Strickland and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2606
•20 June 2024
Strickland and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2606 (20 June 2024)
Division:GENERAL DIVISION
File Number: 2024/2060
Re:Teau Willie Strickland
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:20 June 2024
Date of written reasons: 23 July 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.
..............[SGD]..............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – New Zealand citizen – failure to pass character test – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision set aside and substituted with a decision revoking the original visa cancellation
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Domestic and Family Violence Protection Act 2012 (Qld),
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Ross v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 734
Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Singh v Minister for Home Affairs [2019] FCA 905
Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
23 July 2024
INTRODUCTION
Mr Strickland seeks review of the Minister’s (the Minister or the Respondent) delegate’s 2 April 2024 decision (the reviewable decision) not to revoke the discretionary cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]
[1] Exhibit R1: G2, page 13.
The hearing was held in Brisbane on 11 and 19 June 2024. Ms Ozherelyeva represented Mr Strickland. Mr Zhang represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 20 June 2024. On 20 June 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it set aside the decision under review and substituted a decision to revoke the discretionary cancellation of Mr Strickland’s Visa.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Strickland is a 34-year-old[4] New Zealand citizen who first arrived in Australia in December 2006.[5]
[4] Exhibit R1: G1, page 2.
[5] Exhibit R1: G2, page 173.
On 27 October 2022 His Honour Judge Morzone KC of the District Court of Queensland found Mr Strickland guilty of Grievous Bodily Harm (the Index Offence). Mr Strickland received a sentence of a term of imprisonment of three years and nine months.
On 10 March 2023, the Respondent’s delegate cancelled Mr Strickland’s Visa under section 501(3A) because he failed the character test due to the operation of section 501(6)(a) on the basis of section 501(7)(c).
Mr Strickland’s offending history is tabularised below:
Court Date
Offence Details
Result
27 October 2022 Grievous Bodily
Harm (on 05/03/2022)
(Index Offence)Conviction;
Sentenced to 3Y 9MO
imprisonment.
Parole eligibility 27/10/2023.11 July 2022 Breach of Bail
Condition (on 02/05/2022)Conviction;
Fined $300.00.13 July 2009 Assaults
occasioning bodily harm
whilst armed/in company (on 13/09/2008)Conviction;
12MO Probation.11 August 2008 Obstruct police officer
(on 12/07/2008);
Breach of recognisance
imposed on 29/01/2008.Fined $300.00.
Identity impounded for 6 days
(refer to SPER);
Recognizance forfeited
$500.00; and
Identity impounded for 20
days (refer to SPER).29 January 2008 Assaults occasioning
bodily harm (2 charges on
06/09/2007).On each charge: No
conviction recorded;
Recognizance of
$500.00;and
Be of good behaviour for
12MO.
First charge compensation
$500.00; and
Second charge
compensation $250.00.LEGAL FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA(4), the Minister may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[6] and
(b)the Minister is satisfied that:
(i)the person passes the character test;[7] or
(ii)there is another reason why the original decision should be revoked.[8]
[6] Pursuant to s 501CA(4)(a) of the Act.
[7] Pursuant to s 501CA(4)(b)(i) of the Act.
[8] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Mr Strickland made the representations required by s 501CA(4)(a) of the Act and that he fails the character test.[9]
[9] Exhibit R1: G2, page 17.
THE TRIBUNAL’S TASK
The Tribunal’s task is to consider and decide whether there is another reason to set aside the mandatory cancellation of Mr Strickland’s Visa. If there is, then the Tribunal should set the reviewable decision aside.
Mr Strickland’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and then applied section 501(6)(b).
When the Tribunal applies section 501CA(4) of the Act and assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[10] Guidance in terms of complying with the Direction is provided by the Full Court of the Federal Court’s decision in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[11]
[10] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
[11] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27].
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[12]
[12] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[13]
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With 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.
6Decision-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) [sic] (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.
[13] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2) – (3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[14] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[15]
[14] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[15] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, further documents tendered by Mr Strickland and the Respondent and oral testimony given by Mr Strickland, Ms Della Bosca, Ms Yung, Mr Baupua and Dr Yoxall.
Documentary Evidence
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’.
The Tribunal’s Assessment of the Witnesses
The Tribunal observed Mr Strickland closely as he gave evidence. Mr Strickland’s demeanour was calm and composed. His oral testimony was consistent with his statements over time along with other cooperating evidence and oral testimony. He qualified himself and conceded points where appropriate and necessary and clearly showed a degree of perception and reflection on the events that he was testifying about. His accuracy and reliability were corroborated and supported by the evidence of other witnesses and documentary evidence. Likewise, Mr Baupua corroborated his evidence of the Index Offence.
Ms Della Bosca, Mr Strickland’s former wife, was an effective witness who gave objective evidence regarding her relationship with Mr Strickland and offered a credible and plausible context and explanation for the alleged family violence incident. The background she provided regarding their co-parenting arrangements for their son and how this is working while Mr Strickland is in immigration detention supports the weight that the Tribunal has accorded to the relevant consideration.
