Stoneley and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1591
•4 June 2024
Stoneley and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1591 (4 June 2024)
Division:GENERAL DIVISION
File Number:2024/1549
Re:Jordan Stoneley
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member S Burford
Date of decision: 4 June 2024
Date of written reasons: 12 June 2024
Place:Perth
The decision of the delegate of the Respondent dated 12 March 2024 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under section 501CA(4) is affirmed.
..............................[Sgd]......................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – Applicant convicted of Aggravated armed robbery and Aggravated armed burglary and commit offences – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a New Zealand citizen who settled in Australia aged 17 – Non-Revocation Decision is affirmed.
LEGISLATION
Migration Act 1958 (Cth) ss - 15, 189, 196, 197C, 198, 499, 499(1), 499 (2A), 500(1)(b), 500(6B), 500(6H), 500(6J), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501F, 501G, 503.
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Dore and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Khalil and Respondent for Home Affairs [2019] FCAFC 151
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taylor and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2889
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) - paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(b)(ii), 8.1.1(1)(c)-(e), 8.1.1(1)(f), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3)(d), 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(3), 8.4(4), 8.4(4)(a)-(h), 8.5(1), 8.5(2), 8.5(2)(a)–(f), 8.5(3), 8.5(4), 9, 9.1, 9.2, 9.2(1)(a)-(c), 9.3, 9.4.
REASONS FOR DECISION
Senior Member S Burford
12 June 2024
THE DECISION IN THIS MATTER WAS MADE AND PROVIDED TO THE PARTIES ON 4 JUNE 2024 WITH A NOTE THAT WRITTEN REASONS WOULD BE PROVIDED WITHIN A REASONABLE TIME. THESE ARE THOSE WRITTEN REASONS.[1]
THE APPLICATION
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].
The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 12 March 2024 not to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa under section 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). The Applicant was notified of the decision on 15 March 2024.
The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 41-year-old citizen of New Zealand. He first arrived in Australia on 17 June 1983, aged 2, accompanied by his parents.[2] The Applicant returned to New Zealand with his family in 1986. The Applicant remained living in New Zealand until 15 January 1999 when he returned to Australia with his father, stepmother and siblings. He was 17 years old when he settled in Australia.[3] He completed Year 12 in Perth and then commenced work in Western Australia.[4] The Applicant later moved to Queensland to reside with his brother.[5]
[2] R2, TB1; A1, page 12.
[3] R2, TB1; A1, page 12.
[4] Transcript, page 8.
[5] A1, page 13.
The Applicant was granted the visa on 11 March 2017 following a return visit to New Zealand.[6] He has left Australia to return to New Zealand on 7 occasions as an adult including his last return in March 2017.[7]
[6] R2, TB1.
[7] Transcript, page 12; R2, pages 1-2.
In 2003 the Applicant’s father and stepmother returned to resettle in New Zealand. The Applicant remained in Australia along with his two brothers.[8] At some point the Applicant’s mother and stepfather settled in Australia. Both are now deceased. [9]
[8] A1, page 12.
[9] A1, page 13.
The Applicant initially lived in Perth, later moving to Queensland where several family members resided and where he lived for a number of years with his then partner, Ms B. In 2014 the couple had a son, Mstr S. In 2016 the Applicant’s partner returned to live in Perth with their son. The Applicant indicated this was to enable her to access family support from her parents who lived in Perth. The Applicant followed a short time later, resettling in Perth in 2016.[10]
[10] A1, page 12-14.
On 25 August 2021, the Applicant was convicted of a number of offences in the District Court of Western Australia. This included convictions for ‘Home Burglary and Commit’, ‘Criminal Damage by Fire’, ‘Aggravated Home Burglary and Commit’ (2 counts) and ‘Assault occasioning bodily harm’. He was given a total effective sentence of 7 years and 3 months imprisonment backdated to 8 January 2019. This included a sentence of 5 years imprisonment for the ‘Home burglary and commit’ offence. The Applicant was convicted of a further set of offences in the Magistrates Court of Western Australia on 26 August 2021 for which he received further prison terms to be served concurrently with those imposed by the District Court.[11]
[11] R1, G5, G6.
On 5 October 2021 the Minister cancelled the Applicant’s visa under s501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision). The notification letter indicated the Applicant was notified by hand on the same date at Casuarina Prison.[12]
[12] R1, G28.
On 28 October 2021 the Applicant requested revocation of the cancellation of his visa.[13] He provided documents and submissions to the Department in support of his request.[14]
[13] R1, G9.
[14] R1, G8, G10-G27.
On 26 October 2022, the Department invited the Applicant to comment on further relevant information.[15] On 14 November 2022, the Applicant responded to the Department.[16]
[15] R1, G3.
[16] R1, G10.
On 12 March 2024, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[17] This is the reviewable decision before the Tribunal. The letter indicates the Applicant was notified of that decision by hand in Wooroloo prison.[18] The applicant lodged his application for review of the decision on 15 March 2024.[19]
[17] R1, G4.
[18] R1, G3, G30.
[19] R1, G1, pages 1-3, G2 pages 4-11.
The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[20]
[20] See s 501CA(4) of the Migration Act.
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be affirmed.
