SSCJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2131
•5 July 2022
SSCJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2131 (5 July 2022)
Division:GENERAL DIVISION
File Number:2022/3280
Re:SSCJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member J Rau SC
Date:5 July 2022
Place:Adelaide
The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.
..........................[sgnd]..............................................
Senior Member J Rau SCCATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
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
Senior Member J Rau SC
5 July 2022
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 13 April 2022, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category(temporary) visa (“the Visa”). His visa was cancelled on 7 June 2021 under section 501 (3A) on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of a suspended sentence of 12 months imprisonment imposed on 30 September 2003. This conviction was for driving related offences, with a high level PCA.
He has also been sentenced to:
(a) 7 months imprisonment (suspended) on 19 January 2011 for Domestic Violence related offending
(b) 9 months Intensive Corrections Order on 22 December 2020 for Domestic Violence related offending, and
(c) 2 months imprisonment on 14 April 2021 for contravening an AVO.[1]
[1] Exhibit 3, pp 27-31.
The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 27 and 28 June 2022. The Applicant was represented by Ms Mamarot of South West Migration & Legal Services and the Respondent was represented by Ms Hicks of Australian Government Solicitor.
The Applicant gave evidence by video link. He had a very poor recall of past events. He put this down to the medication (“blockers”) that he takes for his mental health issues. He conceded that his offending has corresponded with episodes of alcohol, cannabis and/or methamphetamine abuse. He did not deny his history of offending as set out in court and police records. I formed the view that he did his best to assist the Tribunal, but his capacity to do so was limited.
The Applicant called his mother, L and his step-father V. They gave evidence by phone. Both were very helpful and were able to fill in some of the gaps in the Applicant’s evidence. Statements of support were also received from the Applicant’s two sisters and his brother. They were not required for cross examination.
Background Facts
The Applicant was born in New Zealand on 29 March 1980 and is 42 years of age. He is a Citizen of New Zealand. He arrived in Australia on 7 August 1990, as a 10-year-old with his mother and siblings.[2] Except for a short visit to New Zealand in 1993,[3] he has remained in Australia ever since.
[2] Ibid, p 76.
[3] Ibid, p 115.
The Applicant attended Guilford primary school and Granville South high school.[4] His schooling ended at year 10.[5] He spent a year working in a bakery, later working assembling bedroom furniture and kitchen cabinets for 11-12 years.
[4] Ibid, p 104.
[5] Exhibit 4, para 2.
In about 1999, the Applicant commenced a relationship with N. He was 19 and she was 26. She already had 3 children. The Applicant eventually had 4 daughters with N. The youngest two of these daughters are now aged 14 and 16.[6](Child A and Child B). The Applicant began using drugs at around this time due to the influence of his then brother-in-law. When he was about 29, he assaulted N, and they separated. The children remained with N. N did not properly care for the children and her mother eventually obtained custody of the children.[7] The Applicant has had very limited contact with the girls since his separation in 2010. He has occasional contact Child A and Child B via Facebook[8] when his older daughter is with them. He has no direct contact with them and has not seen them since he attended his step-father’s funeral in about 2015. He says in his statement:
“I was not in my daughters lives for about 6 to 7 years since my stepfather passed away. I want to restart my relationship with my daughters and be there, but I also want it to be at a time when they are ready. It has been difficult for everyone, and I understand that I have messed up and in terms of my relationship with them I accept the consequences that comes with it.”[9]
[6] Exhibit 3, p 78.
[7] Ibid, p 94.
[8] Exhibit 4, para 10.
[9] Ibid, para 3.
The Applicant later became involved with S. S is 10 years older than the Applicant. She has multiple medical issues. Of this relationship he says:
“S and I were together for 4 years. We do not have children together. She has 4 adult children from a previous relationship. When I first met her, she was homeless, living in a van, and witnessing her struggle was heartbreaking.
I did care for her financially and emotionally. I eventually had to leave my job, as a spray painter to take care of her physically. S used to race stock cars and she a serious car accident and broke her back. I believe this was about 9 years ago, she had surgery where they fused 3 of her discs. I lived between my mother’s place and S’s van because she would beg me to stay with her. I did not want to stay in a van, and I certainly did not want her to live in a van, because of her situation and she also dog. I was never accustomed in living in a van and in very dirty and unhealthy condition. My mother would tell me to return home as she was not happy about me living in a van under those dirty conditions.
So, I took care of her for about 3-4 years, but it was too much for me. We lived in her van, and I believe that is when my mental health deteriorated. I was depressed, unhappy and I wanted out of the relationship.
I remember my mother telling me to get out of the relationship, but S would park in front of my mother’s home or surrounding streets. About two years ago, S was able to attain a unit in Liverpool NSW 2170. I lived with her until we had the argument that led me to jail.
If I am lucky to get visa back, I have no intention to return to her because I do not love her, and I don’t want to live with her.
I admit that I should have handled myself in a better way and left the relationship a long time ago. I have used drugs and alcohol as a way to deal with my relationship issues with S. I know what I did to her was wrong and it was not a healthy relationship.”[10]
[10] Ibid, paras 13-18.
The Applicant describes his history of drug and alcohol abuse in these terms:
“I began drinking socially when I was 14 to 16 years old. Every week, I drank about one bottle of beer, home brewed. When I turned 18, my alcohol consumption increased an that was how I ended up being an alcoholic. I admit that alcohol was a factor in my anger issues and contributed to y offending. I began smoking marijuana when I was 16 or 17 years old, every day. I grew my own marijuana at my brother-in-law’s place.
I was about 25 or 26 years old, that was I knew I had a problem with alcohol and drugs because I was using every day. But I was a functional one, because I never had to steal or sell goods or sell drugs to support my drug and alcohol use.
I attended a rehab facility, called KEDESH about six years ago and completed an eight-week program. I was drug and alcohol free for about 12 months. I lived with my parents and stayed to myself. However, I relapsed after my stepfather passed. And then later, I moved with a girlfriend, L to Newcastle for about 18 months. My relationship with L was not good because we both had problems with drugs and alcohol. We were co-dependents, and I was able to leave that relationship without incident. After the relationship broke down, I returned to my mother’s place in Merrylands.
My late stepfather and I have a very good relationship. I consider him as my dad more than my biological dad. He raised me and took care of me since I was young. Again, I cannot remember the year, as it affected me a lot mentally and I was having a hard time dealing with his loss. After his passing, I relapsed and was using drugs and drinking heavily again during weekends. Sometimes I would carry in through the week but not too often because I was working at that time. My stepfather was cremated, and his remains are together with other family members in Mudgee.”[11]
[11] Ibid, paras 19-21 & 33.
The Applicant has had a history of mental health problems. He says:
“At the end of my relationship with N. I don’t recall the exact time, but I remember I was admitted to Cumberland Hospital where I was diagnosed with schizophrenia and bipolar. I was there for three weeks. I had an episode in which I attempted suicide, and that s when I went to rehab and enrolled in an eight-week program. At that time, I had recurring depression, anger, and loneliness. I also find myself having difficulty having friends and even now in detention I don’t have many friends.
I vaguely remember, trying to blow my mother’s house with a gas bottle. I believe it was the time my stepfather was terminally ill.
Currently, I am taking medication that are prescribed to help me block bad memories and keeps in calm. However, I believe the medication clouds my judgement and it helps me ‘block things out’.”[12]
[12] Ibid, paras 30-32.
The Applicant’s mother, L, generally corroborated his reported history of mental illness.
There are no relevant medical reports as such before the Tribunal, and no medical witnesses were called by the Applicant. The evidence concerning the Applicant’s medical history is mainly self-reported, although there are references to GP consultations regarding mental health, for example, on 29 June 2021.[13] On balance, I generally accept the Applicant’s evidence about his history of mental illness. There is unfortunately however, no expert evidence that can assist the Tribunal in assessing either the contribution of mental illness to his past offending, the appropriate steps that must be taken to manage his illness in the medium to long term, or the risk that his illness creates of him reoffending.
[13] Ibid, p 153.
The Applicant has recently discovered that he has other serious medical issues:
I found out at Christmas Eve in 2021, that I had a cancerous tumour in my jaw. I had it removed in March 2022. I learned about it while I was in detention. I finished radiotherapy and I have my check up on 28 June 2022. I have done 30 radiotherapy sessions so far. When I had my surgery, I required a skin graft inside my mouth, on the left side of my cheek and gum. It took three attempts for the skin graft and blood vessels to take. To be describe my current physical state, I am wrecked. I am limited to how far I can turn my head and neck. It affects my sleeping, the activities I can do, and my movements. My medication does not work anymore, and I am constantly in pain. It also affects my sleep pattern, as I do not get a solid night sleep (8 hours). Now I am lucky to get two hours sleep.
