Tagaloa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2251
•12 July 2021
Tagaloa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2251 (12 July 2021)
Division:GENERAL DIVISION
File Number(s):2021/2632
Re:Mr Jay Tagaloa
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Senior Member B. Pola
Date:12 July 2021
Place:Brisbane
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 April 2021 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Spouse visa.
....................................[SGD]....................................
Senior Member B. Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BS Subclass 801 Spouse visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B. Pola
12 July 2021INTRODUCTION AND BACKGROUND
The Applicant, Mr Jay Tagaloa is a 41 year old male citizen of Samoa, who migrated to Australia in March 1999 when he was 18 years of age. Movement records indicate that the Applicant was last granted a Class BS Subclass 801 Spouse visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia in September 2005[1].
[1] Exhibit G1, G12, page 67.
The Applicant has a substantial criminal history in Australia, with the first entries in their criminal record appearing in 2008, with the last entry recorded in May 2020. The Applicant’s offending consists of significant domestic violence related offences including torture, assaults occasioning bodily harm whilst armed/in company, breaches of protection orders and common assault; weapons related offences; drug related offences; property related offences; breaches of bail; contravention of direction or requirement offences; assault or obstruct police officer offences; and commit public nuisance[2].
[2] Exhibit G1, G4, pages 25 to 29.
In May 2020, before the District Court in Beenleigh the Applicant was convicted of the following range of offences that resulted in a sentence of imprisonment of 12 months or more, including:[3]
(i)Torture - domestic violence offence, conviction recorded and was sentenced to imprisonment of six years and six months;
(ii)Assaults occasioning bodily harm whilst armed/in company - domestic violence offence, conviction recorded and was sentenced to imprisonment of two years;
(iii)Common assault - domestic violence offence, conviction recorded and was sentenced to imprisonment of 12 months;
(iv)Unlawful possession of weapons category c/e weapon, conviction recorded and was sentenced to imprisonment of 12 months; and
(v)Two counts of possess shortened firearms, conviction recorded and was sentenced to imprisonment of 12 months on both counts.
[3] Exhibit G1, G4, pages 25 and 26. The Tribunal observes the Applicant was also convicted for a range of other offences at this sentencing episode.
Whilst the Applicant was serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 1 June 2020 to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’). This was done on the basis that the Applicant did not pass the character test pursuant to s501(6) of the Migration Act [4].
[4] Exhibit G1, G15, pages 75 to 81.
Following the Visa Cancellation Decision, the Applicant made representations to the Respondent[5].
[5] Exhibit G1, G9, pages 45 to 48; Exhibit G1, G10, pages 49 to 63; Exhibit G1, G11, pages 64 to 66; Exhibit
G1, G14, pages 73 to 74.
On 13 April 2021, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[6].
[6] Exhibit G1, G3, pages 8 to 24.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 21 April 2021 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[7].
[7] Exhibit G1, G1 and G2, pages 1 to 14. For the Tribunal to have jurisdiction to review the decision, the Applicant
must have lodged the application for review with the Tribunal within nine days after the day on which he or
she received notification of the decision, refer to s500(6B) of the Migration Act.
The application was heard in Brisbane on 29 June 2021, the Applicant was self-represented and appeared by video. The Respondent was represented by Mr Matthew Hawker (Sparke Helmore), who appeared in person. The Tribunal heard oral submissions from the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
The Tribunal observes two witnesses were called to give evidence in support of the Applicant, Mr AF, whom provided a joint letter of support with Mrs LF (whom also gave evidence in support of the Applicant)[8].
[8] Exhibit A4.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[9]:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10].
[Tribunal underline for emphasis]
[9] [2018] FCAFC 151.
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s Visa must be revoked[11].
[11] Ibid.
Does the Applicant pass the character test?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” pursuant to s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal is of the view that the Applicant does not pass the character test as they were convicted of a range of offences for which he received numerous sentences of imprisonment of 12 months or more before the District Court of Beenleigh in May 2020.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of their visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act to comply with directions made under the Migration Act.
In view of this, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the “Direction”) must be applied[12]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act, paragraph 6 of the Direction provides:
“6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 & 9, where relevant to the decision.”[13].
[Tribunal emphasis]
[12] On 15 April 2021, the former applicable direction, Direction No 70 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by
Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a
visa under s501CA.
[13] The Direction, sub-paragraph 6.
Paragraph 7 of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case, and that when applying the primary and other considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Paragraph 7(2) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”; additionally, paragraph 7(3) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Paragraph 8 of the of the Direction, which stipulates the following primary considerations:
(i)Protection of the Australian community from criminal or other serious conduct (herein referred to as “Primary Consideration 1”);
(ii)Whether the conduct engaged in constituted family violence (herein referred to as “Primary Consideration 2”);
(iii)The best interests of minor children in Australia (herein referred to as “Primary Consideration 3”); and
(iv)Expectations of the Australian community (herein referred to as “Primary Consideration 4”).
The Other Considerations which must be taken into account are listed in paragraph 9 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Extent of impediments if removed.
c)Impact on victims;
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
A number of principles are set out in paragraph 5.2 of the Direction which decision makers must consider in the exercise of their discretion. The Tribunal has transposed these principles here:
“1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other 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 8.4(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.”
The Tribunal will now address the four Primary Considerations.
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1(1) of the Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It further states that entering or remaining in Australia is a privilege that Australia confers on non-citizens, with the expectation that they are and have been law abiding; will respect important institutions; and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration 1:
(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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Applicant’s criminal offending history can be gleaned from the s501 G‑Documents[14], in addition to documents produced under summons[15] comprising:
[14] Exhibit G1.
[15] Exhibit R2.
(a)The Applicant’s criminal history in Australia which appears in a document entitled, “Nationally Coordinated History Check Results” dated 24 June 2020[16];
[16] Exhibit G1, G4, pages 25 to 29.
(b)Sentencing remarks in the District Court of Queensland, May 2020[17];
[17] Exhibit G1, G5, pages 30 to 36.
(c)Department of Home Affairs file note dated 14 January 2021[18];
[18] Exhibit G1, G6, pages 37 and 38.
(d)Verdict and Judgement report dated 15 May 2020[19];
(e)Queensland Corrective Services, Integrated offender management system, sentence calculation details report from the Queensland Department of Corrective Services dated 19 May 2020[20];
(f)International movement records of the Applicant from the Department of Home Affairs[21];
(g)Documents produced by Queensland Police of various dates[22]; and
(h)Documents produced by Queensland Magistrates Court of various dates [23];
(i)Documents produced by Director of Public Prosecutions (Queensland) of various dates[24].
(j)
[19] Exhibit G1, G7, pages 39 to 42.
[20] Exhibit G1, G8, pages 43 and 44.
[21] Exhibit G1, G12, page 67.
[22] Exhibit R2, RTB1, pages 1 to 258.
[23] Exhibit R2, RTB2, pages 259 to 274.
[24] Exhibit R2, RTB3, pages 275 to 317.
Overview of the Applicant’s criminal and other offending history
The Tribunal observes that the Applicant’s first entries into their criminal history began in November 2008, almost 10 years following their arrival into Australia as an 18 year old. The Tribunal observes that the Applicant’s criminal history has spanned a considerable period of time over almost 12 years, with his last convictions recorded in May 2020. During this period, the Applicant has appeared before lawful authority on 14 separate occasions for sentencing, dealing with almost 50 offences, 19 of which carried a sentence of imprisonment[25].
[25] Exhibit G1, G4, pages 25 to 29.
It is evident upon reflection of the criminal history and other relevant conduct of the Applicant that there has been a theme of violence in a domestic or family setting. Their conduct has also centred around weapons related offending, drug use and related property offending, as well as exhibiting a general disrespect for lawful authority. In providing an overview of the Applicant’s offending, the Tribunal will classify the Applicant’s conduct in these categories.
Domestic and family related violence
Evidence before the Tribunal indicates the Applicant has a long history of recorded incidents involving domestic or family violence. The Tribunal observes that for some of the recorded incidents, the Applicant did not receive charges or convictions.
A summary of domestic violence protection orders produced by summons from the Queensland Police Service indicates that numerous protection orders have been taken out against the Applicant by multiple partners over many years, some of which name children in need of protection. The Tribunal observes that these protection orders contain strict conditions prohibiting the Applicant from contacting the named person in need of protection as well as preventing the Applicant from being in possession of weapons[26].
[26] Exhibit R2, RTB1, pages 161 to 167.
The Tribunal observes that there are around 10 protection orders taken out against the Applicant dating as far back as November 2012, with a protection order currently in place and due to expire in May 2030, approximately nine years into the future[27]. The Applicant has received two convictions for breaching protection orders, which the Tribunal has summarised as follows:
(i)District Court in May 2020, conviction for contravention of domestic violence order in February 2017, sentenced to imprisonment of three months; and
(ii)Magistrates Court in December 2013, conviction for contravention of domestic violence order in November 2013, conviction recorded and fined.
[27] Exhibit R2, RTB1, pages 161 and 163.
Whilst, the Applicant has only twice been convicted of breaching protection orders, the most recent sentencing episode of the Applicant involves convictions for many violent offences committed over a number of days in January 2019, to his former partner.