THE HEARING AND THE EVIDENCE
The hearing commenced on Monday, 20 May 2024. At the commencement of the hearing the Applicant indicated he had been notified late on the Friday of the previous week that he may be eligible for legal assistance through the independent Law Access pro bono scheme. The Applicant confirmed he had been assessed as eligible but that pro bono counsel had not yet been found. The Tribunal adjourned the hearing until 23 May 2024 to allow additional time for a pro bono representative to be identified. There was no objection to the course from the Respondent.
The hearing resumed on 23 May 2024.The Applicant attended the hearing in person. He confirmed no representative had been identified and that he would be self-represented in relation to his application. The Minister was represented by Mr John Papalia of Counsel, instructed by Ms Tareena Martin of Sparke Helmore Lawyers who also appeared in person.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from:
·Isaac Stoneley, the Applicant’s brother; and
·Neil Pike, the Applicant’s friend.
All the witnesses appeared by telephone. The Tribunal notes Mr Isaac Stoneley gave evidence from Queensland. Mr Pike had been scheduled to give evidence in person on 20 May 2024 but was unable to attend in person at the adjourned hearing due to work commitments, and accordingly gave evidence by telephone.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Respondent in written submissions and in oral closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction No 99.
The following documents were marked as exhibits:
·Applicant's Bundle of Submissions (Including exhibits A1 to A16) (Exhibit A1);
·Section 501G Documents labelled G1-G20, consisting of pages 1 to 231 (Exhibit R1); and
·Minister’s Tender Bundle, labelled TB1-TB6, consisting of pages 1 to 396 (Exhibit R2); and
·Section 37 Supplementary T Documents labelled STB1, consisting of pages 1 to 341 (Exhibit R3); and
·Stopping Family Violence Program completion report dated 6 May 2024 (received from Applicant on 17 May 2024); Annexure A, Fact Sheet 5 (pp 72-75) (referred to on page 7 of the above report) (Exhibit R4).
The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 22 April 2024, and a ‘Thematic Reply’ (Thematic Reply) dated 16 May 2024, which the Respondent relied on before the Tribunal.
The Tribunal notes that a telephone directions hearing was held on 21 March 2024 to program the matter for hearing during which the Tribunal discussed the application with the parties and programmed the matter for hearing. With the agreement of the parties, the Tribunal directed that the Respondent file their RSFIC first to assist the Applicant to understand the points at issue and to prepare submissions and evidence in response. The Tribunal discussed with the parties the provision of evidence including restrictions imposed by ss 500(6H) [oral evidence] and s 500(6J) [documents] of the Migration Act (the two-day rule).
On Friday 17 May the Applicant submitted a copy of the Stopping Family Violence Program completion report. As this was less than two business days prior to the commencement of the hearing the provision of the material was outside the two-day rule.[21] The Applicant indicated the document had only been made available to him from authorities that day. The Tribunal held a further directions hearing on 20 May 2024 prior to the commencement of the hearing to discuss the submission of the program completion report. The Respondent acknowledged the document had not been available to either party earlier and that it was relevant to the considerations arising under Direction No 99. The Respondent indicated they would file and tender the completion report along with an annexure referenced in the report (see Exhibit R4), to ensure the Tribunal could have regard to the report. The Applicant agreed with the proposed approach.
LEGISLATIVE FRAMEWORK
[21] Migration Act s 500(6J).
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[22] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[23]
[22] Migration Act s 501CA(3).
[23] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[24] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[24] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 23 January 2023, the Minister made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90.[25]
[25] Direction No 99 paras 2-3.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[26] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[27]
[26] Direction No 99 para 5.1(4).
[27] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed 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 measureable [sic] 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(2) [28](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[28] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[29]
[29] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[30]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[30] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[31]
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) impact on Australian business interests.
[31] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant’s record of criminal offending in Australia commenced in 2007. A detailed table of his offending history is at Annexure A.[32]
[32] Taken from R1, G5.
The Applicant has been convicted of a number of offences including:
·violence or violence related offences: Possessed a Controlled Weapon (2008); Common Assault in Circumstances of Aggravation or Racial Aggravation (2 Counts) (2017); Aggravated Home Burglary and Commit (2 Counts) (2021); Assault Occasioning bodily harm (2021); Home Burglary and Commit (2021); Unlawful wounding in Circumstances of aggravation (2021); Common Assault in Circumstances of Aggravation or Racial Aggravation (4 Counts) (2021);
·property offences: Without lawful excuse trespasses on a place (2017); Cri minal damage by fire (2021);
·driving and traffic related offences: No Driver’s Licence (Demerit Point Suspension) (2007); No Authority to Drive – Suspended (2 Counts) (2008);
·drug offences: Possess a smoking utensil (2008); Possess a Prohibited Drug (Cannabis) (2008); and
·offences involving public officers, police orders or sentences: Breach of protective bail conditions (2 Counts) (2021); Breach of Police order (2021); Breach of Bail (Fail to appear soon after) (2021).
As the Applicant’s offending history indicates (Annexure A), he was convicted of a number of offences in the District Court of Western Australia on 25 August 2021 and in the Magistrates Court of Western Australia on 26 August 2021. Those convictions arose from offences occurring between 2017 and 2019 following a series of incidents involving his former partner, Ms B, and members of her family or friends.