Ms Yung’s oral testimony, understandably biased in favour of Mr Strickland given the nature of their relationship, was extremely effective in providing perspective and context to the nature of their relationship and contributing to the evidence that the risk of Mr Strickland reoffending is low.
Mr Baupua’s credibility as a witness is substantial. He gave cogent, clear testimony without hesitation or apparent evasion. The consistency of his evidence provided a useful view of the Index Offence’s context.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. The Tribunal should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires the Tribunal to give consideration to:
a)The nature and seriousness of Mr Strickland’s conduct to date; and
b)The risk to the Australian community should he commit further offences or engage in other serious conduct.
The Tribunal has assessed and considered the parties’ contention, the evidence and the testimony before it in relation to paragraph 8.1(2).
Tribunal’s consideration: The nature and seriousness of Mr Strickland’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence are viewed very seriously.
Mr Strickland has committed violent crimes.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant. The Tribunal did not see any evidence that Mr Strickland has committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is enlivened and relevant. Having considered the evidence of Mr Strickland ’s offending, the Tribunal considers that Mr Strickland has committed crimes against government representatives. The government representatives are the police officers who Mr Strickland obstructed on 11 August 2008.[16]
[16] Exhibit R1: G4, page 151 and pages 34-35.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming “...the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of Mr Strickland ’s conduct.
Paragraph 8.1.1(1)(b)(iv)
There is no evidence before the Tribunal enlivening this paragraph.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Strickland for:
·any violent offending that he may have committed against women or children;
·acts of family violence; and
·any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
Mr Strickland has received sentences and penalties at the lower end of the relevant scales for both his Index Offence[17] and his other offending.
[17] See Exhibit R1: G2, page 37 – Judge Morzone KC’s sentencing remarks.
Paragraph 8.1.1(1)(d)
This paragraph raises two specific aspects of a non-citizen's offending for consideration: the offending’s frequency and/or whether there is any trend of increasing seriousness.
Mr Strickland’s adult offending history ranges from 2008 to 2022. While technically correct to describe Mr Strickland as a repeat offender in this period, such a description ignores the long (14 years, or 88% of his adult life) gap between offences. The Tribunal considers it difficult to ascribe any meaningful frequency to his offending. However, it is reasonable to assess and find that his offending history has a trend of increasing seriousness.
Paragraph 8.1.1(1)(e)
Mr Strickland’s offending history has likely had an adverse cumulative effect on the Australian community in general and especially on the police and judicial systems in terms of the time and money involved in dealing with his offending. This is mitigated and tempered by the long gap between his offences.
Paragraph 8.1.1(1)(f)
Mr Strickland failed to declare his offences on an incoming passenger card dated 23 June 2010.[18] He claims that his failure to declare was due to his lack of understanding regarding the question on the card (that he did not believe Australian offences had to be declared) and was an error on his part.[19]
[18] Exhibit R1: G4, page 230.
[19] Exhibit R1: G4, pages 121 and 154.
Paragraphs 8.1.1(1)(g) and (h)
There is no evidence before the Tribunal that enlivens these paragraphs.
Tribunal’s finding: The nature and seriousness of Mr Strickland ’s conduct
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above and after a holistic consideration of Mr Strickland’s offending, the Tribunal finds that the nature and seriousness of Mr Strickland’s should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In considering this part of the Direction, the Tribunal 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.[20]
[20] Paragraph 8.1.2(1) of the Direction.
The Tribunal must have regard to the following relevant factors on a cumulative basis:
·the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·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; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[21]
[21] Paragraph 8.1.2(2) of the Direction.
In assessing the risk to the Australian community, the Tribunal has considered the evidence and the parties’ submissions in relation to paragraph 8.1.2.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Strickland to engage in further criminal or other serious conduct
The Tribunal finds that further future criminal conduct of the categories Mr Strickland has previously engaged in could result in serious and material physical, psychological and financial harm to the potential victims and to the Australian community.
Tribunal’s consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has holistically considered the totality of the oral testimony and documentary evidence that is relevant to or addresses the likelihood of Mr Strickland engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s.501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[22]
[22] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
Relevantly, in Minister for Immigration and Ethnic Affairs v Baker,[23] it was stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
(Emphasis added)
[23] (1997) 73 FCR 187 at 194.
The clear legislative intention regarding the threshold is whether there is ‘a’ risk.[24]
[24] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] - [52] and the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’(Emphasis added)
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows, at (574)-(575):[25]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Emphasis added)
[25] QKVH and the Minister for Home Affairs (QKVH 2020) [2020] AATA 4431 (2 November 2020) at [5].
Her Honour Justice Mortimer (as she then was) explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (Murphy) at [37], where Her Honour noted:[26]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[26] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, by applying the reasoning in Sabharwal to this matter, the Tribunal’s task is to assess, guided by Murphy, whether there is ‘a risk’ or a likelihood of Mr Strickland engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo.
