Tabuarua and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1383
•23 May 2023
Tabuarua and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1383 (23 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1446
Re:Waisea Tabuarua
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date of Decision: 23 May 2023
Date of Written Reasons: 29 May 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 24 February 2023 not to revoke the cancellation of the Applicant’s visa.
.................................[SGD]..................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Special Category Class TY Subclass 444 (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulation 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DQM18 v Minister for Home Affairs [2020] FCAFC 110
FYBR v Minister for Home Affairs [2019] FCA 500
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 (2020) 280 FCR 178
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Semayne’s Case [1572] EngR 333
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial 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 R Maguire
29 May 2023
INTRODUCTION
By application made on 8 March 2023 the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 24 February 2023 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made on 23 February 2022 under s 501(3A) of the Act to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
On 23 May 2023, the Tribunal affirmed the decision under review. The Tribunal now publishes its reasons for that decision.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (“the Regulation”) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under
s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
7For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
The Applicant is a 58 year old Fijian born citizen of New Zealand. He has ceased to be a citizen of Fiji.
On 27 January 2022, following pleas of guilty, the Applicant was sentenced by Judge Coker in the District Court of Queensland at Townsville to two years and six months’ imprisonment for Enter Dwelling with Intent by break at night, and Sexual assault with a circumstance of aggravation, and sentenced to two years’ imprisonment. The sentences were to be served concurrently and suspended after six months.
On 23 February 2022, whilst the Applicant was in custody serving a term of imprisonment the Respondent, acted pursuant to s 501(3A) of the Act, acted to mandatorily cancel the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 23 February 2022.[1]
[1] Exhibit 1, p 215.
In accordance with reg 2.52(2)(b) of the Regulation the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[2]
[2] Ibid, pp 53-56.
On 24 February 2023, the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act,[3] and the Applicant made the present application to this Tribunal for a review of that decision.[4] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[3] Ibid, pp 8-16.
[4] Ibid, 1-6.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 23 May 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which the Tribunal is required to read, identify, understand and evaluate.[5]
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[6]
[6] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[7]
[7] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Evidence before the Tribunal,[8] establishes that the Applicant was sentenced to two years and six months’ imprisonment in the District Court of Queensland on 27 January 2022. Moreover, the Applicant conceded the accuracy of his history of Australian offending as set out in the G Documents and in the Respondent’s Statement of Facts Issues and Contentions (“SFIC”)[9] and that he does have a substantial criminal record and does not pass the character test.
[8] Exhibit 1, pp 41-48; pp 29-30.
[9] Exhibit 1, pp 29-30; Transcript p 3, lines 14-17; Exhibit 2, p 2, [6]; Exhibit 5, p 2, [3(a)].
It is clear that this concession was properly made, as the custodial term imposed was “a term of imprisonment of 12 months or more”, and the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to
s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 99
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[10] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
Relevantly, the Direction states that:[11]
“Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”
[11] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.
.
The principles that are found in paragraph 5.2 of the Direction are as follows:
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 non- citizens 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) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.
[12] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
The Applicant, who turns 59 years of age in June of this year, first arrived in Australia at the age of 28 years in 1992, and has lived in Australia since, except for a period of about eighteen months when his employment took him back to New Zealand. He has returned to visit New Zealand over twenty times, but has lived in Australia for most of his life, and the Tribunal therefore affords him a commensurately increased level of tolerance than would otherwise be the case, in accordance with paragraph 5.2(5) of the Direction. He has two Australian born children both of whom are adult resident citizens, and supportive of him. He also has a very supportive former employer who has offered him work should he be returned to the community. He also has a strong supportive network of friends in the Australian community.
The Applicant has been convicted of numerous offences in New Zealand, but has, in his dealings with the Department, until closely cross-examined at the hearing, steadfastly denied any convictions, before eventually acknowledging them. The Applicant’s denials are extraordinary, particularly having regard to the fact that the sentencing judge – drawing no doubt on the statement of agreed facts placed before him, but most unfortunately not placed before this Tribunal – made the following observation, which must be understood as referring to the Applicant’s New Zealand criminal history, as he had nothing of the sort in Australia. His Honour said:
‘You are burdened with a criminal history but it is ancient history.’[13]
[13] Exhibit 1, p 44, lines 46-47.
This history was that in 1987 and 1989 the Applicant was convicted of alcohol related driving offences, and in 1990 he was convicted of driving when disqualified. He then moved to Australia, where he maintained an unblemished record. He then returned to New Zealand for employment, and whilst there, in 2005, he was convicted of refusing to provide a blood specimen to police, and in 2006 he was convicted of driving whilst disqualified. In 2007 he was convicted in New Zealand of Common Assault – Domestic. In 2008, he was convicted of operating a vehicle carelessly. In 2017, he completed an Incoming Passenger Card in which he denied conviction for any criminal offences.[14] He made similar assertions to the Department in his Personal Circumstances Form (‘PCF’) and through his representatives.[15] He claimed a person with a similar name was the culprit for certain offences.[16] He also provided a letter from the New Zealand Ministry of Justice in support of these denials.[17] That letter was written pursuant to New Zealand’s “Clean Slate” legislation – Criminal Records (Clean Slate) Act 2004 (NZ) (‘Clean Slate Act’) - which means some convictions are automatically concealed. Fingerprint checking arranged by Interpol later confirmed that the Applicant had been convicted in 2007 of “Common Assault – Domestic-Manually”. So much appears from Attachment A to the Respondent’s SFIC.[18]
[14] Exhibit 1, pp 32-33.
[15] Ibid, pp 68, 71 and 89.
[16] Ibid, p 91.
[17] Ibid, p 34.
[18] Exhibit 6.
There is no way that the statement of agreed facts put to his Honour would have been submitted to the court unless they had first been approved by the Applicant’s lawyers acting on instructions. Notwithstanding those instructions, the Applicant developed a sudden and severe amnesia in respect of his New Zealand criminal history between the time of sentencing, and his correspondence with the Department. The Tribunal accepts the Respondent’s submission that this course of conduct of concealment and misleading submissions provides the unavoidable impression that the Applicant has been deliberately dishonest in his dealings with the Department, and this Tribunal. This conduct is viewed extremely seriously, and weighs heavily against the Applicant.
