Stewart and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1257
•11 May 2020
Stewart and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1257 (11 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1082
Re:Mr Brendan Stewart
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:11 May 2020
Place:Sydney
The reviewable decision of the delegate is affirmed
............................[sgd]...........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – Mandatory visa cancellation – Class TY Subclass 444 Special Category (Temporary) visa – multiple convictions – domestic violence – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Pavey and Minister for Home Affairs [2019] AATA 4198
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
11 May 2020
BACKGROUND
The applicant is 44 years old and is a citizen of New Zealand. He arrived in Australia on 23 August 1979 at the age of four. Prior to the cancellation of his visa, he held a Special Category (Temporary) (Class TY) (subclass 444) visa.
The applicant filed an application to the Tribunal on 27 February 2020, seeking review of the decision of the delegate of the Minister dated 17 February 2020 to not revoke the mandatory cancellation of the applicant’s visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). In this decision, the delegate was not satisfied that the applicant met the character test nor that there was another reason why the cancellation decision should be revoked.
The applicant has five children from previous relationships. Three of the children are minors, namely AS, KS and JS. AS is 11 years old and is the only child with whom the applicant is in regular contact. The applicant also has two adult daughters, an adult nephew and niece, as well as a 15-year-old niece.
The applicant has a long history of criminal offences dating back some 25 years. His criminal history may be summarised as follows.
The applicant's first conviction was recorded in 1994, when he was 20 years of age.
The applicant's offending history includes convictions for various offences, namely cultivate prohibited drugs, take and use conveyance, drive whilst cancelled, possess prohibited drug, larceny, break and enter building to commit felony (steal), goods in/on premises reasonably suspected stolen, drive while disqualified from holding a licence, self-administer/attempt self-administer prohibited drug, common assault, assault occasioning bodily harm, custody of knife in public place, fail to quit premises, resist officer, contravene apprehended domestic violence order, destroy or damage property and common assault (DV)-T2.
Most recently, the applicant was convicted for assaulting his de facto partner and contravening an Apprehended Violence Order (‘AVO’). On 25 November 2018, the applicant, under the influence of alcohol, became angry when his partner rebuffed his affection. He kicked-in his partner’s screen door, a verbal altercation ensued and when his partner attempted to leave the building the applicant grabbed her hair and said: “you're not going anywhere, cunt”.
On 11 February 2019, the applicant was subsequently convicted by the Local Court of New South Wales at Fairfield of offences in relation to the domestic violence incident. The applicant was convicted of common assault, 'contravene prohibition/restriction in AVO (Domestic)' and destroy or damage property (DV). The applicant was sentenced to 15 months imprisonment with a non-parole period of 11 months, but the non-parole period was varied to nine months.
The sentencing remarks from the Fairfield Local Court dated 18 February 2019 note that the applicant had committed these offences while he was subject to section 9 behaviour bonds involving the same complainant, his partner. Her Honour determined that “the breach was a serious one. He re-offended in almost exactly the same way, against the same victim”.
Accordingly, on 13 May 2019 the applicant’s visa was mandatorily cancelled pursuant to section 501(3A) of the Act, as he failed to meet the character test on the basis that he was serving a term of imprisonment and had a substantial criminal history as defined by the Act. This was the second occasion where the applicant’s visa had been mandatorily cancelled. The applicant was invited to make representations about the decision. Those representations were made on 25 June 2019.
In summary, the delegate’s decision was based on a finding that the applicant did not satisfy the character test because of his substantial criminal record. This was not disputed by the applicant. As a result, section 501CA(4)(b)(i) of the Act is not satisfied.
The delegate then considered the other considerations outlined in the relevant direction, Direction 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’), and having considered those factors, was not satisfied that the original decision should be revoked. The delegate found that the applicant was likely to reoffend because of his long history of offending and reoffending over many years, alongside other factors set out in the directions.
THE ISSUES
It was agreed by both parties that the applicant does not meet the character test as defined in section 501(6)(a) and 501(7)(c) of the Act.
The issue before the Tribunal is therefore whether the Tribunal should exercise its discretion under section 501CA(4) and revoke the decision of the delegate dated 17 February 2020 to cancel the applicant’s visa.
