SNVK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1437

SNVK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1437 (24 May 2021)

Division:GENERAL DIVISION

File Number(s):      2021/1321

Re:SNVK

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:24 May 2021

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 3 March 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

...................................[sgd].....................................

Senior Member M Griffin QC

Catchwords

MIGRATION – mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community from criminal or other serious conduct – nature of harm - common assault - risk of re-offending – family violence – best interests of minor children – expectations of the Australian community – other considerations – decision under review set aside and substituted.

Legislation

Migration Act 1958(Cth) ss 499, 500, 501, 501CA, 501E

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Secondary Materials

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

24 May 2021

1.       The Applicant seeks review of the decision of a delegate of the Minister on 3 March 2021 of the cancellation of his Class TY subclass 444 Special Category (Temporary) visa as a result of offences committed in December 2018. The Applicant was 19 years of age at the time.

2.       The Applicant holds citizenship of Samoa and New Zealand, having been born in Samoa. He arrived with his family in Australia in 2006 at six years of age.

3.       The offences for which the Applicant was convicted include two offences of robbery, family violence and property offences and are discussed below in some more detail.

4.       It is common ground the Applicant does not pass the character test because of the sentence imposed upon him for the offence of robbery.

ISSUES

5. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth) (the Act). This is not disputed by the Applicant.

6.       The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

7.       Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

8.       Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

9.       In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

10. Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

11.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

12.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

13.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));

(b)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 (paragraph 5.2(2));

(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australia community (paragraph 5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australia community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australia community (paragraph 5.2(5)).

14.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

15.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

16.     These principles are of course dependent upon the facts and circumstances of each case.

17.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

18.     The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)   strength, nature and duration of ties to Australia;
ii)  impact on Australian business interests.

THE CHARACTER TEST

19. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a "substantial criminal record" as defined in s 501(7) of the Act.

20.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

21.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition set out in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

22.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

23.     Paragraph 8.1 of Direction No. 90 provides:

(1) when considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

24.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

25.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australia community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

26.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian the Australian community, decision-makers must have regard to, cumulatively:

a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

The nature and seriousness of the Applicant's conduct and risk of re-offending

27.     The Applicant has quite limited criminal history, all of which occurred within a short number of weeks following the birth of his first child, K. The Applicant's offending includes an offence of assaulting his female partner, the mother of his child, by pushing her and behaving aggressively to bystanders, together with damaging property that belonged to other people.

28.     This sort of conduct demonstrates an inability for the Applicant to control his passions and is regarded by the Tribunal as an incident of family violence which is discussed below. The Applicant was also convicted of possession of a weapon in a public place and although there is no evidence to suggest that the Applicant had any intention of using it for any criminal purpose, the offence was committed in the context of the Applicant having been smoking marijuana.

29.     Both offences referred to above were dealt with, as is appropriate in the circumstances, with non-custodial terms. The sentences themselves speak of a low level of offending, even in respect of the assault upon the Applicant's partner. This latter behaviour is properly to be regarded as very serious conduct in accordance with Direction No. 90 and the Tribunal regards it as such.

30.     The Applicant was convicted of two offences of robbery, on the facts, whilst in company. The offence of robbery comprehends an element of violence to the person and, in this case, the Applicant intrinsically involved himself, to a practical extent, in both cases.

31.     It is apparent to the Tribunal that the Applicant is to be regarded as criminally responsible as the other offenders were teenagers and younger than the Applicant. The Applicant was on bail for the offences committed one week earlier which makes the Applicant’s conduct, in respect of the two robberies, more culpable.

32.     The Tribunal, however, recognises that the Applicant was a youthful offender and places some weight upon this factor in the Applicant’s favour.

33.     On the evidence, the Applicant appears to have been under the influence of an illicit substance. The Applicant described his conduct as not thinking about the consequences. This criminal responsibility, however, should be regarded as low to medium level offending, consistent with the implicit views of the Court of Appeal which reduced his sentence.

34.     The Tribunal also notes that the Applicant, prior to this period of offending, had not been convicted or before any court on any other matters. The Applicant's conduct is, therefore, viewed by the Tribunal as out-of-character and on that basis, is suggestive of the fact that he is less likely to re-offend in the future. In fact, were the Applicant to be regarded, in general, to be a threat to the community at large, it would be expected that the Applicant would already have exhibited a course of criminal behaviour or misconduct in the past.

