Tambanemoto and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2534
•3 August 2022
Tambanemoto and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2534 (3 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4004
Re:Lensard Tambanemoto
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 August 2022
Place:Sydney
The decision under review is set aside and in substitution, the Applicant’s visa cancellation is revoked.
.....................................[sgd]..................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – best interests of minor children – expectations of the Australian community – impediments to removal – links to the Australian community – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 250
Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Heather Geddes, ‘Reflections on the role and significance of fathers in relation to emotional development and learning’ (2008) 36(4) British Journal of Guidance & Counseling 399
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Mah and Minister for Immigration and Border Protection [2018] AATA 416
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
Muldrock v R [2011] HCA 39
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Shi v Migration Agents Registration Authority [2008] HCA 31
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY 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
Chris Puplick AM, Senior Member
3 August 2022
Mr Lensard Tambanemoto (the Applicant) has applied to this Tribunal to review a decision by the Minister (the Respondent[1]) to cancel his visa under the provisions of subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).
[1] Previously the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The Applicant was born in 1979 and is a citizen of Zimbabwe. At the time of the Respondent’s decision he was the holder of a Resident Return (Class BB) (Subclass 155) visa.
On 10 August 2018 the Applicant was convicted of two offences (see below) which resulted in him receiving a custodial sentence of five years and six months with a non-parole period of three years.
This conviction led to the Minister determining that the Applicant had a “substantial criminal record” under the provisions of the Migration Act 1958 (Cth) (the Act).[2] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more. Such a finding triggers an automatic and mandatory cancellation of a person’s visa under the requirements of subsection 501(3A) of the Act.
[2] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
The cancellation decision was made on 21 February 2019 and was subject to review after the Applicant made representations for that decision to be revoked on 9 March 2019. The cancellation decision was affirmed by the Respondent on 11 May 2022.
On 18 May 2022 the Applicant sought a review of that decision in this Tribunal where the matter was heard on 27 July 2022. The hearing was conducted in person, with both parties legally represented and the Applicant assisted (as and when required) by a Shona speaking interpreter.
Under paragraph 500 (6L)(c) of the Act there is a specific time limit within which the Tribunal must make its decision, otherwise the Minister’s decision is taken to be affirmed. In this instance that date was 4 August 2022.
THE APPLICANT’S PERSONAL NARRATIVE[3]
[3] Details provided in the Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 15 July 2022.
The Applicant was born in March 1979 in Zimbabwe and a first child MB was born to him in June 2002. This child’s mother is PD.
In December 2006 the Applicant first arrived in Australia accompanied by his then wife Martha Nenowhe whom he had married in 2005. Two sons were born to this couple, NK (in February 2007) and LS (in June 2008). According to Ms Nenowhe the couple separated in 2009.[4]
[4] Martha Nenohwe’s Support Letter dated 7 July 2022.
According to Ms Caroline Chokorurama (the Applicant’s current wife) she and the Applicant “started dating in November 2007.” There was then a daughter (RV) born to this couple in September 2010 around which time the couple married.[5] The couple have suffered the traumas of having two miscarriages and the death of a baby son only a few hours old.[6] Ms Chokururama herself arrived in Australia from Zimbabwe in 2006 and has graduated from the University of Western Sydney with a Bachelor of Nursing degree. She was granted a Partner (Subclass 801) visa sponsored by the Applicant in July 2016.
[5] G-documents at 208.The marriage was according to traditional (customary law) practices recognised in Zimbabwe.
[6] Letter of support from Caroline Chokorurama dated 27 April 2020. G-documents at 252.
Apart from his current and former partners and his children, the Applicant does not have any other family members residing in Australia.[7]
[7] G-documents at 105.
The Applicant appears to have had a steady working career in Australia commencing a few months after his arrival, working as a machine operator. He lists a number of employers throughout the period 2007 to 2018 and indicates that he has technical skills as a computer technician, help desk analyst and working in logistics. He commenced but did not finish a computer science course at the University of Western Sydney.[8]
[8] Ibid at 107. Report of psychologist Ms De Santa Brigida at [4.14].
APPLICANT’S RECORD OF OFFENDING
In May 2014 the Applicant committed a serious offence details of which are before the Tribunal both in the Sentencing remarks of District Court Judge Traill[9] (30 November 2018) and in the Police Incident report of 24 July 2014.[10] A summary of the offence is contained in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) (at [23]) which the Tribunal reproduces below:
“In summary, the applicant (then aged 35) sexually assaulted a 20 year woman in a park… on the afternoon of… [XX] May 2014. The applicant had met the victim four days earlier at a train station. They exchanged 1,500 messages over Facebook [in those four days]. In these messages, the victim indicated that she did not wish to be anything more than friends with the applicant and was not interested in an intimate personal relationship. After attending a… library to study… the applicant offered to walk the victim home and she agreed. After 20 minutes, they reached a small park where the victim said she should leave and the applicant asked for a hug. The victim stated that she felt uncomfortable and that it was awkward, but the applicant persisted. The victim offered the applicant a hug and put her arms around his neck. He attempted to kiss her, but she pulled back. He then kissed her on the lips and the victim repeated that she should probably leave. The applicant then lifted the victim up and placed her on the ground. She asked him to stop but he did not and she stood up. He held the victim's hands and led her to sit on a nearby drain and she sat on his lap. After she ground her hips against the applicant's groin the victim felt his erect penis through his pants. She then stood and attempted to leave. The applicant grabbed the victim's dress and pulled it down, exposing her breasts. He proceeded to lick them for one to two minutes. The applicant then stood and wrapped his hands around the victim's waist and picked her up. She said words to the effect of 'Can you stop?’ and 'please stop?' but the applicant placed her down on the grass and unzipped his trousers. She repeatedly said 'no' while he did this. She then said 'Can you at least put on protection?' but the applicant did not respond and proceeded to have penile vaginal intercourse with her without protection. The applicant gripped his hands around the victim's arms during the assault and the victim cried. He ejaculated inside her. The victim then walked home and, later that night, messaged the applicant to say that she was annoyed with him as she did not want it to happen and that she repeatedly said so. [Approximately three weeks later] she discovered she was 10 weeks pregnant and, after making a report to the police, underwent a termination of the pregnancy.”