In 2022, the Applicant was convicted of entering into a dwelling house with intent by breaking at night, and of sexual assault – contact of genitals/anus with mouth. He was sentenced to 2 ½ years’ and 2 years’ imprisonment respectively to be suspended after six months. The actual custodial sentence was discounted beyond the customary one third, with the result that he only served one fifth of the longer sentence.
These offences arose in the context of the prolonged and persistent rejection of his unwelcome advances towards his victim, whom the Tribunal shall refer to as “X” over a period of some six weeks. The Applicant appears to have been heavily infatuated with her, whilst X appears to have made it clear that she was not interested in communication with him, let alone engaging in sexual activity with him. As was put to him by Mr Morris, the Applicant refused to take no for an answer. Notwithstanding these rejections, the Applicant after consuming liquor, entered her home late at night, entered her bedroom, and removed her boxer shorts, before assaulting her while she also was in a heavy state of intoxication. His victim initially mistook him for her partner, and on discovering her error became extremely distressed and asked him to leave.
The Applicant’s victim subsequently made it clear that his conduct was unacceptable and he was not to attend her residence. He nevertheless did so, purportedly to collect his telephone.
The sentencing judge, (his Honour Judge Coker) described the Applicant’s “incredibly serious”[19] offending involving two “two extremely serious charges”[20], the burglary charge attracting life imprisonment, and the sexual assault attracting up to 14 years’ imprisonment. His Honour referred to the Applicant’s “harassment”[21] of X over a period of six weeks prior to his offending, which led to her blocking his calls, and the fact that X was “entitled to the security of that residence.”[22] X had been intoxicated and “she could not act to defend herself,”[23] and had become “extremely distressed”.[24] The Applicant has returned to her residence after being specifically told not to do so.
[19] Exhibit 1, p 45, line 44.
[20] Ibid, p 42, line 3.
[21] Ibid, p 43, lines 9-11.
[22] Ibid, lines 18-19.
[23] Ibid, p 43, line 24.
[24] Ibid, line 28.
His Honour told the Applicant “What you have done to her was a dreadful, dreadful thing.”[25] His Honour then went on to describe the wide ranging and long term consequences for X in terms of her health and well-being, and said:[26]
‘The wide ranging consequences therefore of your actions are something that cannot and should not be ignored in relation to the consequences that now flow in relation to your offending.’
[25] Ibid, p 44, line 24.
[26] Ibid, lines 39-41.
His Honour referred to the Applicant’s suicide attempt as being indicative of the extent of his remorse. His Honour later described the charges against the Applicant as “incredibly serious,”[27] and went on to say:
‘the breach of the sanctity of a person’s home and the breach of their own body, is something that will not be accepted in a civilised community.’ [28]
[27] Exhibit 1, p 45, line 44.
[28] Ibid, p 46, line 24-26.
His Honour seemed not to consider that there is a real risk of further offending. The Applicant had, in Australia, led a blameless life contributing to the community in a positive way for a very significant period, and the sentencing judge did not doubt that he could continue to do so in the future. His Honour expressed hope that there was little likelihood that the Applicant “would offend again in this respect, or perhaps in any other way”[29]. The judge also recorded that the Applicant had been a positive and contributing member of the community, and described his earlier criminal offending as “ancient” and not relevant to his current offences. (His Honour’s reference to this “ancient” criminal offending must be seen as a reference to the Applicant’s New Zealand offending, as the Australian Criminal Intelligence Commission Check Results Report discloses no other offending in Australia other than the charges which were before his Honour.)[30] Mitigating factors reduced his sentence from four years to two years and six months. The Tribunal acknowledges that the custodial period was only six months, which is less than the usual one third generally required.
[29] Ibid, lines 15-16.
[30] Ibid, pp 29-30.
The Applicant has expressed remorse for his conduct and voluntarily made an offer to pay compensation to his victim, although there was no evidence put to the Tribunal that any compensation had actually been paid.
The Applicant accepts that his offending is serious, but contends that he has otherwise been of exemplary character in Australia, and that there is no evidence of repeated offending or increasing seriousness.
The Tribunal accepts that the Applicant has long standing strong ties to Australians in the form social links to his adult children, former partners, and the various witnesses who have provided statements. All of these will be negatively impacted by his deportation. It might be said that he has a strong network of support here in Australia, notwithstanding that such network did not prevent him from offending as discussed herein.
The Applicant will, if deported to New Zealand, be without the strong support of his family and friends who have provided statements on his behalf. The Tribunal accepts that this would probably adversely impact both his physical and mental health. However, the Applicant’s trade qualifications are recognised in New Zealand, and he ought not to have any significant difficulty finding suitable employment, albeit at a lower rate of income.
The Tribunal notes that Judge Coker did not see any need for rehabilitation of the Applicant, but notes that the Applicant appears to have made efforts in this regard notwithstanding.
The Applicant has no infant children of his own, and there do not appear to be any other minor children who will be impacted by a decision in this case.
It is not disputed that the Applicant has contributed to the Australian community generally, as well as, as a tax payer, and a productive member of the workforce. He has participated in the community, and has supported charities. He has lived a substantially blameless life in Australia apart from the episodes discussed in these reasons. His conduct in custody and in detention has not been the subject of adverse evidence.
The Applicant is not in good physical health. He suffers, among other things, ischaemic heart disease, and left ventricular thrombosis. He has two stents in his heart, and takes ongoing medication. It was submitted that whilst New Zealand has a comparable health system, if sent there he would be deprived of the support of close family and friends. He would have no one there to take him to hospital should he suffer a further heart attack, or to help him in his convalescence. There are also questions over his mental health as he is said to have attempted suicide.
The Tribunal accepts that the Applicant is a qualified linesman, but notes that there is no evidence that an adverse decision would significantly compromise the delivery of a major project or an important service in Australia.