January 2019
The Tribunal will outline the details of the Applicant’s offending that is undoubtedly his most serious and reprehensible offending. During the hearing the Applicant was taken to the[28]:
(i)underlying facts of the convictions as summarised by the public prosecutor;
(ii)statement of the victim;
(iii)medical evidence of the examining doctor;
(iv)photos of the victim’s injuries; and
(v)the sentencing remarks of the Honour Judge Kent QC before the Beenleigh District Court of Queensland in May 2020.
[28] Exhibit R2, RTB3, pages 275 and 276; Exhibit R2, RTB3, pages 291 to 294; Exhibit R2, RTB3, pages 295
and 296; Exhibit R2, RTB3, pages 309 to 317; Exhibit G1, G5, pages 30 to 36.
When the evidence was put to the Applicant, he had indicated that he accepted the offending and the content of the documents which he had been taken to; in addition to having expressed remorse for his offending in submissions to the Respondent and The Tribunal[29].
[29] Transcript 29 June 2021, page 54, lines 20 to 46.
The events of the Applicant’s offending involved a former partner whom he was in a relationship with for approximately six months, and whom he resided with. The offending as outlined in the Statement of Facts by the public prosecutor, had occurred over a number of days in January 2019, following an argument between the Applicant and his former partner (the victim)[30]. This had then escalated to an extent where the Applicant had inflicted injuries upon his former partner which included punching her in the head three times, and grabbing a piece of timber about a metre in length and striking her in the head, body and legs causing bruising.
[30] Exhibit R2, RTB3, pages 275 and 276.
The victim escaped the residence where the Applicant was. However, a few days later the Applicant sent for a taxi to the victim to return her to their address. The Applicant had initially tried to justify to the victim his actions, but then became angry and grabbed a machete with a black handle with electrical tape on it and used it to hit the victim repeatedly on its flat side over a dozen times causing severe pain in the victims legs. The victim suffered bruising to her thighs and was barely able to walk. The victim was in deep pain and distressed at the prospect of her children losing their mother.
The Applicant then grabbed a gas cylinder with a burner attached and lit it, and then held the lit burner in the victim’s face and threatened to make her ugly. The victim begged the Applicant not to, and the Applicant placed the burner on her upper left thigh and held it there for approximately five seconds, causing a burn to the area of the victim’s leg.
Following this, the Applicant eventually fell asleep, and upon waking had asked the victim to go upstairs and pack her belongings, and after the victim had done so, when standing at the top of the stairs the Applicant had yelled at her to get her belongings and “f*ck off”. The victim indicated she was scared to go down the stairs for fear of the Applicant hitting her. The Applicant then went up the stairs and elbowed the victim in the head causing her head to hit the wall and turned around and punched her in the left eye, causing it to split and bleed.
The Applicant then took clothes out of the victim’s bag placing them over her eye to stop bleeding and then ordered the victim to go and shower. After the victim had showered, she went into an upstairs bedroom and fell asleep. Upon waking sometime later, she had returned downstairs and sat talking with the Applicant for a couple of hours. The Applicant then grabbed the same machete and hit her in the legs again on the flat side as he had done before.
Some individuals arrived at the residence where the Applicant and victim were, and when the Applicant had gone upstairs, one of the individuals in the group had stayed with the victim, and told her that they would act as a diversion so the victim could escape. The victim escaped to an address nearby and contacted her sister, and the people at the address then drove the victim to a safe location.
The victim suffered injuries which included bruising to her calves, left ankle, thighs, elbow, upper arms, breasts, forehead, torso and left eye, burns to her left thigh, swelling of her left ankle and swelling around her left eye.
A few days later following their offending in January 2019, the Applicant attended a local police station for an unrelated matter and was arrested[31]. The Queensland Police Service Bail Affidavit completed on the same day referred to the Applicant as being an “unacceptable risk if released on bail”, as it was their view that the Applicant posed an unaccepted risk of committing an offence, endangering the safety and welfare of a person, and would interfere with witnesses or otherwise obstruct the course of justice[32]. The Applicant was refused bail and has remained in criminal custody ever since.
[31] Exhibit R2, RTB1, page 142.
[32] Exhibit R2, RTB3, pages 285 to 290.
The Applicant was convicted and sentenced for the following offences (amongst other offences he was also convicted of in this sentencing episode):
(i)Torture – domestic violence offence, sentenced to imprisonment for six years and six months;
(ii)Assaults occasioning bodily harm whilst armed/in company – domestic violence offence, and was sentenced to imprisonment for two years; and
(iii)Common assault – domestic violence offence, sentenced to imprisonment for 12 months.
The Tribunal refers to the sentencing remarks of their Honour Judge Kent QC before the District Court of Queensland in May 2020[33]:
“… I regard the torture as extremely serious and concerning criminal conduct over a significant period of time against a defenceless female complainant for whom your conduct was so serious that she feared for her life, in my view, quite reasonably. You were attacking her with a machete, albeit the flat side of the machete. You are clearly a powerful man and you inflicted serious injuries on her that were lasting, to a degree, as demonstrated by the photographs…”.
February 2017
[33] Exhibit G1, G5, page 33.
A Queensland Police Service Court brief states that in February 2017 a Magistrates Court granted a temporary protection order naming the Applicant as the respondent, preventing him from contacting his former partner (whom he was in a relationship with for about six months)[34]. The brief goes on to state that approximately two weeks later the Applicant had attempted to contact his former partner. The Applicant was later arrested in September 2017, and was charged with contravene domestic violence order, where he was convicted and received a sentence of imprisonment of three months (observing the Applicant was convicted of other offences in this sentencing episode).
[34] Exhibit R2, RTB1, page 109.
The Applicant was taken to the reasons their former partner gave in her application for the protection order against the Applicant. These reasons include very serious allegations of sexual violence, describing multiple incidents with specific dates where she states the Applicant had forced her to have sex with him, and refers to the Applicant as being “quite a large and strong man”[35]. The Applicant denied the allegations from his former partner when they were put to him at the hearing[36].
[35] Exhibit R2, RTB1, page 227.
[36] Transcript 29 June 2021, page 32, lines 20 to 47.
Part of the application for the protection order refers to the Applicant as possessing a gun, and that during an incident of domestic violence he had threatened to shoot her[37]. As stated earlier, a temporary protection order was granted in February 2017[38].
March 2015
[37] Exhibit R2, RTB1, page 230.
[38] Exhibit R2, RTB1, page 161.
During the hearing, the Applicant was cross-examined as to a reported incident involving him and his former partner whom the Tribunal will refer to as Ms X (with whom the Applicant states he shares two children, Child 1 aged 10, and Child 2 aged 8[39]). The Applicant was asked by the Respondent if he had ever committed acts of physical violence against his former partner Ms X, and what acts he considered constituted acts of physical violence[40]. After further pressing, the Applicant conceded that an incident which is documented by Queensland Police which occurred in March 2015 had indeed occurred, despite his initial denials[41].
[39] Exhibit G1, G10, page 54.
[40] Transcript 29 June 2021, page 28, lines 9 to 39.
[41] Transcript 29 June 2021, page 28, lines 41 to 47; page 29, lines 1 to 47; and page 30, lines 23 to 28.
The Tribunal refers to the Queensland Police Service report documenting an incident in March 2015 involving the Applicant and his former partner Ms X and their two children who would have been around the ages of four and three at the time[42]. The report states that the Applicant was seen by several witnesses (and on CCTV footage) pushing Ms X hard with his left shoulder and his right hand causing her to stumble after arguing with her at a shopping centre. The report states that the Applicant verbally abused Ms X, and rammed her with a shopping trolley which had their two children in it. It states the Applicant followed Ms X and continued to ram her legs with the trolley as they walked through the shopping centre.
[42] Exhibit R2, RTB1, page 198 and 199.
Ms X went to the concierge service of the shopping centre for assistance whilst the Applicant had taken off to a shop with both of their children. Security had tracked down the Applicant and police had approached him for questioning. When the Applicant was questioned by police as to his actions, it is reported that he had initially denied the events had taken place, and that he was not in a relationship with Ms X.
Upon showing the Applicant the CCTV footage of his actions and advising the Applicant that there were several witnesses who had seen his conduct, the Applicant admitted that he was in a relationship with Ms X, and that they lived together. The report states the Applicant had said he was embarrassed and expressed remorse for his actions.
The report states that Ms X had referred to previous incidents of domestic violence involving the Applicant. She was taken to another address with the children as a result of the incident. The report notes that a previous protection order had expired in January 2015, taken out against the Applicant to protect Ms X and the two children[43]. Following this incident, a further protection order was taken out against the Applicant protecting Ms X and their two children in March 2015[44].
[43] Exhibit R2, FTB1, page 164.
[44] Exhibit R2, RTB1, page 163; Exhibit R2, RTB1, pages 200 to 213.
The Tribunal observes that the protection order taken out by police refers to previous incidents of domestic violence which had occurred in front of their children, with the protection order documenting that, “… It is necessary and desirable to protect the children as there is a history of them being exposed to domestic violence between the aggrieved [Ms X] and the respondent [the Applicant]” [45] [Tribunal insertions].