The Applicant was convicted of the offences of Aggravated home burglary and commit, Home burglary and commit and Criminal damage by fire offences in the District Court following a Jury trial.[33] He plead guilty to two other offences (Assault occasioning bodily harm and Aggravated home burglary and commit) prior to the hearing. He was sentenced on 25 August 2021 for all these offences in the District Court of Western Australia with a total effective sentence of 7 years and 3 months.[34]
[33] R1, G6.
[34] R1, G6, page
Following the Applicant’s sentencing in the District Court he was sentenced in the Magistrates Court on 26 August for a related set of offences including Common assault in circumstances of aggravation or racial aggravation (four counts), Unlawful wounding with a circumstance of aggravation, Breach of bail, Breach of protective bail conditions (two counts), and Breach of police order. He received prison sentences totalling 3 years and 3 months imprisonment for these offences to be served concurrently with the term imposed by the District Court.[35]
[35] R2, TB5, page 381-382.
According to the District Court sentencing remarks, the Applicant had been in a long-term relationship with his ex-partner, Ms B, with whom he shared a child. Ms B had ended the relationship in early December 2017 and asked the Applicant to leave the house which he had done. On 6 December 2017, the police were called to an argument between the Applicant and Ms B at Ms B’s home. The police issued a 24-hour police order to the Applicant prohibiting him from communicating with Ms B or entering her home other than for the purposes of dropping off their son.[36]
[36] R1, G6 page 48.
Later that day the Applicant dropped Mstr S at the home and left. At around 4am on 7 December 2017, the Applicant returned to Ms B’s home, disconnected the power and gained access through the back sliding door.[37] There was a confrontation between Mr Johnson, a friend of Ms B who was staying at the house, and the Applicant inside the home. The Applicant punched Mr Johnson across the top of his head. Mr Johnson tackled the Applicant and pinned him to the ground. The Applicant left when released by Mr Johnson and was followed out by Ms B. The Applicant then ran back towards Ms B and punched her in the stomach.[38] These events gave rise to the Aggravated home burglary and commit offence in the District Court (3 years and 6 months imprisonment concurrent) and Magistrates Court convictions for one count of Common assault in circumstances of aggravation (5 months concurrent) and Breach of police order (1 month concurrent).[39] In addition a lifetime FVRO was put in place for the protection of Ms B.[40]
[37] R1, G6 page 48.
[38] R1, G6 page 48.
[39] R1, G7; R2, TB2, pages 21-22.
[40] R1, G8, page 63.
With respect to these offences the District Court observed the offending was serious noting:[41]
[The Applicant] entered [Ms B’s] home without her consent and then assaulted one of the occupants that was there. It was premeditated, as is demonstrated by the fact that you cut the power to the house prior to entering. It was early evening, which had the capacity to significantly intimidate and frighten the occupants. Furthermore, it’s aggravated because there was a police order enforced at the time.
[41] R1, G6, page 53.
The Magistrate’s Court similarly regarded the offences as serious noting the Applicant had disconnected the power and entered the home, behaviour which the Magistrate described as ‘very sinister’.[42]
[42] R1, G7, page 58.
While the Applicant was on bail for those offences, on 2 April 2019 the Applicant entered Ms B’s home in breach of his protective bail conditions. According to sentencing remarks the Applicant Ms B had been fearful for her safety and tried to jam something in the lock to stop the Applicant entering but he did.[43] Once inside he shoved her with a coffee table and grabbed her phone and left and as she followed him he turned and hit her in the face with the phone causing a fracture and laceration to her right eye which required hospital treatment and plastic surgery.[44] Those events lead to convictions before the Magistrates’ Court for Unlawful Wounding with a circumstance of Aggravation (12 months concurrent) and Breach of protective bail (3 months concurrent).
[43] R1, G7, page 58.
[44] R1, G7, page 59.
With respect to those offences the Magistrate observed there was ‘ongoing defiance’ of Court orders by the Applicant including committing serious offences whilst bail conditions were in place.[45] Further, the unlawful wounding was a serious example of that kind of offending noting; [46]
The victim in this case suffered significant injuries and, for a female, having plastic surgery to her face, the ongoing stress of that and the offence itself, no doubt, would have been extremely traumatic.
This meant the offence should be categorised as being in the ‘higher level’.
[45] R1, G7, page 60.
[46] R1, G7, page 60.
On 20 April 2019, according to the District Court sentencing remarks, the Applicant entered Ms B’s home again without consent by forcing a laundry door. Finding Ms B was not at home, the Applicant became ‘enraged’ and lit two fires, one in the washing machine and one in the laundry basket. While the sentencing judge was not satisfied the Applicant went to the home intending to light the fires, he was satisfied beyond reasonable doubt that he lit the fires intending to cause damage to the house.[47] While accepting the Applicant did so knowing no one was in the house, he observed:[48]
Notwithstanding that, the fire had the real potential to cause damage to the surrounding homes and put their occupants at risk although it did not ultimately cause harm to anyone or damage to the surrounding properties. Firefighters attended to put out the fire and there was an obvious risk to them in doing so.
[47] R1, G6 page 49.
[48] R1, G6, page 49.
These events on 20 April 2019 resulted in the convictions for Home burglary and commit (5 years imprisonment concurrent) and Criminal damage by fire (No further punishment).