[9] Ibid at 66-88.
[10] Supplementary Documents (Tender Bundle) at S37 (unpaginated).
The Applicant does not deny that this is an accurate account of the crime which he committed on the date in question.
The Applicant was not indicted in relation to this offence until July 2018, some four years after the event and he stood trial before Judge and Jury in August 2018 where he pleaded not guilty but was nevertheless convicted of two offences.
He was sentenced in the in the District Court on 30 November 2018. Her Honour Judge Traill stated:
Lensard Tambanemoto stood trial before a jury of 12 in the District Court in relation to two counts on an indictment; count 1, being a charge of indecent assault contrary to s 61L of the Crimes Act 1900 and count 2, being a charge of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900.
The offender was indicted on 30 July 2018 and the jury returned verdicts… of guilty, in relation to count 1, being the indecent assault. That offence carries a maximum penalty of five years imprisonment. There is no standard non-parole period. The jury returned a verdict of not guilty in relation to count 2, being the aggravated sexual intercourse without consent, however, returned a verdict of guilty to the statutory alternative charge of sexual intercourse without consent contrary to s 61I of the Crimes Act. This offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of seven years.[11]
[11] G-documents at 66.
Her Honour imposed an aggregate sentence for both offences of five years and six months and having found “special circumstances” she varied the fixed ratio to direct a non-parole period of three years to finish on 29 November 2021.
The Tribunal notes that it is impermissible for it to “go behind” the decision of the Court[12] although it may take note of “the circumstances that led to the charges being laid against him”.[13] The Tribunal will revert to Her Honour’s sentencing remarks when considering the relevant parts of the Ministerial Direction but at this stage simply notes that the Applicant had no prior record of any offences or convictions.
[12] Minister for Immigration and Ethnic Affairs vGungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
[13] Minister for Home Affairs v Sharma [2019] FCA 597 at [26]; Mah and Minister for Immigration and Border Protection [2018] AATA 416 at [24]; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
On 1 October 2021 the NSW State Parole Authority ordered the Applicant’s release on the first date of his eligibility and he was released on 29 November 2021 and thereupon immediately conveyed to immigration detention at Villawood (NSW). He has been at Villawood since that date.
RELEVANT LEGISLATIVE PROVISIONS
Subsection 501(3A) provides for the mandatory cancellation of a visa if the Minister finds that the person does not pass the character test:
501 Refusal or cancellation of visa on character grounds
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
………
and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A person will not pass the character test where they have a substantial criminal record, which arises where a person has been sentenced to a term of imprisonment of 12 months or more:
501 Refusal or cancellation of visa on character grounds
…
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
However in the event of the mandatory cancellation of a visa, the former visa holder has a right to have that cancellation decision reviewed under section 501CA which provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
As a result of his conviction and sentencing, the Applicant cannot pass the character test and so the only remaining issue is whether or not there is “another reason” for the original decision to be revoked (paragraph 501CA(4)(b)(ii)).
THE DECISION BEFORE THE TRIBUNAL
The Tribunal has to make a simple determination – whether the cancellation of the Applicant’s visa is the “correct or preferrable”[14] decision to be made on the basis of the evidence before the Tribunal.
[14] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister [15] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[16]
[15] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[16] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination.
On 8 March 2021 Ministerial Direction no. 90 (MD90) came into effect and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
MD90 itself relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[17]
[17] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[18]
[18] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
The decision-maker must proceed from the starting point of the representations (however made) of the applicant and must consider those but equally, “[i]t is, however, improbable that Parliament intended for that broad discretionary power to be confined”[19] to only those representations.
[19] Ibid at [23]
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[20]
[20] Ibid at [70].
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[21]
[21] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [22] to arrive at a final determination.
[22] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal received oral evidence from the Applicant who further provided a written statement dated 6 July 2022.[23]
[23] Applicant’s Statement dated 6 July 2022 hereafter Applicant’s Statement.
The Tribunal also had before it written submissions from the Applicant’s partners Caroline Chokururama and Martha Nenowhe and from his supporters Alfred Matara and Pastor Mark Dawson. The first three also gave oral evidence at the hearing.
In addition the Tribunal received detailed psychologists reports from Ms Ann-Marie De Santa Brigida[24] and Bradley Jones.[25] The Tribunal also received detailed documentation from Greg Hutcheon (a psychologist accessing the Villawood Detention Centre) recording the interactions between the Applicant himself at the Centre.[26] Ms De Santa Brigida also appeared as a witness on behalf of the Applicant.
[24] Ann-Marie De Santa Brigida’s Psychologist Report dated 4 July 2022 hereafter De Santa Brigida Report.
[25] Bradley Jones’ Psychologist Report dated 20 July 2020 hereafter Jones Report.
[26] Greg Hutcheon’s Psychologist Notes hereafter Hutcheon Notes.
Finally the Tribunal notes that within the “G-documents” before the Tribunal there is a transcript of the Sentencing Remarks of Her Honour Judge Traill, together with some earlier letters of support on behalf of the Applicant.
The Applicant
The Tribunal finds some difficulties in coming to grips with the totality of the Applicant’s evidence, both written and oral. On numerous occasions the Applicant has sought to express his remorse for his actions and to accept a degree of responsibility for them. On the other hand there is evidence as to a lack of really deep understanding of the nature of his offending and the impact which it has had on his victim.
The Respondent conducted a careful cross-examination of the Applicant in relation to the circumstances in which the offending took place. Repeatedly the Applicant insisted that his offending was a “heat of the moment” incident resulting from his “misunderstanding” of the victim’s position and as a result of “mixed messages” passing between them. Although the Sentencing Judge described the offence as “opportunistic”, Her Honour also noted that “the offender did spend a considerable amount of time on Facebook, messaging the victim and indicating to her that he did have an attraction towards her.”[27] In his report Mr Jones reported that the Applicant “believes that he was infatuated with the victim”[28]and in re-examination by his own representative, the Applicant agreed that this was a reasonable description.
[27] G-documents at 80.
[28] Ibid at 140.