Applicant’s history of offending and other serious conduct
The Applicant’s criminal history and other serious conduct is informed by the following documents:
(a)
Australian Criminal Intelligence Commission Check Results Report dated
21 April 2022;[31]
(b)The New Zealand Police Report produced 19 July 2022[32];
(c)
Verdict and Judgment record of the District Court of Queensland created
4 February 2022[33]; and
(d)New Zealand Ministry of Justice Convictions History Report dated 7 December 2022[34].
[31] Exhibit 1, pp 29-30.
[32] Ibid, p 31.
[33] Ibid, pp 51-52.
[34] Ibid, pp 37-40.
EVIDENCE AT HEARING
The hearing took place in Brisbane on Thursday 11, and Friday 12 May 2023. Mr Aaron Hartnett of Counsel appeared for the Applicant instructed by Joseph Lee of TWC Lawyers, and Mr Oliver Morris of Clayton Utz appeared for the Respondent.
The complete suite of written material forming the exhibit record is further particularised in the Exhibit Register Annexure attached hereto and marked “A”.
The Tribunal received oral evidence from the Applicant. Prior to the commencement of his evidence, the Tribunal explained to him the legal obligation of truthfulness which arose from his affirmation, and stressed the importance of his evidence being truthful.[35]
[35] Transcript, p 4, lines 29-46; p 5, lines 1-16.
In his evidence, the Applicant recalled completing the PCF and said that this was all correct at the time.[36] In this form he denied, at pages 68 and 71, that he had any prior criminal history, notwithstanding the agreed facts placed before Judge Coker about two months earlier. The Applicant likewise confirmed the veracity of his undated unsigned statement in which he had professed shock at being told by his lawyers that he had criminal convictions in New Zealand.[37]
[36] Exhibit 1, p 53; Transcript, p 6, lines 1-2.
[37] Exhibit 8, p 1, [6].
The Applicant detailed his various trade qualifications, which he said enabled him to work overseas, and verified his income tax assessments and taxes paid in recent years, and his support for charities. He also testified that he had a job waiting for him as a courier driver with his former employer.
The Applicant further testified that he has two adult children who are resident Australian citizens. He said he has a good relationship with both of them, and they had bought him a new suit to wear to the hearing.
He also gave evidence as to the courses he had undertaken in prison, and referred to his efforts to abstain from alcohol since Christmas 2021. He also spoke of his three heart attacks and stent surgery, and lifestyle changes he had been advised to make.
The Applicant described how he had arrived in Australia in September 1992 and lived here since, apart from an eighteen month period from July 2005 when his work took him back to New Zealand.
Under cross-examination by Mr Morris, initially denied certain offences recorded in different names in New Zealand government offending records, but eventually acknowledged that they were his.
The Applicant said that he and X had been friends prior to the offence. He had known her a month or two. She was a cleaner in his depot in Collinsville. He denied being initially attracted to her when they first met.
The Applicant was referred to an incident when X smacked his hand away when he tried to touch her, but said he did not recall the incident, saying that he thought they “had something going”. He acknowledged that by this time he was attracted to her, but she was not responding.
The Applicant agreed with Mr Morris that he had continued to harass X over a long period of 6 weeks despite her rejection of his overtures. He adhered to his view that he thought they had something going on. When asked if it was fair to say that he would not take no for an answer, he replied “Maybe, maybe not.” He said he was not aware that his phone calls had been blocked, but was aware that she was not answering. He was trying to speak to her because they had not spoken to her for a while.
Prior to the assault, he had been to her house before with her and been invited in. On the night in question, after 10:30 pm. He went there uninvited, knocked, received no response, and entered through the unlocked front door.
The Applicant entered X’s bedroom, and found her asleep in her bed. She was alone in the house as her children were with her ex-partner. He initially said he did not think he tried to wake her up. He then said he greeted her and she woke up. He denied removing her shorts, or any of her clothing. He denied sexually assaulting X. He was reminded by Mr Morris that he had pleaded guilty to sexual assault, and asked if he was now telling the Tribunal that he actually did not sexually assault her. He then sat silent for a period of time, and said:
“if we break down sexual assault … I don’t’ think there was penetration of my penis into her vagina or anything like that. She thinks that I went down on her, which I think did happen, so that’s the guilty part that I did”.
He was asked again if he had removed X’s shorts, and he sat silent for a while, then contradicted his earlier evidence saying “yes, I think I did”. He was then asked why he earlier denied having done so, and said he was trying to think. He was then asked if his earlier evidence was incorrect, and said no. The Applicant then said that he did not remove X’s shorts, and then admitted that he did.
At this point, the Applicant made an unprompted apology for his evidence. He said X was awake when he took off her shorts. He believed she thought he was her boyfriend. He said he was trying to wake her up, but she was not awake when he removed her shorts. He said he used the term “going down” as a reference to performing oral sex on her.
The Applicant said that he did not know X had a partner. When she realized who he was, she told him to go, and not to come back. He admitted returning the next morning to pick up his phone. He knew at the time that he had broken into her house in order to sexually assault her, and thought it was appropriate to go there to get his phone.
He was asked if he exploited X’s trust and said “Yes, of course I did.”
The Applicant said he had earlier consumed about six cans of Canadian Club and was a little bit intoxicated. He lived a ten minute drive from his home, and he had driven there. He said he thought that he had a problem with alcohol and it contributed to his offending. He does not think that he had a problem with anger and it did not contribute to his offending. He was getting help from AA which he joined about two months ago and Lives Lived Well, whom he saw before he was incarcerated, and he contacted them recently and said he wanted to resume with them.
The Applicant said that he had undertaken 4 sessions with Lives Lived Well. He was of the view that he does need support to avoid alcohol. He has sought psychological assistance, and has done two sessions. He accepted that he is at the beginning of his rehabilitation.
He has not researched psychologists with a view to having counselling. He has done two blood tests, and his liver is recovering, and he wants to continue that so he can live longer, and is thinking of giving up alcohol after he gets out. He has not had a drink since Christmas 2021.
The Applicant was referred to the New Zealand Ministry of Justice Convictions History report issued in the name of “Tabuarua Aisea”, but which included searches in the name of “Tabuarua, Waisea” all of which showed is date of birth. After some hesitancy, he acknowledged the convictions were his but said he did not remember them. He acknowledged that the conviction dates coincided with his presence in New Zealand, but did not recall going to court.