In making this assessment, the Tribunal has considered Dr Yoxall’s report, test results and evidence,[27] witness testimony and the remaining documentary evidence, including the evidence in relation to Mr Strickland participating in and completing formal rehabilitation courses (addressing anger, alcohol and cognitive behaviour),[28] his 6 June 2024 statement[29] and his 3 June 2024 reintegration plan.[30]
[27] Exhibit A6: AERTB: pages 1-40.
[28] Exhibit A2: ATB, pages 44-59.
[29] Exhibit A4: pages 1-5.
[30] Exhibit A4: pages 6-8.
A consideration of the risk or likelihood of Mr Strickland engaging in further criminal or serious conduct should encompass the factors that:
·facilitate the risk; or,
·conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to ‘whether the risk should be “tolerated”’.
Factors that facilitate the risk
Mr Strickland’s offending history indicates that excessive loyalty to family and friends, stress and, to an extent, alcohol, facilitate his offending. There are likely to be other factors, but these appear dominant. A facilitating factor in the Index Offence was clearly the victim’s vile and offensive racial slur that appeared to have precipitated Mr Strickland’s punch.
Acknowledging his extensive rehabilitation efforts and his protective factors that manage or mitigate his risk of reoffending, the Tribunal considers that these factors have been collectively mitigated and then managed as facilitative risk factors.
Factors that hinder or retard the risk – rehabilitation and remorse
Mr Strickland’s rehabilitation efforts and his expressions and actions of remorse (starting with his immediate care for the Index Offence victim) over an extended period evidence the factors that hinder or retard the risk that he may re-offend. He shows and continues substantial remorse for his actions and empathy towards the victim. Amplifying these factors is his experience in this matter which should serve as a salutary warning to him.
Since the Index Offence, Mr. Strickland has made significant progress in addressing his alcohol abuse and stress issues and rehabilitating himself. Summarising his situation based on the expert evidence, other evidence and testimony:
·Proactive rehabilitation: Mr. Strickland has actively participated in rehabilitation programs to address his alcohol abuse and anger management issues.
·Improved self-awareness: He demonstrates a high level of insight into his behaviour and can articulate the changes he has made in various areas:
oAttitudes and beliefs
oEmotional regulation
oAnger management
oStress management
·Remorse and empathy: Mr. Strickland showed and continues to show substantial remorse for his actions and empathy towards the victim.
·Future planning: He has developed realistic and achievable plans for his future, supported by a network of protective factors such as his immediate family and social networks that have become more important due to his experience with the justice and prison systems.
·Ongoing commitment: Mr. Strickland is motivated to continue engaging in counselling and other rehabilitation programs as needed.
·Low risk of reoffending: Dr Yoxall considers that the risk of Mr. Strickland reoffending is considered low, but that this is tied to his ability to manage his alcohol consumption and his exposure to stress.
Risk management factors
The evidence and testimony identify several static risk management factors for Mr Strickland. These include a committed and supportive network of family and friends, including his former wife, Ms Della Bosca. While tempered by the fact that these factors did not stop Mr Strickland committing the Index Offence, they appear to collectively constitute a moderate static risk management factor.
Risk analysis and consideration
The Tribunal has considered the evidence above, applying the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
The Tribunal finds that there is a risk but that it is very low, based on the evidence assessed and considered above.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that the risk to the Australian community should Mr Strickland commit further offences or engage in other serious conduct both exists and is very low, if he maintains his insight, his empathy, his focus on rehabilitation and successfully executes his plans.
Conclusion: Primary Consideration 1: Protection of the Australian community
This consideration weighs moderately in favour of affirming the reviewable decision.
Primary Consideration 2: Family violence committed by the non-citizen
The Tribunal is assessing this consideration because the parties’ contentions raise the issue in a specific context.
Mr Zhang contends that:[31]
·There was a protection order taken by an unnamed female person stated to be a parent of a child of Mr Strickland. The order operated from 2 February 2015 to 1 February 2017. The 'grounds for a protection order' section stated the following:
‘The AS is [redacted]. The RS is Teau Strickland. They are ex-boyfriend and girlfriend and parents of a 3 year old boy. On the 27/1/15 the respond[e]nt had made arrangement for the aggrieved spouse to come and pick up their son from his house. The child was arranged to stay there overnight but the respond[e]nt had changed his mind and requested the aggrieved come and pick him up. The aggrieved attended his residence at about 22:00hrs. The respond[e]nt began to argue with the aggrieved about custody arrangements and began to yell [sic] her. The aggrieved tried to walk out of the yard with her son when the respond[e]nt grabbed the aggrieved by the shirt at the top of the shirt and pulled you [sic] backwards. The aggrieved was scared and told him to let her go. The respond[e]nt[']s dad then came outside and tried to push him away. The respond[e]nt then pushed the aggrieved by the shoulder away from him. Throughout this episode the aggrieved was holding on to their son. The son was crying and the aggrieved was scared. After the respond[e]nt[']s dad pulled the respond[e]nt off the aggrieved. The aggrieved managed to get into her car and drive away. The aggrieved is fearful as the respond[e]nt always abuses her when she takes the child to him for custody.’
