Stowers and Minister for Home Affairs (Migration)

[2019] AATA 3640

Stowers and Minister for Home Affairs (Migration) [2019] AATA 3640 (19 September 2019)

Division:GENERAL DIVISION

File Number(s):      2019/3979

Re:Junior Stowers

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:19 September 2019

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 26 June 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.   

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

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category visa – serious criminal offending – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked –  whether risk of applicant engaging in criminal conduct in Australia – protection of the Australian community from criminal or other serious conduct – the best interests of minor children – expectations of the Australian community –  other considerations – Ministerial Direction No. 79 applied – decision set aside and substituted

LEGISLATION

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

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member M Griffin QC

19 September 2019

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs made on 26 June 2019 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), refusing to revoke an earlier decision dated 23 December 2016 to cancel the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. On 4 July 2019, the Applicant applied to the Tribunal for review of the Delegate's decision.

2. The Applicant is a 33 year-old citizen of New Zealand who arrived in Australia on 16 September 2005 at the age of 19.

   ISSUES

3. The issue in this review is whether the original decision to cancel the Applicant’s Visa should be revoked pursuant to s 501 of the Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:

   (a)that the Applicant passes the character test as defined by section 501 of the Act; or

   (b)there is another reason why the original decision should be revoked(s 501CA(4)(b)).

   RELEVANT LEGISLATION AND POLICY

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

5. Subsection 501CA(4) of the Act provides that:

   The Minister may revoke the original decision if:

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

   (b)the Minister is satisfied:

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

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

6. Subsection 501(6)(a) of the Act relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

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

8. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 79, made on 20 December 2018; commenced 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.

9. The Preamble of Direction 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:

   (a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;

   (b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;

   (c)a non-citizen who has committed a serious crime, including of a violent  or sexual nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia;

   (d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;

   (e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age; and

   (f)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.

10. Part C of Direction 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

11. Pursuant to Part C of Direction 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

12. The three primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian community.

    Primary Consideration 1 – Protection of the Australian community

13. Paragraph 13.1 of Direction 79 provides:

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    (2)Decision-makers should also give consideration to:

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

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

14. The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

    The nature and seriousness of the conduct

15. Sub-paragraph 13.1.1 of Direction 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:

    (a)the principle that violent and/or sexual crimes are viewed very seriously;

    (b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

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

    (d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;

    (e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

    (f)the cumulative effect of repeated offending;

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

    (h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and

    (i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.

    The risk to the Australian community

16. Paragraph 13.1.2 of Direction 79 states that decision-makers must have regard, cumulatively, to the following:

    (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 available information and evidence on the risk of the non-citizen re-offending.

    Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

17. Decision-makers must make a determination in respect of each relevant child under 18 years about whether revocation is in the best interests of that child.

18. In considering the best interests of the child, the following factors must be considered where relevant:

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

    (b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

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

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

    (g)evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

    Primary Consideration 3 – Expectations of the Australian community

19. Paragraph 13.3 of Direction 79 provides:

    (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

20. The principles to be applied, as set out in paragraph 6.3 of Direction 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.

21. The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.

    Other Considerations

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

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties to Australia;

    c)Impact on Australian business interests;

    d)Impact on victims;

    e)Extend of impediments if removed.

    International non-refoulement obligations

23. The considerations at para 14.1 of Direction 79 include (but are not limited to):

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

    (b)the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;

    (c)claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);

    (d)where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;

    (e)any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.

    Strength, nature and duration of ties

24. The considerations at para 14.2 include:

    (a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;

    (b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.

    Impact on Australian business interests

25. Direction 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (para 14.3(1)).

    Impact on victims

26. Paragraph 14.4 of Direction 79 provides:

    'Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.'

    Extent of impediments if removed

27. The extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.

    DISCUSSION

28. What follows is a discussion of relevant matters and considerations pertaining to the Applicant’s case.

    Character Test

29. It is clear according to the Act that because the Applicant has a ‘substantial criminal record’ (s 501(6)(a)) he does not pass the character test.

30. The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.

31. Since his arrival in Australia, the Applicant first formed a relationship with one J C with whom he had a son, R, born 2009. As will become apparent from later discussions of the evidence, this relationship was tumultuous and finally ended. The ex-partner (so-called in the evidence) gave credible and compelling evidence in the Applicant’s favour. That evidence is also discussed below. The Applicant formed a new relationship and has two young male children: I, born 2014, and Z, born 2016.