35.     The Tribunal also accepts that there were some stressors in the Applicant's home life around that time, including the emotional ill-health of his partner, V, which contributed to an atmosphere of distress and unhappiness within the household, dealing as both the Applicant and his partner had to do with the presence of a baby. The Applicant’s assault on his partner was preceded by her biting him on the ear. All surrounding circumstances in considering the Applicant’s offending are relevant.

36.     The Applicant's mental health is a relevant issue in relation to the seriousness of his offending, the risk of future offending and the issue of family violence.

37.     Doctor Richard Furst, psychiatrist, provided two contemporary reports, the most recent of which was on 1 May 2021. Doctor Furst’s initial report, prepared for appeal, was apparently accepted wholly by the Court of Criminal Appeal and, in doing so, the Court reduced the Applicant’s sentence.

38.     In these proceedings, the psychiatrist was cross-examined. The opinions expressed by Doctor Furst are wholly accepted by the Tribunal. The doctor impressed as professional, impartial, unbiased and portrayed a detailed and analytical opinion and analysis of the Applicant’s conduct, behaviour and mental illness, diagnosed as schizophrenia which affected the Applicant’s offending.

39.     The Tribunal considers that the moral culpability of the Applicant’s offending is considerably reduced by the fact that he was affected by his mental illness at the time of offending. In fact, it appears that the mental illness was largely untreated at that time.

40.     Moreover, the Tribunal accepts that with proper treatment, the risk of offending in the future is substantially reduced. Furthermore, the responsibility for monitoring the Applicant’s mental health and effectively keeping the Applicant healthy is a responsibility of State Health authorities. There is, therefore, a State responsibility to ensure that this Applicant is at greatly reduced risk of re-offending by virtue of maintaining his good mental health.

41.     Doctor Furst’s report makes it clear, and the Tribunal accepts, that the Applicant's offending, in terms of the level of seriousness of offending and his family violence offending, should be considerably reduced by virtue of the operation of the Applicant’s mental ill-health at the time of offending.

42.     As to the question of re-offending in the future, that risk will be considerably reduced by proper attention by the relevant authorities in monitoring the Applicant’s medication and general mental health.

43.     Furthermore, as to the risk of future offending, the Tribunal accepts that there are a number of protective factors in the Applicant's favour which will further reduce the risk. These include the Applicant’s growth in maturity, an understanding of the circumstances that led to his offending, genuine insight into his offending and an awareness and willingness by his various family members to assist and monitor the Applicant and his conduct and behaviour.

44.     All of these factors combine, in the Tribunal’s opinion, to create an environment where it may be comfortably considered that the Applicant is of low risk of re-offending.

45.     On the evidence, the Tribunal accepts that the Applicant is remorseful for his actions.

46.     The Respondent submits that the Applicant’s family violence offending and robbery offences are to be regarded as “very serious”. This is undoubtedly an appropriate submission having regard to the language of Direction No. 90. That, however, is not the end of the matter.

47.     The language of Direction No. 90 with respect to the two relevant considerations implicitly recognises that the behaviour under the two considerations should not be viewed in isolation. Were the Tribunal to act merely on the objective circumstances in relation to a particular applicant, the result may well lead to an unfair and potentially absurd appreciation of the applicant’s behaviour. In the Tribunal’s opinion, Direction No. 90 contemplates an analysis not only of what may amount to objectively “very serious” conduct but the subjective features of the offending and the circumstances of an applicant’s offending must also be evaluated. By that process, a proper application of the relevant requirements of Direction No. 90 is fulfilled.

48.     In this matter, the Tribunal will proceed on the basis and take into account in its ultimate assessment of each of the considerations pertinent to “very serious” conduct as mandated by Direction No. 90, co-relative relevant matters of the subjective circumstances and personal circumstances of the Applicant’s offending.

49.     Apart from some minor breaches of prison discipline which involved fighting, the robbery and family violence convictions are the only matters which are relevant, in the Tribunal’s view, to a consideration of the seriousness of re-offending and the risk to the Australian community.

50.     In considering the facts of the behaviour whilst in prison and immigration detention, the Tribunal recognises that these environments are particularly conducive to inmates being provoked into unacceptable behaviour. The atmosphere in places of detention is a particularly unnatural environment, fuelled by, oftentimes, extreme emotions. The Tribunal accepts that in these instances, the Applicant should not be regarded as the initiator of violence. The Tribunal does not regard these incidents as affecting the overall view that has been formed of the Applicant in relation to this consideration.