He had returned to New Zealand for his work in 2005, and had lived in company accommodation. All of his trips to New Zealand since 2008 have been for social purposes to visit a friend. He has also visited Fiji.
The Applicant acknowledged that his multiple trade qualifications would be accepted in New Zealand.
CONSIDERATION
The Tribunal now turns to the specific considerations of Direction 99. In doing so, the Tribunal does not propose to restate the extensive evidence set out above, and which forms the basis for its reasons.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction compels decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to 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 possession they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(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 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 (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of crimes or conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sexual offences rank among the most serious in the hierarchy of criminal offences. The gravity of the Applicant’s sexual offending was aggravated by the fact that he had broken into X’s home late at night. The Applicant’s willingness to invade the home space in order to seek sexual gratification renders his conduct especially serious. As was submitted by Mr Morris, it remains a cardinal and ancient principle of the common law that a person’s home is their castle[38]. It is a sanctuary where people are entitled to feel safe. In line with the characterisation adopted his Honour Judge Coker, this Tribunal respectfully agrees that what the Applicant did to X was a “dreadful dreadful thing". His Honour remarked tellingly:
‘the breach of the sanctity of a person’s home and the breach of their own body, is something that will not be accepted in a civilised community.’[39]
[38] Semayne’s Case [1572] EngR 333.
[39] Exhibit 1, p 46, lines 24-26.
His Honour variously characterised the Applicant’s offending as “incredibly serious” and “extremely serious.”
Consideration of sub-paragraph (a) (i) of paragraph 8.1.1(1) of the Direction requires that the Applicant’s criminal offending must be viewed as extremely serious.
An overall consideration of subparagraph (a) of paragraph 8.1.1(1) of the Direction weighs extremely heavily against revocation.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the possession they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
There is no evidence before the Tribunal so as to enliven a consideration of this sub-paragraph, and accordingly paragraph 8.1.1(1)(b)(ii) of the Direction is given neutral weight.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to subparagraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
The Tribunal acknowledges that the sentences imposed on the Applicant were significantly discounted by the sentencing judge for the reasons which his Honour set out. The Tribunal also acknowledges that the period of actual incarceration which the Applicant was required to serve was significantly less than what would usually be served. Nevertheless, even with his exemplary prior record in Australia, his strong history of employment and contribution to society, his remorse, offer of compensation early plea, and perceived limited likelihood of reoffending, his Honour still imposed a significant term of imprisonment, and this is viewed seriously by the Tribunal.
An overall consideration of subparagraph (c) of paragraph 8.1.1(1) of the Direction weighs heavily against revocation.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
There is no evidence before the Tribunal so as to attract consideration of sub-paragraph (d) of paragraph 8.1.1(1) and accordingly it is given neutral weight.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
There is no evidence before the Tribunal so as to attract consideration of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction and accordingly it is given neutral weight.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
As discussed above, in the course of his remarks, his Honour Judge Coker referred to the Applicant’s “criminal history” which was “ancient”. This history can only have been a reference to the Applicant’s New Zealand convictions, in line with the Statement of Agreed Facts, and which the Applicant soon after proceeded to assert did not exist in numerous communications to the Department both directly and via his legal representatives. In addition, he expressly denied criminal convictions in the Incoming Passenger Card. There is no plausible explanation for the Applicant to have admitted a criminal history before the Court, and denied it to the Department within a matter of months.
In these circumstances, a consideration of sub-paragraph (f) of paragraph 8.1.1(1) weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned or otherwise informed about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence before the Tribunal of any formal warning being given to the Applicant
In these circumstances, a consideration of sub-paragraph (g) of paragraph 8.1.1(1) weighs neutrally.
Sub-paragraph (h) arises for consideration where an offence or conduct was committed in another country.
The Applicant has committed the offence of “Common Assault – Domestic” in New Zealand, However the Tribunal has no police facts or sentencing remarks before it in respect of this episode, and therefore gives sub-paragraph (h) neutral weight.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (c), and (f) of paragraph 8.1.1(1) of the Direction are relevant, the Tribunal is of the view that the nature and seriousness of the Applicant’s offending conduct can be readily characterised as extremely serious.
8.1.1 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account 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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The assessment of the risk to the Australian community were the Applicant to engage in further offending or other serious conduct, is properly informed by the nature of his offending and other serious conduct to date. This assessment is also informed by the provision in paragraph 8.1.2(1) of the Direction which stipulates that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that 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 is unacceptable.
Unfortunately the Tribunal does not have before it either the Statement of Agreed Facts which formed the basis for the Applicant’s pleas of guilty, or the Victim Impact Statement which X read to the Court. Neither does it have the benefit of any expert medical reports in respect of the impact on X. However, it is very clear from the remarks of his Honour Judge Coker that X was severely impacted by the Applicant’s conduct. She was clearly traumatised. Her health and well being were adversely effected by the Applicant’s offending. She was diagnosed with various unspecified complaints, and the Applicant’s offending had a wide ranging and ongoing deleterious effect on her. She had difficulties with her employment, and with maintaining friendships with co-workers. She was no longer the confident and happy person she had been.
It is clear from his Honour’s remarks, that the nature of the harm that might be caused by any further similar conduct by the Applicant could have a severe wide ranging and long lasting psychological impact on his victim.
With regard to paragraph 8.1.2 (1) of the Direction, the Tribunal considers that this type of harm is so serious that any risk that it may be repeated is unacceptable. The Tribunal is fortified in this view by his Honour’s remarks[40]:
‘the breach of the sanctity of a person’s home and the breach of their own body, is something that will not be accepted in a civilised community.’
[40] Exhibit 1, p 46, line 23-26.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant is a 58-year-old male citizen of New Zealand who was born in, and went to school in Fiji. Except for the offending which led to his incarceration and visa cancellation, the Applicant’s conduct in Australia has been close to exemplary, however it must be remembered that he failed to disclose convictions on an Incoming Passenger Card and denied his offending to the Department as discussed above.