November 2013
[45] Exhibit R2, RTB1, page 205.
A Queensland Police Service Court brief states that police had charged the Applicant with a contravention of a domestic violence protection order following an incident whereby the Applicant had attended the address of Ms X[46]. The brief states that police had received information that the Applicant was at the address and that Ms X had been assaulted by the Applicant, and when police arrived the Applicant was sitting outside the front of the home.
[46] Exhibit R2, RTB1, page 25.
When police had questioned the Applicant about the incident, the Applicant stated that he had a verbal argument with Ms X after which he had slapped his young child on the back of his legs because they were crying. Police spoke with Ms X who stated the Applicant had become violent with her and punched in the back and then threw a remote control at her hitting her in the back of the head and continued to verbally abuse and make threats towards her. Ms X further reported to police that threats of violence had been continuing for some time after a protection order had been issued but were not reported to police.
The Tribunal observes the Applicant appeared before a Magistrates Court in December 2013 and was convicted for a contravention of domestic violence order in November 2013, with the Applicant receiving a conviction recorded in addition to a fine[47].
Late 2012
[47] Exhibit G1, G4, page 28.
Evidence before the Tribunal confirms the Applicant’s former partner Ms X had applied for a protection order just prior to the birth of their second child, which was granted[48]. In the reasons of the application Ms X states that she was applying for the temporary protection order, “… because of the physicall abuse to my son an I…” [sic] amongst other reasons and examples of incidents involving the Applicant (including an incident four months earlier involving the Applicant driving under the influence of alcohol with his son and pregnant wife in the car, referred to in Queensland Police Service Court briefs[49]).
[48] Exhibit R2, RTB1, pages 173 to 183
[49] Exhibit R2, RTB1, page 11.
When the Applicant was questioned as to the reasons of the application for a protection order, the Applicant eventually submitted under cross-examination that Ms X’s claims as to Applicant threatening her and her son were accurate, but qualified some of his submissions by stating Ms X had tried to make the application “as worse as possible”, to “keep him away”[50].
Weapons related offending
[50] Transcript 29 June 2021, page 22, lines 4 to 47; and page 23, lines 1 and 2.
The Tribunal observes the Applicant has received numerous convictions for weapons related offences, including:
(i)District Court in May 2020, conviction for unlawful possession of weapons category c/e weapon in September 2017, sentenced to imprisonment for 12 months;
(ii)District Court in May 2020, conviction for two counts of possess shortened firearms in September 2017, sentenced to imprisonment for 12 months;
(iii)District Court in May 2020, conviction for two counts of unlawful possession of weapons category d/h/r weapon on 8 September 2017 and between 8 and 14 December 2018, sentenced to imprisonment for two years;
(iv)District Court in May 2020, conviction for authority required to possess explosives in September 2017, sentenced to imprisonment for three months; and
(v)Magistrates Court in February 2017, conviction for possession of a knife in a public place or a school in December 2016, conviction recorded and fined.
During the course of the hearing, the Applicant was questioned as to what was his purpose for having a sawn off short gun (September 2017), with the Applicant stating that it wasn’t his gun, but that it was found when police had searched a property he was present at, and he claimed ownership. He stated that for these particular offences (September 2017) he had initially lied to police as to his identity because he was paranoid and under the influence of methamphetamines[51].
[51] Transcript 29 June 2021, page 41, line 47; and page 42, lines 9 and 10.
The Tribunal observes that when the Applicant was cross-examined as to their convictions for two counts of unlawful possession of weapons category d/h/r weapon on 8 September 2017 and between 8 and 14 December 2018, he continued to deny these weapons were in fact his. The Applicant continued to state that the weapons were not his when he was taken to a Queensland Police Court brief which states that upon the forensic examination of a stolen car[52], police found DNA evidence of the Applicant on the trigger area of the firearm (with respect to the unlawful possession of weapons category d/h/r weapon offences). Additionally, the brief states that the Applicant’s fingerprints were found on the window of the passenger’s door of the stolen car[53].
Drug use and related property offending
[52] Transcript 29 June 2021, page 44, lines 34 to 40; and page 45, lines 1 to 5.
[53] Exhibit R2, RTB1, page 153.
Over a third of the Applicant’s total offences within their criminal history relate to drug offending, which largely commenced from 2015 onwards. The Tribunal observes that the Applicant received the following drug related convictions:
(i)Twice convicted for possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 less than schedule 4;
(ii)Six convictions for possess utensils or pipes etc that had been used;
(iii)Four convictions for possessing dangerous drugs;
(iv)Four convictions for possess utensils or pipes etc for use;
(v)One conviction for possess property suspected of having been used in connection with the commission of a drug offence; and
(vi)Twice convicted for possess property suspected of having been acquired for the purpose of committing a drug offence.
The Applicant has also been convicted of numerous property related offences, the Tribunal observes the Applicant received the following convictions:
(i)Possessing anything for use in the commission of a crime defined in part 2;
(ii)Unlawful possession of suspected stolen property;
(iii)Demanding property with menaces with intent to steal;
(iv)Receiving tainted property;
(v)Trespass – entering or remaining yard or place for business; and
(vi)Wilfully damage property without consent and thereby caused a loss of $250 or less.
The Tribunal observes that there is a Queensland Police Court Service brief which refers to charging the Applicant with robbery armed/in company/wounded/used personal violence in August 2017, but the Applicant was not convicted of these charges[54]. The Applicant was questioned as to these charges during the course of the hearing, the Tribunal refers to the following exchange[55]:
[54] Exhibit R2, RTB1, pages 120 and 121.
[55] Transcript 29 June 2021, page 50, lines 10 to 23.
“Respondent: Thank you. So as I understand it, when you said that you were put in prison initially but then released, were you charged with robbery but they dropped – they didn’t proceed with any robbery charge?
Applicant: ---Yes.
Respondent: Okay. And did you have associates or friends that they did proceed with against for a robbery charge?
Applicant: ---We were all put in jail for it.
Respondent: And was anyone convicted for it?
Applicant: ---I don’t think so, no.
Respondent: And you understand what they were initially saying that you did?
Applicant: ---I was with them, I was in company, I think.
Respondent: Okay. And there were firearms involved, were there?
Applicant: ---Yes, that’s what was said. ”
General disrespect for lawful authority
The Tribunal observes that there are multiple charges in the Applicant’s criminal offending history with respect to his conduct when under arrest or receiving instructions from a police officer. During the course of the hearing, the Applicant was questioned as to an incident which lead to the Applicant’s conviction of assault or obstruct police officer.
A Queensland Police Court brief refers to an incident involving the Applicant in May 2012 where the Applicant had returned to his home whom he shared with Ms X. Ms X advised police that the Applicant had been drinking and driven off with their one year old child in the vehicle[56]. A short time later when the Applicant had returned to the property, the police had asked the Applicant to take part in a breath test.
[56] Exhibit R2, RTB1, page 11.
The report states that the Applicant told police to, “F*ck off, I am not doing your test”, with the Applicant walking past the police and grabbing his one year old child from the back seat of the car. The Applicant held the child and refused to hand the child to Ms X so he could take part in a roadside breath test. Police observed the Applicant to be unsteady on his feet, and after a short conversation, the Applicant handed the child back to Ms X. The report states whilst the Applicant was talking to police, he made threatening moves towards them and was subsequently restrained and handcuffed. The report states the Applicant told police several times when he was being placed in the police vehicle that, “I will remember your face, I will smash you next time I see you!”. When the Applicant was questioned as to this incident and his comments to police, he said it was correct but that he did not remember it[57].
[57] Transcript 29 June 2021, page 17, lines 13 to 35.
The Applicant appeared before a Magistrates Court in June 2012 and was convicted of two counts of assault or obstruct police officer and was convicted and fined.
The Tribunal observes that there are other incidents involving the Applicant and his disrespect to police while doing their job, one such incident occurred in August 2012, whereby the Applicant had pushed a police officer in their left should twice whilst being placed under arrest, causing them to lose balance and stumble, additionally he resisted arrest, with police requiring back up in order to assist in restraining the Applicant[58]. When questioned at the hearing, the Applicant agreed the events had taken place when they were put to him[59]. The Tribunal observes that on this occasion the Applicant was convicted of two counts of assault or obstruct police officer and received a fine and default imprisonment of 32 days.
[58] Exhibit R2, RTB1, page 20.
[59] Transcript 29 June 2021, page 17, lines 40 to 45; and page 18, lines 1 to 16.
The nature and seriousness of the Applicant’s conduct
Upon a holistic review of the Applicant’s criminal offending record and other conduct, the Tribunal is of the view that the following considerations have application with respect to the nature and seriousness of the Applicant’s conduct, when applying paragraph 8.1.1(1) of the Direction: sub-paragraphs 8.1.1(1)(a)(ii) and (iii); (b)(ii); (c); (d) and (e).
