genuinely committed to the process of his rehabilitation. He has accepted the help that has been offered to him and he has done remarkably well with that help and there are real prospects that he will continue in that direction.
Courts are not naïve. These things often are not straight forward and it is often the case there will be steps forward and steps back but it is how the person deals with the steps back that is the important thing and maintaining over a long period of time the forward progress and it seems that the absence of any offending suggests that Mr Snowden can and has been doing precisely that.
It is for that reason that Mr Macarounas argues persuasively that I should, instead of imposing an intensive corrections order, suspend the operation the gaol sentence. Ultimately, I will do that. It is a matter, as I say, where the interests of the community have to be taken into account in terms of rehabilitation because of his ongoing need for that and in the context of a person who has a brain injury, the work is critical, the structure provided by work is critical and any jeopardy to that may jeopardise his rehabilitation.
For that reason, and because of the great lengths which he has come over the last nearly 12 months, I am prepared to deal with the matter by way of suspended sentence.[40]
[39] The offence occurred on 7 March 2015. The Applicant told the Tribunal he and Ms Sadek had travelled into the City to watch the Mardi Gras Parade and had been heavily drinking all night.
[40] G-documents at 60-61.
On 27 June 2017 the Applicant appeared before Magistrate Huber in the Sutherland Local Court where he was charged with a variety of assault offences, resisting arrest and shoplifting. The Applicant’s legal representatives presented material to the Court indicating his issues arising from his acquired brain injury.[41] In sentencing the Applicant to a series of terms of imprisonment, but with only a three-month parole period (date of release 26 September 2017) Her Honour specifically stated “[a]nd, as I’ve said, I find the special circumstances, being your mental health and the acquired brain injury.”[42]
[41] Ibid at 46.
[42] Ibid at 53.
The Court appearance which led to the imposition of the 18-month sentence which, in turn, led to the visa cancellation occurred on 15 December 2020 relating to offences committed on 22 March 2020.
The Tribunal has no sentencing remarks before it to assist because the material provided by the Respondent is confused. The G-documents purport to provide sentencing remarks by way of a transcript dated 11 December 2015 (in the Downing Centre before Magistrate Williams)[43] and then a transcript dated 15 December 2020 (in Central Local Court before Magistrate Williams)[44] which are in fact identical. It is clear that the transcript of 2015 is correct in that it relates to offences which took place on 7 March 2015 whereas the alleged transcript of 2020 bears no relationship at all to the offences of 22 March 2020 which were before the Court at that time.
[43] Ibid at 58-62.
[44] Ibid at 39-43.
The time constraints imposed by paragraph 500(6L)(c) of the Act do not permit the Tribunal enough time to reissue summons for production of any court transcripts or to seek further evidence and so it must proceed on the basis of the evidence which is before it in terms of police records, agreed statements of facts[45] and evidence in oral testimony.
[45] Summons Material at 231-232.
However, as this is the event which triggered the critical sentence imposition it is necessary to consider it in some detail. The offences for which the Applicant was before the Court were “affray and commit section 114 offences,[46] having previous conviction.”
[46] Crimes Act 1900 (NSW) s 114: “armed with intent to commit indictable offence”.
The Tribunal is aware that any convictions themselves cannot be challenged or called into question by it, nor can the Tribunal go behind the convictions and re-examine matters de novo.[47]
[47] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 per Sheppard J at 596; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.
In Daniele, the Federal Court outlined the limits of the Tribunal’s powers in this regard:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[48]
[48]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653 per Fisher and Lockhart JJ.
These “wider” and “different” matters for determination require specifically, that the Tribunal’s task includes making assessments in relation to the considerations laid out in Ministerial Direction 90 (MD90).
The Victorian Court of Appeal in LLF explained the limits of the Tribunal’s jurisdiction in this regard:
...The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[49]
[49] Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) & Anor [2018] VSCA 155 at [42]. Citations omitted and emphasis added.
This statement was expressly approved by Murphy J in Singh[50] and by Bromberg J in HZCP when he said:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.[51]
[50] Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556 at [35].
[51] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
Suffice to say that the Applicant disputes some of the details of the Agreed Statement of Facts. He states that what the statement blandly describes both as “a folding knife”,[52] and later as a “20cm silver blade”,[53] was a small pocket-knife which he used to cut his fruit and he subsequently refutes the allegation that he used it to menace another person. He claims the larger knife belonged to and was in the possession of another person. Regardless of the specific facts surrounding this incident, the Tribunal has no doubt that some sort of affray took place, that a knife (of some sort) was in possession of the Applicant and that (although not forming part of any charges against him) some of the people involved were in the process of using drugs. Indeed, in his own oral testimony the Applicant admitted that he had procured the drugs for the use of others.
[52] Summons Material at 231.
[53] Ibid at 232.
In the absence of any guiding Sentencing Remarks it is hard to assess any other relevant details of this matter, other than to note that the sentences imposed were two sentences of nine months each whereas the maximum penalty for “affray” under the NSW Crimes Act is 10 years (section 93C) and the penalty for section 114 offences is a maximum of seven years. These relatively low level of sentences for serious offences must be taken as reflective of the assessment made of them by the learned Sentencing Magistrate.
Domestic violence offences
It is exceptionally difficult for the Tribunal to assess the exact nature of domestic violence offences where no charges have been laid and there are no sentences imposed and where various forms of Domestic Violence or Apprehended Violence Orders are taken out by the Police (apparently none being requested by alleged victims) based upon their assessment of events which are often vigorously challenged by an applicant.
This was recognised by the Tribunal in Ahmed where it said:
The Tribunal recognises that court briefs of this kind are to be treated cautiously as they contain untested assertions that are often not based on first-hand accounts. Applications for domestic violence orders are generally heard on an ex parte basis. In the absence of further evidence, the Tribunal is reluctant to draw any conclusions regarding the Applicant’s conduct other than to note that he was found guilty of having breached a court order imposed for the express purpose of protecting his ex‐partner from domestic violence and the Tribunal regards this as adding to the seriousness of his offending.[54]
[54] Ahmed and Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1185 at [53].