·The Respondent contends that the Tribunal is required to consider whether the aggrieved was a member of Mr Strickland’s family: Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157 at [57]-[62]. The Respondent contends that the aggrieved was a member of Mr Strickland’s family as she was a parent of his child: see decision of primary judge referred to at [47] of Rukuwai cited above. The Respondent further contends that the evidence presently available suggests that Mr Strickland’s conduct was violent behaviour that has caused the aggrieved person to be fearful and therefore constituted family violence.
·The Respondent accepts that Mr Strickland has not been convicted or charged in relation to the conduct described above. However, the Respondent notes that under section 37 of the Domestic and Family Violence Protection Act 2012 (Qld), a Court may only make a protection order against a person if the Court is satisfied, amongst other things, that the respondent of the protection order application has committed domestic violence against the aggrieved (except where an order has been made by consent under section 51 of that Act). The Respondent proposes to cross-examine Mr Strickland in relation to the protection order and make further submissions in relation to this Primary Consideration at the time of the hearing.
[31] Exhibit R2: Respondent’s SFIC, [44] – [46].
Ms Ozherelyeva contends: [32]
·At paragraph [44]–[46] of the RSFIC the Respondent addresses the outcome of a domestic violence incident informed by the summons materials. Mr Strickland concedes that there was one incident that resulted in the making of a Protection Order, but because it was resolved within a 24-hour period he had forgotten about it.
·Mr Strickland also submits that the incident did not involve physical violence and he believed that what he was issued was a mere warning. Everything was normal the next day when Danielle, the aggrieved, returned to his home with his son the next day.[33] This is further substantiated by the aggrieved, Danielle Della Bosca, in her recent statement where she explains that she provoked Mr Strickland threatening to take his son away from him forever.[34]
[32] Exhibit A3: Applicant’s Reply, paragraphs [16] – [17].
[33] Exhibit A4: AFTB, pages 2-3.
[34] Exhibit A4: AFTB, pages 9-10.
Ms Della Bosca’s statement[35] and Mr Zhang’s cross-examination of her[36] add additional context to this consideration, as does Mr Zhang’s cross-examination of Mr Strickland on this matter[37].
[35] Exhibit A4: AFTB, pages 9-10.
[36] Transcript, page 55, line 2 – page 56, line 23.
[37] Transcript, page 33, line 4 – page 34, line 5.
Tribunal’s consideration
Having assessed and considered the contentions, evidence and testimony, the Tribunal finds that that there is information or evidence from independent and authoritative sources indicating that Mr Strickland has been involved in the perpetration of family violence[38] on 27 January 2015 as defined in the Direction.[39]
[38] Direction, paragraph 8.2(2)(b).
[39] Direction, paragraph 4, Definition of ‘family violence’.
It is unclear to the Tribunal whether Mr Strickland was afforded procedural fairness in relation to the 27 January 2015 incident.
The Tribunal is also conscious of the corroboration of the accounts of both Ms Della Bosca and Mr Strickland in relation to the incident. Neither deny the incident and both put it in a similar context.
Conclusion: Primary Consideration 2: Family violence committed by the non-citizen
This consideration carries a minimal weight towards affirming the reviewable decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides that the Tribunal is to consider any impact of the decision on Mr Strickland’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal should also consider the strength, duration and nature of any family or social links generally with persons in that category. The Tribunal should give more weight to Mr Strickland’s ties to children in that category. Mr Strickland’s immediate family members, being his parents and siblings, are not Australian citizens or Australian permanent residents, and they do not have a right to remain in Australia indefinitely.
The Tribunal should also consider the strength, nature and duration of any other ties Mr Strickland has to the Australian community. The Tribunal considers that this includes his ties to his immediate family, his extended family and other relatives including his nephew and two sisters-in-law. The Tribunal will consider the impact of the decision on them as it is something that naturally flows from Mr Strickland’s ties to those people.
Under the Direction, where a non-citizen has been ordinarily resident in Australian during and since their formative years, that warrants considerable weight in their favour regardless of when their offending commenced and the level of that offending. The length of time a non-citizen has resided in Australia should be given more weight if they have contributed positively to the Australian community in that time.
Mr Strickland has lived in Australia since he was seventeen years old. He has spent nearly eighteen years in Australia which includes the latter and smaller part of his formative years. His first period of offending occurred shortly after his arrival. The Tribunal also accepts that he has a relatively solid employment history, which the Tribunal treats as a contribution to the Australian community.