Sub-paragraph (a) (ii), and (iii) of paragraph 8.1.1(1) of the Direction requires that decision makers must have regard to (without limiting the range of conduct), the following types of crimes or conduct that are viewed very seriously by the Australian Government and the Australian community, these are:
“… (ii) crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii) acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed…”
There is no doubt in the Tribunal’s mind that the Applicant’s most recent offending conduct involving the commission of violence offences in a domestic setting on their former partner warrants the application of sub-paragraph 8.1.1(1)(a)(ii) of the Direction.
As previously outlined by the Tribunal, the Applicant had accepted the facts of their offending with respect to their convictions regarding torture – domestic violence offence; assaults occasioning bodily harm whilst armed/in company – domestic violence offence; and common assault – domestic violence offence in January 2019. The Tribunal has in earlier reasons detailed the extreme acts of violence which the victim (a former partner of the Applicant) was subjected to during their ordeal over several days.
These extreme acts of violence from the Applicant included acts such as punching the victim in the head three times, grabbing a piece of timber about a metre in length and striking her in the left and right sides of the head including the back of her head, repeatedly hitting the victim’s legs with the flat side of a machete on multiple occasions, threatening to disfigure the victim’s face with the flame from a gas cylinder, burning the victim’s upper left thigh with the flame of the gas cylinder, and punching the victim’s eye causing it to split and start bleeding.
The Tribunal views the victim’s injuries to be quite extensive and these were detailed in the earlier reasons of this decision. On this, the Tribunal refers to the sentencing remarks of his Honour Judge Kent QC in the District Court of May 2020 where he stated the following in relation to the victim’s injuries, “… She could not walk properly for two and a half weeks, as a demonstration of the severity of the injuries…”[60].
[60] Exhibit G1, G5, page 32.
The Tribunal in earlier reasons referred to the description given by His Honour Judge Kent QC of the violence exhibited by the Applicant with respect to their conviction for torture – domestic violence offence, which His Honour described as “extremely serious”[61]. The Tribunal agrees with this characterisation of the Applicant’s offending. In fact, the Applicant’s offending has been considered so serious, that a protection order was granted to protect the victim from the Applicant until May 2030[62].
[61] Exhibit G1, G5, page 33.
[62] Exhibit R2, RTB1, page 161.
The Applicant repeatedly inflicted serious injuries upon a defenceless female victim, and the sentence received by the Applicant of imprisonment for six years and six months reflects the seriousness of his offending with respect to the related convictions.
The Tribunal has in earlier reasons briefly outlined the history of domestic and family violence involving the Applicant, which has been documented over a number of years by the Queensland Police Service, some of which resulted in ten protection orders being granted going as far back as late 2012, naming the Applicant as the respondent.
Whilst the Tribunal acknowledges the Applicant was not charged for many of these reported incidents involving domestic violence, sub-paragraph 8.1.1(1)(a)(iii) of the Direction states that where there is evidence of, “acts of family violence”, this is taken into account, “regardless of whether there is a conviction for an offence or a sentence imposed”.
The Tribunal in earlier reasons has outlined numerous incidents involving the Applicant and multiple former partners, including instances involving his former de facto partner Ms X and their two children, noting that the Applicant’s acts of family violence have been carried out in front of his two children, with police referring to this in their application for protection orders in March 2015.
The Tribunal observes that the Applicant has twice been convicted of breaching protection orders, the most recent conviction in February 2017 resulted in the Applicant receiving a sentence of imprisonment of three months[63].
[63] Exhibit G1, G4, page 27.
With respect to the application of sub-paragraphs 8.1.1(1)(a)(ii) and (iii) of the Direction, the Tribunal is of the view that the nature and seriousness of the Applicant’s conduct is extremely serious. The Applicant’s most recent offending prior to his incarceration was in the Tribunal’s mind extremely violent, and a determinative factor in assessing the nature in and seriousness of his overall conduct.
Sub-paragraph (b)(ii) of paragraph 8.1.1(1) the Direction requires decision makers to consider the types of crimes or conduct committed by the non-citizen, without limiting the range of conduct that may be considered serious. Relevant to the present application, sub‑paragraph 8.1.1(1)(b)(ii) states, “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives of officials due to the position they hold, or in the performance of their duties”.
There is evidence before the Tribunal that the Applicant has on multiple occasions been convicted of offences against police officers performing their duties.
In earlier reasons, the Tribunal referred to threats made by the Applicant to police officers seeking to perform a breath test. With the Applicant telling them to “f*ck off”, and when he was later arrested saying that he would “smash” them if he were to see them again. The Applicant was convicted of two counts of assault or obstruct police officer and was fined.
There was an additional incident detailed by the Tribunal with respect to the Applicant pushing a police officer in their left should twice whilst being placed under arrest, causing them to lose balance and stumble, and resisting his arrest, with police requiring back up in order to assist in restraining him[64]. On this occasion, the Applicant was convicted of two counts of assault or obstruct police officer and received a fine and default imprisonment of 32 days.
[64] Exhibit R2, RTB1, page 20.
When the Applicant was questioned as to both these incidents, whilst he could not recall all details, during cross-examination, he largely accepted the events took place[65].
[65] Transcript 29 June 2021, page 17, lines 13 to 45; and page 18, lines 1 to 16.
The Tribunal is of the view that the Applicant’s offending has enlivened the application of sub-paragraph (b)(ii) of paragraph 8.1.1(1) of the Direction and finds the nature and seriousness of the Applicant’s offending towards the police officers who were doing their job to be of a serious nature.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the sentence imposed by the Courts for a crime or crimes, with the exception of the crimes or conduct mentioned (relevantly) in sub-paragraph 8.1.1(1)(a)(ii) and (iii).
The Applicant arrived in Australia in March 1999, when they were almost 19 years of age. Their criminal conduct however seems to have begun almost a decade later when the Applicant was 28 years of age, with their first conviction recorded in November 2008 for contravene direction or requirement[66].
[66] Exhibit G1, G4, page 29.
In earlier reasons, the Tribunal has referred to the fact that the Applicant has appeared before lawful authority for a total of 14 separate sentencing episodes for almost 50 offences which have occurred between October 2008 and January 2019[67], this is reduced to 44 offences when the Tribunal excludes the offending of the Applicant which was captured in sub-paragraphs 8.1.1(a)(ii) and (iii) of the Direction.
[67] Exhibit G1, G4, pages 25 to 29.
The Tribunal observes the majority of the Applicant’s offences occurred from 2015 onwards, and coincided (on the Applicant’s evidence) with a methamphetamine addiction.
The Applicant has been the recipient of non-custodial sentences on many occasions, receiving sentences of no conviction recorded notations, fines, community service, probation, good behaviour bonds, and being ordered to undertake drug diversion programs.
The Tribunal observes that none of these opportunities were taken up by the Applicant to moderate their conduct and seek to address the factors causing him to offend. Sentences from the Courts involving terms of imprisonment are the final resort in the sentencing hierarchy and the sentences of imprisonment which the Applicant received in the District Court of Queensland in May 2020, reflect the objectively serious nature of their offending.
The Applicant’s criminal offending history has culminated in the sentencing of custodial terms of more than 19 years of imprisonment in total, but this is reduced to 10 years and three months when the Tribunal excludes the Applicant’s offending that has been captured in sub-paragraphs 8.1.1(a)(ii) and (iii) of the Direction.
The Applicant is currently 41 years of age and has spent 22 years residing in Australia (including time spent in criminal custody). The Applicant’s criminal offending history has resulted in a sentencing regime representing custodial time equivalent to approximately half the time the Applicant has resided in Australia (observing this excludes the offending which has been captured in sub-paragraphs 8.1.1(a)(ii) and (iii) of the Direction).
The Tribunal is of the view that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction is engaged with respect to the Applicant’s criminal conduct, and the custodial sentences imposed by the Courts on the Applicant reflects the very serious nature of the Applicant’s conduct. In forming this view as to the nature and seriousness of the Applicant’s conduct, the Tribunal has been mindful to exclude the Applicant’s conduct which had been captured in sub-paragraphs 8.1.1(a)(ii) and (iii) of the Direction.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
There is no doubt in the Tribunal’s mind that the Applicant’s offending conduct has increased in its seriousness and frequency prior to his incarceration for his most recent offending. The Tribunal refers to the following exchange with the Applicant under cross‑examination[68]:
“Respondent: And the seriousness of your family violence has trended upwards, in the sense of it being more serious over time?
Applicant: ‑‑‑Yes.”
[68] Transcript 29 June 2021, page 54, lines 26 and 27.
The Applicant’s offending conduct spans a period of just over a decade, commencing in October 2008 with a conviction for contravene direction or requirement, which the Applicant committed again in April 2009. There was a break in their offending conduct, and in June 2012 the Applicant was convicted of commit public nuisance and two counts of assault or obstruct a police officer, with further offending recorded in their criminal history in August 2012.
The Tribunal has observed that in earlier reasons, just prior to the birth of their second child in late 2012, the Applicant’s former partner had applied for and was granted a protection order, following claims of domestic violence perpetrated by the Applicant. Then almost a year later in December 2013, the Applicant was charged with contravention of domestic violence order.
Following this conviction, there was a gap in the Applicant’s offending history. From November 2015 onwards, it is evident that the Applicant had developed a drug addiction, as there is a significant increase in the number of criminal convictions recorded in their criminal history with respect to drug and property related offences. In fact, on reflection of the Applicant’s record, over a third of the Applicant’s total offences within their criminal history relate to drug offending from 2015 onwards.