In its Statement of Facts, Issues and Contentions the respondent notes the following:
“61. As outlined above, the Applicant has engaged in repeated acts of family violence. His conduct has included criminal offences arising from the following incidents:
(a) On 15 August 2002, the Applicant caused his domestic partner pain and discomfort when violently grabbing a phone from her. He also ‘grabbed the victim around her throat and spat in her face about four times’ and ‘took hold of the victim's arms and held her up against the wall. The [Applicant] then put his forehead up against the victim's forehead pushing hard’. An AVO was taken out against the Applicant as a result of this incident;
(b) On 27 August 2002, the Applicant entered his domestic partner's house. He became enraged when he saw a male friend laying on her bed. After violently attacking the man, he punched his domestic partner in the side of the head when she was attempting to call the police. This action was in contravention of an AVO;
(c) On 14 December 2003, Police were called to a domestic violence incident involving the Applicant. The victim reported that the Applicant, her boyfriend, had strangled her. The police overserved visible red marks on either side of her windpipe. The police "felt it best to get the get the child out of the house". This incident occurred in breach of an enforceable AVO;
(d) On 10 January 2004, Police were called to a domestic violence incident involving the Applicant. The victim was in a domestic relationship with the Applicant which she reported had become violent over the previous 18 months. In this incident, the Applicant punched the victim with a closed right fist causing her mouth to bleed;
(e) On 20 April 2008, the Applicant was observed punching the victim, his de facto partner, in the head and dragging him by her left arm. The police granted an interim, and then a final, AVO as a result of this incident;
(f) On 9 September 2012, following an argument, the Applicant's de facto partner reported to police that he had been violent towards her. He had pushed her onto the bed, grabbed her hair and twisted his hand, and pushed her head towards a corner, causing her face to hit the wall. She developed a black eye. The police granted an AVO as result of this incident”
These incidents involve two different partners (with Samantha Cremen, until approximately 2005 and Linda Sadek thereafter). There is no evidence in terms of matters before the Courts which deal with these incidents (other than noted breaches) and in each case where the Applicant was taken to the police records he either told the Tribunal he had no recollection of events or he gave a different version of them. This is complicated by the fact that both parties, throughout their relationships appear to have been involved in regular shared sessions of both alcohol and illicit drug consumption.
There are no statements before the Tribunal from Ms Cremen while Ms Sadek has provided a letter in support of the Applicant, pleading for his visa to be restored.
I stated clearly in Mendoza and Minister for Immigration and Border Protection[55] that
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
[55] [2018] AATA 686 at [48].
The abhorrence of this Tribunal for any form of domestic or family violence has been stated repeatedly and needs no further emphasis here. Whatever the Applicant may say of the various instances outlined by the Respondent, it remains an incontrovertible fact that, prior to 2012 he has engaged in acts of domestic or family violence involving his various female partners. The presence of alcohol or drugs in these incidents may go some way to explaining how they happened but they in no way go to excusing or justifying them happening.
There is then a considerable period of time elapsing until in March 2019 another incident is recorded in which there appears to have been some sort of altercation between the Applicant and his partner at the entrance to their apartment which escalated into a loud domestic argument occasioning neighbours to call the Police.[56] The Police were initially unable to enter the apartment and so applied for a telephone warrant whereupon they gained access to talk to the female concerned who essentially refused to co-operate with Police or make any complaint to them. Witnesses refused to give statements and in his oral evidence to the Tribunal the Applicant characterised this as a shouting match but one which did not involve any physical violence.
[56] Summons Material at 48.
Of course, domestic or family violence does not have to manifest itself physically and intimidatory behaviour is a form of violence.
The Tribunal notes that there have been no such incidents coming to the attention of the authorities more recently and the Applicant has gone out of his way to explain to the Tribunal that he now has a different understanding of such matters. In a submission[57] he writes:
“I have had arrest warrants issued for a number of offences including an assault on a police officer, Domestic violence, Breaching an AVO and Failing to appear in Court over an 18 year period. I take these very seriously and I have since apologized to my victims for my irresponsible and dangerous behaviors. I do not have any justifications for my actions but I think it’s crucial that I show more control and patience in the future. I take full responsibility for my actions and I am very remorseful for what I have done. I am aware that in Australian society my behaviour is not acceptable by any standards. I am truly remorseful for my actions and I vow to turn my life around. My incarceration has taught me a few lessons in life, I reflect on some of the things I need to address immediately, things like anger management, showing more patience, and being a better Father just to name a few. I am to put my past behind me and concentrate on my future with my family.”
[57] Applicant’s submission dated 27 October 2021.
The Tribunal considers this matter further below.
Other offences
The Tribunal has taken note of the other offences of a more minor nature such as those involved in shoplifting, obtaining money by deception and wilful exposure in a public place and records that many of these were the subject of intense cross-examination by the Respondent’s representative. To the extent that they establish a pattern of behaviour and the extent to which elements of both mental instability and the presence of alcohol or drugs should be noted, they have been taken into consideration by the Tribunal.
EVIDENCE FROM WITNESSES
A number of letters were submitted on behalf of the Applicant, from members of his family, workmates and friends,[58] all of which urged the revocation of the visa cancellation. Both the elder sons (KH and JE) wrote in support of their father. KH writes that he has been accepted into a representative football unit for the St George Rugby League Club and that his father is proud of this and wants to help him with his football career. He says that he wants a father to support him in his teenage years. There is no doubt that the boys miss their father to varying degrees and that they are entering into a period of their lives where the presence of a positive male role-model becomes of particular importance in their development.
[58] G-documents at 141-145.
Other members of the family both provided written statements of support and appeared to give oral evidence to the Tribunal as follows:
(a)Jeffrey Snowden: the Applicant’s father explained details of the current arrangements for the care of the Applicant’s children and the strains which this placed upon himself and his wife. He told the Tribunal that, in the course of these proceedings he had been made aware of the extent of the Applicant’s offending behaviour, something not previously known to him, and a matter which he found shocking, embarrassing and disappointing. Nevertheless, he offered unqualified support for his son and indicated that he would provide whatever he could to assist him should he be allowed to remain in Australia. In response to questions from the Respondent’s representative he agreed that he still had extensive family ties in New Zealand and that, were the Applicant to be returned there, he would try to arrange for them to be supportive of him. He agreed that he had limited capacity to provide financial support but that he would provide all the personal and “moral” support that he could and in particular he would try to engage his son in more activities based around the Church community to which he was very committed. He was clear that if the Applicant were returned to New Zealand he and his wife would not relocate there with the boys nor make any other major change in their living arrangements until the youngest son turned 18 years. He told the Tribunal that the boys were now doing well at school after the younger ones had overcome some initial behavioural problems. He affirmed that the Applicant maintained close and continuing contact with his sons and that they in turn were devoted to him. In relation to their mother, he indicated that she was only an occasional presence in their lives and that while the three younger ones expressed love for her this was not the case with KH.
(b)Janice Snowden: the Applicant’s mother described him as a “softie” who always listen to her and was honest with her, although she knew nothing in detail about his offending behaviour and record. She attested to the extent that the Applicant had changed from being a bright and engaged child prior to his MVA but thereafter had become moody and subject to major mood swings. She stated how much she misses her son and how helpful he has always been to her both financially when possible and in terms of household support. She emphasised that the children “were not getting any younger” and that they had need of their father and a positive role model in their lives. She told the Tribunal that the boys were always asking her “when will Dad get out?”. It was her evidence that she was aware, to some limited degree, of the Applicant’s problems with drugs and alcohol and that she was vehemently opposed to any form of drug use and would insist on her son having nothing to do with drugs if allowed to remain in Australia. She made it clear that the health problems which she and her husband faced would be largely relieved by the presence of the Applicant back in the family’s life. Prior to the introduction of COVID-19 restrictions she had arranged a number of visits to the Immigration Detention Centre for herself and one of the children on each occasion. She was largely dismissive of the role of the children’s mother in their lives remarking that the boys were “so used to not seeing her”. She also has family in New Zealand but did not believe they would be able to assist the Applicant were he returned there.