Mr Strickland’s immediate family consists of his son, RJ, his partner, Ms Yung, his parents and his sister. Returning Mr Strickland to New Zealand would have significant and adverse impacts on each of his immediate family. Ms Yung has indicated that if Mr Strickland is deported, she would be forced to relocate from the country where she has lived her life, at some risk to her health and life[40] and with an adverse impact on her family. Mr Strickland’s parents rely upon him, especially as his father is ill and unable to work. [41]
[40] Exhibit R1: G2, pages 161-162; G2, page 139; Exhibit A2: ATB3, pages 11-20; Lucy Telfar Barnard and Jane Zhang, ‘The impact of respiratory disease in New Zealand: 2020 update’, Asthma + Respiratory Foundation NZ (Online Report, August 2021) 41. < Australian Institute of Health and Welfare, ‘Asthma’, Australian Government (Web Page, 25 August 2020) < Exhibit A2: ATB7, page 33.
He has a large extended family in Australia comprising his parents, grandparents, siblings, nieces, nephews, cousins, and in-laws.[42] His grandmother notes in her letter[43] that Mr Strickland is one of sixteen grandchildren, who collectively have nineteen children, all Australian residents.[44]
[42] Exhibit A2: ATB6, pages 25-27; Exhibit G2: pages 50, 52, 54 and 137-139.
[43] Exhibit A2: ATB8, page 34; Exhibit R1: G2, page 139.
[44] Exhibit A2: ATB6, pages 25-27.
Mr Strickland appears to enjoy widespread support from his local community.[45] He has been an active member of both The Mareeba Gladiators Rugby Team and The Atherton Roosters Rugby Team, supporting his father in coaching the A Reserve Grade for both clubs. Through sports, work, and his son's schooling events, he has forged numerous friendships, earning appreciation from those who know him for his unwavering support and contributions.[46] He has been employed on a regular basis at several jobs and has demonstrated his ability to assist in staff recruitment, which is a difficult task in regional Australia.[47] His former employer has offered him a job if he is returned to the community.
[45] Exhibit R1: G2, pages 67–113; Exhibit A2: ATB13, pages 81–108.
[46] Exhibit R1: G2, pages 77-81.
[47] Exhibit R1: G2, pages 24, 38 and 141; Exhibit A2: ATB8, page 39.
Tribunal’s consideration
After assessing the evidence and the parties’ contentions, the Tribunal considers that a decision leading to Mr Strickland's removal will have a substantial and adverse emotional, financial and psychological impact on RJ, his other immediate family members, as well as his extended family and his social network on the basis that Mr Strickland’s evidenced ties to Australia involve people who are either Australian citizens, Australian permanent residents or have a right to remain in Australia indefinitely.
Conclusion: Primary Consideration 3: The strength, nature and duration of ties to Australia
This consideration carries a strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision
This paragraph is enlivened by Mr Strickland’s son, RJ, who is a minor child in Australia[48] and two nieces and a nephew who are minor children in Australia.[49]
[48] Exhibit R1: G2, page 50.
[49] Exhibit R1: G2, page 52 and Exhibit A2: ATB6, page 26.
The Tribunal is required here to consider the best interests of each relevant minor child, applying the following factors where relevant:[50]
(a)The nature and duration of the relationship between each minor child and Mr Strickland, giving less weight where the relationship is non-parental, there is no existing relationship, there have been long absences or there has been limited meaningful contact.[51]
(b)The extent to which Mr Strickland is likely to play a positive parental role in the future taking into account the time before the minor child turns 18.[52]
(c)The impact Mr Strickland’s prior conduct and any likely future conduct and whether the impact on the child will be negative.[53]
(d)The likely effect that any separation between each child and Mr Strickland will have on the child, taking the ability to maintain contact in other ways into account.[54]
(e)Whether there are other people who already fulfil a parental role with respect to the minor child.[55]
(f)Any known views of the minor child.[56]
(g)Evidence that the child has been or is at risk of being subject to or exposed to family violence perpetrated by Mr Strickland or has been abused or neglected in any way by Mr Strickland.[57]
(h)Evidence that the child has suffered or experienced physical or emotional trauma due to Mr Strickland’s conduct.[58]
[50] Direction, paragraph 8.4(4).
[51] Direction, paragraph 8.4(4) (a).
[52] Direction, paragraph 8.4(4) (b).
[53] Direction, paragraph 8.4(4) (c).
[54] Direction, paragraph 8.4(4) (d).
[55] Direction, paragraph 8.4(4) (e).
[56] Direction, paragraph 8.4(4) (f).
[57] Direction, paragraph 8.4(4) (g).
[58] Direction, paragraph 8.4(4) (h).
Tribunal’s consideration
In considering this paragraph, the Tribunal should give individual consideration to the best interests of each child to the extent that their interests may differ.
Acknowledging the relevant contentions and the evidence the Tribunal makes the following points in its assessment of this consideration.