The Tribunal observes that the Applicant’s criminal conduct evolved to become objectively more serious, with the Applicant continuing to commit drug and property offences, but this later evolved in 2017 and 2018 to include significant weapons related offences.
With respect to the Applicant’s weapons related offending, the Tribunal views these offences very seriously as the use of firearms are strictly controlled in Australia as they pose a serious threat of harm to the Australian community.
The Tribunal observes that during this time, the Applicant had established relationships with multiple new partners, and in the background to this offending, is the existence of multiple protection orders taken out against the Applicant protecting named individuals (and in some cases children of the named individuals).
In the Tribunal’s mind, the Applicant’s criminal offending culminated in their most reprehensible and violent offences which occurred in January 2019 regarding their convictions for torture – domestic violence offence; assaults occasioning bodily harm whilst armed/in company – domestic violence offence; and common assault – domestic violence offence.
The Tribunal is of the view that the Applicant’s criminal offending conduct became more frequent and reflected an escalation in its seriousness over time. The Tribunal is of the view that the Applicant’s conduct warrants the application of sub-paragraph 8.1.1(1)(d) of the Direction and finds that the nature and seriousness of the Applicant’s conduct ought be considered extremely serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
There have undoubtedly been significant community resources required to bring the Applicant to account for his offending conduct over many years, resulting in a significant cumulative impact on resourcing in the community; notwithstanding the impact the offending has had on his victims and the community (particularly with respect to his property related offending).
The Tribunal views the cumulative effect of the Applicant’s criminal conduct enlivens the application of sub-paragraph 8.1.1(1)(e) of the Direction, such that the nature and seriousness of the of the Applicant’s offending conduct is considered very serious.
Having regard to all of the evidence and submissions made to the Tribunal, as they apply to the relevant sub-paragraphs 8.1.1(1)(a)(ii) and (iii); (b)(ii); (c); (d); and (e) of the Direction; the Tribunal is of the view that overall, the Applicant’s conduct can be characterised as extremely serious. The Tribunal has found the extremely serious nature of the Applicant’s offending with respect to the application of sub-paragraph 8.1.1(1)(a)(ii) and (iii), and in particular, the crimes of a violent nature committed against a woman (which occurred in January 2019) to be the determinative factor with respect to the general characterisation of the nature and seriousness of the Applicant’s conduct.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Relevant to the present application, paragraph 8.1.2(2) of the Direction requires a decision maker to consider the following factors on a cumulative basis when considering the risk to the Australian community:
(1)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(2)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)Information and evidence on the risk of the non-citizen re-offending; and
(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
Upon a holistic reflection of the evolution of the Applicant’s conduct, and the ultimate culmination of his extremely violent offending in January 2019, there is no doubt in the Tribunal’s mind that should the Applicant engage in further criminal or other serious conduct of the type that he as in the past, the nature of the harm to individuals is likely to be significant, and cause physical and/or psychological harm.
In fact, the Tribunal agrees with the Respondent’s contention that this harm does not preclude catastrophic harm, particularly when one considers the protracted violent and extremely serious offending which the Applicant carried out in January 2019[69]. This in the Tribunal’s view is supported to an extent by the significant weapons related offences of the Applicant, and past reported threats made by former partners of the Applicant, where they have claimed he has threatened to kill them.
[69] Exhibit R1, paragraph 35.
Given the Applicant’s offending has also included drug and property offences, the Tribunal is of the view that there is the likelihood of individuals or businesses suffering financial harm, should the Applicant engage in further criminal or other serious conduct with respect to this type of offending.
The Tribunal has had regard to paragraph 8.1.2(1) of the Direction which states that decision makers should be guided by the following principle in relation to the harm that would be caused if the criminal offending or other conduct of the Applicant were to be repeated:
“… decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.”
[Tribunal underline for emphasis]The Tribunal is of the view that the harm that could be caused by the Applicant should their past conduct be repeated, is so serious that any risk it may be repeated is unacceptable to the Australian community.
The likelihood of the Applicant engaging in further criminal or other serious conduct
There are limited submissions before the Tribunal from the Applicant with respect to their efforts to undertake rehabilitation in order to address the factors which have caused him to offend.
In the Tribunal’s mind, there are a number of unresolved factors which have contributed to his past offending that have not been adequately addressed, this includes (1) substance abuse issues (given the extent of his use of prohibited drugs in the past); and (2) issues with respect to his anger management, particularly when it comes to how he chooses to conduct himself in interpersonal relationships. With respect to the second point, the Tribunal observes the Applicant’s offending conduct in a domestic or family setting occurred prior to the onset of their methamphetamine addiction.
When questioned under cross-examination the Applicant stated they had been a heavy drug user in the past, using methamphetamines on a daily basis from around 2015 (following the dissolution of his relationship with Ms X, whom he shares Child 1 and Chid 2). Prior to this, the Applicant admitted to regularly using cannabis.
There is evidence in the material before the Tribunal the Applicant had been ordered to undertake a drug diversion program following drug related convictions for which he was sentenced in May 2016[70]. A Queensland Police Service Court brief states the Applicant had failed to comply with this requirement of the Court, with the brief stating that the Applicant, “… failed to attend and complete the Drug Diversion Assessment Program…”[71]. When this was put to the Applicant at the hearing, he stated that he did not take the opportunity seriously, and had he done so he wouldn’t be in the situation he now faces[72]. The Tribunal observes the Applicant’s failure to attend the drug diversion assessment program resulted in their committing a further offence of contravene a direction or requirement, for which he was convicted in February 2017 before a Magistrates Court and fined[73].
[70] Exhibit G1, G4, page 28; Exhibit R2, RTB2, page 261.
[71] Exhibit R2, RTB1, page 94.
[72] Transcript 29 June 2021, page 36, lines 10 to 17.
[73] Exhibit G1, G4, page 27.
The Applicant in submissions before the Tribunal tendered a letter from Ms Melissa Thompson from Lives Lived Well Brisbane South dated 1 May 2021, regarding support services for alcohol and drug counselling, mental health assessments, inpatient rehabilitation services, and support for family services that would be offered to the Applicant. The Tribunal accepts the letter as an offer for rehabilitation services to the Applicant should they be released into the community, although the Tribunal observes that the letter refers to the Applicant as “Mr Au” in the body of the text[74].
[74] Exhibit A1.
In submissions before the Tribunal the Applicant has stated that he has not participated in rehabilitation since his incarceration[75]:
[75] Exhibit G1, G2, page 6.
“… Due to heavy Prisoner numbers state wide, logistically many if not all prison programs are only offered to Prisoners directly before parole eligibility (6 months prior) yet a Prisoner’s eligibility needs are based on Prisoner’s ability to be placed into a program in time for parole consideration.
Some courses are only run every 6 months, and these (as well as most others) depend on limited seats available at the time the program is offered and the extensive wait list.
These are all general Correctional Centre logistical issues that do not directly reflect an individual’s willingness to participate in programms [sic], only highlighting the logistical issues that impact on an individuals ability to participate.
With COVID19 outbreak however, this pandemic greatly exacerbated all such Correctional Centre logistical issues, and programs were not provided to prisoners as all Queensland Correctional Centres experienced rolling lockdowns throughout the entire year of 2020 and into 2021.
My parole eligibility was Aug 2020 and technically could apply for Prison Programms [sic] in Feb 2020, but no programs were facilitated due to COVID19.
I concede yes, this pandamic was not the cause for my criminal offences that led to my incarceration. I feel though due to the COVID restrictions impacting greatly on my ability to participate in any programs, I have not…
…been given fair opportunity to address my behavioural issues and concerns raised by the Courts and the Department of Home Affairs. I feel I should be given a chance to have the ability to commence programs relevant to my offences…”
[sic]
126.With respect to the issues raised by the Applicant in his submissions, the Tribunal observes that decision makers are required by the Direction to assess the likelihood of the Applicant engaging in further criminal or other serious conduct at the time of the decision, observing that decisions “should not be delayed in order for rehabilitative courses to be undertaken”[76].
[76] The Direction, sub-paragraph 8.1.2(2)(b)(ii)
127.Under cross-examination the Applicant accepted that they had not received adequate drug rehabilitation for their past drug history[77]. Similarly, the Applicant accepted they had not undertaken adequate rehabilitation for their anger management issues[78].
[77] Transcript 29 June 2021, page 51, lines 1 to 10.
[78] Transcript 29 June 2021, page 51, lines 20 to 25.
128.The Tribunal notes the Applicant has expressed remorse for his offending, and in particular for that which related to his extremely violent offending in January 2019. The Tribunal observes the Applicant’s guilty plea with respect to these charges were made late in the process, with reference to His Honour Judge Kent QC sentencing remarks in the District Court of Queensland in May 2020, “… It was a late plea of guilty on the morning of the trial, but you did, by that action, save authorities the delay, difficulty and expense of a trial, and also, of course, the complainant the trauma of giving evidence and being cross-examined. It does seem, with respect, to have been a strong Crown case…”[79].