After lighting the fires, the Applicant ran to Ms B’s mother’s house. He entered through a side gate carrying a baton and brick paver. He charged towards Ms B’s mother who was outside, knocking her to the ground. Ms B came out of the house and the Applicant grabbed her by the hair and started putting his thumbs into her eyes. He also knocked Ms B’s father to the ground. Ms B’s brother appeared and the Applicant swung the baton at him missed and was then blocked on the second stroke. The Applicant then hit him with a paver three times to side of his head and hand, knocking him out momentarily.[49] Ms B attempted to go back into the house where the Applicant grabbed her by the hair. During this time the Applicant was calling Ms B a ‘crack whore slut’. Ms B’s father and brother restrained the Applicant and called the police. The sentencing judge highlighted the Applicant’s son, who was 5 years old at the time, was at the house and observed the offending.[50]
[49] R1, G6 Page 50.
[50] R1, G6 page 50.
The sentencing remarks noted the Applicant was ‘couch surfing’ at the time of the offending and was using methylamphetamine ‘significantly’. [51] Those events lead to the convictions in the District Court for Assault occasioning bodily harm (1 year and 6 months imprisonment concurrent) and Aggravated home burglary and commit (2 years and 3 months cumulative) and in the Magistrates Court for three counts of Common assault (6 months concurrent).
[51] R1, G6 page 53.
The sentencing judge in the District Court described the seriousness of the offences noting:[52]
this is a very serious example of domestic violence. You went to [Ms B’s] house to confront her knowing that you’re not allowed to be within 50 metres of her and then proceeding to set the fire in the circumstances that I have outlined. Fires are unpredictable and the damages and injuries that could have been caused were significant. In this case, the offending deprived [Ms B] and your son of their home. Although thankfully, as I’ve said, no one was injured.
[52] R1, G6 page 51.
Further the Applicant was the subject of protective orders at the time, aggravating the offending.[53] With respect to the offences against Ms B and her family the sentencing judge noted that it was ‘very serious offending’ and was aggravated by the fact the Applicant breached protective bail conditions. He noted the gap between the offences reflecting ‘a sustained approach to perpetrating domestic violence against a former partner’.[54] Similarly, the Magistrate noted in sentencing the Applicant for the related offences that the assault offences were serious assaults and observed the Applicant had ‘reigned terror’ upon Ms B for ‘a considerable amount of time’.[55]
[53] R1, G6, page 52-53.
[54] R1, G6, page 54.
[55] R1, G7, page 59.
Before the Tribunal, the Applicant admitted to the offences and took responsibility for them but asserts he struggles to remember the specifics of the 20 April 2019 offending.[56]
[56] Transcript page 21.
Prior to the April 2019 offending, the Applicant breached a protective bail condition entered into in January 2019 by attending Mstr S’ primary school and following Ms B and his son from the classroom. He had a verbal altercation with Ms B and picked up his son carrying him through the school gate. The victim attempted to call police but the Applicant returned and snatched her phone and said ‘I’ll cut your throat;’. He threw the phone a distance on to the school oval. The Applicant put down Mstr S and ran several steps from Ms B saying ‘Race you to your house’. The incident was witnessed by the Deputy Principal who took Ms B back into the school.[57] In submissions the Applicant took responsibility for his actions and was remorseful.[58]
[57] R2, page 8.
[58] A1, page 16.
Before facing court for the 2017 and 2019 offences, the Applicant had two previous convictions for Common assault in circumstances of aggravation and Without lawful excuse trespass on a place. The victims of the assaults were Ms B and her father. According to the Statements of Material Facts, which the Applicant accepted at the hearing were an accurate account of the offences, those convictions arose from an incident on 12 October 2016 during a period where the Applicant and Ms B had been separated since January 2016. The Applicant attended Ms B’s home while she was out. A male friend was at the premises and her father was in the front yard to mow the lawn. The Applicant let himself into the property and Ms B arrived home a short time later. The Applicant had removed a bag from the home. While they were outside Ms B grabbed hold of the bag the Applicant placed an arm around her shoulders and chest from behind and grabbed he by the hair pulling her backwards. Ms B’s father intervened, grabbing the Applicant to get him to release Ms B. The Applicant threw Ms B to the ground and swung a clinched fist at her father connecting with the bridge of his nose and causing him to fall into a fence. Both victims sustained minor cuts and scratches.[59]
[59] R2, TB2 pages 27-28; Transcript, pages 19-20.
In addition to these offences, the Applicant has been convicted of several of drug related offences namely, ‘Possession of prohibited drug (Cannabis)’, ‘possessed drug paraphernalia’ and of a number of driving offences spanning from 2002-2008.[60]
[60] R1, G5.
The nature and seriousness of the Applicant’s offending and other conduct is considered further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[61]
[61] Migration Act s 501(7)(c).
As noted above, the character test is defined in s 501(6) of the Migration Act. Failure to pass the character test arises as a matter of law.[62]
[62] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
On 26 August 2021, the Applicant was convicted of ‘Home Burglary and Commit’, ‘Criminal Damage by Fire’, ‘Aggravated Home Burglary and Commit’ (2 counts) and ‘Assault occasioning bodily harm’. He received a sentence of 5 years imprisonment for the ‘Home Burglary and commit’ offence with a total effective sentence for all offences of 7 years and 3 months, with parole eligibility after serving 5 years.[63]
[63] R1, G5.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[64]
[64] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations detailed in Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[65]
[65] s 501CA(4)(b)(ii) of the Migration Act.