Since Christmas Eve 2021, I have had to undergo three surgeries. I was in hospital for a period of 5 weeks, where I spent 4 weeks in the ward at Liverpool Hospital and then I spent the last week in ICU because the medical team wanted to make sure the skin graft would take due to my difficulties with eating.”[14]
[14] Ibid, p 6, paras 34-36.
He underwent surgery on 2 March 2022.[15]
[15] Ibid, p 50.
The Applicant has just completed a course in radiotherapy. Whether and what further treatment he will require, depends on future assessments of the effectiveness of his treatment to date.
The Applicant has very limited existing ties to New Zealand. Most of his family, including his children, live in Australia. In his statement he says:
“I have no one left in New Zealand aside from my grandmother who is blind. Around the year 1996, I went back for a two-week holiday with my sister and biological father to visit your grandmother. I don’t keep in contact with anyone in New Zealand.
I am very lucky, because I have my mum who is my rock and supporter. Her husband Victor come and visit me every week at the Meriton Apartments, Paramatta. When I first heard about my cancerous tumour, it was my mum that helped me and did everything she could so I would get the treatment I need. She has always been there for me from day one and I could not imagine surviving without her.
All my family including my sisters, N, J, younger brother S and their families live in Australia. They are really good and supportive people, and they really care about me, even during the times I did not care about myself.
I consider myself to as the ‘black sheep’ in the family, even though I know that my family do not consider me as that. At this point, I am very sick and feeling very flat because of my health. However, I know I need help with my mental health. I intend to work on myself when I recover from my recent surgery. I know that all my family member does nor want me to be deported and that gives me hope.
Importantly, I know my daughters, nieces and nephews are really good kids. I am close to all my nieces and nephews, especially Child C and Child D because I use to see them every week before I went to jail. I know they are fond of their ‘Uncle A’ even though I have been a mess. But deep down, every family member knows that I love them and appreciate the fact that I am very lucky to have them in my life.
My biological father, is in my life. His wife, stepmother, has reached out to me and supports me. I appreciate that they are very supportive, however, my relationship with my father is minimal.
If I am fortunate enough to get my visa back, I intend to go to long term rehabilitation that I believe may help me work on my mental health, drug and alcohol issues. However, if I cannot get a place immediately, I plan to stay with my mum, L and my stepfather V. I intend to continue with my treatment and seek medical treatment for my physical and mental health issues.
I am committed to being the best that I could be as a law-abiding person. I intend to stay away from any influence and anyone that is involved with drugs and alcohol.”[16]
[16] Ibid, p 6-8, paras 37-44.
If the Applicant were to be released into the community, he has support, accommodation and probably employment available to him, courtesy of his mother and stepfather.
The Applicant has an extensive criminal history,[17] commencing when he was 16 years old. A copy of his record of convictions is annexed hereto and marked “B”.
[17] Exhibit 3, pp 27-31.
The Applicant says of his criminal history:
“I first started offending in 1996 when I was about 16 years old. My stepfather and my mother were alright, but I was trying to get in touch with my biological father and then I started rebelling because I did not think I was good enough for him.
However, I still wanted to get to know him. And then I rebelled even more because everything was not just good enough and that’s how I got myself into trouble with the law.
Between 2001-2003 a lot of my offending was related to driving. This was because I never attained my licence, and I did not have someone to drive me around.
In April 2007, I was placed on a s9 bond for 24 months and fined for offences including common assault, possession of prohibited drug and stalk/intimidate. All these offences were related to my break-down of my relationship with my ex-partner.
On 30 June 2010, I was fined for breaching an AVO after I slashed my ex-partner’s tyres
On 1 November 2010, I was convicted for the destroy and damage property, damaged property by fire/exp, threaten to destroy or damage another person property and contravene prohibition/restriction in AVO. He was placed on a s9 bond for 12 months. I believe this incident occurred at my mother’s house; however, I do not remember all the details. All I remember was being admitted into Cumberland Hospital. There were other incidents of domestic violence reported in December 2010, however, I don’t remember all the details because I believe at the time, I was under the influence of drugs and alcohol; under lots of stress and it was a long time ago.
On 22 December 2020, I was convicted of attempt stalk/intimidate intend fear of harm (domestic), destroy or damage property, and assault occasioning actual bodily harm (DV). He was placed on a none-month intensive correction order with supervision and several other requirements. Again, I cannot remember all the details but all I know it has to do with S. The reason why I don’t remember is because I was under the influence of drugs and alcohol.
On 14 April 2021, I was convicted of contravention of an AVO (domestic) and sentenced to two months imprisonment. I know that I have contravened the order, as it was my mistake to go and see S even though it was her request.”[18]
[18] Applicant’s Tender Bundle filed 15 June 2022, pp 4-5, paras 22-29.
On 18 April 2003 the Applicant resisted police in the execution of their duty and committed other offences.[19]
[19] Respondent’s Tender Bundle filed 6 June 2022, pp 55-71 & 75-79.
“About 12am on Friday the 18th of April, 2003 the defendant [SSCJ] was observed by police to be seated in the drivers seat of a blue Holden Commodore sedan…within the carpark of the Oasis Hotel located on Fairfield Street, YENNORA.
Police left the location and conducted checks on the vehicle’s registration. The checks revealed the car had been unregistered since 2003. Police stopped at a service station located on the corner of Fairfield Street and Ellis Parade, YENNORA about 5 minutes later police saw the earlier blue Holden Commodore …drive out of the Oasis Hotel Carpark without headlights on. Police began to follow ... along Fairfield Street for about 50 metres. Motor vehicle… made a left tun off Fairfield Street onto Crown Street, YENNORA. Police followed and activated warning lights and sirens. The defendant pulled over to the left side of the road.”
Police stopped behind the defendant and called out to him, requesting he shut the vehicle’s engine off which he did. Police approached the driver’s window of the motor vehicle. At this point the defendant started the vehicle and revved the engine heavily before accelerating off along Crown Street, YENNORA. As the defendant accelerated the vehicle began fish tailing out of control. Police had to jump out of the way to avoid being hit by the rear end of the vehicle. The vehicle continued to fish tail for about 200 meters down the road with the headlights off.
Police returned to the police vehicle and drove after the defendant. Police lost sight of the car because of the amount of smoke emitting from the defendant’s tyres and because of a curve in the road. Police travelled in the same direction as the defendant and gained sight of the vehicle near the intersection of Crown and Hanson Street, Fairfield East. Police looked at the speedometer in the police vehicle which read 120km/hr, at this speed police were not catching up to the defendant. The posted speed limit was 60km/hr.
Police were about to call a pursuit when they observed the defendant’s car spin sideways out of control and collide with the gutter on the incorrect side of the road narrowly missing a telegraph pole.
The defendant got out of the driver’s door of the vehicle and ran into the nearby trees that were located on the side of the road. Police chased the defendant on foot and caught him about 50 metres from the collision with the gutter.
Police told the defendant he was under arrest at this time the defendant began swearing and waved his arms around to stop police from arresting him. Police attempted to handcuff the defendant though he struggled and resisted police resulting in the defendant and police landing on the ground.
The defendant was handcuffed and held on the ground until further police assistance arrived. While on the ground the defendant continued to wrestle the police. Police saw the defendant had a deep cut to his right palm. The defendant while on the ground continually pushed him middle finger into this cut until it began bleeding. While on the ground the defendant was again told he was under arrest and cautioned.
Police conveyed the defendant back to Fairfield Police Station where he was introduced to the custody manger and given his Part 10A of the Crimes Act 401/1900. While in custody police arranged for an ambulance to attend and treat the defendant. The defendant was treated by the ambulance officers though was abusive and threatened them and police. The ambulance officers bandaged the defendant hand to try and stop the bleeding. The defendant ripped the bandage off a short time later. The defendant refused to listen to the Part 10A being read to him and was not interested in what the custody manger said.
Police observed the defendant to have slurred speech, red blood shot eyes, unsteady on his feet and smelt strongly of alcohol. The defendant was unable to be breath tested at the scene because of his aggressive nature. Police attempted to breath test the defendant at the police station though were unsuccessful again because of his aggressive nature.