There is evidence of a close and loving parental relationship between Mr Strickland and RJ even when Mr Strickland is in immigration detention.[59] Mr Strickland’s past conduct has not negatively impacted RJ except to the extent that it has caused them to be physically separated. There is no evidence that this caused any kind of hardship to RJ, and the Tribunal notes that RJ has his mother and Mr Strickland’s immediate family around him. There are six years before RJ turns eighteen in which Mr Strickland can make a positive contribution. Given the evidence of RJ’s sporting ability, it is reasonable to assess that Mr Strickland would make and continue this positive contribution.[60]
[59] Exhibit R1: G2, page 71 and testimony of Ms Della Bosca, transcript page 53, line 39.
[60] Exhibit A4: AFTB, page 12.
There is no evidence indicating that RJ has been or is at risk of exposure to family violence, abuse, neglect, or any form of physical or emotional harm from Mr Strickland. Mr Strickland could maintain contact with RJ though telephone or electronic means from New Zealand, but that is not the same as being present in person until RJ turns eighteen.
Turning to Mr Strickland’s nieces and nephew, there is extensive evidence that was not contested that Mr Strickland plays a significant non-parental role in their lives, providing financial assistance and practical caring for the children.[61] In the case of each child, there is a significant period before they turn eighteen in which Mr Strickland can make a positive contribution to their upbringing.
[61] Exhibit R1: G2, pages 72-76, pages 82-83; Exhibit A2: ATB13, pages 92-93, ATB4, pages 23-24, ATB6, pages 30-32 and ATB12, pages 76-80.
There is no evidence indicating that his nieces and nephew have been or are at risk of exposure to family violence, abuse, neglect, or any form of physical or emotional harm from Mr Strickland. Mr Strickland could maintain contact with them though telephone or electronic means from New Zealand, but that, as in RJ’s case, is not the same as being present in person.
Assessing these observations individually and holistically, the Tribunal considers that it is in RJ’s best interests – and to a lesser extent, the best interests of his nieces and nephew – that Mr Strickland be returned to the Australian community.
Conclusion: Primary Consideration 4: Best interests of minor children in Australia affected by the decision
This consideration carries a very strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5(1) of the Direction provides:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
·acts of family violence;
·causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
·commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
·commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
·involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
·worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR).
Acknowledging the Full Court’s three separate decisions, the plurality of the Court in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[62] This approach has been confirmed by the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.
[62] FYBR (2019) 272 FCR 454 (FYBR), at 471–2 [66] (Charlesworth J), and 476 [89] - [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[63]
[63] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[64]
[64]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellations of a visa, However, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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.
6Decision-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) [sic] (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.
The Tribunal’s next task is to consider whether there are any factors which modify the Australian community’s expectations in this matter.
This task is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
·The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
·In relation to decisions to refuse, cancel and revoke cancellations of visas, 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 this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·The nature of a 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 a visa outcome that is not adverse to the non-citizen.
·In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, Section 30 of the Act contemplates both (1) ‘permanent visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s consideration
Mr Strickland’s Visa was a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled. Although a temporary visa, his Visa allowed him to remain in Australia indefinitely if he remained a New Zealand citizen and cannot be classified as a limited stay visa.[65]
[65] Clause 444.411, Migration Regulations 1994.
This implies that sub-paragraph 5.2(4)’s low tolerance does not apply.
Mr Strickland has lived in Australia since he was seventeen. His first offence occurred a little over a year after his arrival. He has raised a son, supported family members, held employment, and contributed to his local community. In his time in the Australian community, Mr Strickland has made substantive contributions to that community as a worker.
Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life. Mr Strickland has lived approximately half his life in Australia (and all his adult years). These facts provide an element of a higher level of tolerance.
The Tribunal has found Mr Strickland ’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Strickland poses a very low risk of re-offending.
The Tribunal is satisfied that Mr Strickland has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. His repeated violent offending breaches community expectations. The Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the higher tolerance assessed above.
Addressing FYBR’s question of whether it is appropriate to act in accordance with the deemed community expectation, the Tribunal has regard to the Respondent’s reference to DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3 at [58] as well as the moderating factors noted above.[66]
[66] DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3 at [58].
Conclusion: Primary Consideration 5: Expectations of the Australian community
This consideration weighs in favour of affirming the reviewable decision. The Tribunal allocates a moderate weight.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled under s 501 of the Act is barred from applying for any visa other than a Protection visa or a Bridging R visa while in the migration zone.[67]
[67] Section 501E of the Act.
Further, Criterion 5001 of sch 5 of the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.
Mr Strickland does not raise any contention that he engages Australia’s protection obligations.
It follows that the legal consequence of a decision not to revoke the cancellation of his Visa is that he will remain in detention until he is removed from Australia, and he will be unable to return.
Ms Ozherelyeva contends that, in these circumstances, the prospect of permanent exclusion from Australia represents a grave legal consequence for Mr Strickland and that this outcome, which effectively severs his ability to return to Australia, must be considered a significant factor. She further contends that that this consideration weighs heavily against affirming the reviewable decision.[68]
[68] Exhibit A1: Applicant’s SFIC, [97] – [99].