It is clear from the foregoing discussion that the seriousness of the potential harm which might flow from the Applicant’s further offending is so great that the Australian community’s tolerance for any such risk would be very low.
The sentencing judge appears to have regarded the Applicant’s offending as something of an aberration, and saw no need for rehabilitation. In the same vein, the sentencing judge saw little likelihood of this Applicant offending again.
There is no expert evidence before the Tribunal as to the Applicant’s likelihood of re-offending.
The Applicant’s offending has its nascence in his infatuation with a co-worker. It led frequent phone calls and text messages, and her decision to block his attempts at communication. He was sentenced on the basis that he was “heavily intoxicated”[41] at the time. He told the Tribunal that he had consumed 6 cans of Canadian Club pre-mix. It may be that he overstated his intoxication to the Court and understated it to the Tribunal, but in any event, he was prepared to drive for ten minutes after taking a significant quantity of liquor in order to get to X’s home. There is no evidence that alcohol played any part in the origin of the infatuation, or the various communications over the ensuing six weeks. Whilst the Applicant had taken some liquor on the night of his offending, there is no clear evidence that alcohol was a causative factor in his offending. Neither is there any clear evidence that his offending arose in consequence of any anger issues he may have, but rather through his inability to accept rejection, and understand that “no” means “no.” Indeed, he even returned to X’s residence supposedly to collect his phone after a very clear demand that he not do so. Notwithstanding her rejection of his advances, he maintained a delusional view that he and X “had something going on.”
[41] Exhibit 1, p 45, line 19.
The Tribunal is not persuaded that either alcohol or anger were causative factors in regard to the Applicant’s offending, and sees the course he has undertaken as having little bearing on the question of whether he has achieved any rehabilitation. Noting of course that such courses have not been tested in the community in any event.
To the Applicant’s credit, there are no reports of any inappropriate behaviour by him whilst in prison or in immigration detention, and this offers some support for the view that he required little in the way of rehabilitation.
The sentencing judge was optimistic about the Applicant’s likelihood of re-offending. The Tribunal respectfully does not share that optimism.
Subsequent to his incarceration, notwithstanding that the Applicant had been sentenced in part on the basis of his prior New Zealand criminal record, within two months he was denying such record. He maintained such denials in submissions to the Department and even in evidence before this Tribunal, even though he was specifically cautioned by the Tribunal prior to giving his oral evidence that it was an offence to give false evidence before the Tribunal. The Applicant only yielded the truth under close cross-examination by Mr Morris. The Applicant’s oral evidence has given the Tribunal no reason to believe that he has any real insight into his offending or that he has learned to be truthful when required by law so to do.
The Applicant has an offer of future employment with a former employer should he be released back into the community. He continues to have the very strong support of his children, former partners, and various friends, some of whom attended at the Tribunal to offer him moral support. All of these support factors were present at the time of his offending, yet did not prevent it.
Having regard to the totality of the evidence the Tribunal considers that the Applicant’s risk of reoffending is low to moderate.
Applying the principles in paragraphs 5.2(3), (5) and (6) of the Direction, the Tribunal is of the view that the harm that could be caused from future similar offending is so serious that even countervailing considerations are insufficient to justify revoking the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii) efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no evidence before the Tribunal which enlivens consideration of Primary Consideration 8.2.
Conclusion: Primary Consideration 2
Primary Consideration 2 is given neutral weight.
PRIMARY CONSIDERATION 3 THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3(1) of the Direction requires consideration of any impact of the decision on the non-citizen’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.
Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia. More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(3) requires consideration of the non-citizen’s strength duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(4) requires consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision makers must have regard to:
(a)The length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of then their offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Consideration of paragraph 8.3(1)
It was submitted by Mr Hartnett that the Applicant’s immediate family comprises:
·Jamila Tabuarua – his daughter;
·Elijah Tabuarua – his daughter;
·Nicole Davis, former spouse;
·Sharon Helander, former de facto partner; and
·Eileen Mary Listz, mother of Sharon Helander.
Mr Morris did not contest that any of the nominated family members fell within the citizenship or residential entitlement limitations in paragraph 8.3(1).
Evidence Of Jamila Tabuarua
In her unsigned undated statement[42], Jamila said that she and Elijah are her father’s only immediate family, and that he has no family in New Zealand. She was not aware whether he had friends there. She expressed extreme concern for the Applicant’s mental health, and the prospect of self harm due to shame, guilt, and isolation in New Zealand. Jamila also expressed strong concern about the Applicant’s long term ongoing heart issues, and asserted that he would not receive the same level of health care in New Zealand.
[42] Exhibit 1, p 93,
Jamila also referred to the Applicant’s long history of employment and contribution in the community, and his ties to Easts Rugby Union Club in Brisbane. She said he maintained a good relationship with her mother and step-father, and that she wanted him to be able to attend her wedding. Jamila stated that family was the most important thing to her, which was why she had stood by him “during this whole ordeal.”
Jamila described the Applicant as a good man who had never made her feel unsafe. He had given her financial support when she lost her job through Covid-19. He had continued to pay for things like car registration, her rent, phone and utility bills.
Evidence Of Elijah Tabuarua
Elijah Tabuarua[43] expressed strong concern at the prospect of his father being isolated without support, and implored that his father should not face a long term sentence of isolation and loneliness.
[43] Exhibit 4; Exhibit 7, p 5 and 8.
Evidence Of Nicole Davis
The Tribunal has also had regard for the email from Ms Nicole Davis dated 3 May 2023[44] who was married to the Applicant from 1997 to 2002. She expressed concern that her children would be separated from their father, particularly as he grows older. She felt it would place undue emotional and financial strain on them, particularly in flying to see him. She felt her children had already endured enough. The focus of Ms Davis’ email was the impact the Applicant’s deportation would have on their children, rather than herself. Beyond the indirect impact these factors would have on her, she did not assert any specific impact on herself.