The defendant was again handcuffed and taken to Liverpool Hospital for medical treatment. The defendant stated at the hospital he had earlier consumed 8 schooners of VB before driving. The defendant said that the cut in his hand was from punching a window and had been stitched up 9 days earlier by another doctor, though he removed the stitches himself with a pair of nail clippers. The doctors at Liverpool Hospital treated and stitched the wound before taking blood and urine samples from the defendant.
The defendant was conveyed back to Fairfield Police Station. Where he was reintroduced into the care of the Custody Manager.
Police conducted checks upon the defendants drivers licence. His driver’s licence number … a learners licence was disqualified from 18/03/2002 until 18/03/2005.[20]
At the time of the offence the roads were wet and it was raining, visibility was poor. Traffic was light.
During the month of June, 2003 police received the results of the drug tests conducted by the doctors at Liverpool Hospital on the night of these offences listed in the above facts. Since the time of the above offences were committed the defendant has been to court and convicted on the related charges.
The results of the drug tests from the blood and urine that was taken from the defendant on the night indicated that the defendants blood contained 0.201 grammes of alcohol per 100 millilitres of blood and also contained 0.02 mg/L of Pseudoephedrine and 0.03 mg/L of Methamphetamine.
Present on the defendant’s urine sample was Lignocaine amount unknown,
Certificate number D11104.
Attached to the Facts is a copy of the Expert Certificate issued by the Clinical Forensic Medicine Unit, Certificate of Analysis and the Drug testing Certificates,
The Expert Certificate outlines that the amount of alcohol in the defendant’s blood would significantly impair the defendants driving, ability, and the drugs detected within his body would also have an affect upon his driving ability.”[21]
[20] Ibid, pp 68-70.
[21] Exhibit 3, pages 61-65.
On 1 May 2003 the Applicant was sentenced to 12 months imprisonment, suspended for 12 months and released on a good behaviour bond.[22] He was also directed to do community service work.[23]
[22] Ibid, p 109.
[23] Ibid, p 110-113.
A NSW Police fact sheet dated 3 November 2006 states:
OFFENCE I About 3:30pm on Thursday 2nd November 2006 the victim was at the Accused's mothers house when she received a phone call from the Accused, stating he wanted her to pick him up from Fairfield. During the phone call it is alleged the Accused said, "Watch what Fuckin happens to you when I get my hands on you, you had better be here in five seconds". The victim left the house to her car to pick up the Accused. The victim reached the intersection of Hamilton Road and Sackville Street when she received another call from the Accused, stating he was at Cash Converters in Smart Street, Fairfield. The victim drove to Smart Street and picked up the Accused in her car, …….
OFFENCE 2 & 3 The victim asked the Accused to stop yelling. The Accused has punched the victim in the mouth with his clenched left fist, causing pain and bruising to the victim's mouth.
The victim proceeded to drive the Accused home when the Accused began to start yelling at the victim, saying, "Put your foot down". The victim came to a red light at the intersection of Smart and Court roads. The Accused was yelling at the victim saying, "Floor it, floor it". The victim stopped the vehicle across the road from Fairfield Police station in Smart Street and asked the Accused to get out of the car. The Accused tried to get into the driver’s seat of the car. The victim got out of the car with her young daughter from the back of the car and ran to Fairfield Police Station. The Accused left the scene on foot.
OFFENCE 4 The Accused has entered the premises of Cauley Heights. The Accused has written graffiti on the front door and main hallway of the house. The Accused has written 'CRIP HOUSE BIACH', PACKA SUGA', 'FUCKEN HEFFA FAMILY', 'FAT SLUT', 'THROW DOUBLE', 'FAT SLUT', 'BEACH WHALE', 'FAT SLUT JENNY CRAIG REJECT', CRAZY FUCKN AOTH'.
The Accused has pulled the bathroom door off the hinges and stomped on the door. The Accused has kicked holes in several doors in the house, including the doors to the three upstairs bedrooms and upstairs bathroom. The Accused has smashed the window of the upstairs main bedroom. The Accused has damaged several pieces of furniture including a TV cabinet in the loungeroom, and a microwave oven in the kitchen.
OFFENCE 5 TO 8 About 7:50pm police have arrived at the premises, the residence of the Accused and victim, of Canley Heights, in relation to loud smashing sounds coming from the house. On arrival police surrounded the house. The Accused yelled at police through a window saying, "Fuck off'. Police recognised the Accused as the person wanted for the earlier assault. The Accused continued to verbally abuse the police. Police demanded the Accused come out of the house and the Accused replied, "Get fucked, you have no right to come in". Police entered the house via the open front door and were confronted by the Accused, who had his hands raised yelling, "Get the fuck out of my house". Fearing an assault police sprayed the Accused with a burst of OC spray. The Accused continued to aggressively approach police. The Accused was struck with a baton to the right leg and restrained to the ground. Police have restrained the Accused to the ground. During this time Sergeant N has sustained minor abrasions and bruising to his right forearm, and swelling to his right knee. Police have attempted to handcuff the Accused, who has continued to writhe around and try to pull his arms away from police. The Accused has spat at police, with the saliva hitting Sergeant N’s boot. Police eventually subdued the Accused, who continued to abuse police, swearing in a loud voice. During this time, a number of neighbours have come to their front doors. Police have contacted the Ambulance to assist with decontaminating the Accused from the OC spray. The Accused has moved around and attempted to run from police. Police have directed the Accused to remain still, and the Accused has launched to his feet and attempted to run. Police have tackled the Accused to the ground. The Accused has turned his head and spat out at police, with the saliva hitting Senior Constable T on the leg. Police again subdued the Accused and the Accused continued to turn his head and spit towards Police. During this struggle to arrest the Accused, a pair of prescription glasses, were lost belonging to Sergeant N.
OFFENCE 9 The Accused was searched and a small resealable plastic bag containing green vegetable matter was located in his side tracksuit pocket. When The Accused was cautioned and questioned about the vegetable matter. The Accused stated, "I don't give a fuck, it's under an ounce you can't do nothing". The Accused was taken to his feet and escorted to the police caged truck.
On arrival of the Ambulance officers, the Accused declined their assistance in decontaminating from the effects of the OC spray. The Accused was transported to Fairfield Police Station where he was introduced to the Custody Manager.
The small plastic bag containing the vegetable matter was weighed in the presence of the Accused, weighing a total of 0.85 grams.
The Accused participated in an Electronically Recorded Interview, number 06/767. When questioned about damage to the premises at Canley Heights, the Accused made admissions to causing the damage. The Accused stated, "I woke up home alone after drinking". The Accused made admissions to graffitiing the doors and wall of the premises, stating, "My message was 'Fat slut'.
The Accused made admissions to damaging the doors in the house, stating, "I ripped the doors off and stood on them. My father-in-law had just finished renovating the house". When questioned about the damage to the upstairs bedroom doors, the Accused said, "I buck kicked them like a horse". When questioned about the broken window in the upstairs main bedroom, the Accused said, "That was broken by me". The Accused stated he had entered the house via the garage with his key. The Accused made admissions that the vegetable matter was cannabis, and stated, "I bought it off a friend down the pub".
The Accused was fingerprinted and photographed and charged with the matters before the court.
Police have recovered a large 40cm machete from the front dining room floor, which appears to have been used to cause damage to the premises.
The Accused appears to have been affected by alcohol, drugs or both. The Accused stated to police that he has been using marijuana and speed, and that three months ago has experimented in using 'Ice'.”[24]
[24] Exhibit 5, pp 1-4.
On 30 November 2006 the Applicant was assessed as being eligible for the “Merit Programme “. He participated in the programme and was assessed as making “satisfactory progress”.[25] The charges were eventually withdrawn and dismissed on 4 April 2007.[26]
[25] Ibid, pp 5-12.
[26] Ibid, p 14.
He was assessed as being suitable for a Community Service Order.[27] He was given a 2 year good behaviour bond.[28] An AVO was also made against him for 2 years in the following terms:
[27] Ibid, p 34.
[28] Ibid, p 350.
“This Order is in force for a period of 2 YEARS
This order remains in force until it is revoked or a further order made by the Court becomes effective,
MANDATORY ORDERS:
1.a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.b. The defendant must not engage in conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relation.
1.c. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
CONDITIONAL ORDERS:
10. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) from time to time reside or work within twelve (12) hours of consuming intoxicating liquor or illicit drugs.