32. The Applicant has, on the evidence, been in work as a labourer for a large part of his time living in Australia. He has a lengthy criminal history although, in the Tribunal’s opinion, it is necessary to consider that criminal history and his later conduct in immigration detention in some detail to appreciate the extent and overall quality of the conduct.

33. The complete record of his criminal history is to be found in the “G” Documents, pp 25 – 27. That history demonstrates convictions for 19 offences in Australia between 2008 and 2016, together with burglary offences in 2004 in New Zealand. At the hearing before the Tribunal, the Applicant accepted his criminal history and expressed his remorse which the Tribunal accepts as genuine. The Applicant’s criminal conduct is not in dispute.

34. The evidence at hearing, apart from the ex-partner, included oral evidence by the Applicant’s present partner, his aunt, and various other people with whom the Applicant has had contact in recent times, have given evidence supportive of him, of his determination to reform, the genuineness of those attempts in recent times and his positive law-abiding attitude to the future.

35. It is relevant to state that there is a distinct advantage in being present to hear and see witnesses give evidence. This advantage is particularly keen in the present matter where judgements must be made about facts based upon evidence given by individuals. I had such an advantage in this matter and I am thoroughly satisfied that the Applicant was both genuine and determined in his desire to be a law-abiding citizen in the future. That is, of course, not an end to the matter by any means and related issues will be discussed in more detail when assessing considerations required by the Tribunal in this case.

36. The Applicant has seen two psychologists, one in 2016 (Dieter) who expressed a positive view for the Applicant’s rehabilitation and opined that “the incident (in 2016) seems to confirm his impulsivity, rather than being indicative of a criminal disposition”.

1. In 2019, a contemporary report was provided by Cinar who noted, in relation to the Applicant’s background, that “being repeatedly sexually abused may have formed the background for the emergence of this problem and further concluded that the Applicant met the criteria for complex post-traumatic stress disorder”. The psychologist, in assessing the risk of future offending, said that Mr Stowers presented with protective factors that may subjugate the likelihood of reoffending. The psychologist further opined that, given the reported relationship he has at present, together with the family’s support, the Applicant’s risk of re-offending may be further reduced. The Tribunal accepts the opinions of both psychologists.

   Specific offences

2. The 2016 offences are certainly serious and involved three innocent parties, including his partner. These offences should be viewed, however, in the light of the psychological reports. As the Tribunal accepts the opinion of Dieter, the incident in 2016 seems to confirm impulsivity rather than being indicative of a criminal disposition.

3. The Applicant committed a property offence, break and enter, in 2007 and an offence of assault, involving his former partner, in 2011. She chose not to report the offending. It is in the Tribunal‘s view an example of the tumultuous relationship the parties enjoyed. It did not, however, in the Tribunal‘s view, involve any great length level of violence even although the victim was a female known to the Applicant. The fact that the ex-partner of the Applicant chose not to report the offending and further that her explanation in evidence before the Tribunal as to the detail of the offending leads the Tribunal to conclude that it was not, overall, a particularly serious offence.

4. The Applicant has also been convicted of a number of driving offences.

5. The so-called incidents in immigration detention are relied upon by the Respondent to assert a continuing and violent disposition in the Applicant. A close reading of those offences demonstrates, in the Tribunal‘s view, that these occurred in the “hot house” environment of immigration detention which may be considered as a more destructive environment than the prison system. Relevantly, the Applicant was not convicted of any offences for violence whilst in prison. Furthermore, the Tribunal accepts that the Applicant and those other parties involved in the so-called incidents were under great emotional stress and pressure for obvious reasons.

6. The Tribunal further accepts that the Applicant, on occasions, behaved under provocation by other inmates in these matters. Importantly, the Tribunal recognises that there were no charges laid against the Applicant for these incidents and the Tribunal, overall, whilst recognising that they are in evidence, places very little weight upon them in its overall consideration of the relevant matters in this hearing.