[79] Exhibit G1, G5, page 32.
129.The Tribunal is of the view the remorse expressed by the Applicant for his offending in January in 2019 is somewhat diminished upon a holistic review of his evidence. This is particularly so as the Applicant sought to initially downplay or deny his violent behaviour when separate reported incidents of domestic violence were put to him during the hearing[80]. The Applicant demonstrated a lack of culpability with respect to their past convictions involving contraventions of protection orders, or his part which resulted in numerous protection orders taken out against him by multiple partners, which were granted by the Courts.
[80] Transcript 29 June 2021, page 32, lines 1 to 3.
With respect to the letters of support offered by friends and relatives of the Applicant, the Tribunal is of the view that these lack insight into the Applicant’s offending conduct, and that these relationships are unlikely to prevent the Applicant from offending in the future (especially given they have not prevented him from doing so in the past). The Tribunal has formed this view with respect to the following submissions and evidence:
(i)Mrs LF gave evidence before the Tribunal via telephone, in addition to providing a joint letter of support with her husband Mr AF. The Tribunal is of the view the Mrs LF lacked insight into the Applicant’s offending history as she knew little of the Applicant’s offending history other than his most recent offending. She also gave evidence that she was last in physical company with the Applicant at the end of 2016 (which she also stated was the last time her seven children (whom she shares with Mr AF) had seen the Applicant in person). Mrs LF stated that she had lost contact with the Applicant, but her husband had remained in contact with the Applicant via telephone, and whilst he was incarcerated and (as both Mr AF and the Applicant were in the same correctional facilities whilst incarcerated in around 2018)[81].
[81] Exhibit A4; Transcript 29 June 2021, pages 80 to 82.
(ii)Mr AF gave evidence to the Tribunal via telephone, and as stated above, provided a joint letter of support with his wife, Mrs LF. Under cross-examination Mr AF initially stated the last time he had seen the Applicant in person was in 2015 (prior to seeing the Applicant when they were both incarcerated in 2018). Mr AF stated that he and the Applicant used to be close but went their own ways and lost touch with each other after a falling out. Despite this, Mr AF insisted that the Applicant had still bumped into his wife and children at church (directly contradicting the evidence of Mrs LF who stated the last time the Applicant had seen their children was at the end of 2016). When this contradiction was put to Mr AF, he said “Well then he hasn’t then, yes”. When Mr AF was questioned as to his knowledge of the Applicant’s criminal history, the Tribunal is of the view that he did not have a full understanding of the Applicant’s offending. The Tribunal viewed Mr AF to be an unreliable witness given his contradictory evidence to that of Mrs LF[82].
[82] Exhibit A4, Transcript 29 June 2021, pages 84 to 87.
The Tribunal is of the view, after considering the evidence before it and the submissions of the Applicant, that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation with respect to factors leading to his risk of recidivism.
132.Further, the Tribunal is of the view that any claims from the Applicant that their ability to (1) abstain from further prohibited drug use in an uncontrolled setting; or (2) that they are now able to sufficiently manage their emotional regulation with respect to their anger (particularly with respect to their conduct in interpersonal relationships); have not been communicated to an independent and suitable qualified clinician verifying these or any other of the claims put forward by the Applicant with respect to factors which lead to his risk of recidivism.
133.The Tribunal observes sub-paragraph 8.1.2(c) of the Direction is not relevant to the circumstances of the Applicant.
Conclusion: Primary Consideration 1
The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Direction, as well as the principles outlined in paragraph 5.2.
The Tribunal considers the nature and seriousness of the Applicant’s criminal offending and other conduct to be extremely serious.
The Tribunal considers that should the Applicant engage in further criminal or other serious conduct of the type that he as in the past, the nature of the harm to individuals is likely to be significant and cause physical and/or psychological harm (not precluding catastrophic harm).
The Tribunal’s view that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of his rehabilitation with respect to factors leading to his risk of recidivism.
In consideration of the evidence, and each of the relevant considerations within the Direction, the Tribunal finds that Primary Consideration 1 weighs very heavily in favour of non-revocation.
Primary Consideration 2: Family violence committed by the Applicant
Sub-paragraph 8.2(1) of the Direction requires decision makers to consider acts of family violence committed by the Applicant, and stipulates that the 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”.
Sub-paragraph 8.2(2) of the Direction requires decision makers to give consideration to the Applicant’s circumstances where the Applicant:
(a)has been convicted of an offence, found guilty of an offence, or had charges proven however so 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 s501 or section 501CA (of the Migration Act) has been afforded procedural fairness.
Sub-paragraph 8.2(3) of the Direction outlines a series of factors which decision makers must consider (where relevant). Upon a holistic review of the Applicant’s conduct, the Tribunal is of the view that sub-paragraphs 8.2(3)(a), (b), (c)(i), (ii) and (iii) of the Direction have application.
The Tribunal has outlined multiple instances of the Applicant’s involvement in domestic disputes which are contained in reports by the Queensland Police Service. The Tribunal considers these reports to be an independent and authoritative source and is satisfied the Applicant has been afforded procedural fairness with respect to having been given an opportunity to respond[83].
[83] Tribunal Amended Direction of 9 June 2021.
Sub-paragraph 8.2(3)(a) of the Direction requires decision makers considering seriousness of the non-citizen’s conduct involving family violence to take into account the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness.
With respect to the application of sub-paragraph 8.2(3)(a) of the Direction, there is undoubtedly a consistent pattern of conduct involving the Applicant in the evidence before the Tribunal with respect to convictions for breaching protection orders and reported incidents of domestic and family violence; which have significantly increased in their seriousness over time. This culminated in the Applicant’s final convictions for his extremely violence offending conduct which occurred in January 2019.
The Tribunal has previously referred to the 10 protection orders taken out against the Applicant by multiple former partners protecting them, and in some instances his own children, dating as far back as late 2012. The Tribunal notes a current protection order is in place protecting the victim of his most recent offending in January 2019 and is not due to expire until May 2030.
The evidence before the Tribunal indicates that the Applicant’s offending conduct has evolved from acts such as shoving a shopping trolley into his former partner Ms X in 2015, to committing a sustained level of extreme violence on a defenceless victim over multiple days resulting in convictions, which included torture – domestic violence offence; assaults occasioning bodily harm whilst armed/in company – domestic violence offence; and common assault – domestic violence offence in January 2019.
Sub-paragraph 8.2(3)(b) of the Direction requires decision makers when considering the seriousness of the non-citizen’s conduct involving family violence, to take into account the cumulative effect of repeated acts of family violence.
As stated by the Tribunal in these reasons, there are at least 10 protection orders which have been taken out against the Applicant, with numerous instances of reported domestic violence having occurred over a lengthy period of time, including multiple convictions involving the Applicant, with sentences resulting in his imprisonment.
There are reported incidents of domestic violence that have occurred in front of the Applicant’s own children whom he shares with Ms X, with police stating in a protection order application in March 2015 that it was “…necessary and desirable to protect the children as there is a history of them being exposed to domestic violence between the aggrieved [Ms X] and the respondent [the Applicant]”[84] [Tribunal insertions].
[84] Exhibit R2, RTB1, page 205.
The Tribunal regards the Applicant’s extremely serious conduct has indeed had a cumulative effect, particularly when one considers the significant community resourcing required to hold the Applicant to account for his actions, and the significant impact his offending has no doubt had on his victims.
Sub-paragraph 8.2(3)(c)(i), (ii) and (iii) of the direction requires decision makers when considering the seriousness of the non-citizen’s conduct involving family violence, to consider any 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); and
(iii)efforts to address factors which contributed to their conduct.
152.The Tribunal in earlier reasons has observed that the Applicant had accepted that they had not received adequate drug rehabilitation for their past drug history[85], and similarly, the Applicant accepted they had not undertaken adequate rehabilitation for their anger management issues[86].
[85] Transcript 29 June 2021, page 51, lines 1 to 10.
[86] Transcript 29 June 2021, page 51, lines 20 to 25.
With respect to the application of sub-paragraph 8.2(3)(c)(i), the Tribunal has referred to the Applicant’s remorse which he expressed for his extremely serious offending in January 2019. The Tribunal has previously stated that it views that this remorse to be somewhat diminished upon a holistic reflection of the Applicant’s evidence (which in the Tribunal’s view) lacked moral culpability from the Applicant with respect to (1) other past convictions involving contraventions of protection orders; or (2) his part which resulted in numerous protection orders taken out against him by multiple partners, granted by the Courts.
With respect to the application of sub-paragraphs 8.2(3)(c)(ii) and (iii) of the Direction, the Tribunal has had regard to (1) the incomplete nature of the Applicant’s rehabilitation with respect to their emotional regulation and conduct in their interpersonal relationships; and (2) their admissions that they have not undertaken adequate rehabilitation for their anger management issues. It is the Tribunal’s assessment that the Applicant lacks insight into the impact of their offending behaviour on their victims and witnesses of abuse[87]. To this point, the Tribunal refers to the following exchange with the Applicant[88]:
[87] Transcript 29 June 2021, page 51, lines 20 to 25.
[88] Transcript 29 June 2021, page 57, lines 35 to 45.