THE LAW
Given that it is agreed that the applicant does not meet the character test, it is now necessary to consider the evidence in accordance with the Direction in deciding whether or not to exercise the discretion under section 501CA(4) of the Act.
There are also a number of general guidelines in relation to the exercise of discretion set out in the Preamble to the Direction. The following principles contained in paragraph 6.3 are of particular relevance:
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
…...
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.
The Direction sets out primary and other considerations that must be taken into account, where relevant, when deciding whether to refuse to grant a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. Those primary considerations pursuant to Part C of the Direction are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian Community.
Direction No. 79 also sets out other considerations that must be taken into account, which include (but are not limited to):
(d)international non-refoulement obligations;
(e)strength, nature and duration of ties to Australia;
(f)impact on Australian business interests;
(g)impact on victims; and
(h)extent of impediments to the applicant if removed from Australia.
CONSIDERATION
Turning to the first of the primary considerations, namely the protection of the Australian community from criminal and other serious conduct, this consideration requires the Tribunal to look at the nature and seriousness of the applicant’s behaviour and the risk to the Australian community if he were to engage in similar behaviour in the future.
Nature and seriousness of the crime
The applicant has a long criminal history which includes many convictions for both physical and verbal assault against his former partners. The applicant conceded the seriousness of these offences and the fact that they had occurred.
The comments of the sentencing judge in relation to the applicant’s most recent offences referenced their aggravated seriousness on the basis that they occurred in a place where the victim “was entitled to feel safe” and also that the applicant had committed a number of offences against the same victim. The applicant’s offences included violence against a previous partner who was nine months pregnant in the presence of his children.
Apart from the domestic violence offences the applicant has also been convicted of resisting arrest and assaulting a police officer. He has a long sentencing history including convictions for cultivate prohibited drug, take and use conveyance, cancelled driver, possess prohibited drug, larceny, break and enter building commit felony (steal), goods in/on premises reasonably suspected stolen, drive while disqualified from holding a licence, self-administer/attempt self-administer prohibited drug, common assault, assault occasioning bodily harm, custody of knife in public place, fail to quit premises, resist officer, contravene apprehended domestic violence order, destroy or damage property and common assault (DV)-T2.
Many of the applicant’s offences and sentencing relate to drug possession and driving offences, but more recently the applicant’s offences involved violent conduct including common assault, having a kitchen knife in a public place and domestic violence offences. The length of his sentences has been increasing and the applicant was described by the sentencing judge as a “serial domestic violence offender”.
The applicant has been sentenced to several terms of imprisonment over many years. Paragraph 13.1.1(1)(d) of the Direction states that in circumstances where a court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved. Imprisonment is viewed as a last resort.[1]
[1] See, for instance, Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
It is of particular concern to the Tribunal that the applicant was formally warned by the Department that if he received further convictions his visa may be considered for cancellation. He was warned on 31 July 2001, 15 November 2011 and 5 January 2018. Despite these warnings, the applicant’s criminal behaviour continued resulting in numerous further convictions. In summary, neither criminal conviction, time spent in prison nor warnings from the Department had any restraining effect on the Applicant’s conduct.
In his evidence presented to the Tribunal, the applicant referred to being in the grip of drug addiction and then, when he was finally able to stop using, alcohol addiction. He referred to his very troubled relationship with his mother and an incident which occurred when he was 14 that resulted in him being cautioned by the police, he says unfairly. After this incident, he said that his mother’s attitude towards him changed and she began to belittle and abuse him. He put down a lot of his subsequent criminal conduct to these events, and also referred to drug addiction and alcohol abuse on the part of former partners.
Risk to the Australian community
The Tribunal is guided by paragraph 13.1.2 of the Direction, which provides that the tolerance of the Australian community for any risk of future harm becomes less as the seriousness of any potential harm increases. It is necessary for the Tribunal to have regard to the nature of the harm to individuals within the Australian community should the non-citizen engage in further criminal or serious conduct and to the likelihood of the non-citizen engaging in further criminal or serious conduct, taking into account available evidence including evidence of risk of the applicant reoffending.