   Protection of the Australian community (past conduct and future risk)

7. The Applicant has, in the past, committed offences of violence which relate to vulnerable people. These are properly regarded as serious. It is, however, also relevant to consider the actual sentences which have been imposed. Those sentences demonstrate a moderate level of seriousness of offending. It is the Tribunal‘s view that the Applicant has committed offences with an increasing level of seriousness, however, that is ameliorated, to some extent, by the fact that although there were incidents in immigration detention, the views expressed by many who have had more recent contact with the Applicant, and taking into account the psychologists’ views, the Tribunal is prepared to accept that the Applicant has made substantial changes to his attitude to offending during his period of custody and detention. Although it is never possible to predict the likelihood of re-offending with any certainty, on the objective facts, the Tribunal is prepared to accept that the Applicant represents a relatively low risk to the Australian community in the future. This view, which the Tribunal has formed, is based upon those many and varied witnesses called on behalf of the Applicant who gave evidence favourable to his growth and maturity and his change in attitude to offending. It is the Tribunal‘s own view, having seen the Applicant give evidence, that he is both genuine in his desire to change and that, in fact, he has demonstrated a palpable change in attitude and behaviour making it less likely that he is someone who will commit criminal offences in the future. The Tribunal concludes that he is at relatively low risk to the Australian community in the future.

   Best interests of minor children in Australia

8. The Tribunal considers that the best interest of each child in this case is served by having a relationship with the Applicant being present with them in Australia. A long-distance relationship supported by telephone communication or other technology is far less satisfactory. The Tribunal accepts the evidence that the Applicant has had, and continues to have, a deep and loving relationship with his children and vice versa. The youngest child of course, has had little opportunity to bond with the Applicant because of his detention and because of the child’s young age. It is undoubted, in the Tribunal’s view, that the Applicant will be able to continue a highly satisfactory and appropriate relationship with all three children. This, the Tribunal considers, to be a very weighty consideration in all the matters the Tribunal is required to consider. The evidence has established, having regard to the list of matters required to be considered by the Tribunal within Primary Consideration 2, that the Applicant has formed a loving relationship with his children and will continue to support that appropriate relationship with his children. The Tribunal considers this a particularly important factor and gives great weight to this consideration in its overall assessment of all matters required.

   Expectations of the Australian Community

9. This consideration expressed as it is in prima facie form requires, nonetheless, a consideration of relevant factors in order for the Tribunal to come to a view as to the weight to be given to this consideration.

10. At the time of writing this decision, an appeal to the Full Court of the Federal Court has been heard but not handed down on this topic.

11. The many matters which are herein discussed which are in favour of the Applicant’s case do not, however, outweigh the prima facie position or displace the prima facie position that the expectations of the Australian community would weigh against the Applicant and the Tribunal takes this position into account in its overall assessment.

    Other considerations

    Strength, nature and duration of ties

12. The Applicant has an Australian citizen partner as well as Australian citizen children. He also has a satisfactory relationship with his ex-partner on account of the child they have in common. He has some limited connection with family in Australia and also has, according to the evidence, friends in Australia who gave evidence and who are well-disposed to the Applicant. The Applicant has lived in Australia for a considerable time.

    Impact on victims

13. The present partner and ex-partner of the Applicant who are relevant victims gave evidence in the proceedings. Unsurprisingly, both the former to whom the Applicant has two children and continues a relationship with the Applicant and to the latter, who remains friends with the Applicant, and also has a child with the Applicant, both want him to remain in Australia. There is no other relevant evidence as to other victims. The views of the victims are understandably partisan and in that regard, the Tribunal places no weight on those views in that respect.

    Extent of impediments if removed

14. It is clear that those who have assessed the Applicant have differing views as to his mental health. On the evidence, it does not appear to the Tribunal that there would be any real impediments should the Applicant be required to return to New Zealand.

    CONCLUSION

15. Although there are a number of objective facts to which the Respondent quite rightly refers to in detail in its submissions which point to visa refusal, nonetheless, although the Tribunal is cognisant of the seriousness of the offences for which the Applicant has been convicted and the possibility that the Applicant represents a risk of offending in the future (albeit, in the Tribunal’s view, a low risk) should the Applicant remain in Australia, the Tribunal considers that the overwhelming consideration in this case is the best interests of the minor children based upon the Tribunal‘s acceptance of all those relevant evidentiary matters referred to in Primary Consideration 2. This consideration so outweighs all other considerations that would suggest that the Applicant should be removed to New Zealand that the Tribunal has come to the conclusion that the original decision should be revoked.

16. The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 26 June 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.   

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 19 September 2019

Date(s) of hearing:	29 August 2019
Date final submissions received:	2 September 2019
Solicitors for the Applicant:	Mr F Nikjoo - Nikjoo Lawyers
Solicitors for the Respondent:	Mr J Hutton - Australian Government Solicitor