11. The defendant must not destroy or deliberately damage or interfere with property of the protected person(s).”[29]
[29] Ibid, pages 120-1.
Between 13 August and 26 November 2007 the Applicant participated in a DV programme by Liverpool Community Offender Services.[30]
[30] Ibid, pages 133-4.
On 17 January 2010 the Applicant was charged with three offences. The police record states:
“The accused has a history of property damage, theft, violence and drug and alcohol related matters. The matter the accused us currently before the court are in relation to domestic violence matters and are subject to a provional order application. The accused is alleged to have behaved in an extremely volatile, aggressive and threatening manner towards the victim in the presence of his 4 young children aged between 2 and 7 years of age. The actions of the accused had a far greater potential risk to human life than was actually occasioned however, it still displays the propensity of the accused to act in such a manner. . Police have genuine fears for the safety of the victim, her children, including the 3 step daughters of the accused as well as his own 4 daughters from their relationship. Should the accused be granted conditional bail, Police are requesting that thus include a prohibition on the accused from consuming alcohol, drugs or any other intoxicating substance due to his potential for violence when affected. Police are further requesting bail conditions to prevent the accused from approaching or intimidating the victim
FULL FACTS
The victim [N] and the accused, [SSCJ] have been involved in a domestic relationship for the past 10 years. As a result of this relationship, the couple have 4 children, Child 1 (7 years old), Child 2 (6 years old), Child 3 (4 years old) and Child 4 (2 years old)
The victim [N] has 3 children from a previous relationship. These daughters are Step-child 1(16 years old), Step-child 2 (15 years old) and Step-child 3 (13 years old). The 7 daughters of the victim [N] live with her at the premises of Guildford.
The victim describes the relationship as having occasional issues that include both reported and unreported matters of property damage and to a lesser extent physical violence. It is stated that this is usually related to excess consumption of alcohol and occasionally drugs by the accused, [the Applicant].
There has subsequently been a number of prior interim and finalised apprehended violence orders, none of which are enforceable at this time.
As a result of these apprehended violence orders the accused has not resided at the premises of Guildford with the victim [N] and her daughters for some time. This is until recently when the accused has moved in and stayed on an ongoing basis since Christmas 2009, till present.
From information provided to Police there has been an underlying tension relating to matters of the 3 eldest daughters of the victim [N], as well as matters of intimacy.
About 12.45am, 17th January 2010, the victim [N]was using the computer that is situated in the bedroom of the accused and the victim. At this time the victim [N] has decided to go to sleep for the evening as the accused was already in bed.
Within moments of the victim going to bed and prior to sleeping, the accused is said to have woken and turned the bedroom light on and began using obscenities. With this the victim has retired to the lounge room where her youngest four children were watching television and sleeping.
About 9am, 17th January 2010 the victim has woken up to the accused standing in the lounge room making noises as he was turning the air conditioner on with the remote. The victim [N] has fallen back to sleep and woke back up again to see her 4 youngest daughters at the front door and the accused walking back into the house.
The victim has made tea and re-entered her bedroom and attempted to use the computer again to find that the was not connected and was missing. The victim [N] has commenced a conversation with the accused who at this time appeared to be of an okay nature.
The accused has removed an "Ice Pipe" from within his bumbag. This "Ice Pipe" was seen to be in a bubble wrap bag. Ice pipes are commonly used for the consumption of crystal methamphetamine which is commonly referred to as Ice (Street terminology). The victim [N] also observed a long neck of beer on the bed side table.
About this time the accused has commenced to make comments in relation to the victim [N] 3 eldest daughters, which has caused him to become enraged, as he was consuming more alcohol and displaying signs that the victim recognises are consistent with the accused becoming intoxicated. The accused has opened his backpack and shown the victim a number of long neck beers to incite the victim to become upset.
The victim has left the accused in her bedroom and gone out to the lounge room with her daughters and one of their friends.
The victim has left the premises for a short period of time to drop Step-child 2 and Step-child 3 off along with their friend.
About 10 - 15 minutes later, the victim returned home. Moments later the victim has heard a noise coming from the front of the premises and has followed her younger children to the front to see what the noise was. At this time the accused has walked back into the house carrying a hammer. the victim observed the front windscreen of the victim [N’s]' Mitsubishi Nimbus to be severely destroyed and a number of holes through the laminated glass.
The victim has asked the accused why he did this and he stated that there was still more damage to come to the vehicle.
Over the following time period the victim has seen the accused walk in and out of her bedroom closing the door b hind him as he exited and entered the room. During this time the victim heard a large amount of smashing and banging coming from the 3 rooms of the house. Upon later inspection it became evident that there was significant damage to the computer, computer monitor and modem, a large screen television, as well as a wall mounted mirror, a small timber drawer set as well as 2 glass panels from the front door.
At this time there were no other persons in the premises except the victim and 5 of her daughters, who were with her and the accused who was coming and going from the victim’s room.
The victim has pleaded with the accused to stop as he was scaring their daughters. The accused stated "you think what happened at Malabar Street was bad wait to see what happens". This comment is in direct relationship to a prior reported matter that resulted in the victim being physically assaulted and the premises severely damaged. The accused was also heard to repeat "Silverwater here I come". This is believed to be in relation to the Corrective Services Facility.
The accused has made his way around the premises closing the windows and doors and stated that he was intending on going out to get more alcohol and making sure the victim would not leave. This caused the victim to fear for her safety and the security of her property.
About this time the accused began to splash orange juice around the floor in the hallway. The victim has requested Step-child 1 to call Police. The accused walked to the laundry and removed two cans of petrol from this area. The accused walked the 2 cans into the bedroom and shut the door behind him.
About 5 minutes later, the accused returned to the lounge room holding one petrol can and he commenced splashing this onto the timber floor boards within the dining room. As the accused was doing this he threatened "I'm gonna burn the house down", whilst holding a lit cigarette, before returning to the bedroom of the victim.
The victim has gone to the laundry whilst the accused was in the bedroom. The victim rang Triple 0, asked for Police and then the accused came back out of the bedroom and confronted her. The accused was up very close to the victims face and was yelling at her.
A short time later, Police attended the premises and observed the accused to be berating and abusing the victim in the laundry. At this time the accused was standing over the top of the victim in a threatening and intimidating manner.
The accused was subsequently arrested and handcuffed. A search located a cigarette lighter in his pants pocket. The accused was afforded his rights and the safeguards of the Law Enforcement (Powers and Responsibilities) Act 2002 were applied.
The accused was conveyed to Parramatta Police Station where he was assessed as being intoxicated and he was given the opportunity to sober up.
A Crime Scene warrant was applied for and subsequently granted. Police arranged for Crime Scene specialists to attend and conduct a number of examinations and records.
A significant amount of damage was observed throughout the premises, as listed previously.
Police obtained a signed and dated statement from the victim [N] and her daughter.
Police informed the accused of his rights according to Part 9 Law Enforcement (Powers and Responsibilities) Act 2002. The accused participated in an electronic record of interview where he made admissions to damaging the property as listed above.
The accused acknowledged that he spilt petrol through the premises but denies any claims of threatening to burn the premises.
The accused was asked if he had any history of mental health issues to which he stated he believed he had. It was decided in the interest of the accused to have him assessed in accordance with the Mental health Act 2009, at Cumberland Hospital.
The accused was subsequently assessed by Dr. J as not showing any signs of acute alcohol intoxication nor did he display any signs of acute Mental illness and he was subsequently returned to Police custody.
This incident has caused significant fear to the victim and the young daughters of the victim and accused.
The accused is now charged with the matters before the court.”[31]
[31] Ibid, pp 93-98.
On 18 January 2010 a provisional (ex-parte) Apprehended Domestic Violence Order was made to protect the Applicant’s then partner, N and 5 of her children, including the Applicant’s daughters.[32]
[32] Ibid, pp 99-106.