(c)Amanda Snowden: the Applicant’s sister is a single mother with a nine-year old daughter (RO) and is the registered carer for her father. As such she sees the Applicant’s children almost every day and is directly engaged in their support. It was her evidence that the children were close to and missed their father and kept in regular contact with him. Importantly, Amanda made it clear that if the Applicant were to be released into the community she would provide him with accommodation as she has a large house where he could stay. She made it clear that she would take it upon herself to provide him with financial support and that she would also take responsibility for taking him to medical or other appointments and ensure that he was supported fully in this regard. She was only marginally aware of the extent of the Applicant’s offending record but maintained that any acts of physical violence on his part were out of character. She was negative in her description of the role played by the children’s mother, saying that it was limited to visits once a month. She placed great reliance upon the support which the Applicant and the family could receive from their Church community.
(d)Cheyenne Murupaenga: is the Applicant’s niece (daughter of Kim) and described the Applicant as a “great uncle”. She said that he was always supportive of her and her numerous cousins, providing money and gifts on a regular basis. She spends time with the Applicant’s sons and sees how fully they are engaged with their father on various messaging and social media devices.
There is no doubt from the evidence of members of the immediate family that were the Applicant to be returned to living in the community he would receive a significant degree of love and practical support. This would include some financial and accommodation support as well as engagement with the local Church community. Members of the family agreed that while there might be some distant relatives in New Zealand able to provide some support to the Applicant there, this would be uncertain. Additionally, the ability of the immediate family to maintain contact with the Applicant once returned to New Zealand would be highly problematic and uncertain.
The Tribunal could not be but impressed with the obvious and sincere expressions of support evidenced by all of the family witnesses.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Clause 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, it stated in SZJSS that:
[t]he weighting of various pieces of evidence is a matter for the Tribunal.[59]
[59] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, it becomes a matter of the Tribunal engaging in a process of “calculus” [60] to arrive at a final determination.
[60] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Ministerial Direction 90 – Mental Health
Although Ministerial Direction 90 is in many ways a comprehensive document, it has little or nothing to say about issues of mental health despite the high prevalence of mental health issues in both the general community and in the cohort of people most likely to be before the Tribunal on visa revocation appeals. In Edwards I said:
No guidance about the approach to be taken by decision-makers when dealing with non-citizens with significant mental health problems is to be found in Direction 90.[61]
[61] Edwards and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2985 at [134].
I then went on (at [137]-[138]) to discuss how the Tribunal had approached visa revocation cases where applicants had been clearly diagnosed with schizophrenia. In this instance the Applicant clearly has a significant suite of mental health issues arising both from some underlying childhood issues exacerbated by a serious acquired brain injury. There is some indication in Mr Visser’s report that the Applicant exhibits some symptoms of Schizoaffective Disorder.[62]
[62] It should be noted that the while Mr Visser gave evidence to the effect that the Applicant does exhibit symptoms of Schizoaffective Disorder, he made clear that he would not diagnose the Applicant as having such disorder.
Rofe J recently addressed the challenge of dealing with mental health issues which are intimately related to the offending behaviour of applicants. He was particularly concerned about how the Tribunal should consider evidence about the equivalence of mental health services in other countries to which an applicant might be returned when assessing the extent of impediments if removed.[63]
[63] Mukiza v and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1503.
Few cases specifically involving acquired brain injury have come before this Tribunal within the context of visa revocation applications. In BLSL the Tribunal made it clear that consideration of acquired brain injury in Tribunal proceedings could only occur if there was a clear medical diagnosis of the condition, and not merely assertions made about any such impact.[64] The Tribunal has also held that appropriate treatment of managing people with acquired brain injuries is available and adequate in New Zealand.[65]
[64] BLSL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4177 at [40(a)].
[65] XFZC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3385 at [170].
In the matter of XMBQ the Tribunal considered the position of a Somali national who had suffered an acquired brain injury as a result of physical mistreatment and had engaged in extensive offending behaviour occasioned by mental health problems exacerbated by alcohol addiction. It took these aetiological factors into account in determining to revoke his visa cancellation.[66]
[66] XMBQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 853 at [61]-[67].
In the matter of Rowe I had occasion to remark that:
The consideration of Mr Rowe’s application poses an exquisite dilemma for the Tribunal which can be stated simply: what is the correct and preferable decision to make regarding Mr Rowe who has an extensive criminal history but is also clearly suffering from a level of mental disorder which, together with his misuse of drugs, fundamentally explains the origins of much of his criminal behaviour.[67]
[67] Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708 at [2].
That remains the central issue in these proceedings.
Primary Considerations
Protection of the Australian Community
The Tribunal must consider:
(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.
In the first instance the Tribunal notes that several of the offences which were committed by the Applicant can only be regarded as serious. There are a number of instances in which innocent people were assaulted and seriously hurt by the Applicant and there are the repeated instances of domestic or family violence. However, it is equally to be noted that when matters came before the Courts, the sentences imposed tended to be either non-custodial or, when custodial, were at the lower end of the range of available penalties. Nevertheless, the Tribunal does not downplay either the seriousness nor the repetitive nature of the offending.
In assessing risk, the Tribunal is asked to consider the likelihood of offending behaviour being repeated and the possible impact of such an event.
An Intensive Correction Order Assessment Report dated 8 December 2015 assesses the Applicant’s risk of reoffending as being in the “low to medium range”.[68]
[68] Summons Material at 182.
As outlined above, the conclusions of Mr Visser were to the effect that if the Applicant abstained from the use of alcohol or drugs his inherent risk of reoffending (as a consequence of his acquired brain injury and his loss of some capacity for self-control) would be in the “moderate” range, rising to “moderate to high” if he were not abstinent.
In relation to this consideration the Tribunal finds that the Applicant’s conduct to date has been serious, although of a nature related in large part to his brain injury and that his risk of reoffending is in the low to moderate range.
The consideration weighs against the Applicant.
Family or domestic violence
MD90 (at sub-paragraphs 8.2(1) and (3)) sets out matters to be considered by the Tribunal as follows:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
…
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effects of repeated acts of family violence;
(c) rehabilitation achieved at the 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 (especially children);
(iii) efforts to address factors which contributed to their conduct…
In considering this matter the Tribunal has already noted that such incidents were frequent in the period from approximately 2002 to 2012 and that there was one disputed incident in 2019.
The Tribunal places some emphasis upon the criteria which are outlined in sub-paragraph 8.3(c) of MD90. It accepts, both from the written statements of the Applicant and the evidence which he gave to the Tribunal that he now accepts responsibility for his actions, has an understanding of the nature of his behaviour, the impact it has upon others and the need to address his issues. The Applicant has successfully completed courses in Basic Parenting, Anger Management and the EQUIPS Domestic Abuse Program.[69] The Tribunal accepts that a degree of rehabilitation has been achieved on the part of the Applicant.