The Applicant submitted that there were several reasons why the Cancellation Decision should be revoked. As stated in his application for review and written submissions these were, in summary:[66]
[66] A1, page 12-32; R1, G2 pages 13-14.
·The severity of the impact the cancellation would have on his son Mstr S, and the impact on other children including Ms Angel’s children.
·His continued efforts towards rehabilitation, including intensive treatment for his drug and alcohol abuse and completition of the Stopping Family Violence program.
·The fact this was his first and only term of imprisonment.
·His decision to end his relationship with Ms B.
·The impact on his future relationship with his Australian citizen girlfriend, Ms Angel.
·His continued education and upskilling towards employment upon release.
·His support from family and friends if allowed to remain in Australia.
·The length of time he has lived in Australia including 3 years when he was a young child.
·The fact that his removal would force him to start his life again and would have a severe impact on him ‘mentally and emotionally’ as he would be removed from his son’s life.
In addition, he contended in submissions and evidence, in summary:[67]
·He acknowledges the seriousness of his offending. His offending was a result of substance abuse issues. He accepts responsibility for the offending though denied there was a history of physical violence since 2014 (as stated in the delegate’s decision).
·He acknowledged a history of substance use though denied he lost his job in 2017 (as stated in the delegate’s decision).
·He is remorseful and has undertaken rehabilitation to address substance use and family violence issues, and has undertaken educational, upskilling and parenting programs while incarcerated.
·He has a plan for further rehabilitation in the community including one on one counselling at Black Swan Health and group therapy through Relationships Australia. He also intends to engage in other agencies programs such as ReSet, Centrecare and Cyrenian house.
·If paroled, he will have parole conditions in place until 7 April 2026.[68] Ms B is protected by a lifetime FVRO.
·He has accommodation, employment and other social support from Mr Neil Pike and other friends and family. He plans to work in Mr Pike’s landscaping business upon release.
·He is determined to work towards a prosocial life and integrating into his son’s life in cooperation with Ms B.
·Although his step-mother and father reside in New Zealand, his support network of his brother and friends are ‘Australian’.[69]
[67] A1, page 12-32; R1, G2 pages 13-14; G9; G10.
[68] R2, TB3, page 293.
[69] A1, page 30.
The Respondent submitted, in summary, that the considerations weighing against the Cancellation Decision being revoked and outweigh those considerations weighing in favour of revocation noting:[70]
[70] RSFIC; Thematic reply.
·The 2017 and 2019 convictions should be viewed very seriously because they were violent crimes. They were also very serious as they were crimes of a violent nature against a woman. In addition, there was a trend of increasing seriousness in the offending and a level of frequency despite a gap in offending between 2008 and 2016.
·The Applicant’s offending caused trauma to his victims. The risk of harm were he to reoffend is so serious that and risk is unacceptable. The Applicant was assessed as having a propensity to family violence and being a moderate to high risk of reoffending. While he has made substantive efforts toward rehabilitation taking into account completion reports and the clinical psychologists report which is based on the Applicant’s self-reported history, the Applicant’s risk should be found to be in the moderate range.
·The Applicant committed family violence offences. The family violence was frequent, cumulative and had a noticeable trend of increased seriousness. Family violence was committed in defiance of protective orders. While the Applicant has undertaken family violence courses the results are qualified and his insight and rehabilitation is untested in the community.
·It is acknowledged that the Applicant has substantial ties to Australia however these do not outweigh other considerations.
·The best interests of the Applicants son is that the cancellation be revoked noting however that Mstr S witnessed the Applicant’s family violence against his mother and has the care of his mother and maternal grandparents. The interests of the other identified children would only be marginally impacted.
·The expectations of the Australian community would be that the visa would be cancelled and the community would not afford the Applicant higher tolerance for his offending having regard to his circumstances.
·The legal consequences of the decision carries neutral weight.
·The impact of non-revocation on Mstr S as a victim of the offences would be adverse. However, there are no known views of Ms B and her family are not known. The views of the Applicant’s family and friends as members of the Australian community are taken account of in consideration of this ties to Australia.
·While Mr Pike has offered to employ the Applicant, and indicated he needs additional help to meet demand, there was no evidence that this would impact the delivery of a major project of important service in Australia.
·The primary considerations weighing against revocation overwhelmingly outweigh considerations weighing in favour.
Protection of the Australian Community
The first primary consideration, para 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[71]
[71] See also Direction No 99 para 8(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant submitted that his circumstances have changed and if the Cancellation Decision was revoked, he would not reoffend and that the protection of the Australian community did not require that his visa remain cancelled.[72]
[72] A1, page 18.
The Respondent contended that the Applicant engaged in serious offending including family violence and the protection of the Australian community weighed very heavily against revocation of the Cancellation Decision.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[73] In doing so, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[74]
[73] Direction No 99 para 8.1(2).
[74] Direction No 99 para 8.1.1(1)(a).
The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’. Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or acts of family violence, without limiting the range of conduct that may be considered to be very serious.[75]
[75] Direction No 99, para 8.1.1(1)(a).
The Applicant’s offending history was outlined above.