A NSW police fact sheet dated 7 April 2010 states:
“The victim, [N] and the accused, [the Applicant] have been involved in a domestic relationship for the past ten (1) years. As a result of this relationship they have four (4) children, (Child 1) (7 years) (Child 2) (6 years), (Child 3) (4 years) and (Child 4) (2 years). The victim and accused currently reside together at Merrylands, however the accused spent the majority of his time residing in the detached garage located at the rear of the premises…on the 19th of January 2010 an Interim Apprehended Violence was issued at Parramatta Local Court. This Interim Apprehended Violence Order was adjourned until 30th March 2010. This Interim Apprehended Violence order remains in force until another enforceable order replaces under section 24 Crimes (Domestic and personal Violence) Act 2007 due to adjournment. .. The victim [N] is listed as the person in need of protection and the accused [SSCJ] is listed as the defendant. .. The conditions of this Apprehended Violence order are as follows: 1a. The defendant must not assault, molest harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has/have a domestic relationship. 1b. The defendant must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has/have a domestic relationship. 1c. The defendant must not stalk the protected person or a person with whom the protected person has/have domestic relationship. 4. The defendant must not go within 500 meters of the premises at which the protected person may from time to time reside or work, or other specified premises. 7. The defendant must not approach or contact the protected person by any means whatsoever, except through the defendants legal representative. 11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person…About 4:00am on Wednesday the 7th of April 2010 a job was broadcasted via police radio in relation to the accused person slashing the victims tyres of her vehicle and that the accused had splashed petrol over the front veranda of the victim’s house. .. Upon police arrival police spoke to the victim. She informed police that she did not see the accused slash her tyres nor did she witness him splash petrol onto the front veranda of her premises. She stated that she assumed the accused has committed these offences as he had consumed an unknown amount of alcohol and had been acting in a strange manner all evening. .. Police questioned the victim as to the whereabouts of the accused to which she stated that he was in the rear detached garage. .. Police observed there to be 3 slashed tyres on the victim’s vehicle, …Police could clearly smell what appeared to be petrol on the front veranda of the premises. ..Police attended the rear yard of the premises and knocked on the door several times. Police announced their office on several occasions however there was no response. .. Due to the fear that the accused may be in possession of a petrol can, police have called for the fire brigade to attend to assist in entering the premises. .. A short time later Fire Brigade personnel attended and forced open the garage door. Police again announced their office and after a short time located the accused hiding inside a cupboard. .. The accused was arrested, cautioned and removed from the garage area before being escorted outside and searched. .. Whilst inside the garage, police located a small satchel which had what appeared to be green vegetable matter inside it hidden inside a back pack. Police have seized this and approached the accused. The accused was cautioned and questioned in relation to the cannabis to which he stated that it was not his and that the back pack was a friend of his who he did not wish to name. due to the fact that the cannabis was located on or in the immediate area of the accused police will not proceed with laying charges in relation to the cannabis. .. Police have then conducted checks via the police radio in relation to any current enforceable Apprehended Violence Orders between the accused and the victim however nil were provided via the radio. .. Police have spoken to the victim who stated that there had been no domestic incidents however she wanted the accused removed from the premises. .. The accused was conveyed to his mother’s home address of Guildford. .. Police have returned to Merrylands Police Station where the Cannabis was booked up into the Drug Exhibit Book 17/D850908 for destruction. .. Police made several enquiries via the COPS system which revealed that there was currently an Apprehended Violence Order between the accused and the victim. In particular, number 4 which stipulates that the accused must not go within 500 meters of the victims residence. Police have estimated that the garage was about 12 meters away from the victim’s home, clearly being within the 500 meter exclusion zone. .. Due to this information, police have re attended . ….. Merrylands and spoke to the victim. She informed police that she was unaware of the Apprehended Violence Order being in place as she did not attend court. Police have questioned the victim in relation to supplying police with a statement in relation to the incident however she declined. .. A short time later police attended ……… Guildford where the accused was arrested, cautioned and searched for before being conveyed to Merrylands Police Station. All safeguards under LEPRA where adhered to. .. Once at Merrylands Police Station, the accused was introduced to the Custody Manager, Sergeant D. The accused was read and explained his Part of the Law Enforcement (Powers and Responsibilities) Act 2002. .. The accused was offered the opportunity to be interview however he declined. .. The accused is now charged with the matters before the court.”[33]
[33] Exhibit 3, pp 58-60.
A Pre-Sentence report dated 25 October 2010 assessed him as being unsuitable for a Community Service Order.[34]
[34] Exhibit 5, pp 136-8.
A NSW police fact sheet dated 27 December 2010 states :
“There have been a number of Apprehended Violence Orders between the victim and accused due to the history of property damage and violence within their domestic relationship.
The victim and accused currently have an arrangement where the accused was allowed to reside in a converted garage in the rear yard. The accused has been living there since mid to late November, 2010.
About 6:00pm on Sunday the 26th of December 2010 the victim was at her home, ………., Guildford West with all of her daughters. At the time the victim was ordering pizzas for dinner.
Once the pizzas were ordered the victim drove her daughters J and S to Guildford Railway Station. When the victim returned, she parked her motor vehicle, a red Mitsubishi Nimbus bearing New South Wales Registration ……. in the driveway of her home, underneath the carport.
The victim walked inside the house when she heard noises down the side of her house from the rear of her yard to the front driveway. The victim walked to the front window to notice the accused kneeling at the front tyre on the passenger’s side.
The accused has walked around to each of the four tyres of the victim’s car and deflated them. The accused, once deflating the tyres has walked back around the rear of the yard and into the garage.
The victim remained inside the house with her daughters in fear of the accused. This fear has been brought upon the victim due to past experiences with the accused.
About 7:45pm the victim and her daughters had finished eating the pizza and left the location as they were afraid to remain. The victim and her daughters walked to the accused's mothers house, which is a short distance away also in the suburb of Guildford.
After being at the accused's mother's house for twenty five minutes the accused arrived. The accused spoke with the victim and said words to the effect of "You leave the house without saying anything." The victim at the time could smell intoxicating liquor on the breath of the accused, and formed her opinion the accused was intoxicated.
The accused left his mother’s house and walked back in the direction of Guildford West. .. About 8:40pm the victim and her daughters walked home. Upon reaching the driveway the victim noticed a substantial amount of damage to her motor vehicle. The victim could see that all of her passenger windows, as well as the driver's window were smashed. The victim also noticed the front windshield was smashed.
The victim entered the house could see damage throughout the house. The victim entered into the kitchen where she noticed a cupboard was smashed, along with numerous mugs, cups and plates were smashed on the floor.
The victim saw tomato sauce had been squirted on the walls and floor of the kitchen. The victim walked into the living room and sighted her television had smashed on the ground along with other ornaments.
The victim walked into her daughter’s room and sighted motor oil had been spilt throughout the mattress, along with her daughters stereo which had been smashed.
Police attended the location and spoke with the victim. Photographs were obtained on scene and Police were shown to the rear yard and to the garage.
Police announced their office and made several attempts to raise the accused. Police were unable to see in the location, but movement could be heard and the changing of channels on the television.
After several attempts and the assistance of the Dog Unit, entrance was gained into the premises via the front door.
An immediate search of the area revealed the accused not in the room. The accused was located after a search of the interior, hidden inside of a lounge chair.
The accused was arrested, cautioned and conveyed to Merrylands Police Station. All safeguards were adhered to under Law Enforcement (Powers and Responsibilties) Act 2002.
An independant witness has sighted the accused at the rear of the yard of Guildford West consuming alcohol, smashing empty bottles whilst listening to music at a high volume. The accused was seen to be verbally abusive swearing and using profanities.
The independent witness has sighted the accused enter the rear door of ………. followed by further loud smashing.
The accused was introduced to the Custody Manager and explained his rights under part 9 Law Enforcement (Powers and Responsibilities) Act 2002.
The accused was offered the opportunity to participate in an electronically recorded interview in which he declined.
The accused is now charged with the matters before the court.[35]
[35] Exhibit 3, pp 54-6.
On 19 January 2011, the Applicant was assessed as unsuitable for a CSO.[36]
[36] Exhibit 5, pp 143-4.
On 1 November 2020 the Applicant was involved in a serious incident of Domestic Violence with S. The particulars set out in the NSW police records are as follows:
“01/11/2020 18:05
LIVERPOOL CITY PAC –
The accused in this matter is [the Applicant] and the victim is [S]. They have been in a domestic relationship (de facto or boyfriend/girlfriend relationship) for about a year and a half. There are no children as a result of this relationship. The victim has Parkinson's Disease, underlying bone problems and problems with her spine. The victim has difficulty looking after herself and appears to be quite frail and vulnerable. The accused has been acting as her full-time carer for about 8 months. The parties reside together at Liverpool.