[69] Applicant’s submission including copies of certificates.
The Tribunal accepts that the elements of sub-paragraphs 8.3(a) and (b) of MD90 weigh against the Applicant whereas that of sub-paragraph 8.3(c) weighs in his favour. On balance between the two, the Tribunal finds that this consideration weighs neutrally, neither for nor against the Applicant.
Best interests of minor children
In this respect MD90 provides (at sub-paragraph 8.3(4)) that the following factors should be considered:
(a)the nature and duration of the relationship between the child and the non-citizen (less weight should generally be given where there relationship is non-parental and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful 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; and
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
As outlined above there are four sons of the Applicant, together with numerous nieces and nephews.
In relation to all of the sons, the Tribunal accepts that there is a genuine bond of love and affection between each of them and their father. He keeps in regular touch with all of his sons and the elder two have visited him in detention in the company of their grandmother. It accepts that he has the opportunity to play a positive role in their future lives, primarily if allowed to remain in Australia. It notes that any future offending behaviour on the part of the Applicant would have a significantly negative impact on their lives. Clearly the Applicant’s parents now play a role in loco parentis for the children and could be expected to continue to do so as long as their health permits.
·In relation to KH the Tribunal notes that he has a particularly close relationship with his father and he lived with him until he was about seven years of age. KH appears to have a potentially promising career as a football player with the St George Rugby League Club and both he and his father are keen to pursue this. In relation to sub-paragraph 8.3(4)(f) the Tribunal notes the letter written by KH on his father’s behalf and accepts that a 15-year old child’s view should be given some weight and consideration.
·In relation to JE, he is nine years of age and has also written to the Tribunal. He states that he misses his father very much and that he wants to be able to play frisbee games with him. At age nine it is difficult to ascribe much weight to his letter, but the Tribunal accepts that he misses his father, has hopes and expectations for their future and that he has some consciousness about the extent of their separation.
·In relation to EL (aged 8 years) there is a less clear understanding of the nature of the parental relationship as EL and CO have never lived with their father. Nevertheless, the evidence of Mrs Snowdon was to the effect that each of the younger children had regular contact with their father and were anxious for this to be on a permanent basis.
·In relation to CO (aged 7 years) much the same may be said. However, Mrs Snowden (Janice) in her evidence spoke of some issues which this child had at school and although these appears to have been resolved, it was her opinion that the presence of a more authoritative father figure in the child’s life was necessary.
The minor nephews and nieces are as follows:
·TA (aged 16 years), KD (age 15 years) and KY (aged 10 years) are the children of the Applicant’s deceased sister Renee;
·RO (aged 8) is the daughter of his sister Amanda;
·AT and AH (aged 4 and 2 years respectively) are the children of his brother Kyram.[70]
[70] Applicant’s Personal Statement, G-documents at 106.
In addition to these children, it was revealed at the hearing that his niece Cheyenne (now aged 21 years) has recently given birth to a child (UR) who may be taken as a grandnephew. There is clearly no established relationship with this child.
The evidence in relation to these children is as follows:
·The Applicant is regarded as a “good uncle” to all of them and is a source of presents and money from time to time. It is said by all the family members that there is a close family relationship, best understood as kinship within the Maori community which involves them all.[71]
·The Applicant claims that he played a positive role in the lives of Renee’s three children when she passed away,[72] although exactly how is not specified.
·There does not appear to be as close a relationship with the children of the Applicant’s brother as they do not live as physically proximate as the other family members.
·It was the testimony of Amanda Snowden that the Applicant played a positive role in the life of her daughter Rosemary who does not have another male role-model in her life.
·Cheyenne Murupaenga (his adult niece) gave evidence about the Applicant’s role in her life while still a minor.
·There is a letter from Ms Sadek’s niece attesting to the role that the Applicant played in her life as well as that of his biological nephews and nieces.[73]
[71] Applicant’s Personal Statement Form at G-documents at 107.
[72] Applicant’s SFIC at [64].
[73] G-documents at 144.
The Tribunal concludes that this consideration must weigh heavily in favour of the Applicant. While his relationship with his nephews and nieces appears to be reasonably close, they all have their own family relationships as their primary source of support. However, the evidence is clear that it would be substantially in the best interests of each of his four sons for the Applicant to remain in Australia.
The Respondent sought to establish that the Applicant would be able to maintain some sort of relationship with his children from New Zealand were he returned there. This is undoubtedly true in a technological sense and to some degree it would be no better or worse that his current method of daily communication from immigration detention. It is fanciful however to believe that a meaningful parental relationship can be established, matured and maintained via some sort of electronic or social media platform – even when the technology works. The evidence of Mr Snowden (Jeffrey) to the effect that the family would not relocate to New Zealand until the last of the boys reached the age of 18 rules out any suggestion that this is a viable option to keep the family together.
Expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
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 not to allow such a non- citizen to enter or remain in Australia.
That norm referred to in the Direction is to be understood as providing that:
·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 they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not to continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[74] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to MD90.
[74] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[75]
[75] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
The Tribunal notes that the Applicant urges the Tribunal to place less emphasis upon the authorities cited above but rather rely upon the findings of Griffiths J in DKXY, particularly His Honour’s comment that “nothing in the Direction indicates that the community expectations will always favour non-revocation”.[76]
[76] DKXY v Minister for Home Affairs [2019] FCA 495 at [31] emphasis in original.
The Tribunal cannot follow this course of action. In the first place the reference in DKXY was specifically to an earlier Ministerial Direction (no 65) and secondly, since that time judicial authority has clarified that this part of the Direction must weigh against applicants in order to give proper regard to the expressed policy position of the government.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to his (or any other consideration) is a matter for the Tribunal itself to determine.
In making that determination the Tribunal places this criterion as part of the continuum of considerations and, within the overall ecology of this application accords it only limited weight. It does so conscious of the circumstances arising from the Applicant’s mental health status and brain injury.
“Other” Considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[77]
[77] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[78]
[78] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[79] and more clearly supported by Wigney J in FHHM.[80]
[79] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[80] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [23].
This principle has been affirmed in a number of Tribunal cases,[81] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations. [82]
[81] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[82] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[83]
[83] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. Although His Honour Colvin J referred to an inquiry as to whether “other considerations should be treated as primary considerations”, the Tribunal is not of the opinion that His Honour was suggesting that other considerations could be elevated to be primary considerations as this would be against the structure and express provisions of Direction no. 65. When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[84]
[84] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
International non-refoulement obligations
There are none arising in this application.