The Applicant agreed that he understood from the 1500-odd Facebook messages that passed between the victim and himself in a four-day period that all she wanted to do was be “friends” and yet in answer to cross-examination he told the Tribunal that he hoped this relationship would go further and develop into a physical and sexual one.
As the Respondent rightly noted, this was at a time when the Applicant was married. There was no exploration before the Tribunal of the Applicant’s more general approach to how he understands his marital status and the Tribunal notes that while Ms Nenowhe states that the couple separated in 2009, Ms Chokururama states the Applicant started dating her in 2007.[29]
[29] Ibid at 206.
In her statement to Police, not actually referenced in the Sentencing Remarks, the victim told the police that while the pair were walking through the park, after asking her about the end of a previous relationship of hers:
“He then asked if I’d ever fallen pregnant and if I used the contraceptive pill or if I have ever taken the morning after pill. I told him I didn’t use the pill but have used the morning after pill. I thought these questions were strange but just thought he was curious.”[30]
[30] Supplementary Documents at 3.
The Applicant acknowledged that the victim had repeatedly told him to desist in his behaviour, that she did not consent and explicitly did not want to have sexual intercourse with him and when she feared that she would be forced to, implored him to use protection. He refused.
How at any stage the Applicant could have formed a legitimate opinion that the sexual encounter was consensual is beyond the Tribunal’s capacity to understand.
The Tribunal does not seek to make any findings in this matter, that is the responsibility of the Courts and has already been done. Nor must the Tribunal have any regard to matters of deterrence or punishment, those again are matters for the judicial system. What is however at issue is the Tribunal’s determination of the credibility of the Applicant and the extent to which it should take him at his word in terms of either his genuine understanding of his offending behaviour or his assurances that such behaviour will not be repeated. In this respect, the Tribunal’s assessment is not generally favourable to the Applicant.
Conversely, the Tribunal gives credit to the Applicant in relation to certain other matters. There is no doubt that the Applicant behaved as a model prisoner while he was incarcerated. Extensive reports from Corrective Services cited on pages four to seven of the Applicant’s SFIC attest to this.
Secondly, the Applicant is due credit for his attempts to enrol in various courses while in custody and the evidence is to the effect that he was not able to do so because his assessment scores of recidivism were too low to make him eligible and his projected placement in the Sex Offenders Programme was thwarted by a change in eligibility criteria. While in custody he completed a number of training courses in matters such as chain-saw operation, “PSYCH-2”, “PSYCH-3”, hospitality and health survival tips.[31] He also completed a number of online courses, some of which were relevant to dealing with offending behaviour and understanding of responsible sexual behaviour.
[31] G-documents at 176-186.
Thirdly, there is no doubt about the Applicant’s attachment to his children and his concern for their welfare. He has also demonstrated that he is an economically responsible parent and has always worked to provide support for his partners and their offspring.
Fourth, the Tribunal accepts that the Applicant has community support in terms of the members of his Church and they have demonstrated that support by their presence during the hearing and by written submissions.
The Applicant is an intelligent man and the Tribunal does not doubt that he understands that were he to be allowed to remain in the community he would need to conduct himself in such a manner as to never again come to the attention of the Minister because the consequences of that could be dire indeed.
Caroline Chokururama
Ms Chokururama is a registered nurse who is currently involved in the management of a residential age care facility. She is the Applicant’s current wife.
Ms Chokururama’s written submission focussed primarily on the potential impact on her children in the event that the Applicant was not permitted to remain in Australia and these submissions will be considered at a later stage. She made the point that the family had been planning to “soldier on” until the point of the Applicant’s release from goal and that she would be left “hopeless with no idea how to handle the situation” were the Applicant to be deported. She noted that she had taken steps to purchase land for a home in Sydney and that neither she nor her daughter would be able to travel to Zimbabwe were the Applicant to be returned there. She did mention that if the Applicant were allowed to remain in Australia he would help ease the “burden” experienced currently by herself and Ms Nenowhe with the management of their children. She was fully aware of the details of the Applicant’s offending behaviour.
Ms Chokururama supplemented these details with oral evidence given at the Tribunal hearing. In this instance she noted that during the course of their marriage the parties had both been income earners but that since the Applicant’s incarceration she had to manage on her own both financially and emotionally, in both instances this was increasingly stressful. She told the Tribunal of the difficulties encountered as a result of her two miscarriages and the early death of another child and the problem of coping with these ongoing burdens on her own.
She confirmed that, until COVID-19 restrictions were imposed she and Ms Nenowhe drove from Sydney to Glen Innes, with their children, at least once a month to maintain physical contact with the Applicant and since the imposition of restrictions had maintained this contact electronically.[32] She emphasised that since the Applicant’s incarceration she and her children had been planning for the family to be reunited at the completion of his sentence and that she was expecting that on such release he would resume living with her and their children. She also emphasised her closeness with Ms Nenowhe and the extent to which they were involved in mutual care for all of their children.
[32] Supplementary Documents at 137-139.
Ms Chokururama has no family members in either Australia or Zimbabwe, her family being located in Canada.
Martha Nenowhe
Ms Nenowhe is also a registered nurse who is currently employed at a private hospital. She is the Applicant’s former wife.
Ms Nenowhe’s written submission was much in line with that of Ms Chokururama. However she does indicate that if the Applicant “comes back home he will continue to help me to support our children as he has always done. Surely he will financially, psychologically and physically support the children”. Ms Nenowhe does make specific mention of the Applicant’s offence but does not comment further upon it. Nor is any detail provided about the extent and nature of the support given by the Applicant to Ms Nenowhe and her children since the time of their separation. She also confirms that “my children and I cannot move to Zimbabwe because my children were born here, they are Australians and I work here and Australia is my home.”
In her oral evidence she confirmed that although the Applicant had left the family home when they separated in 2009 he maintained close contact with her and her children on an almost daily basis, frequently taking them to school or sports events (particularly basketball) and that he often stayed overnight in the home to provide ongoing care to the children.
Ms Nenowhe indicated that after the separation the Applicant continued to support her financially on what she described as a “50/50 basis” paying the rent, household expenses and expenses related to the children.
Ms Nenowhe has family in Zimbabwe but indicated that while they might be able to provide emotional support to the Applicant were he to be returned there, they would not be able to offer any financial or accommodation support.