51.     Furthermore, the Applicant is prepared to give evidence of a particularly significant matter concerning another inmate. Such an action by the Applicant is powerful evidence, in the Tribunal's view, that he recognises and is prepared to behave in a mature and proper fashion, putting himself at risk by the giving of evidence in these circumstances. It is well recognised that the giving of evidence under these circumstances may put the safety of the witness at risk. The circumstances in which the Applicant will give evidence are not contrived in any way and are simply a function of his well-meaning and proper behaviour. This conduct, in the Tribunal’s view, very much neutralises what poor choices he has made in committing offences in the past and furthermore, predicts in the Applicant's future, a properly well-behaved, mature citizen.

52.     Although the Applicant’s offending is objectively serious, as analysed above, it falls at the lower end of seriousness, and together with the Tribunal’s view that because of his lack of offending in the past, his prospective laudable behaviour in giving evidence in the future, which in itself is a proper community service, it is the Tribunal’s view that the Applicant is unlikely to be a risk of future offending in any dimension.

53.     The Tribunal rejects the Respondent’s submission that it is clearly premature to find the offending behaviour is an aberration.

54.     Taking all this evidence into account, the Tribunal is of the view that this consideration, although weighing against the Applicant, should overall, carry less weight than the objective facts and circumstances otherwise suggest.

Primary Consideration 2 – Family violence committed by the non-citizen

55.     Paragraph 8.2(1) of Direction 90 provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.

56.     Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".

57.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

58.     Paragraph 8.2(3) of Direction 90 provides that, in considering the seriousness of 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 in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

59.     The facts of the Applicant’s offending in respect of his partner, V, have been referred to above. The Tribunal rejects the Applicant’s submissions that this conduct does not fall within this consideration. It is impossible to accept, even taking into account his evidence, that the Applicant did not behave in a way to cause his partner to be at least fearful of his physical assault.

60.     There is no evidence in this case of repeated acts of family violence nor any conduct of increasing seriousness. In fact, the act was a single, isolated event and is regarded by the Tribunal as being out-of-character. This is so, even though the Tribunal is concerned about the illegal drug use by the Applicant at this time and infers further, that this was not the only short period of time when the Applicant used illicit drugs.

61.     Even in those circumstances, having regard to the litany of matters referred to in this consideration which are regarded as very serious and must be taken into account, the Tribunal is of the view that this is a rather low level, isolated incident of family violence. Furthermore, it does not possess the quality of behaviour that this consideration contemplates as being at the particularly serious end of the offending spectrum.

62.     Any demonstration of violence in a family is very serious. However, the circumstances of this single incident, in the Tribunal's view, leads to a conclusion that this consideration, in weighing it against the Applicant’s conduct as it should, nonetheless, carries only relatively limited weight.

Primary Consideration 3 – Best interests of minor children in Australia

63.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

64.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

65.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

66.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

67.     There are a number of minor children in the Applicant's life, the most significant of whom is the Applicant’s child, K, who is approximately 3 years old. The Applicant has not obviously lived with the child since his incarceration and detention and the child was approximately 8 months old when the offending by the Applicant occurred in December 2018.

68.     The Tribunal accepts the evidence that the Applicant and V propose to live together with the child and form a family unit. Furthermore, as evidence of the closeness of that relationship, the Applicant says that V will move to New Zealand with the child to follow him should he be removed to that country. The Respondent points to this mere intention to attempt to diminish the significance of the child/parent relationship fundamental to this consideration. The Tribunal does not accept the Respondent’s submissions. It is not to the point, in the Tribunal’s opinion, that there may be an intention to follow the Applicant with the child. Nowhere within that consideration is this a factor to be taken into account nor indeed, if it is inferentially to be taken into account, does the Tribunal consider it relevant in this case.

69.     The plain facts are that if the Applicant were removed to New Zealand, the child, who has a right to reside in Australia, would be deprived of a father figure who intends, it is accepted, to pursue a real and positive parental role with the child. Nor does the Tribunal consider that mere electronic, audio and visual communication between the parties would be appropriate in these circumstances.

70.     The Tribunal accepts the relationship between V and the Applicant, together with the child, is a powerful matter to be taken into account in the Applicant's favour in revocation.

71.     Furthermore, the Applicant has three brothers and sisters, R, aged 3, L, aged 9, and F, aged 14. This is clearly a large and extended family involving, as discussed below, other extended family members of these families. The Tribunal accepts the description of the relationships with R, L and F which appear in the Applicant’s outline.