Extent of impediments if removed
The Tribunal accepts that the Applicant is familiar with the culture and mores of New Zealand, the land of his birth. He would suffer no difficulty in a cultural or linguistic sense to be sent back there. He is relatively young and generally physically healthy. There is no reason to believe that, if he were prepared to engage with the local health services that his access to health care would be any less than it is in Australia and indeed may be better if provided within a culturally (Maori)-sensitive environment. His employment prospects would be no worse and although there is limited information about the exact nature of family ties, there are members of his extended family living in New Zealand.
In this respect the Tribunal is a little less sympathetic to the Applicant than the delegate who, in his original determination wrote:
I find that Mr SNOWDEN will face practical, financial and emotional hardship upon a return to New Zealand, due to his lack of family and social support and lack of immediate employment and housing opportunities. However I do not consider he would be unable to establish himself there eventually. I find that this consideration weighs in favour of revocation.[85]
[85] G-documents at 31.
On the other hand, the impact of separation from family, especially from his children is a different matter and while paragraph 9.2 of MD90 does not identify emotional or psychological impacts in relation to removal as part of its check-list, the list itself is clearly stated to be non-exhaustive. There are impediments beyond those identified in the Direction and, taking these into account the Tribunal finds that the Applicant would suffer considerable emotional, psychological and personal hardship in being separated from his family.
The Applicant’s mental health issues are identified as arising from acquired brain injury and he has not been specifically diagnosed with any mental illness. With this in mind, the Tribunal takes the position that there are mental health services available to citizens in New Zealand equivalent to those in Australia, which the Applicant could access if necessary, noting that such position has been recognised by the Courts.[86]
[86] McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37].
Nevertheless, Mr Visser in his report contemplates that return to New Zealand “would increase his risk of relapse into drug and alcohol use” and while this would be a matter in the hands of the Applicant himself, the risk identified by Mr Visser is worth consideration.
The Tribunal finds that this criterion counts in favour of the revocation application.
Impact on victims
In its Statement of Facts, Issues and Contentions (at [87]) the Respondent notes that there is a statement from Ms Linda Sadek and merely contends that “this impact is outweighed” by the various primary considerations.
The Applicant’s own SFIC (at [79]) merely states: “there is no evidence in relation to the impact of a decision not to revoke on any victims or their family members in this case”.
This however is not, in the Tribunal’s opinion and in the light of the finding of the Federal Court in PGDX, an adequate approach to the Direction’s requirements.
There are two clearly identifiable victims of the Applicant’s violent behaviour. The first of these is Ms Samantha Cremen. There is no evidence before the Tribunal of what impact there may be upon her as a result of any determination by the Tribunal although the Applicant stated in his oral evidence that he now had a “good” relationship with her and had assisted her with some “reconciliation with her son”. There is no supporting evidence as to what this might mean or to whether these claims should be given any weight.
The other victim is clearly identified as Linda Sadek. In her written statement (dated 29 January 2021) placed before the Tribunal she states:
“I am writing this letter in support of Shane George Snowden who is currently detained at Villawood Immigration Detention Centre. Shane and I have been in a defacto relationship for approximately 16 years and we have had 4 boys together. We have recently reconciled our differences and we are looking forward to spending more time together. Shane and I continue to support our boys in any way we can, he remains a loving and caring father to them all. We have had our differences over the years but we continue to share an overwhelming love for our children. Shane has always supported me regardless, I know it hasn't been easy for him but I love him dearly. It is my desire to have Shane back again so we can continue to move forward with our lives. I know his mum, dad, brothers and sisters would like that also. I feel if Shane was given an opportunity, he will turn his life around. I know this will not happen over night, it will be something we will need to work at. My boys need their father around and so do I. Please take my letter into consideration when making your decision/s.
Thank You”[87]
[87] G-documents at 140.
In PGDX, Kerr J said:[88]
However, there is nothing in the Tribunal’s reasoning to suggest it understood that Ms K PGDK’s status as a victim had required it to give specific consideration to the impact on her of a decision to revoke PGDK’s visa cancellation ‘where that information is available’.
That information was available. It was not open to be ignored.
Contrary to the submissions the Minister advances, I am satisfied that information was effectively ignored by the Tribunal. In particular I am satisfied that the Tribunal was mistaken in its conclusion that all of what Ms K PGDX had stated in her testimony related to “what she perceive[d] to be in the best interests of her minor son Child S.”
As a mother it would have been surprising if the gravest of the concerns of Ms K PGDX had not related to her child’s wellbeing. But her evidence was confined to that. She advanced, albeit modestly, her own claims.
She informed the Tribunal that the impact of permitting PGDX to remain in Australia would be of benefit to her. It would make her life a little bit easier.
Such humble evidence had to be taken into account pursuant to cl 14.4 of Direction No 79 and its import weighed in the balance of the matters required to be addressed by the Tribunal pursuant to Direction No 79.
To revert to Rangiah J’s reasoning in Viane cited above at [27] the effect of Ms K PGDX’s evidence was that as PGDX’s ex-wife she had suffered as his victim and now faced being adversely impacted again if the Tribunal made a non-revocation decision.
Ms K PGDX’s status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration. It was not. She was denied that agency.
[88] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [82]-[89].
However, there are problems for the Tribunal in accepting Ms Sadek’s statement simply at face value. Although the Applicant and Ms Sadek have been in a relationship for some 15-16 years, and they have four children together, there is no evidence of an ongoing, continuing current relationship and no evidence that Ms Sadek has or will play any meaningful role in either the life of the Applicant or the lives of the children in the future.
Ms Sadek was not called to give evidence at the hearing and so the Tribunal must rely on her formal latter and other evidence which is before it.
In the report of the psychologist Mr Matt Visser, it states:
“His next significant relationship was with Ms Linda Sadek. He described them as having been in a relationship for around 16 or 17 years, although was unsure about their current status. The two attended high school together, and he described the relationship as being generally positive. They have four sons together… He described Ms Sadek as having no mental health issues, although later qualified that “she may be coming down with dementia,” although seemed unsure about that diagnosis. He indicated that both of them were using methamphetamine regularly throughout their relationship to varying levels, and that she was taking drugs while pregnant with the two youngest children.
He denied any period of separation, other than when they have both been recently incarcerated. The last he had heard was that she was currently using amphetamines and was in a relationship with someone who was “feeding her drugs.” He stated that the only domestic violence in the relationship was when she had “lashed out” at him, and he had pushed her, resulting in her hitting her eye on a doorframe. He was charged on that occasion, but could not remember the date it had occurred. When asked about his views on domestic violence now, he commented that he “hates it” and that “I’ve changed, I’m different.”[89]
[89] Visser Report at 5.