She also confirmed details of her visits to Glen Innes and the continuing close co-operation with Ms Chokururama in terms of mutual care of their children.
The Tribunal wishes to place on record just how impressive it found both Ms Chokururama and Ms Nenowhe as forthright witnesses of great strength and credibility and accords the highest degree of respect and weight to their testimonies.
Alfred Matara[33]
[33] Alfred Matara’s Support Letter dated 5 July 2022.
Mr Matara has been a friend of the Applicant since they were children together in Zimbabwe and he has maintained an ongoing relationship especially through their shared church activities. Mr Matara writes as a character referee by letters dated 5 July 2022 and earlier on 8 May 2020,[34] describing the Applicant as “a family oriented man with a good standing reputation in the church and community at large”. He makes several references in his submission to the extent to which the Applicant is “remorseful and regretting” of what he describes as “the unfortunate offence” and that the Applicant is “not only fearful of God but he is very apologetic of his wrong behaviour that led to where he is right now.” Mr Matara described the Applicant’s participation in the life of the African Apostolic Church and states that “every church member is contributing to his rehabilitation” and that he would have considerable support in the community were he to be returned to it. He also noted the Applicant’s previous assistance to him and his wife, taking care of their children to assist them at weekend. In his oral testimony he stated that he was convinced that, especially with the support of Church members, the Applicant would not be at any risk of reoffending.
Pastor Mark Dawson[35]
[34] G-documents at 259.
[35] Mark Dawson’s Support Letter dated 10 February 2022.
Pastor Dawson is a chaplain based at the Glen Innes Correctional Centre who attests that the Applicant regularly attended the two weekly services at the Correctional Centre and states that he “has no doubt that he has turned a ‘positive corner’ and is more than capable of making a fresh start in his life on release.”
Other letters of support
The Tribunal notes that, in preparation for earlier representations to the Minister the Applicant provided a number of other letters of support primarily from members of his Church, all of which demonstrate a knowledge of his offending behaviour but stress his good character, remorse and contribution to his community.[36] The Tribunal also noted that several of the Applicant’s community attended the hearing to provide him with emotional support.
[36] G-documents at 261-265.
Psychological reports
The various psychological reports, being the reports of Ms De Santa Brigida and Mr Bradley Jones and the notes of Greg Hutcheon, will be discussed in relation to the specific issues of risk of future offending and best interests of minor children.
CONSIDERATIONS AGAINST MINISTERIAL DIRECTION 90
The Tribunal returns to consideration of the evidence in this application within the framework and requirements of the Ministerial Direction.
It is important to understand what the Ministerial Direction is and what it is not. The Preamble to the Direction clearly states as an “Objective” (emphasis added):
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[37]
PRIMARY CONSIDERATIONS
[37] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Protection of the Australian Community and Family Violence
Under this criterion the Tribunal must give specific attention to:
the nature and seriousness of the non-citizen's conduct to date; and
the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters. Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour. This list also draws attention to it being a serious offence to provide false or misleading information to the Department.
There is no doubt that the offence of which the Applicant was convicted is at the higher end of the range of seriousness. It involved an unprovoked attack upon an innocent young woman who thought the Applicant was a friend and had no reason to fear him. The impact upon her was tremendous, both in terms of an unwanted pregnancy and the resultant termination.
As was reported in the remarks of the sentencing Judge she continues to suffer longer-term traumas, fears and anxieties. Her experiences have impacted on her family life, her relationship with her partner and her sense of self-worth.[38] Her Honour’s remarks are supported by some of the witness statements included in the material before the Tribunal which record what the victim’s friends were told or were able to observe as a result of her experiences.[39]
[38] G-documents at 82-83.
[39] Supplementary Documents at 64-65.
Although this was a first (and only) offence and the Applicant is elsewhere said by his friends to be a person of good character, this does not detract from the objective seriousness of the offence. As the High Court stated clearly and unanimously in relation to findings of seriousness:
Meaningful content cannot be given to the concept by taking account of the characteristics of the offender. The objective seriousness is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.[40]
[40] Muldrock v R [2011] HCA 39 at [27].
It is also of note that the Applicant pleaded not guilty at his trial and the Sentencing Judge had occasion to remark that “the offender does not accept responsibility for his actions”.[41] An August 2019 report from the Case Management Unit officer at Glen Innes Correctional Centre notes that:
“When questioned about his offending behaviour Lensard stated he misjudged the situation, his actions were morally wrong and he lost his self-control, however at times he minimises the behaviour insisting the sex was consensual indicating limited insight into victim empathy and then stating it would have been traumatic for victim.”[42]
[41] G-documents at 86.
[42] Ibid at 175.
In May 2021 an assessment by NSW Department of Corrective Services reported that:
“Lensard said at the time of the offence (arrest, charge and court stage) he had some anger toward the victim for reporting it to Police, however has since realised that she had every right to do so and he is deeply ashamed of his actions.”[43]
[43] G-documents at 189.
A Pre-release Report dated August 2021 contains references to the Applicant’s insight into his offending:
“Through discussions for the purpose of preparing this report, Mr Tambanemoto made further comment that his actions were ‘wrong’ and that he is deeply ashamed of his behaviour, although he continues to minimise the offence. [44]
…
Although he did not justify his offence as he has done previously, Mr Tambanemoto minimised his behaviour and his understanding of the situation.[45]
…
Despite his ongoing struggle to take full responsibility for his offending behaviour, he appears to be willing to engage in counselling to obtain a better understanding of his actions.”[46]
[44] Supplementary Documents at 142.
[45] Idem.
[46] Ibid at 145.
For the record, the Tribunal notes that the eventual sentence imposed by the Court was a mid-range sentence and Her Honour took note of the fact that this was a first offence.[47]
[47] G-documents at 86-87.
It is somewhat difficult to balance these assessments of the Applicant’s lack of understanding, empathy or acceptance of responsibility, from the time of his trial right up until a pre-release report as recently as last year, with repeated insistence by the Applicant that he feels ashamed and apologetic and that he understands the impact of his actions on his victim.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[48] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[48] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts.
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[49]
[49] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
All of the reports from professional psychologists spend some time assessing the risk that the Applicant will reoffend.