She offered him the use of her telephone to contact his mother as the accused had lost his SIM card to his phone. he accused started to verbally abuse her calling her a 'liar and a slut'…The victim him told the accused to leave, saying, “Fuck off and get out, take your shit and go.”
The victim returned to her bedroom to avoid the accused's abuse. She heard the sound of smashing from her living room. She got up from her bed and went to see what was happening, on entering the living room she found it in a state of turmoil, her personal items had been thrown on the floor, her Samsung tablet had was found on the floor the screen was smashed and the tablet was in pieces.
The accused picked up the television remote control and snapped it across his knee into two pieces.
The accused went into the kitchen area and opened the fridge/freezer and picked items out of the fridge and threw them onto the floor and out of the window such that no longer edible. The items thrown from the fridge included, sausages, ice cream and frozen chicken.
The accused went up to the victim's push bike and using a blade or similar item, punctured both tyres, which was in the dining area.
The accused went into a bedroom and grabbed a back pack and put his belongings into it. The accused went back into the kitchen, the victim picked up the accused bike out through the front door and left it next to bins outside his house.
The accused went outside the unit, leaving the victim in the living room who was attempting to tidy up. The victim went to seeing the accused leave went to close the door behind him. The accused returned holding his bicycle, he pushed on the door against the victim who was attempting to close the front door of her unit and forced his way in. The victim looked at him and told him to fucking leave. The accused lifted his bicycle up and hurled it at the victim. The bicycle hit the victim in the head causing her to fall back onto the floor of the living area, she passed out for a short while.
The victim came too, the bicycle was still on top of her. The victim got and told the accused, "Get the fuck out." The accused responded, "I'll go when I'm ready to go."
The victim went back to her bedroom and locked herself in. Sensing the accused had left the unit the accused went back into the living room, she closed and locked all the doors, she placed the chain on the front door. The accused returned again, and forced the front door open, with the result the that the left door jamb came off, damaging the plaster next to the door. The victim again told him to leave, he demanded his bag, the victim told him to leave. The accused went into the victim's bedroom and started to throw things around. He left the bedroom the victim told the accused that she intended to call the police, the accused responded to this saying, "Watch your back." The victim found this comment particularly frightening.
The victim contacted police and started to clean up. It was at this point that she discovered that a pair of sunglasses belonging to her had been snapped and broken and a pot plant was damaged. The toaster and electric kettle in the kitchen area had been moved and the electrical cords with these appliances had been cut.
Police attended and found the victim in an extremely emotional and upset state. She appeared frail, she needed to sit down and rest. The victim had a cut to her left wrist area, the side of her face appeared to be swollen. There was a small amount of blood on the living room floor near the television (where the victim fell). Police saw that the victim's Samsung tablet, her sunglasses broken, along with a pot plant. Both tyres on her bike were flat. The kitchen appliances above (kettle and toaster) had their cords cut. The television remote control was found under the lounge and appeared snapped in pieces. The door jamb/frame next to the lock had been dislodged, and was on the living room floor, the plaster around this area on the wall was also damaged. Police accompanied the victim to her van that was parked in the shared driveway three tyres had been slashed.
The victim provided a statement by way of an electronically recorded Domestic Violence Evidence in Chief (DVEC) interview. Photographs of the damage in the unit was also taken along with photographs of the victim's injuries.
Accused to be located and arrested etc.
:01/11/2020 19:40
:LIVERPOOL CITY PAC –The Defendant in this matter is [SSCJ] and the Protected Person is [S]. They have been in a domestic relationship (de facto or boyfriend/girlfriend relationship) for about a year and a half. There are no children as a result of this relationship. The Protected Person has Parkinson's Disease, underlying bone problems and problems with her spine. The Protected Person has difficulty looking after herself and appears to be quite frail and vulnerable. The Defendant has been acting as her full-time carer for about 8 months. The parties reside together at Liverpool.”[37]
[37] Exhibit 3, pp 47-9.
On 14 December 2020 the Applicant was assessed as being “at a high risk of reoffending”[38]. He was assessed as being unsuitable to undertake community service work. The record states:
“[SSCJ] has been assessed at a High risk of offending according to the Level of Service Inventory – Revised (LSI-R)…Community Corrections has assessed [SSCJ] as unsuitable to undertake community service work for the following reasons:
It is assessed that [SSCJ] drug and alcohol use and unresolved mental health issues would prose a significant barrier to him successfully completing community service work as it poses a work health and safety risk.[39]
[38] Exhibit 5, p 44.
[39] Ibid.
On 22 December 2020 the Applicant entered a plea of guilty and was sentenced in these terms:
“This is a serious offence. It is one where I think that a custodial penalty is required but I take into account those matters that have been put before the Court by Mr Anderson and that are in this report and in my view a custodial sentence that you serve in the community with intensive supervision is the appropriate course to take. I do note that the assessment has been that you have a high risk of reoffending. That is because you are just not acknowledging some of those other issues that have contributed to your offending, your mental health, your drug issues. Right you have got to do something about that…HER HONOUR: ALRIGHT IN RELATION TO THIS MATTER YOU ARE SENTENCED – JUST STAND UP – TO A PERIOD OF NONE MONTHS CUSTODY TO BE SERVES BY WAY OF AN INTENSIVE CORRECTIONS ORDER. You are you accept the supervision of the community offenders service at Parramatta and report there within seven days. You are also to comply with all referrals in relation to any psychiatrist or psychologist. You are to complete the equips program and I am also requiring you to abstain from alcohol and drugs. You have got to do that. I see the report indicates that you should be referred to a rehabilitation program as well but I do not do this lightly because it is very hard to just suddenly abstain because you have got to do because this was just a rampage and this is a custodial penalty in the community. So you will have to go to the office to enter into that and then the order that is being sought is one, two, five not to try and find her and not to go within 500 meters of where she lives or works. Is that consented to?”[40]
[40] Exhibit 3, pp 44-5.
On 22 December 2020 an intensive corrections order was made until 21 September 2021.[41]
[41] Exhibit 5, pp 178-80.
On 14 April 2021, the Applicant was convicted in the Liverpool Local Court for breach of a domestic violence order. He entered an early plea of guilty. He was sentenced to 2 months imprisonment commencing on 14 April 2021.[42] The particulars are set out in the Liverpool Local Court judgement as follows:
[42] Exhibit 3, pp 32-4.
“The facts indicated at 12.05am on 14 April, so that is earlier today just after midnight, police were speaking with a male at the intersection of Mannix Lane and McGirr Parade at Warwick Farm for an unrelated matter and they saw the defendant and the PINOP from the AVO riding pushbikes from Hinkler Avenue through an intersection. Police noted both parties riding without helmets. They were attempting to ride quickly past police, the facts say as though to avoid detection.
Police stopped the pair and introduced themselves, asked what they were doing. They said they were on the way to visit friends nearby. Police checked on the persons, which confirmed both were known to police and that the defendant was on the apprehended violence order stipulating he is not to approach or contact the victim, as listed in condition 2. He was arrested and cautioned.
When questioned about breaching the order he denied doing so, despite police observations of them riding together. The initial version provided being that they were on their way to visit friends nearby. In addition, she attempted to defend the defendant’s claims, stating they were not travelling together. She declined to participate in a record of interview.
The defendant’s criminal record is one that simply does not assist him at all. He has a history of domestic violence matters, albeit the last ones prior to December last year were some time ago; back in 2010, 2011. But in 2020 on 22 December this defendant was sentenced by way of intensive correction order to a nine-month sentence on a stalking count, a nine-month intensive correction order for destroy/damage property and a nine-month intensive correction order for assault occasioning actual bodily harm domestic violence related. There was not an aggregate sentence. There were three individual intensive correction orders according to the record that is before the Court.
There were conditions of that to comply with, it says, a report for a psychiatrist and psychologist, complete the Eclipse Program, abstention from drugs and alcohol. The first condition of an ICO is to remain of good behaviour. The AVO that was in place was specific with very specific conditions.
There is a breach not only of the Court’s order in relation to the AVO but the Court’s orders in relation to the ICO because he has not remained of good behaviour. Ultimately that is a matter for the parole authority to take up in relation to the non-compliance with the intensive correction order, but the commission of a further offence whilst on conditional liberty is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.
I am satisfied that the matter crosses to s 5 threshold. The orders were in place for a specific purpose, and that is to keep the defendant away from the 14/04/21 complainant. An application has been made before this court to vary those orders and the defendant is well aware of his precarious position, being placed on an intensive correction order, which, according to the case of R v Fangaloka handed down in 2019 clearly sets out that an ICO is a more lenient form of sentence.