The Psychological Assessment Report prepared by Ms Anne Cullen who has qualifications in psychiatry and forensic psychiatry (dated 19 June 2020) states:
“Mr Snowden reported that he then commenced a relationship with his current partner, Ms Linda Sadek. He confirmed that he and Linda have been together for “15-16 years” and have four (4) sons together)… He stated “we’re not married because I don’t own her soul”. He elaborated that this was the viewpoint of his father “like once were warriors. She does what she wants and comes home when she wants”. Mr Snowden explained that all four (4) children are currently in the care of his parents. He reported that “in 2006, around 10 years ago” Linda had taken off unexpectedly and he turned to his parents for help with his two (2) older children (Mr Snowden did not appear to recognise that these timeframes were incongruent). He advised that his mother encouraged Linda to return home, threatening to get the Department of Community and Justice (DCJ) involved if she did not. Mr Snowden explained that “DoCS” became involved however, after “we were both using drugs and forgot to pick our son up from school. I was at fault. I blame myself”. Subsequently, Mr Snowden confirmed that his two (2) older children were placed under the Parental Responsibility of his parents and that when the youngest two (2) sons were born, they were “taken off her at hospital” and assumed into the care of his parents also. He also confirmed that drugs had been found in the system of his younger sons at the time of their respective births.
Mr Snowden advised that Linda was currently incarcerated also, for the first time. He claimed that he believed this had been the catalyst for Linda to recognise the need for their lifestyles to change and to accept responsibility and work towards restoration of their sons. Mr Snowden confirmed that he and Linda remained in contact, via exchanging letters, and described their current relationship as “okay. Everything’s good. Just learning curves…I made my bed, I sleep in it…take the good with the bad. She’s mucked around but I forgive her, I just take it on. I always keep my spirits high. If it wasn’t for her, I wouldn’t be here”. Mr Snowden clarified that until they had their first son, he remained suicidal. He stated “she showed me what beautiful and love was. When he (son) smiles, it’s like his mum, that’s what beautiful is”. Mr Snowden reiterated “I want to get my kids back. I got to get myself out of this mess first”. He confirmed that, prior to his arrest, he was seeing his children “whenever I want but I need to respect my mother’s wishes too”. When challenged about why he had not previously tried to get his sons restored to his care, Mr Snowden replied “I’m delayed. I don’t think anything’s real”. It appears that Mr Snowden lacks the self-efficacy to parent alone, however, he maintained that if Linda failed to sustain a drug-free life, as she has reportedly indicated she desires, he will terminate their relationship, as he recognises, he is no longer responsible for her choices.[90]
[90] Cullen Report at 2-3.
In his oral testimony the Applicant stated that:
(a)he now planned to marry Ms Sadek;
(b)she had not visited him during his 11-month period of detention in the Villawood Detention Centre although she had allegedly made arrangements to do so, but those arrangements had been overtaken by things she regarded as being of greater importance;
(c)he actually had no idea where Mr Sadek was at the moment and had had no recent contact with her, although he had heard that she was “dating” another man; and
(d)what contacts there had been were only, in his words, “once in a blue moon” and “when she wants something”.
All that being said, the Tribunal concludes that this criterion must be given some weight of consideration well beyond that advocated by either party and that such consideration weighs in favour of the Applicant.
Strength, Nature and Duration of Ties to Australia
The Delegate in his original determination found that:
121. Mr SNOWDEN also states that he is an active member of the church and takes part in associated charity events and food care. Mr Snowden Senior confirms in his letter to the Department that Mr SNOWDEN has a ‘connection’ with the church and regularly attended, spending time with his sons and taking part in church activities with them.
122. I have taken into consideration that Mr SNOWDEN has developed ties through his schooling, paid employment and church volunteer work/involvement in Australia.[91]
123. I acknowledge Mr SNOWDEN has lived in Australia for most of his life and has made some positive contributions to the community in that time, and that the Australian community may therefore afford a higher level of tolerance of conduct in relation to him. However I find this tolerance would be outweighed by the burden his criminal offending has imposed on the community.
124. I find that this consideration weighs in favour of revocation.[92]
[91] Also see Applicant’s Personal Statement Form, G-documents at 111.
[92] G-documents at 32.
The Respondent in its SFIC (at [94]) comes to much the same conclusion.
The Tribunal agrees with this assessment. There is evidence before it that the Applicant has made sincere efforts to gain and remain in employment and that a career in the metal fabrication industry is not without prospect. In this respect however, the Tribunal notes the caveat in Mr Visser’s report about the Applicant’s prospects of long-term stable employment.
The Applicant stated on several occasions in oral evidence to the Tribunal that, were he to be released into the community, his first priority would be to find a job which would then allow him to secure greater financial support for his children and eventually a home of their own. Of course, this would be dependent both upon his ability to maintain any level of secure employment and the legal arrangements regarding the care and custody of the children.
This criterion weighs in favour of the Applicant.
CONSIDERATIONS
This case further highlights the difficulties faced by the Tribunal in making determinations where significant matters related to the mental health or capacity of an Applicant arise. The Ministerial Direction provides no guidance about how to approach such matters despite their prevalence in cases before the Tribunal. Nor indeed is there any significant judicial guidance on the subject.
There is of course the powerful exhortation of Chief Justice Allsop in Hands to the effect that:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[93]
[93] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
In reaching the point where the calculus of considerations must be determined, the Tribunal has found that:
(a)The protection of the Australian community and the risk of future offending is such as to count against the Applicant but that the Tribunal assigns it only a limited degree of weight.
(b)The level of family or domestic violence committed by the Applicant must, on the face of it, count against him but this is counter-balanced by the evidence that the Applicant now understands the gravity of his misbehaviour in this regard, is genuinely remorseful and has taken steps toward rehabilitation in terms of is attitudes. Such steps are recognised in the Direction as being matters relevant for consideration. As such, the criterion in this instance is of neutral value neither for nor against the Applicant.
(c)The best interests of minor children are well established and count significantly in the Applicant’s favour.
(d)The expectations of the Australian community, as they have been explained by the courts, must count against the Applicant, however taking into account the remarks of the Magistrate to the effect that:
It should also be noted that he has an acquired brain injury and that is something that other people in the community do not have to deal with. It affects, no doubt, his ability to properly reason in terms of his actions and because of that, he is less an appropriate vehicle for general deterrence than other people. By that, I mean that where someone suffers from a particular condition that others in the community do not suffer from, they are not necessarily the right person to be made an example of and that applies to Mr Snowden.[94]
leads the Tribunal to assign only limited negative weight to this consideration.
(e)There are no relevant non-refoulement obligations engaged.
(f)The extent of impediments if removed are sufficient for a finding to be made that this criterion counts significantly in the Applicant’s favour.
(g)The impact on victims refers to the impact on Ms Sadek and while it is unclear as to her intentions in relation to the Applicant, and if there is any commitment on her part to participate, with the Applicant in some joint endeavours to support their children she would suffer disadvantage by his removal. As such the criterion weighs in favour of the Applicant, albeit to a limited degree.
(h)The Applicant’s links to the Australian community are deep, extensive and long-standing. His commitments are here. The criterion counts with some degree of weight in his favour.
[94] G-documents at 60.
The Applicant has had a “wake-up” call. As put recently by Senior Member Dr N A Manetta
I do not underestimate the effect of immigration detention… Immigration detention is the immediate precursor to forced removal. The reality of the end of one’s life in Australia becomes starkly obvious in immigration detention.[95]
[95] Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 372 at [43].