Given the applicant’s long history of polysubstance use and domestic violence over many years, it is apparent that the community has suffered as a result of the applicant’s behaviour. Numerous female partners have suffered from the effects of domestic violence which are known to be long-term. The offences are particularly serious when they are committed in the presence of children. Domestic violence is a source of very significant individual and societal harm.
There has also been a substantial cost to the community through the cost of response teams, police and the courts.
The applicant gave evidence that his time in Villawood Immigration Detention Centre has provided him an opportunity to reflect on his previous behaviour. He said that he has come to the realisation that he made a mess of his life and that he wanted the chance to start afresh.
He did show some insight into the nature and seriousness of his offences and the harm that he had caused to himself and others. He acknowledged that he had received many warnings from the Minister’s department which he had ignored, he said, as a result of his alcohol and drug addiction which were underlying factors for his offending. The applicant was also struggling to come to terms with his father’s death and his mother’s illness.
Against what I consider to be genuine remorse displayed by the applicant, is the fact that despite many warnings, imprisonment and the possibility of visa cancellation he continuously failed to change his behaviour. I note that the sentencing judge in her sentencing remarks relating to the applicant’s most recent offences stated that he has a “reasonably high risk of reoffending”. Her Honour also felt that the applicant’s chances of rehabilitation were uncertain unless he were to address many issues.
Her Honour was not satisfied that the applicant’s violence against his former partner was explicable by his alcoholism or mental health issues, but that the offences occurred because the applicant could not manage his anger and take control. The sentencing judge said that “the breach was a serious one. He re-offended in almost exactly the same way, against the same victim.”
It is of concern that the applicant has such a long criminal history and that, apart from some recent counselling sessions which he said were very helpful, he has not shown any capacity to change his behaviour. His inability to apply self-control, particularly in relation to violence against women in a domestic situation, raises significant concerns as to the applicant’s capacity to make changes to his behaviour. This is especially true if any of the previous “triggers” for such behaviour were to recur, which must be considered likely.
In light of all of the above factors, I consider that there is a serious risk that the applicant would reoffend and that this will involve a substantial risk to the Australian community. This consideration weighs heavily in favour of non-revocation.
Best interests of minor children
The best interests of the applicant’s minor children and niece must be considered as another primary consideration.
The applicant is the biological father to three minor sons. However, he has little contact with his children other than AS. He said this was mainly due to his volatile relationship with their mother.
The applicant said he was in regular contact with AS who is waiting for when they can spend time together. The applicant gave evidence that he did not have a good relationship with AS’s mother, but that this has not prevented his relationship with AS.
The respondent submitted that the applicant would be able to maintain this relationship if he were returned, as AS would be able to visit the applicant in New Zealand. Whilst I accept that this may be the case, it would be much more difficult. The applicant would have to maintain a good relationship with the child’s mother who would need to be happy for AS to travel and spend time with the applicant in New Zealand. This might not be possible as she may reasonably have some concern and distrust. It would be unlikely that they would travel to New Zealand frequently and the separation and travel would also involve a level of stress for the child.
The applicant’s minor niece would also benefit from the applicant remaining in Australia, as this would mean she would be able to have direct personal contact with her uncle. However, the applicant’s niece is not in his direct care and is under the parental care from her biological parents.
Currently none of the applicant’s children are in his direct care by virtue of the his most recent period of incarceration. He has been in criminal custody and then immigration detention since late 2018 and has been absent from the children’s lives for extended periods of time. However, it is clearly in the best interest of AS to maintain an ongoing relationship with his father in Australia, particularly given the applicant appears committed to trying to maintain this relationship with his son.
Accordingly, I give substantial weight to this issue which weighs in favour of revocation.
Expectations of the Australian community
In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, the Tribunal should be guided by paragraph 13.3(1) of the Direction.
The Tribunal is guided by the Direction and the Government’s views as to the expectations of the Australian community; is not for the tribunal to determine for itself the expectations of the Australian community.[2]
[2] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (per Charlesworth J) and [92]-[93],[100][104] per (Stewart J).