[44] Exhibit 7, p 6
Evidence Of Sharon Helander
The Tribunal has had regard for the statutory declaration of Ms Sharon Helander dated 19 December 2022[45], a character reference dated 13 May 2022[46], and her statement of 8 May 2023[47]. Ms Helander was in a relationship with the Applicant for a period of some five years prior to his offending. They remain close friends. Her statutory declaration was directed at explaining discrepancies in his name in official documents, and shed little light on the specific impact of his deportation on her.
[45] Ibid, p 3
[46] Exhibit 1, p 95
[47] Exhibit 7, pp 12-14.
In her character reference of 13 May 2022, Ms Helander described a respectful hard working man, who had supported his children emotionally and financially. She referred to his three heart attacks since the age of 50. She maintained he was a great dad, and a respectful, loyal dependable mate, friend and partner.
Ms Helander’s statement of 8 May 2023 was prepared for the purpose of this application. She continued to vouch for his character, and said she could not recall any violent behaviour or unpleasant experience with him. She offered him help, including shelter if required. She described the circumstances of his third heart attack. She said he had no friend or family in New Zealand. She did not detail any specific impact that the Applicant’s deportation might have on her, however the Tribunal is prepared to infer some impact in consequence of their ongoing friendship.
Evidence Of Eileen List
Eileen List provided a signed statement dated 4 April 2022[48] which was a very positive character reference in respect of her daughter’s former partner, but did not address any specific impact his deportation might have on her.
[48] Exhibit 1, p 94.
Conclusion Paragraph 8.3(1)
The Tribunal accepts the evidence offered by the nominated family members.
Even though some of the nominated family members did not specifically nominate any adverse impact which might flow to them as individuals, the Tribunal accepts that the deportation of any immediate family member in such circumstances involves great stress and anxiety, including the “knock on” effect of coping with the impact of that stress on other members of the family. The Applicant is clearly held in fond and high regard by members of his immediate family, particularly his children, who bought him a new suit for his appearance before the Tribunal, notwithstanding his transgressions, and there is a common thread of strong concern for his future physical and mental wellbeing. The Applicant gave evidence that he will not be able to earn as much in New Zealand as he has in Australia, and this will no doubt diminish his capacity to provide financial support for his daughter, and any others who have been the beneficiaries of his generosity.
The Tribunal accepts that the Applicant’s deportation will make it extremely difficult, if not nigh impossible, for the Applicant’s children to carry out cultural and familial obligations, particularly as the Applicant gets older. They are his only family and are rightly concerned for him living in a country where he has no relatives at all to turn to. They are particularly concerned about his physical and mental health, and believe he needs the support of friends and family. Their emotional pain from his deportation appears likely to exceed that of other immediate family members. Although all family members will be able to remain in touch with the Applicant via the various means provided on the internet, physical visits will be limited by cost and opportunity.
The Tribunal is mindful of the requirement in paragraph 8.3(2) that it should give more weight to the Applicant’s ties to his children in considering his ties to Australia, and does so.
Consideration Of Paragraph 8.3(3) Family Or Social Links
The Tribunal has had regard for, and accepts the evidence provided by the various individuals who fell outside the submitted “immediate family” membership nominated by Mr Hartnett.
These include Mr Jason Hassard[49], Mr Sean Devlin[50], Mr Paul Schneider[51], Mr Steven Sinclair[52], Mr Dan Yogeshwar R Singh[53], Mr Morgan Bennet[54], Professor Stephen Kajewski[55], and Ms Anna Davis[56]. It was not submitted that any of these persons fell outside the ambit of citizens, permanent residents etc as specified in the Direction.
[49] Exhibit 1, p 99.
[50] Exhibit 7, pp 10-11.
[51] Exhibit 1, p 98.
[52] Exhibit 3; Exhibit 7, p 4.
[53] Exhibit 7, pp 15-16.
[54] No material pertaining to Mr Bennett was placed before the Tribunal.
[55] Exhibit 7, p 9.
[56] Ibid, p 7.
The Tribunal accepts that the Applicant has many strong longstanding social links, including within his local Fijian community, as well as the broader community. He appears well liked and well respected by people who have associated with him, in some instances for thirty years or more. They all appear ready to stand by him notwithstanding his transgressions.
Consideration Of Paragraph 8.3(4)
Clearly, this Applicant has very strong social, familial, and employment ties to the Australian community. Apart from a period of about eighteen months spent living in New Zealand, the Applicant has lived in Australia since September 1992. When he first came to Australia, he was about 28 years of age, so in terms of paragraph 8.3(4)(a)(i) of the Direction, he cannot be said to have been ordinarily resident during and since his formative years.
In terms of paragraph 8.3(4)(a)(ii) of the Direction the Tribunal gives the Applicant strong credit for the lengthy period during which he has lived blamelessly in Australia. He appears to have an excellent employment history, and has paid substantial amounts of tax. He has engaged with his local Fijian and Rugby communities, and shown himself to be a charitable person.
This is not a case which attracts consideration of paragraph 8.3(4)(a)(iii) of the Direction.
Conclusion Primary Consideration 3
In making its assessment of the strength nature and duration of the Applicant’s ties to Australia, in accordance with paragraph 8.3(2) of the Direction, the Tribunal gives very strong weight to the impact that the Applicant’s removal from Australia would have on his two children. The Tribunal considers that his removal would weigh more heavily on them than on other members of his immediate family. However, the Tribunal also gives strong weight to the impact of this decision on the Applicant’s other family members and broader social links. Having regard to these factors, and his broader social, cultural, and economic ties to Australia, and his very long period of blameless residence in Australia, the Tribunal considers that Primary Consideration 3 weighs heavily in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are no relevant children so as to enliven consideration of Primary Consideration 4.
Conclusion: Primary Consideration 4
For the purposes of Primary Consideration 4, the best interests of the children is given neutral weight.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that 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 he 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.
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 are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[57]
[57] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 5
The Applicant has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is a low to medium risk that he will offend again.
The sentencing judge’s various remarks about the Applicant’s “dreadful dreadful” and “extremely serious” conduct which “will not be accepted in a civilised community” are in the opinion of this Tribunal reflective of the Australian community’s expectations concerning the Applicant’s visa.