The Applicant told the Tribunal on repeated occasions that he had changed, he had learned his lesson and he recognised the gravity of his position. It is to be hoped that this is so and there some encouraging signs such as the Applicant’s participation in various education and training programmes and his apparent eschewing of the use of alcohol and drugs. He needs to remain committed to this path of action.
This determination is finely balanced and, at the end of the day, almost everything will turn upon the simple decision which the Applicant has to make – will he commit himself to giving up the use of alcohol and drugs and devote himself to the care of his family? If so, the prospects for all of them are potentially positive especially if he can secure employment, a healthy future for his sons and a measure of relief for his dedicated parents. If not, the prospects will be grim indeed – people may get hurt and the Applicant may find himself back in the same invidious position he finds himself today – on the cusp of potential deportation and perhaps permanent separation from his family.
The choice is now his alone.
DECISION
The decision under review is set aside and in substitution, the Applicant’s visa cancellation is revoked.
I certify that the preceding 147 (one hundred and forty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.....................................[sgd]...................................
Associate
Dated: 2 December 2021
Date(s) of hearing: 17 and 18 November 2021 Solicitors for the Applicant: Ms M Lewis, Crossover Law Group Solicitors for the Respondent: Ms E Cannon, Clayton Utz ANNEXURE A - APPLICANT’S RELEVANT OFFENDING RECORD
15 August 2002
A NSW Police Fact Sheet dated 15 August 2002 provides that:
· at around 5:45PM the Applicant and Samantha Cremen (a domestic partner) had an argument about the Applicant's future living arrangements;
· while Ms Cremen was on the telephone to the Applicant's mother, the Applicant "grabbed the telephone from the victim… in a violent and aggressive manner… causing the victim pain and discomfort";
· subsequently, the Applicant followed Ms Cremen into her bedroom, pushing her hard backwards onto her bed;
· "the [Applicant] grabbed the victim around her throat and spat in her face about four times";
· after Ms Cremen called for help, the Applicant "took hold of the victim's arms and held her up against the wall. The [Applicant] then put his forehead up against the victim's forehead pushing hard".
21 August 2002
An interim AVO was taken out with standard conditions including that the Applicant was not to go within 100 metres of Ms Cremen's home address. 27 August 2002
A NSW Police Fact Sheet dated 27 August 2002 provides:
· the Applicant used a spare key to enter Ms Cremen's house - he was asked by Ms Cremen to leave, which he did before re-entering through the open door while Ms Cremen was in another room;
· the Applicant was charged with assault on 6 July 2002 and 15 August 2002 (the second time the Applicant was also charged with being in breach of bail);
· on 27 August, the Applicant sighted a male friend laying on Ms Cremen's bed, at which point he became "enraged and began making accusations about the two";
· the Applicant "began to try and kiss the victim Cremen who resisted";
· the Applicant then "grabbed [the male friend] by the collar and threw him against a door", punching and kicking him repeatedly to the head region and jumping on him. The Applicant later stated that he was jumping on him "like a trampoline"; and
· the Applicant approached Ms Cremen outside while she was attempting to call the police and punched her in the side of the head.
10 December 2002
The Applicant was convicted of:
· never licensed person drive vehicle on road;
· use uninsured motor vehicle; and
· use unregistered vehicle on road area (not a trailer).
The Applicant was fined $500 and ordered to pay $59 in court costs.
1 August 2003
For the conduct of 27 August 2002, the Applicant was convicted of:
· “contravene apprehended domestic violence order”;
· “destroy or damage property <=2000 - T2”;
· “assault occasioning actual bodily harm - T2 (2 charges)”; and
· “common assault - T2”.
The Applicant received a two year s 9 bond.
14 December 2003
Police responded to a report of domestic violence at around 4:40am. According to the NSW Police records:
· police attended a property after a call was made to triple 0 from the victim stating her boyfriend was strangling her;
· the Applicant left the location prior to police arrival;
· police were initially denied access to the house by the Applicant's mother who told the police the victim was over-reacting and that the marks on her neck were 'hickies';
· ambulance officers were told by the victim she was grabbed around the throat and had trouble speaking for about 20 minutes - there were noted to be visible red marks either side of her windpipe;
· police "felt it best to get the get the child out of the house".
There was an enforceable AVO against the Applicant which had been breached.
10 January 2004
Police responded to a domestic violence incident. According to the NSW Police records:
· the victim had been in a domestic relationship with the Applicant for the previous 2 years, and the Applicant had become violent over the previous 18 months.
· the Applicant and the victim attended an eighteenth birthday party. At some point during the party the victim said she was going home, after which the Applicant "started to pick fights with other people in the street" and hit the victim in the face with an open hand. The victim returned home in a taxi;
· upon returning home the victim locked all doors and windows apart from the toilet window which it was not possible to lock. The victim heard someone at the door but did not open it because she "did not want [the Applicant] in the house";
· the Applicant subsequently climbed through the toilet window and, after a verbal argument, pushed the victim into the wall with his shoulder;
· the Applicant's father arrived at the house (having spoken to the victim on the phone) while the victim was packing her possessions the Applicant punched the victim with a closed right first causing her mouth to bleed;
· the Applicant then "rummaged around the knife draw" while the defendant's father "rushed out to his car with the victim"; and
· the following day the Applicant handed himself in to Hurstville Police Station but refused to be formally interviewed and declined all allegations put to him.
8 March 2004
The Applicant breached his Good Behaviour Bond by failing to comply with conditions. 18 August 2004
For the conduct occurring on 14 December 2003 and 10 January 2004, the Applicant was convicted of:
· “contravene apprehended domestic violence order (2 charges)”; and
· common assault - T2 (2 charges)”.
The Applicant received three nine month terms of imprisonment (with the sentences suspended for 9 months on entering supervised probation) and a separate 18 month s 9 bond.
20 October 2005
The Applicant was convicted of:
· “use offensive language in/near public place/school”; and
· “resist officer in execution of duty-T2”.
The Applicant was fined $300 in relation to the offensive language offence, received a community service order of 100 hours, and was to pay court costs.
20 April 2008
The NSW Police responded to a domestic violence incident. According to the NSW Police records:
· the victim and Applicant had been in a de facto relationship for 6 years;
· at about 5:20am the victim was heard yelling for help;
· the Applicant was observed punching the victim in the head, and was then dragging the victim by her left arm; and
· both the Applicant and the victim were affected by alcohol.
An interim AVO was applied for and granted by the police
30 April 2008 A final AVO was made for 12 months. 12 June 2008
For the conduct on 20 April 2008, the Applicant was convicted of “common assault - T2”.
The Applicant was sentenced to eight months periodic detention and was to pay court costs.