The offending is towards the lower end, but nevertheless, crossing the threshold there is a need for both specific and general deterrence. I make the following orders.
THE DEFENDANT IS SENTENCED TO A TERM OF IMPRISONMENT BY WAY OF FIXED TERM FOR TWO MONTHS FROM TODAY, 14 APRIL 2021, TO 13 JUNE 2021.”[43]
[43] Ibid.
On 17 June 2021, the protected person (SR), made an application to vary the AVO against the Applicant. The application relevantly states:
“Grounds of Application to Vary or Revoke:
The applicant relies on the following grounds:
1. I do not agree with the AVO and hold no fears for my safety.
2. I have multiple disabilities and the defendant was my primary carer. I have struggled without him.
3. I understand that the defendant is currently in custody and charged with breach of
this ADVO.
4. I am currently in contact with the defendant's mother and have been advised that he will shortly be transferred to Villawood Detention Centre for the purpose of deportation to NZ.
5. I am devastated by this and wish to be able to communicate with the defendant whilst he is in custody and see him before he is deported.
6. I seek the inclusion of condition 11.
7. This is very important for my mental health and wellbeing as the defendant has been my carer and support for the past 2 years.
8. I will feel safe and protected if condition 11 is in place. I am not afraid to talk, communicate with or see the defendant.
Nature of Variation Sought:
The applicant requests that the court vary the original orders in the following manner:
I wish to vary the final Apprehended Violence Order by adding proposed condition 11;
Condition 2 and 5 be suspended while the defendant is in custody. This condition will expire upon release of the defendant.”[44]
[44] Ibid, pp 37-8.
This application was granted on 6 July 2021.
“The Application to vary the Apprehended Violence Order made on 22 December 2020 is granted. The Order is varied as follows:
The order is made for 1 year, 5 months, 16 days. The variation commences on 6 July 2021 and continues until 21 December 2022.
Orders about behaviour
1. The defendant must not do any of the following to [S] , or anyone she has a domestic relationship with:
A. assault or threaten her,
B. stalk, harass or intimidate her, and
C. intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [S]
Orders about contact
2. The defendant must not approach [S] or contact her in any way, unless the contact is through a lawyer.
5. The defendant must not try to find [S] except as ordered by a court.
Orders about where the defendant cannot go
9. The defendant must not go within 500 Metres of:
A. any place where [S] lives,
B. any place where she works, or
C. any other place listed here
, LIVERPOOL
Other orders
11. Conditions 2 and 5 are suspended while the defendant is in custody. This condition will expire upon the defendant being released from custody.[45]
LEGISLATIVE FRAMEWORK
[45] Ibid, pp 39-40.
Does the Applicant Pass the Character Test?
As noted in paragraphs 2-4 hereof, on 30 September 2003, the Applicant was sentenced by the Court to a term of imprisonment of 12 months, suspended.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[46]
[46] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[47]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[48]
[47] [2018] FCA 594.
[48] Ibid, [23].
OFFENDING HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
The Applicant’s offending commenced in 1996 when he was 16 years of age.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has engaged in violent and destructive behaviour directed at two women. In the first instance, this occurred in the presence of children. This is very serious. He has a serious record of motor vehicle related offences.
I also note that the 14 April 2021 sentence of two months’ imprisonment was for a breach of an AVO. As the Court observed, “there is a breach not only of the Court’s order in relation to the AVO but the Court’s orders in relation to the ICO because he has not remained of good behaviour.” There was however, no complaint from the protected person that triggered this prosecution. S had requested the Applicant to visit her. There was no violence. The court considered the offending to be “at the lower end” of the scale. The breach occurred in a public place and was discovered by sheer accident. It was this non-threatening, breach of an AVO, that set in train the process that led to the Applicant’s visa cancellation. This process in its turn, relied upon a conviction and suspended sentence imposed almost 20 years previously. Having regard to all these matters, the Applicant’s offending must be regarded as very serious
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(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.
The Applicant has committed acts of violence and intimidation against his former partner, S. She is a vulnerable person due to her various illnesses and injuries. She is some 10 or so years older than him. The Applicant has also been involved in scuffles with police. This is serious.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been sentenced to terms of imprisonment and one Intensive Corrections Order, but he has only actually been incarcerated for 2 months, this being for his most recent offence in April 2021.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant was a serial offender from about the age of 16 in 1996, until 2011. He then has no record of any further offending until 2020. His last offence was a breach of an AVO. It seems that this AVO was not sought by the protected person, and that she sought to have it varied. This does not excuse the Applicant’s breach, but it does provide some context. It is difficult to see a clear pattern or trend of increasing seriousness.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant’s offending has been long standing. His return to DV offending after so many years, suggests that he has a propensity to family violence. The actual breach leading to his recent term of imprisonment in April 2021 was however, non-violent and not the subject of any complaint by the victim.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
This consideration is not relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence to suggest that the Applicant received a formal warning from the Respondent, or its’ relevant predecessors, following sentencing in 2003, 2011, 2020 or indeed at any other time.
This is not relevant.
I do not consider factors (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant has demonstrated a long history of disregard for the law. His driving record is so serious that he was sentenced to a term of imprisonment. His record of domestic Violence is also very serious. His most recent episodes of domestic violence offending suggests that he has learned little from his earlier interactions with the legal system. He has breached protection orders. His offending is linked to his drug use.
Likelihood of engaging in further criminal or other serious conduct
As recently 4 May 2021 the Applicant has been assessed as presenting a significant risk of reoffending.[49]
[49] Exhibit , pp 178-180.
The Tribunal’s task in assessing the risk of the Applicant reoffending is quite difficult . This is made harder by the absence of detailed or expert medical advice regarding aspects of his substance abuse, and the associated complex interactions this has had with his underlying mental illness. There are some positive signs. The Applicant has demonstrated that he has been prepared to seek out and engage with professional help in the past. He has had periods of improvement. He did not offend for almost a decade before December 2020. He has family support from his mother and step-father. This would include accommodation, and possibly employment if he were to be returned to the community. His mother has already made efforts to identify suitable residential rehabilitation facilities for him. The Applicant himself wishes to change his ways. On the other hand, he has in the past, relapsed into substance abuse and become non-compliant with his medication regime. He has reoffended. His family supports have always been available to him, but this has not prevented his substance abuse and offending.
If the Applicant seeks and engages with appropriate help, I am persuaded that he will not present a high risk of re-offending. If he does not, the opposite is the case. On balance, I assess him as being a medium risk of reoffending. I consider the support of his mother and step-father to be critical elements in coming to this view.
Conclusion: Primary Consideration 1
Primary consideration number one weighs against revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant’s history of family violence has been set out in detail above. This demonstrates both serious conduct and a long-term propensity to engage in it. His record involves acts of family violence against two former partners, the first being in the presence of minor children. His offending is separated by many years. Family violence of any sort is unacceptable.
Conclusion: Primary Consideration 2
This consideration weighs against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the 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;
· 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;
· 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;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are:
(a)Child A, daughter aged 14 years
(b)Child B, daughter aged 16 years
(c)Child C, nephew aged 10 years
(d)Child D, niece aged 6 years
(e)Child E, nephew
Child A and Child B, have had little contact with the Applicant since 2010. He has not been an active parent in their lives since then. He has not, at least since then, financially supported them. They are in the custody of their maternal grandmother, who does not allow them access to electronic communication devices. The Applicant last saw them at his stepfather’s funeral in 2015. He would like to re-establish a relationship with them if possible. Given that this would be largely up to their grandmother until they reach 18 years of age, this a wish only. Whether it would happen before they reach adulthood, or indeed at all, is pure speculation.
Child C and Child D have had much more regular contact with the Applicant. They are his younger brother’s children. They used to see the Applicant weekly when they went to visit his mother (their grandmother). This has not been a parental or financially supportive relationship, but is has been regular and long standing. The Children would have some genuine connection with their uncle. Their parents have separated recently, so exactly how much time they would get to see the Applicant, is unclear. This would depend on the Applicant living with his mother and on his brother having the opportunity to visit her during his periods of access.
The Applicant has another minor nephew, Child E. He is the youngest child of the Applicant’s oldest sister. The Applicant has had limited contact with him, mainly at family gatherings or visits.