Ms De Santa Brigida
Ms De Santa Brigida is an experienced psychologist with an impressive curriculum vitae and considerable experience consulting in the forensic environment.
Ms De Santa Brigida was asked by the Applicant’s lawyers to prepare a report and in doing so she not only interviewed the Applicant and his wife, she also considered the findings of the District Court, fellow psychologist Bradley Jones and conducted a number of formal psychometric tests some of which are actuarily-based, some dynamic and some a combination of both. Her report is dated 4 July 2022.
She noted that the Applicant had no history of use of or experimentation with illicit substances and that he neither drinks alcohol nor gambles.[50]
[50] De Santa Brigida Report at [5.1].
She further reported that the Applicant told her, “I think about my crime every day and I worry about my crime and how I would apologize.”[51]
[51] Ibid at [3.2].
On all the psychometric tests administered the Applicant was found to have a low score in terms of any predictive changes of re-offending. These tests included the standard Level of Service Inventory – Revised (LSI-R) test which is used to assess suitability for inclusion in special non-custodial programmes and any level of supervision required for the Applicant.[52] Ms De Santa Brigida particularly noted that the Applicant was surrounded by “significant protective influences” which included a high level of family support, an absence of any developmental trauma, a record of non-use of drugs and alcohol and a record of steady, gainful employment.[53]
[52] Ibid at [6.3].
[53] Ibid at [6.6].
On a Self-Assessment Questionnaire the Applicant rated in the low range for risk of recidivism.
On the Static-99R (revised) test, described as “the most widely used sex offender risk assessment instrument in the world” Ms De Santa Brigida found the Applicant’s score to be “below average risk of being charged or convicted of another sexual offence.”[54]
[54] Ibid at [6.8].
On the STABLE-2007 assessment tool which is used for developing case management or treatment plans and assessing the level of participant supervision required, the Applicant was assessed as being “in the [l]ow risk density of range of criminogenic needs”.[55]
[55] Ibid at [6.9].
Considering all the tests together, Ms De Santa Brigida came to an assessment that the Applicant was in the “low risk” and “below average risk” category when it came to reoffending.
In cross-examination, Ms De Santa Brigida accepted that it was less than ideal for her to conduct her interviews with the Applicant purely by telephone, noting that this deprived her of any insights which might have arisen from observing any non-visual signals from the Applicant. She also conceded that the “protective factors” upon which she placed reliance as to the Applicant’s future behaviour were actually all present at the time he committed his actual offence. She further agreed that some of the actuarily-based tests which are community-rated should be applied to individual assessments with a degree of caution.
The Tribunal accepts the limitations identified and the cautions raised by the Respondent as being legitimate but nevertheless, on balance accepts Ms De Santa Brigida’s general conclusions as to the low range risk of the Applicant reoffending.
Mr Bradley Jones
Mr Jones prepared a report for the Applicant’s lawyers in July 2020 during the course of which he had access to the Applicant’s Personal Circumstances Form, inmate records and the Judge’s sentencing remarks. He interviewed both the Applicant and his wife. His interview with the Applicant had some advantage over that of Ms De Santa Brigida in that it was conducted audio-visually.
Mr Jones’s report emphasised the loving home environment and supportive parents that the Applicant had enjoyed as a child and young person. He also noted the Applicant’s abstinence from the use of drugs and alcohol.[56]
[56] Jones Report at [2.1] and [2.2].
He quotes the Applicant as telling him:
“I am really remorseful. I should have said no to wanting to have any type of relationship with the girl. It was wrong and I didn’t see that her messages and feelings were that she only wanted to be friends. I feel sorry for her as she is probably traumatised.”[57]
[57] Ibid at [1.2(7)].
Mr Jones conducted a series of psychometric tests including the LSI-R; Static-99R; Hare Psychopathy Checklist-Screening Version; STABLE-2007 and State-Trait Anger Expression Inventory. His conclusions after both the testing and interview were that:
“Based on the assessment, it is my opinion that Mr Tambanemoto currently poses a low risk for committing general offences relative to other offenders and presents a low risk of engaging in sexual violent behaviour.”[58]
[58] Ibid at [4.2(29)].
The Tribunal notes that Ms De Santa Brigida, when asked by the Tribunal to give her opinion on Mr Jones’ report raised one matter with which she disagreed on his scoring of one test, but this was not a matter of any particular significance.
Mr Jones is more specific than Ms De Santa Brigida in expressing caution about reliance upon certain types of testing. He writes:
“It is appropriate to indicate a significant issue that compromises the validity of actuarial tools of risk assessment, is the unreliability of applying group-based risk evaluation to the assessment of risk on an individual basis. The actuarial approached emphasises static (historical) factors which do not change over time and ignores crucial dynamic (modifiable) factors such as the effects of treatment and lack of victim access that may affect level of risk. In addition, it is difficult to formulate treatment and prevention management programs based solely on static factors. It must also be remembered that a group based instrument cannot specify if an individual will reoffend, as actuarial measures are designed to assess level of risk based on a group result(s), and not to individuals.”[59]
[59] G-documents at 151. Jones Report Annexure 2.
As with Ms De Santa Brigida, the Tribunal accepts Mr Jones’ extensive record of experience in this area and impressive CV and is prepared to accept his general conclusions as to the Applicant’s risk of reoffending, albeit with the caveats which both he and the Respondent have identified.
Mr Greg Hutcheon
The collection of reports from the Villawood Detention Centre deal primarily with interactions between the Applicant and psychologist Mr Greg Hutcheon over a period between January and June 2022.[60] These interactions involved client self-reporting, psychological assessment scores and clinical observations but Mr Hutcheon did not have background information about the Applicant provided to him.[61]
[60] The Applicant was referred to Mr Hutcheon by Maria Coughlin the Mental Health Team leader for International Health and Medical services Pty Ltd who are the health providers at the Villawood Detention Centre. The referral was made on 27 January 2022.
[61] Hutcheon Notes dated 27 January 2022.