9 August 2009
In an incoming passenger card, the Applicant responded "No" to the question "Do you have any criminal conviction/s". 9 September 2012
The police responded to a domestic violence incident. According to the NSW Police records:
· following an argument, the victim (the Applicant's de-facto partner) reported to police that the Applicant became violent and threw items around the bedroom;
· the victim tried to leave the bedroom and the Applicant started to push the victim around and onto the bed;
· the victim got off the bed and the accused grabbed her hair and twisted it around using his hand;
· the victim turned her head to try and get away from the Applicant. The Applicant pushed the victim's head towards a corner with the victim's face hitting the wall. She felt a lump to the right side of her face next to her eye and developed a black eye;
· the victim was initially reluctant to report to police but reported on 13 September 2012; and
· police applied for and were granted an AVO.
19 December 2012
For the conduct on 9 September 2012, the Applicant was convicted of “assault occasioning actual bodily harm (DV)-T2”.
The Applicant received a two year s 9 bond.
14 October 2013
The Applicant was convicted of “goods in personal custody suspected being stolen (not m/v).”
The Applicant was fined $300.
29 April 2014
The Applicant was convicted of:
· “goods suspected stolen given other not entitled (not m/v)”; and
· “furnish false information/statement to licensee.”
The Applicant was fined $500 in respect of each offence.
1 December 2014
The Applicant received an 18 month s9 bond for the charges of:
· “dishonestly obtain financial advantage etc by deception”;
· “destroy or damage property (2 charges)”; and
“breach of s 9 bond”.
The circumstances described by the sentencing Magistrate were that:
· on 20 May 2014, the Applicant had a shifter and threw it through a glass panel inside a phone box and used the handset to smash other glass panels. He walked out of the pay phone and began damaging a motor vehicle by scratching figures and numbers on every panel. The Applicant was under the influence of amphetamines at the time and was having a psychotic episode; and
· on 14 September 2014, the Applicant went to claim $120 of poker machine winnings that he was not entitled to.
s 32 orders were made. The Applicant was ordered to have counselling with regard to ice relapse, have urinalysis, and have treatment or medication as directed.
7 March 2015
NSW Police records provide that:
· officers were approached near George Street by a man bleeding from his nose (which was described as swollen and red);
· the man stated that he had been punched by the Applicant; and
· during his arrest, the Applicant kicked an officer in his right and left upper thigh "causing him moderate pain" and "also resisted police efforts to place him in handcuffs".
11 December 2015
For his conduct on 7 March 2015, the Applicant was convicted of:
“assault occasioning actual bodily harm - T2”; and
“assault officer in execution of duty - T2 (2 charges)”.The Applicant was sentenced to two 18 month terms of imprisonment (suspended for 18 months on entering a s12 bond) and two 9 month s9 bonds.
The sentencing remarks indicated that:
· at the time of the offences the Applicant was drunk to the point "that he really did not know what he was doing";
· "[the Applicant] was at the Star Bar at the corner of George and Wilmot streets and for no apparent reason was punching people"; and
· when the police went to arrest the Applicant he struck out at a police officer, kicking the officer in the thigh.
27 June 2017
The Applicant was convicted of:
· “shoplifting value <=2000 - T2”; and
· “dishonestly obtain property by deception-T1”.
The Applicant received two 12 month s9 bonds.
The 11 December 2015 convictions were "called up" with the Applicant ordered to serve the original prison terms. However this order was quashed on appeal (see below).The Police Fact Sheet dated 19 May 2017 provides that the Applicant and Ms Sadek were observed via CCTV to take 4 pairs of Nike track pants (a total value of $440) from Myer without any attempt to pay.
11 September 2017
The NSW District Court quashed the call up orders made 27 June 2017. 12 February 2018
The Applicant was convicted of “shoplifting value <=2000 - T2”.
The Applicant was sentenced to 1 month imprisonment.
Again the 11 December 2012 convictions were "called up" with the Applicant ordered to serve the original sentence, then subsequently quashed on appeal.
26 March 2018
NSW District Court quashed the call up orders made 12 February 2018. 9 May 2018
The Applicant was convicted of “wilful and obscene exposure in/near public place/school”.
The Applicant was fined $100.
A Police Event Report dated 6 April 2018 describes that the Applicant attended Penshurst Railway Station, went into a public toilet (the door or which he propped open using a thong) and then proceeded to take off all of his clothes and wash himself using water from the tap. A witness shouted at the Applicant when she saw him naked from outside the toilet. The Applicant then apologised and closed the door. The report describes that "around this time a large amount of school children generally attend the station on their way home".
22 March 2020
A statement of agreed facts provides that:
· in the early hours of 22 March 2020 the Applicant arrived at a Riverwood property and woke the people inside;
· later in the morning the Applicant pointed a folding knife towards the victim (with the blade partially covered by his fingers) saying "give me your wallet". The Applicant then said that he was only joking;
· some time later, the Applicant grabbed the same victim and pulled out the folding knife again, demanding his wallet for a second time;
· when the victim jumped onto the bed to create some space between himself and the Applicant, the Applicant also jumped onto the bed. The Applicant picked up a tea towel, wrapped it around his hand and punched the victim twice in the left cheek; and
· at around 7:45 the Applicant followed the victim outside (who had gone to retrieve his bicycle). The Applicant was observed to be armed with a knife, yell at the victim "hit me" and threw the victim's bicycle twice.
1 July 2020
The Applicant was convicted of:
· “fail to appear in accordance with bail acknowledgment”; and
· “resist officer in execution of duty-T2 (two counts)”.
The Applicant received a three month term of imprisonment and two s 10A convictions.
28 July 2020
A dissolved suboxone wafer was located in a painting sent to Ms Sadek by the Applicant (who was also in custody at Dillwynia Correctional Centre at the time). 1 December 2020
The Applicant was convicted of “resist officer in execution of duty-T2”.
The Applicant is fined $1,000
8 December 2020
The Applicant requested to undertake a remand DV program, but is deemed not to meet the criteria because he did not have any current AVO or DV related charges. 15 December 2020
For the conduct on 22 March 2020, the Applicant was convicted of:
· “affray”; and
· “commit s 114 offence, having previous conviction”.
The Applicant was sentenced to 18 months imprisonment (in aggregate).
17 March 2021
NSW Police event reports relating to an incident involving actual malicious damage in which the Applicant in is a person of interest.
The Applicant received a service court attendance notice on 19 June 2021 in relation to these events.
19 May 2021
A NSW Police event report describes a verbal argument between the Applicant and Ms Sadek that occurred over the phone during the time the Applicant has been in Villawood Immigration Detention Centre.
It is reported that:
· the Applicant and Ms Sadek "have been separated for 2 years";
· the four children of the Applicant and Ms Sadek currently live with their grandmother in Blakehurst;
· the verbal argument was regarding Ms Sadek's wish to see her children;
· no action was taken as Ms Sadek had no fears towards the Applicant, and nor were any threats made.
21 January 2021 Applicant released from custody on parole (10 months served) and taken directly into Immigration Detention at Villawood.
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