The Applicant submitted that he has no excuses for his offences. With respect to his offending he stated:[76]
Everything I was dealing with at the time is not an excuse for my actions, in fact, there are no excuses. It was my inability to deal with what was happening and what I was going through. I was failing to connect with my support and therefore they were unaware and unable to support me. My circumstances around my offending is that I was not the person I am now because I was addicted to drugs and had no insight into my own actions.
[76] A1, page 18.
The Respondent contended that applying Direction No 99 the Applicant’s conduct and offending should be viewed very seriously because it involved violent crimes,[77] including crimes of a violent nature against a woman,[78] and because it includes acts of family violence.[79]
[77] Para 8.1.1(1)(a)(i) of Direction No 99.
[78] Para 8.1.1(1)(a)(ii) of Direction No 99.
[79] Para 8.1.1(1)(b)(iii) of Direction No 99.
As noted above, the District Court sentencing judge stated that the offences were serious and included very serious examples of domestic violence.[80] The sentencing judge noted that the Applicant’s son, who was around five years of age, was present and observed the offences, and that protective orders were in place at the time of the offending.[81]
[80] R1, G6, pages 51-52.
[81] R1, G6, page 50.
The Tribunal considers that the Applicant’s conduct giving rise to the 2021 convictions for Home burglary and commit and Criminal damage by fire was very serious, reflected in the significant 5 year prison sentence the Applicant received for those offences (with the Home burglary and commit offence attracting a five year sentence and the associated ‘grounding offence’ of Criminal damage by fire attracting no further punishment).[82]
[82] R1, G6 pages 47, 53 (references to Counts 2 and 3).
While the Tribunal does not consider that those particular offences might be said properly fall within the categories of violent offending or violent offending against a woman for the purposes of paragraph 8.1.1(1)(a) of the Direction, in the Tribunal’s view the offending did constitute a serious example of family violence. In the Tribunal’s view that offending was very serious. The Applicant’s offending destroyed private property causing substantial financial loss, placed other properties at risk, put first responders at risk and robbed his ex-partner and child of their home.[83]
[83] R1, G6 pages 49, 53.
Considering the circumstances of the other offences the Tribunal considers that the Applicant’s crimes include violent crimes of common assault and assault occasioning bodily harm. They include crimes of a violent nature against women being the Applicant’s ex-partner and her mother. They include acts of family violence which the District Court described as reflecting ‘a sustained approach to perpetrating domestic violence against a former partner’.[84] Applying the Direction, such crimes are to be considered very seriously.[85] They were also considered by the sentencing courts to be serious given the repeated nature of the offences and sustained nature of the family violence.[86]
[84] R1, G6, page 54.
[85] Paras 8.1.1(1)(a)(i), (ii) and (iii) of Direction No 99.
[86] R1, G6, page 54.
In assessing the nature and seriousness of the Applicant’s conduct, the Tribunal must also have regard to the sentences imposed by the Courts (other than with respect to the violent crimes against women),[87] the frequency of the offending and/or whether there is any trend of increasing seriousness and the cumulative effect of repeat offending.[88]
[87] Except where otherwise stipulated in the Direction, for example in Direction No 99 para 8.1(1)(a)(ii).
[88] Direction No 99 para 8.1.1(1)(c)-(e).
The Tribunal considers the sentences of imprisonment imposed on the Applicant to be a reflection of the very serious nature of the offending. The District Court sentencing judge considered that given the seriousness of the offending a sentencing of imprisonment was the only appropriate sentence with respect to each of the offences before that court.[89] The Applicant received a total effective sentence of 7 years and 3 months for the offences which was a significant sentence noting sentences of imprisonment are a last resort and these were the Applicant’s first custodial sentences.
[89] R1, G6, page 55.
As noted above, the District Court observed that the Applicant’s offending demonstrated a ‘sustained approach’ to committing family violence against this partner over a number of years.[90] His Honour considered this a mark of the very serious nature of the offending and the Tribunal agrees. The Tribunal considers there was a pattern in the Applicant’s offending, noting the number of convictions overall and the fact several offences were repeated, including breaches of court or police orders. In addition, the Applicant’s offending escalated to the very serious attacks on 20 April 2019. The Tribunal considers the frequency and increasing seriousness was a feature of the Applicant’s later offending and contributes to its overall assessment as very serious.
[90] R1, G6 page 54.
The Applicant contended that his offending had arisen in circumstances of illicit substance abuse and a toxic relationship with his ex-partner. The District Court sentencing remarks note ‘the relationship was affected by mutual distrust and heavy use of methylamphetamine’.[91] The Tribunal accepts substance abuse was a factor in the Applicant’s offending and that the offending occurred in the context of a breakdown in the relationship. However, the Tribunal does not consider this mitigates the seriousness of the offending given the period over which the offending occurred and the very serious nature of the family violence inflicted on Ms B and her family members.
[91] R1, G6, page 48.
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department.[92] The Respondent submitted that the Applicant provided false information by not disclosing his prior criminal convictions on his passenger information cards in January and March 2017.[93] The Respondent drew the Tribunal’s attention to copies of the Applicant’s passenger entry cards where he declared on 6 January 2017 and 11 March 2017 that he had no criminal convictions.[94]
[92] Direction No 99 para 8.1.1(1)(f).
[93] RSFIC, page 10.
[94] R1, G3, pages 18-19.