The Tribunal has some difficulties placing any significant reliance on these reports. In the first place they were conducted simply by mobile phone and, as was discussed in the Tribunal’s hearing, the Applicant claims that from time to time he has difficulty making himself fully understood in English. Secondly Mr Hutcheon was under the mistaken impression that the Applicant was “jailed for 3 years due to having relations with a minor (states that she claimed it was non-consensual at a later stage but he denies this aspect)”.[62] Thirdly none of the reports were based upon anything other than the Applicant’s self-reporting as no tests were undertaken and no other persons spoken to.
[62] Hutcheon Notes dated 31 January 2022.
Although these reports do include conclusions to the effect that “[the Applicant] accepts responsibility for what occurred and states that he needs to make amends with his community” the Tribunal places little weight upon them in the light of the far more authoritative reports from Ms De Santa Brigida and Mr Jones.
It was put to the Applicant that he only engaged with Mr Hutcheon for “counselling” as an after-thought and as a way of establishing some credibility with the Tribunal prior to the hearing; an allegation which he refuted. The Tribunal expresses no view on the matter.
NSW Department of Corrective Services
The Applicant was subject to regular interview and review by the NSW Department of Corrective Services in a number of correctional centres.
On 26 February 2019, Ms Jodie Legge (a senior psychologist) at Glen Innes noted that there were “definitely protective factors” for the Applicant related to both his status as a first offender, the support of his family and his employment history.[63]
[63] G-documents at 172.
On 9 August 2019, again at Glen Innes it was reported that “Lensard has LSI-R of 3 Low deeming him ineligible for EQUIPS program intervention, he does however meet eligibility criteria for sex offender program and referral has been completed.”[64] It appears however that a change in the eligibility for this programme resulted in the Applicant not being able to enrol.[65] However, from Ms De Santa Brigida’s report it appears that the Applicant has completed a number of online courses, some of which are listed as “Gender Sensitivity Training”, “Healthy Relationships” and “Sexual Harassment Compliance.”[66]
[64] Ibid at 175.
[65] Ibid at 179.
[66] De Santa Brigida Report at [6.6].
In conclusion on this issue, the Respondent states:[67]
“While the applicant expressed a willingness to undertake programs in prison to address his offending behaviour, he was not eligible to complete a sex offenders program. Although it appears he has since completed a number of online courses in immigration detention, including training on healthy relationships and sexual harassment compliance and has participated in counselling, there is no evidence he has carried out any program related to sexual offences. While the applicant appears to have been well behaved in prison, his behaviour remains untested in the community.
For these reasons, the Minister contends that the Tribunal should be cautious in accepting that the applicant poses no or a very low risk of reoffending in circumstances where there is little explanation for the applicant's offending other than his own sexual gratification, there is evidence to suggest he lacks insight into his offences, and the presence of protective factors did not prevent the assault from occurring in the first place. The Minister contends that there is at least some risk of the applicant reoffending and that this weighs against revocation.”
[67] Respondent’s SFIC at [30]-[31].
The Applicant states:
“The applicant was also noted as being willing to complete a Sex Offender Program, although he was found to be ineligible for the program. He has also taken steps to secure psychological support after his release. This all shows a very positive attitude by the applicant to rehabilitation.
The Tribunal ought to accept the very powerful evidence that the applicant is at a low risk of re-offending. This should weigh in his favour, such that, overall, the risk to the Australian community should not be a decisive factor in favour of affirming the refusal to revoke the applicant’s visa.”[68]
[68] Applicant’s SFIC at [15]-[16].
In closing submissions the Respondent advanced a powerful argument to the effect that the offence committed by the Applicant was so serious as to be, in effect, determinative of the entire outcome of this decision.
The Ministerial Direction provides in its Principles at 5.2(5) inter alia
In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and 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 ay be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Subparagraph 8.4(2) states that a cancellation “may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.”
In the matter of GNRK, dealing with the refusal of a bridging visa to a non-citizen who had been convicted of certain drug-related offences and sentenced to a term of imprisonment of four years, the Tribunal held:
The seriousness of the potential harm which could flow from a repetition of the applicant’s offending is so serious, that the Tribunal considers that the Australian community’s tolerance for any risk of this harm would be minimal, if any.
Having regard to this, as well as paragraph 6.3(4)[69] of the Direction, the Tribunal considers that any risk of similar conduct by the applicant is unacceptable.[70]
[69] Reference to section 6.3(4) of previous Ministerial Direction No 79: “In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these instances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.”
[70] GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 250 at [155]-[156].
On this basis, despite countervailing arguments, including consideration of the best interests of a minor child, the refusal decision was upheld. On appeal the Federal Court made it clear that:
Ultimately, it was for the Tribunal to determine the weight that it accorded to the evidentiary material tendered by the parties when considering the risk tolerance of the Australian community for such offending.[71]
[71] Ibid at [42].
The question of whether the Tribunal, in coming to such a conclusion, had closed its mind to consideration of other evidence which it was required to have regard to, the Federal Court found that this was not the case and the appeal against the Tribunal’s decision was dismissed. These conclusions were upheld on appeal to the Full Federal Court.[72]
[72] Ibid at [33] and [48].
There is merit in both arguments in these particular circumstances – the offence is at the highest level of seriousness, but assessment of the evidentiary material is persuasive that the risk of its repetition is low.
Nevertheless, the Australian community is entitled to expect that this Tribunal, having found the offence to be of such seriousness will cause it to be weighed significantly against the Applicant. That said, the Tribunal does not accept that such a finding should in itself be determinative of the outcome of its ultimate decision-making given the other factors which legitimately must be taken into account.
The Tribunal finds that this criterion weighs against the Applicant to a significant degree.
FAMILY OR DOMESTIC VIOLENCE
There is no suggestion that the Applicant has committed any acts of family or domestic violence.
This criterion carries neutral weight in the assessment process.
THE BEST INTERESTS OF MINOR CHILDREN
MD90 (at sub-paragraph 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not to be subject to some “high level” collective assessment.[73]
[73] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
In this instance the Applicant has four children, however the eldest of these MB is no longer a minor and his interests will be considered elsewhere.
The two middle children both boys, NT (now aged 15 years) and LS (now aged 14 years) reside with their mother Martha Nenohwe while the youngest child, a daughter RV (now aged 11 years) resides with the Applicant and his current wife Caroline Chokururma.