Mr Zhang contends that whilst the issue raised by Ms Ozherelyeva is relevant (for example, as a non-listed other consideration), it is not necessarily a legal consequence of a decision of the Tribunal. As Ms Ozherelyeva has acknowledged, this is merely a 'prospect' of permanent exclusion. The result of any future visa application would depend on the operation of the law at the time, if Mr Strickland decides to make such an application. Further, Mr Zhang notes that the practical consequence of the potential permanent exclusion from Australia has largely been considered in relation to other considerations under Direction 99, including in relation to the effect of a decision on the applicant's children and family, and the extent of impediments. As such, the Tribunal should give little additional weight to the prospect that Mr Strickland may be permanently excluded from Australia.
Tribunal’s consideration
The logical consequence of the Direction and the Act in regard to this consideration is that where the revocation of an applicant’s visa is affirmed, an applicant is liable to be removed from Australia as soon as reasonably practicable (ss 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act.[69]
[69] See also Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327 at [209].
There are no claims of protection or of non-refoulement in this matter.
The Tribunal concludes and finds that this consideration has neutral weight.
Other Consideration (b): Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Summarising Mr Zhang’s contentions:[70]
·The Respondent acknowledges that Mr Strickland will initially face emotional hardship if returned to New Zealand. Mr Strickland has diabetes and blood pressure issues but is expected to receive comparable medical care in New Zealand. The Respondent notes that there are no identified language or cultural barriers for Mr Strickland in New Zealand. Mr Strickland's skills are deemed transferable, and he should have reasonable employment prospects due to his employment history and vocational courses. The Respondent also notes that Mr Strickland would be eligible for social welfare available to New Zealand citizens. While this consideration may favour Mr Strickland, its weight is limited given the circumstances of this matter.
[70] Exhibit R2: Respondent’s SFIC, [68] – [70].
Summarising Ms Ozherelyeva contentions:[71]
·Mr Strickland has diabetes and blood pressure issues.
·Mr Strickland has no real family connection to New Zealand, having lived in Australia for nearly eighteen years. He is concerned about securing employment, accommodation, and transportation, as well as potential mental health issues due to loss of familial support and parental role in Australia. His entire family is in Australia, and he has lost ties in New Zealand since residing in Australia for nearly two decades.
·Despite a strong employment history in Australia, his skills may not transfer easily to the New Zealand market, which has different regulatory frameworks and economic conditions. His professional network is rooted in Australia, and he lacks current knowledge of the New Zealand economy.
·Emotional and psychological impacts from separation from his Australian support networks could have lasting effects. Re-establishing himself in New Zealand after a long absence could be challenging and complex, with potential long-term hardships being underestimated.
[71] Exhibit A1: Applicant’s SFIC, [100] – [114]
Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Strickland, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Strickland is 34 years old.
Mr Strickland appears in reasonable physical good health but the Tribunal acknowledges Ms Ozherelyeva’s uncontested contentions regarding his issues with blood pressure and diabetes.
Mr Strickland, as a New Zealand citizen, can avail himself of the same level of health care as other New Zealand citizens.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Strickland, based on his oral testimony and the evidence before the Tribunal, would not face any linguistic difficulties if he returned to New Zealand.
The Tribunal also considers that Mr Strickland is unlikely to face significant cultural issues for the same reason. The Tribunal acknowledges Ms Strickland’s earlier contentions of emotional distress, as distinct from Mr Strickland’s mental health, but observes that these are more personal issues than cultural ones.
Given the evidence of Mr Strickland’s community involvement and work history in Australia and his age, the Tribunal considers that he would be able to overcome any cultural barriers that arise.
Sub-paragraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Mr Strickland would have access to the same medical, social and economic support as that available to other New Zealand citizens.
The Tribunal acknowledges the impact of deportation may have potentially adverse emotional and psychological impacts on Mr Strickland Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Mr Strickland, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Tribunal finding
The Tribunal must consider the extent of any impediments that Mr Strickland may face if removed from Australia to New Zealand, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
Having regard to the analysis referrable to each of the three sub-paragraph components of this consideration, the Tribunal finds that Mr Strickland would likely face a significant level of emotional, practical, financial and medical hardship if he was returned to New Zealand.
However, the Tribunal does not consider that these hardships would prevent Mr Strickland from establishing himself and maintaining basic living standards (in the context of what is generally available to other New Zealand citizens).
This consideration carries a neutral weight.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
‘Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.’
There is no evidence from the victims of Mr Strickland’s offending.
Tribunal finding
This consideration carries neutral weight.
Other Consideration (d): Impact on Australian business interests if Mr Strickland cannot remain here
Summarising Ms Ozherelyeva contentions:[72]
·This consideration includes the interests of any relevant Australian business, even if it does not affect a major project or important service delivery. As noted in Tonga[73], the focus is on the impact on Australian business interests if Mr Strickland’s Visa is cancelled.