72.     Those relationships with each sibling are different of course unsurprisingly because of the age of each sibling. Those familial relationships amongst the brothers and sisters with the Applicant are uncontradicted and the Tribunal accepts them as being relevant and therefore, carry further weight within this consideration in the Applicant's favour.

73.     It is clear on the evidence that although there was a single incident of family violence, it is explained by the various stressors acting upon both the Applicant and V at that time. Nonetheless, the Applicant, on the evidence, is expected to continue to have a relationship with the brothers and sisters of V. Specifically, those minors are R, aged 11, P, aged 14, PJ, aged 15, and A, aged 17, who has a child, F, aged 2.

74.     There is no evidence to contradict the varied but nonetheless satisfactory and positive relationships which the Applicant has with the siblings of V, although the child, F, cannot be said yet to have actually established a relationship with the Applicant.

75.     The weight to be given to this consideration is not enlarged or diminished by mathematical means calculated upon the number of relevant relationships demonstrated by the evidence.

76.     However, in this case, the Tribunal accepts that there is, overall, compelling evidence which supports considerable weight to be given to this consideration in the Applicant's favour.

Primary Consideration 4 – Expectations of the Australian community

77.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

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.

78.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)acts of family violence; or

(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)worker exploitation.

79.     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)).

80.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

81.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

82.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

83.     This consideration weighs against the Applicant. In the Tribunal’s opinion, however, there are a number of factors which affect the weight to be apportioned to this consideration. These include the Applicant’s age at the time of the commission of the offences, the out-of-character conduct of the Applicant in committing the offences and significantly, the offer to give evidence for the prosecution against an alleged offender in a homicide trial, thereby likely putting the Applicant’s safety at risk, at least whilst in detention.

84.     In the Tribunal’s view, this consideration, therefore, carries limited weight against the Applicant.

OTHER CONSIDERATIONS

85.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9 Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

86.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

87.     There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

88.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

89.     The Applicant is a youthful and apparently healthy person who, should he be returned to New Zealand, would likely be able to find work. The evidence is that his partner, V, and son, K, would return with him. However, his partner and the child are residents of Australia. They have the right to remain in Australia.

90.     The Tribunal infers that the Applicant would find it difficult, as would anyone, to re-establish himself both socially and economically. Furthermore, there would be real emotional difficulty in leaving his family in Australia, all of whom also have a right to reside in Australia.

91.     The Tribunal accepts the opinion expressed by Doctor Furst of his grave concerns about the Applicant being able to cope should he be returned to New Zealand, particularly having regard to the two failed attempts at suicide to which the doctor refers in his report. The Tribunal accepts and is prepared to act upon the doctor's concerns in this regard and considers that this factor alone is a powerful and compelling reason not to return the Applicant to New Zealand.

92.     The Tribunal accepts that there are impediments should the Applicant be removed from Australia and this consideration, therefore, weighs in the Applicant’s favour.

Impact on victims

93.     Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims.

94.     The relevant victim in this case is the Applicant’s partner, V. There is no direct evidence of the effect of the Applicant’s conduct in relation to V. However, the Tribunal notes that the evidence in this hearing and her desire to follow the Applicant to New Zealand should he be removed from Australia, suggests that V is well-disposed to the Applicant.

Links to the Australian community

95.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

96.     The Applicant arrived in Australia as a 6 year old and has lived his life in Australia. This factor, alone, weighs in the Applicant's favour.

97.     Furthermore, the Applicant’s partner and child reside in Australia and have a right to continue to do so. The Applicant's extended family all live in Australia and the Applicant’s removal from Australia, the Tribunal accepts, would impact all of those members negatively. Likewise, the Applicant would be similarly affected by removal from Australia.

98.     There are numerous factors summarised above and argued by the Applicant that should be powerful considerations in the Applicant's favour. The Tribunal accepts the various factors enumerated by the Applicant and regards this consideration as weighing strongly in the Applicant's favour.

9.4.2    Impact on Australian business interests

(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

99.     There is no evidence to indicate that this consideration is relevant to this review.

CONCLUSION

100.    The overwhelming weight of all relevant considerations is in the Applicant’s favour for revocation of the mandatory cancellation. There is, therefore, another reason why the original decision should be revoked.

101.    The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 3 March 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

...................................[sgd].....................................

Associate

Dated: 24 May 2021

Date(s) of hearing:	13 May 2021
Counsel for the Applicant:	Natasha Laing, Legal Aid NSW
Solicitors for the Respondent:	Arran Gerrard, Australian Government Solicitor