It appears from the letters of support tendered by both mothers that they get on well together and are often involved in mutually supportive activities related to their children.
The Ministerial Direction allows the Tribunal to take into account any direct representations from minor children, weighing them according to an assessment of their level of maturity and understanding. However, in this instance no such direct representations were received although powerful testimony was given by the respective mothers.
The Tribunal takes as its starting point the very considerable evidence contained in the reports of Ms De Santa Brigida and Mr Jones about the impact on children of separation from their fathers and in particular on young adolescent males. While the Respondent raised some issues with the risk-assessments and evaluations contained in each report, it raised no issues or objections directed to the general findings in either about this particular matter.
Ms De Santa Brigida states:
“The relationship between a father and his children has been found to have a major impact on a child’s development, especially on a male child’s development. Geddes (2008)11 explored the emotional and education aspects of development with regard to the influence a father has on them. Previous research had indicated closeness and involvement with the father resulted in improved educational outcomes, higher self- esteem and better psychological adjustment (Geddes, 2008). This study found that children with present fathers were more empathic to others and felt as if they had some amount of control over their own lives. Children with present fathers also tended to do better in school and have more motivation. When compared with children whose fathers were absent, the opposite was found to be true (Geddes, 2008) They were reported to experience distress, anger and self-doubt. There were some children who blamed themselves for their fathers’ absence. The absence of fathers also impacted children’s peer relationships and even bullying. Many aspects of a child’s development are supported by the presence of a father and weakened by the absence of the father.”[74]
[74] De Santa Brigida Report at 15. Reference is to Heather Geddes, ‘Reflections on the role and significance of fathers in relation to emotional development and learning’ (2008) 36(4) British Journal of Guidance & Counseling 399.
This report contains further details about the impact of parental loss in the development of young males and in oral testimony Ms De Santa Brigida also explicated further on the particular nature of father-daughter relationships.
In relation to the child NT, evidence from his mother was to the effect that he had turned from being a bright and outgoing child to one who is now more insecure and introverted. He has ceased playing basketball as he no longer has the support of his father to do so and has become increasingly isolated. In her written submission Ms Nenowhe states, in relation to both her children:
“My children were affected by their father’s situation to an extent that I contemplated to get them professional counselling services due to psychological trauma. They often experienced nightmares characterised by failure to sleep at night. Their school performance deteriorated. They became withdrawn and lost confidence.”
In relation to the child LS, the evidence is that he suffers from some skin conditions and that he also has chronic asthma which has required occasional hospitalisation. He has become depressed, also misses his basketball involvement and has developed behavioural problems which resulted in his suspension from school in June 2022.[75]
[75] Letter from a Sports School, 28 June 2022 citing “aggressive behaviour”.
In relation to the applicant’s daughter, RV, her mother writes that she “is visibly withdrawn, she has moments of quietness and lost confidence… She was only eight years old when her father was incarcerated and was a jovial girl when her father was around.”
The Tribunal notes that Ms Nenowhe (who is a Registered Nurse) states that she herself suffers from serious health problems[76] and this is confirmed in the report of the psychologist Ms De Santa Brigida.[77] This has led to the two mothers having to make arrangements to be mutually supportive of each other in terms of seeking effective care of their children.
[76] Martha Nenowhe’s Support Letter dated 7 July 2022.
[77] De Santa Brigida Report at [4.7].
It is clear from the evidence that the Applicant had a very close, loving and supportive relationship with all of his children and that his return to them as a member of a family would be greatly to their benefit.
This criterion counts significantly in favour of the Applicant.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
the Australian community expects non-citizens to obey Australian laws while in Australia;
where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[78] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[78] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[79]
[79] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. Given that the Tribunal has found that Primary Consideration 1 weighs significantly against the Applicant, it would be somewhat illogical not to accord the same weight to the criterion dealing with the expectations of the Australian community.
The Tribunal finds that this criterion weighs significantly against the Applicant.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[80]
[80] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[81]
[81] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[82] and more clearly supported by Wigney J in FHHM. [83]
[82] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[83] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[84] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[85]
[84] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[85] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[86]
[86] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[87]
[87] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said:[88]
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[88] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
The Applicant raised no issues of non-refoulement obligations, nor were there any clearly arising or “squarely” evident on the face of the material before the Tribunal.[89] Hence the Tribunal is not required to give this criterion any further consideration,[90] and assigns it a neutral value in relation to the Applicant.
[89] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[90] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [25].
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
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.
The comparator here is not the difference between services or supports available tin Australia as compared with those in Zimbabwe, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
There is no doubt that the Applicant would suffer considerable emotional stress in being separated from his families in Australia and that it would be difficult for him to remain in touch with them. Both his partners have indicated that there is no realistic prospect of their returning to Zimbabwe and the Tribunal accepts that, even with access to various forms of electronic communication, it would be hard for the Applicant and his family members to maintain effective contact.
The Applicant’s Personal Circumstances Form indicated that he had family in Zimbabwe, with his father deceased but his mother and several siblings still alive and resident there.[91] He has frequently referred to his family and loving and supportive,[92] although he says that they have been “disappointed” in his offending behaviour.[93] The Minister’s delegate initially found that it is “unlikely that they would deny him some financial, practical and emotional support (including housing) should he return to Zimbabwe.”[94] However, in his oral testimony the Applicant indicated that apart from his mother, with whom he retained only limited contact, all his siblings has since left Zimbabwe and, to the best of his knowledge, were living in South Africa.
[91] G-documents at 105.
[92] Jones Report at [2.1].
[93] Idem.
[94] G-documents at 59.
In terms of his personal characteristics, the Applicant is still a relatively young man. He is healthy and indeed his work in the gym[95] during his period of incarceration/detention has helped him improve his fitness. He does not suffer from any diagnosed physical or mental conditions,[96] other than some degree of depression which is always associated with being in detention.[97] The Applicant lived in Zimbabwe until he was 27 years of age, he speaks Shona as well as English and he is clearly familiar with the customs and mores of his country of birth. His movement records[98] show that he has made frequent return visits to Zimbabwe and there was even an application from his solicitors (in 2017) for the return of his passport while he was on bail to facilitate such a visit.[99] In the event, his last visit took place in 2016 and the projected 2017 trip did not proceed.