In this case, the applicant has been convicted of domestic violence offences on numerous occasions. The impact of domestic violence cannot be downplayed. It has extremely harmful effects on its victims who are vulnerable, particularly women and children. Both groups are often extremely badly affected over a long period by the effects of domestic violence. In this case one incident of serious violence involved physical abuse of the applicant’s partner when she was nine months pregnant and occurred in front of the applicant’s children. The Australian community has no tolerance for such behaviour.
The applicant has even been described by the sentencing judge in relation to his most recent offences as a serial abuser of women in a domestic situation. The evidence shows similar violent behaviour towards each of his partners.
The applicant has served considerable periods in custody which has also resulted in significant cost to the Australian community both in terms of law enforcement court resources and the costs of detention.
Given the number and seriousness of the applicant’s offences and the nature of those offences, I believe that the applicant has breached the trust of the Australian community. I give significant weight to this consideration.
OTHER CONSIDERATIONS
Strength, nature and duration of ties to Australia
The applicant has lived in Australia since he was four years old. His mother lives in Australia and his father lived in Australia until his recent death. All the applicant’s extended family live in Australia. On the evidence provided, he has worked consistently whilst in Australia and has tried to assist other people in the community.
The Direction provide that less weight should be given to the length of a person’s residence in Australia when a non-citizen began offending soon after arriving in Australia and more weight should be given to the time the non-citizen has spent contributing positively to the Australian community (paragraph 14.2(1).
Even if I accept the applicant’s evidence that he has tried to assist others in the community, has worked in older people’s homes regularly and has always been honest in his dealings with his customers, which I note was not corroborated by any third party at the hearing, this is significantly outweighed by his long history of criminal offending in Australia.
The applicant gave evidence as to his tumultuous relationship with his mother, which occurred as a result of an incident when the applicant was 14 years of age. I accept that he may have been badly treated by his mother, and that in recent years their relationship has improved. At the time of the hearing he was still grieving the death of his father.
From the evidence, the applicant did not appear to have developed any significant community connections. The applicant himself said that his life and his relationships in Australia had all been destroyed by his addiction to drugs or alcohol. His criminal history started when he was 20 years old and only really ended with his most recent period of detention. The considerable period of his time the applicant has spent in Australia in prison and immigration detention alongside his drug and alcohol addiction may in part explain the lack of strong ties with the broader community.
The applicant said that he could get a job if he were to remain in Australia. He has not been a burden on the welfare system. In other ways, however, the applicant has caused considerable expense to the Australian community both in relation to drug-related offences and his domestic violence.
Despite the limited evidence given, I find that the applicant does have long standing ties to Australia, which need to be weighed against his conduct whilst in this country. I give moderate weight to this consideration.
Extent of impediments if the applicant would be returned to New Zealand
Paragraph 14.5(1) of the Direction provides that the extent of any impediments to an applicant relocating and maintaining basic living standards is to be considered in light of what is generally available to other citizens of that country.
Counsel for the respondent submitted that there were no major impediments for the applicant in returning to New Zealand. It was said that any difficulties the applicant faced would be of limited duration. There are no language or cultural barriers to the applicants return. The respondent also pointed to similar social security and medical facilities being available in New Zealand.
It was also submitted that the applicant would be able to access financial support as specifically acknowledged and set out in the New Zealand Government’s “Deported to New Zealand” website. It is likely that he would be able to obtain employment as a painter in New Zealand.
I accept that it would not be easy for the applicant to return to New Zealand and that he is likely to suffer some stress in trying to re-establish himself. It is to be hoped that his child, AS, and perhaps his other children will have the opportunity to visit him in New Zealand and will continue to remain in contact via phone and social media.
I am of the view that this consideration should be given moderate weight in favour of revocation.
DECISION
Having considered the various factors outlined in the Direction, I am of the view that the considerations which way in favour of the applicant are outweighed by the primary considerations of protection of the community and the expectations of the community.
Accordingly, the correct and preferable decision is to affirm the decision of the delegate.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.
..................................[sgd]......................................
Associate
Dated: 11 May 2020
Date of hearing: 23 April 2020 Self-represented Applicant:
Respondent’s representative:
Mr Stewart
Ms Subasha Prasad
2
2
0