Having regard to paragraph 8.5(2) of the Direction, the Tribunal considers that the nature of the Applicant’s offending is such that the Australian community would expect that his visa remain cancelled.
Conclusion: Primary Consideration 5
Accordingly, Primary Consideration 5 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa.
PARAGRAPH 9: OTHER CONSIDERATIONS
Under the heading Other Considerations paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Impact on Australian business interests.
(a) Legal consequences of the decision
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. Both counsel submitted that this consideration does not arise in this case.[58]
[58] Exhibit 1, p 9, [48]-[49]; Exhibit 5, p 18, [57];
This Other Consideration 9(1)(a) is not relevant, and is given neutral weight.
(b)Extent of Impediments if Removed
Paragraph 9.2(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a) - Age and health
The Applicant is a 58 year old man. He has a range of very serious health issues. He has suffered three heart attacks, had two stents inserted in his heart, and he has attempted suicide. He suffers ischaemic heart disease, hypertension, and has a left ventricular thrombosis. He is on a range of medication. His age and state of health may prove problematic in terms of his relocation to New Zealand.
It seems possible, and indeed probable that the emotional strain and trauma of forced relocation, and consequential ongoing separation from loved ones and support networks could adversely impact the Applicant’s physical and mental health. However, he acknowledged that he has previously been advised to make lifestyle changes, and it appears that he is in the process of doing so, hopefully with beneficial consequences.
The Applicant has previously attempted suicide, although the specific circumstances of this attempt were not ventilated before the Tribunal. He is therefore aware that he has some mental health issue, and he would be wise to seek any necessary medication, counselling or other treatment to assist him in this regard. There is no reason to believe that such medication or counselling will not be available to him in New Zealand.
It can be accepted that in New Zealand the Applicant will have access to health care comparable to what he would receive in Australia. What would be missing however, would be the immeasurable benefit of having close contact and support from friends, loved ones and other networks developed over decades to support him, particularly during times of emergency or convalescence. This will undoubtedly cause him significant hardship.
He would be left to fare as best he could by himself conveying himself to and from hospitals and medical appointments. Should he suffer a further heart attack – which appears to be not at all outside the realms of possibility given his medical history – he may find it impossible to convey himself to a hospital.
There has been no suggestion made that the Applicant’s age will be an impediment to his gaining employment for which he appears well qualified, and this lessens the weight which might otherwise be given to this consideration.
The Tribunal finds that the Applicant’s age and health weighs in favour of revocation of the mandatory cancellation of his visa.
Paragraph 9.2 (1)(b) Substantial language or cultural barriers
It has not been submitted that this consideration is relevant in this case, and it is therefore given neutral weight.
Paragraph 9.2(1)(c) - any social, medical and/or economic support available to that non-citizen in that country.
It has been accepted on many occasions that New Zealand has a comparable level of social, medical and other support available to its citizens to that available in Australia.
Accordingly, this consideration is given neutral weight.
Conclusion Paragraph 9.2 Extent Of Impediments If Removed
Having regard to the factors in Paragraph 9.2(1) of the Direction, the Tribunal finds that this consideration weighs moderately in favour of revocation of the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 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.
It has not been submitted that this consideration is presently relevant.
In the circumstances, the Tribunal gives this Other Consideration 9.3 neutral weight.
(d) Impact on Australian Business interests
Paragraph 9.4(1) of the Direction requires that decision makers, must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before the Tribunal that the Applicant’s deportation will, by itself, impact on Australian business interests in the manner contemplated by Direction 99, i.e. that the decision would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
This Other Consideration 9.4 is therefore given neutral weight.
ADDITIONAL REPRESENTATION – other consequences of non-revocation
The Applicant has raised an additional “Other Consideration”, namely that so long as the Applicant’s visa is cancelled, and (he is in the migration zone), he remains subject to the bar in s. 501E of the Act, which explains that he is barred from applying for a new visa. If his visa remains cancelled, the Minister is under an obligation to remove him as soon as is reasonably practicable: s. 198 of the Act, and he cannot apply for another visa while onshore. Moreover, if the Applicant is removed, he becomes a “behaviour concern non- citizen” and is ineligible for the grant of a further SCV in consequence of s. 32(2)(ii) of the Act. Moreover, the mandatory cancellation means that the Applicant will fail to satisfy the Special Return Criteria 5001(c)(i) in Schedule 5 of the Migration Regulations 1994 (Cth).
In support of this representation, the Applicant referred the Tribunal to the decision of the Full Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 (2020) 280 FCR 178 at [15] (“CTB19”).
In CTB19 the Applicant had asserted that he would be killed (as had other members of his family) were he returned to his country of origin, and the question of whether this provided “another reason” fell to be considered.
In the passage relied upon by the Applicant, the Full Court stated:
The applicable principles to the first two grounds of appeal were discussed by Full Courts in several recent judgments: Omar per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ (at [34(e)]-[34(i)], [35]-[36] and [39]); GBV18 v Minister for Home Affairs [2020] FCAFC 17 per Flick, Griffiths and Moshinsky JJ (at [31]-[32]); AXT19 v Minister for Home Affairs [2020] FCAFC 32 per Flick, Griffiths and Moshinsky JJ (at [47] and [56]-[57]); EVK18 v Minister for Home Affairs [2020] FCAFC 49 per Flick, Griffiths and Moshinsky JJ (at [10]-[15]);DQM18 v Minister for Home Affairs [2020] FCAFC 110 per Bromberg and Mortimer JJ (at [23]-[34]) and Snaden J (at [153]-[158]); see also BCR16 per Bromberg and Mortimer JJ (at [63]). They may be summarised as follows:
1The task of a decision-maker under s 501CA(4) is to determine whether there is “another reason” to revoke a cancellation decision;
2In discharging the duty under s 501CA(4), a decision-maker is required to have regard to a former visa holder’s representations made in response to an invitation under s 501CA(3) as a whole. That is to say, viewed as a whole, the representations comprise a mandatory relevant consideration, but not every statement in the representations can be so described;
3Where a former visa holder makes a representation as to the harm that he or she may face if returned to their country of origin, the decision-maker needs to give consideration to it;
4There is a distinction between considering harm, or the risk of harm and hardship, on the one hand, and, on the other, considering whether or not the former visa holder is a person to whom non-refoulement obligations are owed: See DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 per Robertson J (at [185]);
5The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which it is expressed;
6The duty to consider representations made in support of revocation of a cancellation decision requires the decision-maker to engage in an active intellectual process with reference to those representations;
7The representations need to be “significant and clearly expressed” (GBV18 at [32(d)]) or “clearly articulated and substantial or significant”: Omar (at [39]); GBV18 (at [32(e)]-[32(f)]) and EVK18 (at [14]). Put another way in AXT19 (at [56]) and applied by Bromberg and Mortimer JJ in DQM18 (at [27]):
[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim. (See also DQM18 per Snaden J (at [158]-[160])).