The passenger movement cards included a question as follows:
If you are NOT an Australian citizen:
…
Do you have any criminal conviction/s?
(Original emphasis.)
It invites the declarant to tick ‘Yes’ or ‘No’. The Applicant placed a cross next to the answer ‘No’ on both occasions, notwithstanding he had been convicted of three driving offences, two drug offences and possession of a prohibited weapon. While the Applicant only received fines and suspensions for these offences he had recorded convictions with respect to them.
The form includes the following declaration which the Applicant signed:[95]
The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.
[95] R2, G8, page 54.
The Applicant maintained that he did not realise the question was asking about convictions, instead believed it was in relation to sentences of imprisonment.[96] Given the Applicant had been convicted of a number of offences by the time he filled out the incoming passenger cards the Tribunal does not accept he was unaware those constituted convictions, particularly with respect to the drug and weapons offences. The Tribunal considers the failure to disclose these convictions reflects poorly on the Applicant, however it does not contribute to the overall assessment of the Applicant’s conduct and offending as very serious.
[96] A1, page 18.
Overall, the Tribunal finds the Applicant has engaged in a number of offences which, applying Direction No 99, are very serious. Taking the Applicant’s record as a whole, the Tribunal considers the Applicant’s conduct and offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 99 states, in part:[97]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[97] See also Direction No 99 para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[98] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[99]
[98] Direction No 99 para 8.1.2(2)(a).
[99] Direction No 99 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[100]
Nature of the harm
[100] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[101]
[101] Direction No 99 para 8.1.2(2)(a).
The Respondent contended that the harm that would be caused if the Applicant were to reoffend is very serious, noting the long-term adverse effects of family violence on victims, including children, are ‘both profound and unacceptable’.[102] The Respondent noted that Direction No 99 provides that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk of repetition may be unacceptable.[103]
[102] Thematic Reply, page 6.
[103] Direction No 99 para 8.1.2(1)).
The Applicant has committed offences including physical assaults and causing damage by in Ms B’s home causing the victim to suffer injuries. This included Ms B sustaining injuries which required hospitalisation and surgery. In addition, the deliberate starting of the fire caused damage and could have had more significant consequences, including for neighbours and first responders. As noted by the District Court with respect to the need for deterrence of similar offending ‘fires are unpredictable, and can have extremely destructive, if not tragic, consequences’.[104]
[104] R1, G6, page 55.
The Tribunal considers the harm which would be caused were the Applicant to reoffend in a similar manner would be very serious and include physical and psychological injury and financial loss to members of the community. Noting the nature of the violence and the conclusions of the observations of the Stopping Family Violence completion report (see further below), it could also include loss of life.[105] The harm would also include the cost of resources of first responders required to deal with events such as deliberately lit house fires and the serious injury and even death which may result to those caught by,, or responding to, a fire.
[105] R4, page 7.
The Applicant was also convicted of drug offences and traffic offences. While those offences did not have an identified victim such offending poses a risk of harm to the community, through the harm caused by illicit substance use including but not limited to the physical and psychological harm to the user and the potential harm to other road users caused by driving infringements. The Tribunal considers the harm which would be caused were the Applicant to commit further driving or drug offences is also serious.
The Tribunal is satisfied that the harm which would be caused to the community were the Applicant to offend in a similar manner would be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[106]
[106] Direction No 99 para 8.1.2(2)(b).
The Applicant contended that he will not reoffend and is not a risk to the community. In this regard he submitted that:[107]
[107] A1, pages 18-25.
·He was remorseful for his offending;
·His circumstances had changed and he was no longer in his ‘prior, co-dependent and enmeshed relationship’ and has taken steps to prevent entering into such a relationship again;
·Whilst in prison he has completed specific courses to address family violence offending (Stopping Family Violence) and addictions offending (Pathways) and has accessed other programs and counselling supports where available. He has also undertaken significant programs to improve his education and his employment prospects and has undertaken parenting programs in prison;
·His offending was caused by his illicit substance use and a ‘toxic’ relationship;
·He has been clean since entering prison and intends to maintain a drug free, pro-social lifestyle on release;
·He has guaranteed employment, housing and social support on release from the Pike family and his social network including family in Australia;
·He has identified rehabilitation support programs to continue his rehabilitation in the community with ReSet, Centrecare and Cyrenian House (ADEPT).[108] He has prepared a detailed release plan for parole;[109]
·He was assessed by a psychologist, Ms Buktenica, and found not to present a risk/threat to the Australian community;
·He has held trusted positions in prison and has been a model prisoner.
·He is motivated not to reoffend as he is now aware of the impact of his offending. He wants to remain in Australia to build a relationship with his son and wants to regain the trust of his support network and the community.
[108] A1, page 42 – 44.
[109] R1, G25, pages 179-185.
The Respondent submitted that the Applicant had been assessed in August 2021 by Corrective Services and the courts to have a ‘propensity for family violence’ and to present ‘a moderate to high risk of reoffending’ notwithstanding efforts made at rehabilitation in prison to that date.[110]
[110] R1, G6, page 52 and 54.
The Applicant provided evidence of having completed or undertaken a range of rehabilitation programs including:[111]
[111] R1, G10, pages 85,97; G12 100, 102, 108, 110-113, 115, 120-125, 126-130; G27196.