“Senior Member: …Did [name redacted, Child 1] and [name redacted, Child 2] ever witness any of your incidents or run ins with their mother?
Applicant: ---Well I wasn’t aware if there were – just we were in the shopping centre and there was a lot of things going on and I wasn’t aware of it.
SeniorMember: So you weren’t aware whether or not they witnessed your acts or incidents involving what could be characterised as domestic violence?
Applicant: ---Yes.
SeniorMember: All right. Do you think it’s possible that they could’ve witnessed it, given they were present?
Applicant: ---I’m not too sure, I’m not too sure if they were.”
[Tribunal redactions]
Conclusion: Primary Consideration 2
Having regard to all of the evidence and submissions made to the Tribunal, which are outlined in these reasons with reference to sub-paragraphs 8.2(3)(a), (b), (c)(i), (ii) and (iii) of the Direction; the Tribunal is of the view that the Applicant’s conduct can only be characterised as extremely serious with respect to the acts of family violence committed by the Applicant.
The determinative factor of this finding in the Tribunal’s mind was the Applicant’s violence conduct with respect to his convictions from the offending episode in January 2019 resulting in convictions for torture – domestic violence offence; assaults occasioning bodily harm whilst armed/in company – domestic violence offence; and common assault – domestic violence offence.
The Tribunal finds that Primary Consideration 2 weighs very heavily in favour of non‑revocation.
Primary Consideration 3: The best interests of minor children in Australia
Sub-paragraph 8.3(1) of the Direction requires a decision maker to determine whether non‑revocation is or is not in the best interests of a child who may be affected by the non‑revocation of the decision to cancel the Applicant’s Visa.
Whilst there is evidence before the Tribunal with respect to children whom the Applicant shares with Ms X being exposed to family violence, as referred to in earlier reasons of this decision, the Tribunal observes there is nothing in the material from an expert witness with respect to any of the relevant children identified by the Tribunal, indicating (1) any negative impact resulting from the Applicant’s prior conduct; or (2) any impact likely future conduct of the Applicant may have.
The only reasonable finding is that this sub-paragraph (g) merits a neutral allocation of weight.
Sub-paragraph 8.3(4)(h) of the Direction requires decision makers to consider evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
In the absence of independent and expert evidence detailing any physical or emotional trauma suffered by the relevant children referred to by the Tribunal in these reasons, resulting from the Applicant’s offending; the Tribunal is of the view that this sub-paragraph (h) of paragraph 8.3(4) of the Direction is of no weight and is not determinative of any finding about this Primary Consideration 3.
Conclusion: Primary Consideration 3
The Tribunal makes the following findings:
(i)the interrupted role the Applicant has played in the lives of the relevant children identified by the Tribunal within Primary Consideration 3, prior to his incarceration and whilst he has remained in criminal custody;
(ii)the evidence of the Applicant that the primary parental responsibilities of his children whom he shares with Ms X are fulfilled by Ms X, and that the relevant children of Mr AF and Mrs LF are cared for by them respectively;
(iii)the absence of independent or expert evidence with respect to any adverse impact the Applicant’s absence has had on the lives of the relevant children identified by the Tribunal within Primary Consideration 3;
(iv)the Applicant’s capacity to maintain contact via electronic digital platforms from a foreign location with the relevant children identified by the Tribunal within Primary Consideration 3;
(v)the slight measure of weight the Tribunal has attributed to sub-paragraphs 8.3(4)(a), (b), (d) and (e) of the Direction;
(vi)the neutral measure of weight the Tribunal has attributed to sub-paragraphs 8.3(4)(c) and (g) of the Direction; and
(vii)observing that the Tribunal has found that sub-paragraphs 8.3(4)(f) and (h) of the Direction are not applicable or determinative of any finding with respect to Primary Consideration 3.
The Tribunal is of the view that the best interests of the relevant minor children overall weigh slightly in favour of revocation of the decision to cancel the Applicant’s Visa.
The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to Primary Consideration 3 does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration 1 and Primary Consideration 2.
Primary Consideration 4 – The Expectations of the Australian community
Paragraph 8.4(1) of the Direction states that the Australian community expects non-citizens to obey Australian laws whilst in Australia, and where non-citizens have engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community (as a norm) expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction states that the non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns of offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community[109]).
[109] Sub-paragraph 8.4(3) of the Direction.
Paragraph 8.4(2) of the Direction further states that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas if they raise character concerns through conduct in Australia or elsewhere (regardless of whether the non-citizen poses a measurable risk of causing physical harm[110]), such as:
[110] The Direction, paragraph 8.4(3).
(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 position 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 8.4(4) of the Direction states that 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 within the relevant sub-paragraphs of the Direction, without independently assessing the community's expectations in the particular case.
The Tribunal notes the following from the principles which provide a relevant framework for decision makers when applying the requirements of the Direction, relevantly state:
“… the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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…”[111].
[111] Sub-paragraph 5.2(5) of the Direction.
With respect to the application of sub-paragraph 8.4(1) of the Direction as it applies to the circumstances of the Applicant, the Tribunal is of the view the Applicant (who commenced their criminal offending conduct after a considerable period of time residing in Australia), has:
(i)Most certainly not obeyed Australian laws (evidenced by his 14 appearances before lawful authority, for almost 50 offences over a period of more than a decade);
(ii)Failed to show respect for important institutions (evidenced by his numerous convictions for breaching bail conditions granted by the Courts, and convictions with respect to his conduct towards police officers); and
(iii)The Applicant’s offending conduct involving their extremely violent offences against his most recent partner when last in the Australian community in January 2019 would be abhorred by the Australian community.
The Tribunal finds the Applicant’s criminal offending breaches the expectation of the Australian community, and there is a significant risk of further harm to the community (not precluding catastrophic harm) should the Applicant be allowed to remain, particularly given the incomplete nature of their rehabilitation with respect to the factors causing him to offend.
The Tribunal is of the view that the Australian community would rightly expect that the Applicant should not continue to hold a visa on account of his criminal offending history, and the significant risk the Tribunal believes he still poses to the Australian community.
With respect to any mitigating factors which may temper this finding such as the length of time the Applicant has spent residing in Australia, the Tribunal is of the view that any such facts which relate to the Applicant, do not in any way change findings which have been made.
The Tribunal is of the view that the Applicant’s crimes, particularly that which occurred in January 2019 regarding the extremely violent offences committed against a defenceless female, engages sub-paragraph 8.4(2)(c) of the Direction, and that the Australian community’s expectation would be that the Australian government should cancel the Visa of the Applicant.
Conclusion: Primary Consideration 4
Having regard to the specific Principles in sub-paragraph 5.2 of the Direction, the Tribunal is of the view the Australian community would expect the Applicant should not continue to hold their Visa on account of the extremely serious nature of the crimes he has committed whilst residing in Australia.
The Tribunal makes this finding notwithstanding the length of time the Applicant has resided in Australia.
The Tribunal accordingly finds that Primary Consideration 4 is of a very heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs 9.1 to 9.4 of the Direction.
International non-refoulement obligations
Paragraph 9.1 of the Direction requires decision makers to consider international non‑refoulement obligations.
In submissions before the Tribunal the Applicant raised concerns with respect to his return to Samoa[112]:
[112] Exhibit A5.
“… Also there is the current and serious political turmoil continuing in Samoa with the former Prime Minister refusing to relinquish his office which may lead to the need for the Australian Commonwealth to intervene.
This is a highly charged situation and environment only highlighting that as I have been in Australia for over two decades, Samoa is a very different country now politically and culturally, and I will be in effect a foreigner in an unfamiliar and unaccommodating country…”
During the course of the hearing, the Applicant was questioned as to his understanding of the issues he raised with respect to his submissions. Under persistent questioning it became evident that the Applicant did not in fact understand the issues he had raised in his submissions and that he had received assistance from a fellow inmate in preparing them[113].
[113] Transcript 29 June 2021, page 76, lines 38 to 44.
To the extent that the Tribunal is required to consider issues of non-refoulement, the Tribunal considers that the general nature of the Applicant’s claims and the lack of substantive evidence presented in support of those claims are insufficient to satisfy the Tribunal that his concerns regarding his deportation to Samoa now, or in the immediate future are such that it gives rise to non-refoulement obligations in accordance with paragraph 9.1 of the Direction.
The Tribunal agrees with the Respondent’s closing submissions that, “…when it was put to him that there’s no evidence that it’s anything other than, you know, at a political level contesting matters in court, as against unrest where there might not be peace for civilians, the point is nothing, nor is there anything before the tribunal to suggest otherwise. So, that certainly, in my submission, would not, you know, individually, or collectively with other factors, present as another reason why the mandatory cancellation ought to be revoked”[114].
[114] Transcript 29 June 2021, page 96, lines 43 to 47; page 97, lines 1 to 2.
The Tribunal has had regard to the requirements of paragraph 9.1 of the Direction, that the receiving country of the Applicant is Samoa, as well the Applicant’s submissions. The Tribunal is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs decision makers 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 substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
238.The Applicant is presently 41 years of age and indicated to the Tribunal that he did not have any diagnosed medical or psychological conditions[115].