The Applicant also has 6 minor great nieces by his oldest sister and 3 minor great nieces and 2 minor great nephews by his other sister. His contact with these children is again limited to family gatherings or occasional visits. Almost all of the information about these children was provided to the Tribunal by the Applicant’s mother. His connection with them seems minimal.
Having regard to all of the above, primary consideration 3 weighs slightly in favour of revocation of the Applicant’s visa cancellation
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[50]
[50] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out in Annexure B.
(b)The other matters set out above
Conclusion: Primary Consideration 4
Primary consideration 4 weighs against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
This consideration does not arise in this case.
This consideration is neutral
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant has serious health issues. Although the health system in New Zealand is comparable with ours, the Applicant’s network of supports there is practically non-existent. Family support may well be crucial in the Applicant managing his mental health issues. His physical illness may require ongoing treatment and support. His mother and step-father are his main supports.
There are no language or cultural barriers to speak of.
This consideration is weighs in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 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, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence on this point.
This Other Consideration (c) is neutral
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has lived in Australia for most of his life. He has been gainfully employed and paid taxes for much of his life. He has very strong family connections in Australia and virtually none in New Zealand. He has 4 children living in Australia, all his supports are here. He has extended family here.
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs heavily in favour of revocation.
Impact on Australian business interests
There was no evidence on this topic so this consideration is neutral.
This Other Consideration (d), paragraph 9.4.2 of the Direction, weighs heavily in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral
(b)extent of impediments if removed: weighs in favour of revocation
(c)impact on victims: neutral
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs heavily in favour of revocation; and
(e)the impact on Australian business interests: neutral
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs against revocation.
Primary consideration 2 weighs against revocation.
Primary consideration 3 weighs slightly in favour of revocation.
Primary consideration 4 weighs against revocation.
Other considerations, (a),(c) and (e) are neutral.
Other consideration (b) weighs in favour of revocation.
Other consideration (d) weighs heavily in favour of revocation.
In my view, the proper application of the Direction favours the Tribunal exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
..........................[sgnd].........................................
Legal Administrative Assistant
Dated: 5 July 2022
Date of hearing: 27 and 28 June 2022 Advocate for the Applicant:
Marta Mamarot
South West Migration and Legal ServicesAdvocate for the Respondent: Olivia Hicks
Australian Government SolicitorAnnexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Respondent
Statement of Facts, Issues, and Contentions
2
Applicant
Statement of Facts, Issues, and Contentions
3
Respondent
G-Documents
4
Applicant
Tender Bundle
5
Respondent
Tender Bundle
6
Respondent
Supplementary Tender Bundle
Annexure B – Applicant’s Offending History
Court
Court Date
Offence
Court Result
Cobham Childrens Court
03/09/1996
Unlicenced Driver
1,2,3 & 4 On Each Charge Without Conv Recog (S33(1)(B) Self $100 GB 12 Mnths Recog Entered
Cobham Childrens Court
03/09/1996
Possession Prohibited Drug
1,2,3 & 4 On Each Charge Without Conv Recog (S33(1)(B) Self $100 GB 12 Mnths Recog Entered
Cobham Childrens Court
03/09/1996
Possession Implements to Enter Conveyance
1,2,3 & 4 On Each Charge Without Conv Recog (S33(1)(B) Self $100 GB 12 Mnths Recog Entered
Cobham Childrens Court
03/09/1996
Steal Motor Vehicle
1,2,3 & 4 On Each Charge Without Conv Recog (S33(1)(B) Self $100 GB 12 Mnths Recog Entered
Fairfield Local Court
04/12/2001
Be carried in conveyance taken w/o consent of owner – T2
Bond S9: 1 Year Costs – Court: $58
Liverpool Local Court
15/02/2002
MR – 1st offence Class A m/v exceed speed > 15 kn/h and <=30 km/h
Fine - $188
Liverpool Local Court
15/02/2002
Unlicensed for Class, Class C/R/LR/MR – 1st offence
Fine - $200
Fairfield Local Court
18/03/2002
Use uninsured motor vehicle
Fine - $300
Fairfield Local Court
18/03/2002
Driver of motor vehicle displaying unauthorised number plate
Fine - $300
Fairfield Local Court
18/03/2002
Use unregistered vehicle on road area (not a trailer)
Fine - $300
Fairfield Local Court
18/03/2002
Licence expired less than 2 years before – 2nd + offence
Fine - $1000 = Disqualification 3 years commencing 18/03/2002
Fairfield Local Court
01/05/2003
Drive vehicle recklessly/furiously or speed/manner dangerous
Community service order – 300 hours cumulative disqualification 3 years commencing 18/03/2005
Fairfield Local Court
01/05/2003
Drive while disqualified from holding a licence
12 month imprisonment suspended on enter bon S12 – 12 months supv/NSW - disqualification 2 years commencing 18/03/2005
Fairfield Local Court
01/05/2003
Use uninsured motor vehicle
Fine - $250
Fairfield Local Court
01/05/2003
Use unregistered vehicle on road area (not a trailer)
Fine - $250
Fairfield Local Court
01/05/2003
Resist or hinder police officer in the execution of duty
Community service order – 100 hours cumulative
Fairfield Local Court
30/09/2003
Drive with high range PCA
Imprisonment 12 months suspended on enter bond s12 – 12 month disqualification – 3 years commencing 20/09/2003
Bankstown Local Court
04/04/2007
Possess prohibited drug
Fine - $300
Bankstown Local Court
04/04/2007
Use offensive language in/near public place/school
Fine - $150
Bankstown Local Court
04/04/2007
Stalk/intimidate w/I to cause fear physical mental harm – T2
Bond S29 – 24 months Supv NSW Prob Service
Bankstown Local Court
04/04/2007
Destroy or damage property >$5000 & <=$15000 – T1
Bond S29 – 24 months Supv NSW Prob Service
Bankstown Local Court
04/04/2007
Common assault – T2
Bond S29 – 24 months Supv NSW Prob Service
Bankstown Local Court
04/04/2007
Resist officer in execution of duty – T2
Bond S29 – 24 months Supv NSW Prob Service
Fairfield Local Court
30/06/2010
Contravene prohibition/restriction in AVO (domestic)
Fine - $350
Parramatta Local Court
01/11/2010
Contravene prohibition/restriction in AVO (domestic)
Bond S29 – 12 months Supv NSW Prob Service
Parramatta Local Court
01/11/2010
Threated to destroy or damage another persons property – T1
Bond S29 – 12 months Supv NSW Prob Service
Parramatta Local Court
01/11/2010
Damage property by fire/exp (2 ATTEMPTED)
Bond S29 – 12 months Supv NSW Prob Service
Parramatta Local Court
01/11/2010
Destroy or damage property
Bond S29 – 12 months Supv NSW Prob Service
Fairfield Local Court
19/01/2011
Contravene prohibition/restriction in AVO (domestic)
7 months imprisonment suspended on enter S12 bond
Fairfield Local Court
19/01/2011
Destroy or damage property (DV)
7 months imprisonment suspended on enter S12 bond
Fairfield Local Court
19/01/2011
Destroy or damage property
7 months imprisonment suspended on enter S12 bond
Parramatta Local Court
19/01/2011
Contravene prohibition/restriction in AVO (domestic)
(Call up) Bond S9 – 18 months supv NSW
Parramatta Local Court
19/01/2011
Threated to destroy or damage another persons property – T1
(Call up) Bond S9 – 18 months supv NSW
Parramatta Local Court
19/01/2011
Damage property by fire/exp (2 ATTEMPTED)
(Call up) Bond S9 – 18 months supv NSW
Parramatta Local Court
19/01/2011
Destroy or damage property
(Call up) Bond S9 – 18 months supv NSW
Liverpool Local Court
22/12/2020
Assault occasioning actual bodily harm (DV) – T2
Intensive correction order – 9 months commencing 22/12/2020 – concluding 21/09/2021
Liverpool Local Court
22/12/2020
Destroy or damage property
Intensive correction order – 9 months commencing 22/12/2020 – concluding 21/09/2021
Liverpool Local Court
22/12/2020
Attempt to stalk/intimidate intend fear of harm (domestic) – T2
Intensive correction order – 9 months commencing 22/12/2020 – concluding 21/09/2021
Liverpool Local Court
14/04/2021
Contravene prohibition/restriction in AVO (Domestic)
Imprisonment – 2 months commencing 14/04/2021 concluding 13/06/2021
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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