[95] Hutcheon Notes dated 1 April 2022 at 16.
[96] G-documents at 108.
[97] Hutcheon Notes at 2.
[98] G-documents at 272-274.
[99] Supplementary Documents at 44.
Information provided in the Department of Foreign Affairs and Trade Country Information Report: Zimbabwe (19 December 2019)[100] indicates that the economy in Zimbabwe is fragile, that the country is prone to violence and that employment prospects are not favourable with anywhere between 4% and 95% of people being classified as unemployed or else working in the informal economy.[101] Although the Applicant has acquired skills in Australia in both the areas of labouring and the IT industry, the Tribunal accepts that he would find difficulty in establishing any form of significant productive, paid employment on his potential return to Zimbabwe.
[100] Ibid at 159-217.
[101] Ibid at 169.
This combination of factors, being:
·separation from family;
·no prospects of support in Zimbabwe;
·the economic and security situation in that country; and
·limited prospects of employment and problems with maintaining meaningful contact with family;
constitutes a constellation of elements which would impose a near intolerable burden on the Applicant if returned.
The Tribunal finds that this criterion counts significantly in favour of the Applicant.
Impact on victims
Subparagraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
In this instance there is only one victim who can be identified and that is the unfortunate young woman who was the victim of the Applicant’s assault. There is evidence which was averted to by the Sentencing Judge of the victim suffering “emotional harm” to a “substantial” degree as a result of the assault,[102] and of her subsequent feelings of fear and anxiety,[103] in addition to facing the traumas of her unwanted pregnancy termination.
[102] G-documents at 81.
[103] Ibid at 82-83.
However what is at issue here is the impact on any such victim(s) of a decision under the Act to either affirm the visa cancellation or revoke it. In other words, the impact if the Applicant is potentially allowed to remain in Australia or not. There is no evidence before the Tribunal in relation to the impact upon the victim were the Applicant to be permitted to remain in Australia.
To attempt to project any impact upon her at this stage would be an act of impermissible speculation and the Tribunal notes that the Respondent makes no submissions in this regard.
As such, the criterion must be adjudged as neutral in relation to the Applicant.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia, when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
Clearly the Applicant has lived in Australia for a reasonable length of time. In that time he has been a productive member of the community and a contributor to both the welfare of his families and his Church. This point is specifically recognised in the Respondent’s SFIC (at [42]).
Of course the primary ties to Australia are those to the members of his families, other than his minor children whose interests have already been considered. Their interests cannot, in that sense, be counted twice.[104]
[104] XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [52].
The testimonies from both Ms Chokorurama and Ms Nenohwe were powerful and persuasive. They both have a high degree of dependency on him for both emotional and financial support. They both wish him to continue to play a positive and supportive role in their lives.
There is also the issue of the Applicant’s eldest adult son MB. The evidence is to the effect that MB was particularly impacted by his father’s removal from his life while he was still a minor. His step-mother (Ms Chokururama) told the Tribunal that he had attempted suicide on more than one occasion and as a result had been hospitalised. It appears that he discontinued his plumbing apprenticeship and eventually left the family home. While the Applicant has not had recent contact with him, it was the evidence of Ms Nenowhe that she maintained contact with him and suggested that it would be to his benefit were his father to be able to resume a role in his life.
Apart from his one offence he has no other criminal or adverse police record.
Paragraph 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests. Although the Applicant has been in consistent employment in Australia there is nothing to establish that there would be any impact on Australian business interests of any decision in this matter.
This criterion counts significantly in favour of the Applicant.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[105]
[105] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[106]
[106] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
The decision-maker must proceed from the starting point of the representations (however made) of the applicant and must consider those but equally, “It is, however, improbable that Parliament intended for that broad discretionary power to be confined”[107] to only those representations.
[107] Ibid at [23]
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[108]
[108] Ibid at [70].
It is appropriate to consider the consequences of any decision made by the Tribunal which has the potential to “affect the life circumstances of the person concerned in a fundamental way.”[109] In this instance it is not only the Applicant’s circumstances which are in issue, it is also the circumstances of his three minor children, his wife, his former wife and perhaps his adult son. This of course was the gravamen of the frequently cited exhortation of Allsop CJ in Hands where he said:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[110]
[109] Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229 at [32] per Colvin J.
[110] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
CONCLUSION
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria as far as it favours revocation:
·protection of the Australian community weigh significantly against;
·family violence factors weigh neutrally;
·best interests of minor children weigh significantly in favour;
·expectations of the Australian community weigh significantly against the Applicant;
·non-refoulement obligations weigh neutrally;
·extent of impediments if removed weigh significantly in favour of the Applicant;
·impact on victims weigh neutrally; and
·links to the Australian community count significantly in favour of the Applicant.
DISCUSSION
As both parties rightly put to the Tribunal this is an exquisitely difficult, and indeed marginal decision for the Tribunal to make. Simpliciter, the Tribunal would have found that the combined weight of the criteria of protection of the Australian community and the expectations of that community would have weighed perhaps decisively, in favour of non-revocation of the visa cancellation.
However the consequences of making such a decision would have the potential to impact on the lives of members of the Applicant’s family to such an extent as to devastate both their immediate position and their opportunities for the future. Despite the Applicant’s failings in terms of jeopardising this aspect of their welfare they do not deserve that.
The Tribunal is not entirely persuaded that the Applicant yet genuinely or appreciates fully the gravity of his offending, but it does believe he is intelligent enough to comprehend that he now has to behave in such a way as to never again fail to obey the law, to show proper respect for women and act as a responsible member of the Australian community.
It is only to secure the welfare of the Applicant’s children and other family members that the Tribunal is persuaded that the visa cancellation should be revoked.
DECISION
The decision under review is set aside and in substitution, the Applicant’s visa cancellation is revoked.
I certify that the preceding 195 (one hundred and ninety -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..................................[sgd]......................................
Associate
Dated: 3 August 2022
Date(s) of hearing: 27 July 2022 Counsel for the Applicant: Mr N Poynder Solicitors for the Applicant: Mr R Hardy, Hardy Lawyers Solicitors for the Respondent: Mr H McLaurin, MinterEllison
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