As Snaden J observed in Guclukol v Minister for Home Affairs [2020] FCA 61 (at [28]):
[t]he difficulty that often, if not always, arises in cases such as the present ... is that determination of the consequences or circumstances that an applicant will face if removed from Australia ... typically requires speculation. Often, it requires speculation upon imperfect or incomplete evidence, or to a degree that doesn’t easily permit of definitive findings. ...
8Whether consideration has been given to a former visa holder’s representations must be judged in the context of the material placed before the decision-maker by, or on behalf of, the former visa holder: DQM18 per Bromberg and Mortimer JJ (at [36]);
9“Depending on the nature and content of the representations”, the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate: Omar (at [39]). However, the duty to consider a representation does not necessarily require the making of a finding of fact: see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 per Besanko, Barker and Bromwich JJ (at [46]) and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 (at [41]) per Rares and Robertson JJ;
10A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made by a court: GBV18 (at [32(g)], referring to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 per Griffiths, White and Bromwich JJ (at [48])); and
11Ultimately, each case turns on its own particular facts and circumstances.
The Applicant also referred the Tribunal to the earlier Full Federal Court decision, in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] where a differently constituted bench said:
‘By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
The Applicant is entitled to seek to raise these matters as an additional “other consideration” for consideration by the Tribunal. The points made on behalf of the Applicant correctly set out the legal consequences of an unrevoked cancellation. There can be no doubt that the effect of a non-revocation decision would be, that barring any material change to the provisions referred to, the Applicant – like anyone else subject to those provisions - will be permanently removed from Australia, unless the Minister decides otherwise.
As was stated in CTB19, “Ultimately, each case turns on its own particular facts and circumstances.”. In terms of DQM18, the Tribunal has not been specifically referred to any specific relied upon in support of this other consideration. The Applicant has not identified any specific “human consequence” which would be suffered by the Applicant in relation to this additional other consideration.
As was submitted by the Respondent[59], and the Tribunal respectfully agrees:
“… the Applicant’s argument has no particular or special application to the Applicant’s circumstances. It was manifestly the Parliament’s intention that any person subject to s. 501 visa cancellation would be prevented from re-applying for a visa. The mere fact that the Applicant will face the very outcome that Parliament had intended by its enactment is not a particularly persuasive reason to suppose that another reason might justify the revocation of the mandatory cancellation.”
[59] Exhibit 5, p 20, [70].
The human consequences which the Applicant may suffer in consequence of the intended operation of the Act and regulations are not discernibly different from those suffered by others in comparable circumstances, and the Tribunal therefore gives this other consideration neutral weight.
CONCLUSION AS TO PARAGRAPH 9: OTHER CONSIDERATIONS
An overall consideration of Paragraph 9: Other considerations, as well as the additional other consideration raised by the Applicant weighs moderately in favour of revocation of the mandatory cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily in favour of non-revocation;
·Primary Consideration 2 is given neutral weight;
·Primary Consideration 3 weighs heavily in favour of revocation;
·Primary Consideration 4 is given neutral weight;
·Primary Consideration 5 weighs very heavily against revocation;
·The totality of other considerations (including that raised as an additional consideration by the Applicant, weigh moderately in favour of revocation.
·The Tribunal has had regard for paragraph 5.2(5) of the Principles in the Direction to allow the Applicant an increased level of tolerance in consequence of the fact that he has lived in Australia for most of his life. Further the Tribunal has had regard for paragraph 5.2(3), and the serious character concerns raised by the Applicant’s conduct. In addition, the Tribunal has had regard for paragraph 5.2(6) of the Direction, and considers that the nature of the Applicant’s conduct, and the harm that would be caused were it to be repeated, are so serious that even strong countervailing considerations are insufficient to justify revoking the mandatory cancellation of his visa. Had it not been for the sexual assault and the associated harm caused to X, the Tribunal would have considered this to be an appropriate case for revocation of the mandatory cancellation of the Applicant’s visa.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
The Tribunal is therefore not prepared to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 24 February 2023 not to revoke the cancellation of the Applicant’s visa.
I certify that the preceding 197 (one hundred and ninety seven) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
..................................[SGD].................................
Associate
Dated: 29 May 2023
Dates of hearing: 11 and 12 May 2023 Counsel for the Applicant: Aaron Hartnett Solicitors for the Applicant: Joseph Lee TWC Lawyers Solicitors for the Respondent: Oliver Morris Clayton Utz ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
1 Section 501 G-Documents (bookmarked G1 – G7,
paged 1-303)Various 23 March 2023 2 Applicant’s Statement of Facts, Issues and Contentions 6 April 2023 6 April 2023 3 Letter of support for the Applicant from Mr Steven Sinclair (Applicant’s friend) 27 March 2023 6 April 2023 4 Letter of support from Mr Elijah Tabuarua (Applicant’s son) Undated 6 April 2023
5 Respondent’s Statement of Facts, Issues and Contentions 24 April 2023 24 April 2023
6 Annexure to Respondent’s Statement of Facts, Issues and Contentions 28 March 2023 24 April 2023
7 Applicant’s Additional Evidence in reply (Paged 1-167) Various 8 May 2023
7.1 (Updated) Applicant’s Additional Evidence in reply (Paged 1-167) Various 8 May 2023
8 Applicant’s Additional Statement (Paged 1 -44) Various 8 May 2023
0
21
0