·He has a standing job offer from Mareeba Sawmills P/L, where he significantly contributes to recruiting new staff. David Simms, the Director and Operations Manager at Mareeba Sawmills, emphasised Mr Strickland’s important role.
·Mareeba Sawmills P/L’s business interests would be significantly and negatively impacted if the reviewable decision is affirmed. Losing Mr Strickland would mean losing a trusted supervisor and a crucial connection for recruitment, vital for supporting employment in regional Australia.
·This consideration carries moderate weight in favour of setting the reviewable decision aside.
[72] Exhibit A1: Applicant’s SFIC [118] – [121].
[73] Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179 (Tonga).
Mr Zhang’s contention tempers Ms Ozherelyeva, arguing that that there is no evidence to suggest that the applicant's position is not currently taken by another person, nor is there evidence to suggest that the delivery of a major project or an important service would be significantly compromised. The Respondent therefore submits that only very limited weight can be given to this consideration.
The Tribunal notes and considers the following:
·His Honour Justice Middleton considered how the Tribunal ought to consider impacts on Australian business interests in Singh v Minister for Home Affairs.[74] He held that that the correct interpretation of Australian business interests required the Tribunal ‘not to focus only on the delivery of a major project or delivery of an important service in Australia’, but ‘on the impact on Australian business interests’.[75]
·What emerges from Singh is that the consideration is not confined to impacts on major projects or important services but is concerned with the impact on Australian business interests if the applicant - in this case, Mr Strickland - is not allowed to enter or remain in Australia.
·Singh was applied in Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[76], Tonga and Ross v Minister for Immigration, Citizenship and Multicultural Affairs[77].
[74] Singh v Minister for Home Affairs [2019] FCA 905.
[75] Ibid, at [10].
[76] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [63]-[71].
[77] Ross v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 734.
It is clear from the uncontested evidence of Mr Simms that Mr Strickland’s deportation would have a negative impact on Mareeba Sawmills P/L.
It is plausible that Mr Strickland’s deportation would also have a negative impact on his father’s painting business.
The Tribunal considers and finds that Mr Strickland’s deportation would have an impact on Australian business interests.
Tribunal finding
This consideration carries a moderate weight in favour of setting the reviewable decision aside.
FINDINGS
The Tribunal now summarises the respective weights it has allocated to each of the relevant Primary and Other Considerations (specified in the Direction) in this matter:
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct:
·This consideration weighs moderately in favour of affirming the reviewable decision.
Primary Consideration 2: Family violence committed by the non-citizen:
·This consideration carries a minimal weight towards affirming the reviewable decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia:
·This consideration carries a strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision:
·This consideration carries a very strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 5: Expectations of the Australian Community:
·This consideration weighs in favour of affirming the reviewable decision. The Tribunal allocates a moderate weight.
Other Consideration (a): Legal consequences of the decision:
·This consideration has neutral weight.
Other Consideration (b): Extent of impediments if removed:
·This consideration has neutral weight.
Other Consideration (c): Impact on victims:
·This consideration has neutral weight.
Other consideration (d): Impact on Australian business interests if Mr Strickland cannot remain here:
·This consideration carries a moderate weight in favour of setting the reviewable decision aside.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[78]
[78] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the weights it has identified, applying the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[79]
‘The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[79] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
A comprehensive, holistic and integrated view of the Primary Considerations and the Other Considerations leads this Tribunal to a finding that it is satisfied that there is another reason to revoke the cancellation of Mr Strickland’s Visa. Accordingly, the Tribunal makes a finding setting aside the delegate’s decision to not revoke the cancellation of Mr Strickland ’s Visa and substituting a decision revoking the original visa cancellation.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the delegate’s decision under review and substitutes a decision revoking the original visa cancellation.
I certify that the preceding one hundred and sixty-four paragraphs (164) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
.............[SGD]..............
Associate
Dated: 23 July 2024
Dates of hearing: 11 and 19 June 2024 Representation for the Applicant: Ms Ozherelyeva of Samuta McComber Lawyers Solicitor for the Respondent: Mr Zhang of Clayton Utz Lawyers ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
APPLICANT’S SUBMISSIONS
A1
Applicant’s SFIC (ASFIC)
A
09/05/2024
18/05/2024
A2
Applicant’s Tender Bundle (ATB)
A
Various
18/05/2024
A3
Applicant’s Reply (AR)
A
06/06/2024
06/06/2024
A4
Applicant’s Further Tender Bundle (AFTB)
A
Various
06/06/2024
A5
Applicant’s Summons Documents Bundle (ASD)
A
Various
06/06/2024
A6
A6 - Applicant's Expert Report Tender Bundle (AERTB)
A
07/06/2024
07/06/2024
RESPONDENT’S SUBMISSIONS
R1
s501G G Documents (GDOCS)
R
Various
18/04/2024
R2
Respondent’s SFIC (RSFIC)
R
31/05/2024
31/05/2024
R3
Respondent’s Summons Documents Bundle (RSD)
R
Various
31/05/2024
0
34
0