[115] Transcript 29 June 2021, page 71, lines 1 to 10.
239.The Tribunal observes that the Applicant has spent the first 18 years of their life in Samoa and would be familiar with his former country that he once lived. The Tribunal did ask the Applicant as to the barriers they felt they faced should they be deported and refers to the following exchange[116]:
[116] Transcript 29 June 2021, page 77, lines 26 to 34.
“Senior Member: Could you identify some of the barriers that you think are in place if you were to be returned to Samoa, what barriers would you face?
Applicant: ---I – mentally, emotionally, financially, everything, you know. Like – there is a lot of things that is going to affect me as a person. Returning back is going to reflect a lot of things that has happened in my childhood back to me and not having family support and that, there is going to be a lot of things that is going to affect me. Or I have faced a lot of – all sorts of abuse growing up as a kid and going back there and facing that is something that I am worried about.”
240.The Tribunal understands has Applicant concerns regarding his possible deportation, but observes that whilst he may face some difficulties, any hardships (emotional, financial or otherwise) are likely to be temporary until he is able to establish himself.
241.The Tribunal concurs with the Respondent’s contention that, “… the applicant would also have the same access to social, medical and economic support as other Samoan citizens, should he require those services. There is no suggestion that these supports are inadequate…”[117].
[117] Exhibit R1, paragraph 55.
242.In view of the reasons outlined by the Tribunal with respect to the extent of any impediments the Applicant may face if removed from Australia to Samoa, it is the Tribunal’s view that paragraph 9.2 of the Direction weighs slightly in favour of revocation.
The Tribunal is of the view that the weight of this factor does not outweigh the very heavy weight the Tribunal has found for Primary Consideration 1, Primary Consideration 2, and Primary Consideration 4.
Impact on victims
Paragraph 9.3 of the Direction requires decision makers to take into account the impact of the decision not to revoke the Applicant’s visa pursuant to s501CA of the Migration Act, on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any evidence submitted to the Tribunal for consideration with respect to the impact of non-revocation on the victims of the Applicants offending; the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s Visa and is neutral[118].
[118] Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895, [at 88]; TBNM and
Minister for Home Affairs (Migration) [2019] AATA 850, [at 81].
Links to the Australian community
Paragraph 9.4 of the Direction states that decision makers must have regard to sub‑paragraphs 9.4.1 and 9.4.2 of the Direction, which consider the strength, nature and duration of ties of the Applicant to Australia, and any impact on Australian business interests.
Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Direction requires decision makers to consider 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.
In terms of applying sub-paragraph 9.4.1(1) of the Direction to the circumstances of the Applicant, it became evident that the only immediate family he has in Australia is that of his two children whom he shares with Ms X. The Applicant stated that his grandparents were deceased, his mother was deceased, and he did not have the opportunity to meet his father. Additionally, the Applicant stated that he did not have any brother and sisters[119].
[119] Transcript 29 June 2021, page 63, lines 15 to 36.
The Tribunal has previously commented on the inaccuracies within the Applicant’s family composition contained within their Personal Circumstances Form to the Respondent. When the Applicant was asked to expand upon the 70 relatives they had stated resided in Australia, it became evident under cross-examination that he did not have such a large number of family members residing in Australia.
The Tribunal has previously made findings that it is not unreasonable to conclude that the Applicant’s young children (currently 10 and eight years of age) would be impacted and may suffer emotionally should the Applicant be permanently separated from them if he were to be deported.
The Tribunal has had regard to the impact of the decision regarding deportation of the Applicant with respect to his immediate family members in Australia and is of the view that the application of sub-paragraph 9.4.1(1) of the Direction is of a slight weight in favour of the Applicant remaining in Australia.
Sub-paragraph 9.4.1(2) of the Direction requires a decision maker to give consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
The Tribunal observes the Applicant first moved to Australia as an 18 year old in March 1999, and has resided in Australia for more than two decades (including his time spent in criminal custody). The Tribunal observes that the first entries in the Applicant’s criminal history began in 2008, almost a decade after their arrival. Given this, the Tribunal has not limited the weight that would otherwise have been afforded the Applicant pursuant to sub-paragraph 9.4.1(2)(a)(i) of the Direction.
With respect to the Applicant’s evidence regarding time they have spent contributing positively to the Australian community, it became evident during the course of the hearing that the Applicant had held down some employment during his time living in Australia. However, the Tribunal is of the view that this has not always been consistent, as the Applicant has been a recipient of Newstart (or Centrelink) benefits for considerable periods of time. Evidence adduced during cross-examination indicated that the Applicant had not held down employment from 2015 onwards, which coincided in their words with their methamphetamine addiction.
The Tribunal is of the view that a slight measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(a)(ii) of the Direction on the basis of the Applicant’s modest contribution to the Australian community through his employment.
Sub-paragraph 9.4.1(2)(b) of the Direction states that decision makers must have regard to the strength, duration and nature of any family or social links the non-citizen may have with Australian citizens, Australian permanent residents, or people who have an indefinite right to remain in Australia.
With respect to the application of sub-paragraph 9.4.1(2)(b) the Tribunal observes that much of the Applicant’s evidence with respect to friends and family that have a right to remain in Australia, and his connection with them, is that his familial relationships and friendships have been impacted by his addiction issues and offending from 2015 onwards. When the Applicant was asked to name family members in Australia that would be impacted from his removal, he would repeatedly admit that he had either lost contact with them or hadn’t seen them in a considerably long period of time.
This was the case for the Applicant’s relationship with Mr AF and Mrs LF (observing the earlier findings of the Tribunal with respect to their evidence). The Tribunal observes that the Applicant had not been in their company since the end of 2016.
The Tribunal acknowledges the letters of support from Mr WS and Mr PP. The Tribunal observes that the letter from Mr PP stated that the Applicant was the sole financial provider for his parents, which is at odds with the Applicant’s account of his family history as he stated that his mother was deceased and he never met his father; which in the Tribunal’s mind somewhat diminishes the credibility of the support offered by Mr PP, and the Tribunal treats this evidence cautiously with respect to the strength of the Applicant’s social ties to Mr PP[120].
[120] Exhibit A2 and A3; Transcript 29 June 2021, page 63, lines 25 to 36.
Whilst the Applicant’s evidence to the Tribunal seemed to point to a general lack of social links with family or friends, the Tribunal accepts that of the limited evidence before it, a slight measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(b) of the Direction.
Overall, in applying paragraph 9.4.1 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs slightly in favour of revocation.
Whilst the Tribunal has applied a slight measure of weight to this Other Consideration, it is by far outweighed by the combined and determinative weight the Tribunal has given to Primary Consideration 1, Primary Consideration 2, and Primary Consideration 4, all of which weigh very heavily in favour of non-revocation.
Impact on Australian business interests
Paragraph 9.4.2 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the considerations outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant; as there is no evidence before the Tribunal that the Applicant is involved in the delivery of a major project or delivery of an important service in Australia.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations, are not engaged in relation to the Applicant.
(b)Extent of impediments if removed, a slight measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
(c)Impact on victims is of neutral weight.
(d)Links to the Australian community:
(i)Strength, nature and duration of ties to Australia, a slight measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision; and
(ii)Impact on Australian business interests is of no weight as this consideration is not relevant to the factual circumstances of the Applicant.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory Visa Cancellation Decision, they are by far outweighed by the determinative and combined weight of Primary Consideration 1, Primary Consideration 2, and Primary Consideration 4, all of which weigh very heavily in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:
(i)Primary Consideration 1 weighs very heavily in favour of non-revocation.
(ii)Primary Consideration 2 weighs very heavily in favour of non-revocation.
(iii)Primary Consideration 3 weighs slightly in favour of revocation.
(iv)Primary Consideration 4 weighs very heavily in favour of non-revocation.
The Tribunal is of the view that, to the extent that any of the Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory Visa Cancellation Decision, they are by far outweighed by the determinative and combined weight of Primary Consideration 1, Primary Consideration 2, and Primary Consideration 4, all of which weigh very heavily in favour of non-revocation.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 April 2021 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Spouse visa.
I certify that the preceding 274 (two hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola
...................................[SGD].....................................
Associate
Dated: 12 July 2021
Date of hearing:
29 June 2021
Applicant:
Mr Jay Tagaloa (self-represented)
Solicitor for the Respondent:
Mr Matthew Hawker (Sparke Helmore)
“ANNEXURE 1 – EXHIBIT REGISTER”
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED G1 G Documents (pages 1 to 1543) - 5 May 2021 R1 Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 20) 21 June 2021 22 June 2021 R2 Tender Bundle (pages 1 to 317) - 22 June 2021 A1 Letter of Support from Melissa Thompson (Lives Lived Well) (two pages) 1 May 2021 14 May 2021 A2 Letter of Support from Mr PP (one page) 22 February 2019 14 May 2021 A3 Letter of Support from Mr WS (one page) 1 May 2021 14 May 2021 A4 Letter of Support from Mr AF and Mrs LF (pages 1 and 2) 21 March 2021 25 May 2021 A5 Applicant’s submissions (pages 1 and 2) 2 June 2021 10 June 2021
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