·Life skills
·Brief Intervention Cognitive skills program
·Standing on solid ground – 50 hour program about emotional intelligence
·Wungening Drug and Alcohol program
·Narcotics Anonymous 12 Steps Workshop
·Narcotics Anonymous weekly meeting
·Domestic Family Violence Treatment Readiness program
·Alcohol and other drug (AOD) Treatment Readiness group – 3 session group based program
·Alternative to violence project based workshop
·Alternative to violence project advanced workshop
·Reset Intro to parenting
·ReSet Active parenting
·ReSet one on one parenting
·ReSet Healthy lifestyle parenting
He has also completed a Pathways[112] and Stopping Family Violence[113] programs and voluntary individual Family and Domestic Violence and Alcohol and Other Drugs Counselling sessions with Community Transitions.[114]
[112] R1, G12 pages 118, 120-125; R2, TB3, pages 301-305 (largely unredacted).
[113] R4.
[114] R1, G12, page 113.
Pathways is a 100 hour addictions offending program offered by the Department of Justice which the Applicant completed on 21 July 2023.[115] Stopping Family Violence is a 77.5 hour program that targets criminogenic needs related to family violence for male offenders. The premise of the program is for individuals to take responsibility for their behaviour, develop skills to manage risk, and increase their accountability to their families and the community.[116]
[115] R1, G12, page 118.
[116] R4, page 1.
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 11 October 2021[246] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 8 April 2024.[247]
[246] R1, G5 pages 43 – 44.
[247] R2, TB1, pages 1-2.
Conviction Date
Court
Offence
Offence Date
Court Result
1.
26 August 2021
Perth Magistrates Court
Common Assault in Circumstances of Aggravation or racial Aggravation
7 December 2017
Imprisonment for 5 Months (Concurrent)
2.
26 August 2021
Perth Magistrates Court
Common Assault in Circumstances of Aggravation or racial Aggravation
20 April 2019
Imprisonment for 6 Months (Concurrent)
3.
26 August 2021
Perth Magistrates Court
Common Assault in Circumstances of Aggravation or racial Aggravation
20 April 2019
Imprisonment for 6 Months (Concurrent)
4.
26 August 2021
Perth Magistrates Court
Common Assault in Circumstances of Aggravation or racial Aggravation
20 April 2019
Imprisonment for 6 Months (Concurrent)
5.
26 August 2021
Perth Magistrates Court
Unlawful wounding with a circumstance of aggravation
2 April 2019
12 Months’ imprisonment
(Concurrent)
6.
26 August 2021
Perth Magistrates Court
Breach of Bail (Fail to appear soon after)
3 April 2019
1 Month Imprisonment
(Concurrent)
7.
26 August 2021
Perth Magistrates Court
Breach of Police order (Restraining Order)
7 December 2017
1 Month imprisonment (concurrent)
8.
26 August 2021
Perth Magistrates Court
Breach of Protective bail conditions
29 March 2019
6 Months imprisonment
(Concurrent)
9.
26 August 2021
Perth Magistrates Court
Breach of Protective bail conditions
2 April 2019
3 Months imprisonment
(Concurrent)
10.
25 August 2021
Perth District Court of Western Australia
Criminal damage by fire
20 April 2019
No further punishment
FVRO
11.
25 August 2021
Perth District Court of Western Australia
Home Burglary and Commit
20 April 2019
5 Years imprisonment
(Concurrent)
FVRO
12.
25 August 2021
Perth District Court of Western Australia
Assault occasioning bodily harm
20 April 2019
1 Year and 6 months imprisonment (Concurrent)
FVRO
13.
25 August 2021
Perth District Court of Western Australia
Aggravated home burglary and commit
7 December 2017
2 years and 3 months Imprisonment
(Cumulative)
FVRO
14.
25 August 2021
Perth District Court of Western Australia
Aggravated home burglary and commit
20April 2019
3 years and 6 months imprisonment
(Concurrent)
FVRO
15.
17 August 2021
Perth District Court of Western Australia
Home Burglary and Commit
20 April 2019
FVRO
16.
20 November 2017
Joondalup
Magistrates Court
Without lawful excuse trespasses on a place
12 October 2016
Fine $250
17.
20 November 2017
Joondalup
Magistrates Court
Common Assault in Circumstances of Aggravation or racial Aggravation
12 October 2016
Fine $1000
18.
20 November 2017
Joondalup
Magistrates Court
Common Assault in Circumstances of Aggravation or racial Aggravation
12 October 2016
Fine $1000
19.
20 October 2008
Joondalup
Magistrates Court
No Authority to Drive – Suspended
8 August 2008
$1,000 fine and disqualified
from driving for 9 months
20.
20 October 2008
Joondalup
Magistrates Court
No Authority to Drive – Suspended
21 August 2008
$1,000 fine and disqualified
from driving for 9 months
21.
13 February 2008
Perth Magistrates Court
Possessed a controlled weapon
22 September 2007
Fine $300
22.
10 January 2008
Perth Magistrates Court
Possess a Prohibited Drug (Cannabis)
22 December 2007
Fine $200
23.
10 January 2008
Perth Magistrates Court
Possess a Smoking Utensil
22 December 2007
Fine $200
24.
17 December 2007
Perth Magistrates Court
No Driver’s Licence (Demerit Point Suspension)
28 November 2007
$400 fine and disqualified from driving for 9
months
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