Tausem and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 791
•2 March 2023
Tausem and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 791 (2 March 2023)
Division:GENERAL DIVISION
File Number: 2022/2839
Re:Alex Tausem
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
REASONS FOR DECISION
Tribunal:Member S Barton
Date of decision: 2 March 2023
Date of reasons: 18 April 2023
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated
3 March 2022 to refuse the Applicant’s Return (Residence) (Class BB) visa pursuant to
s 501(1) of the Migration Act 1958 (Cth) (the Migration Act), is set aside and substituted, such that the Tribunal finds the Applicant passes the character test under s 501(6) of theMigration Act..........[Sgd]...............................................................
Member S Barton
CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse to grant the Applicant a return visa – is the Tribunal satisfied that the Applicant passes the character test – Direction No 90 – Annex A – whether the Applicant would engage in the conduct identified in s 501(6)(d)(i) – – one recorded offence – domestic violence – Reviewable Decision set aside and substituted with a decision that the Applicant passes the character test
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 501(1), 501(6), 501(6)(d), 501(6)(d)(i), 501(2), 501CA
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
CASES
HBDV and Minister for Home Affairs [2018] AATA 4409
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
QKVH and Minister for Home Affairs [2018] AATA 1855
SECONDARY MATERIALS
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Act
John Grundy et al, ‘Independent State of Papua New Guinea Health System Review’ (2019) 9(1) Health Systems in Transition 1
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) – paras 5.1, 5.1(1), 5.1(2), 5.2, 8.4(2); Annex A, Section 2, paras 6, 6.1
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
REASONS FOR DECISION
Member S Barton
18 April 2023
BACKGROUND
The Applicant seeks review of the decision of a delegate of the Respondent, dated 3 March 2022, to refuse the Applicant’s application for a Return (Residence) (Class BB) visa (the visa) pursuant to s 501(1) of the Migration Act (the Reviewable Decision).
The Applicant is a 54-year-old citizen of Papua New Guinea. He arrived in Australia on 11 July 1998 when he was 29 years of age as the holder of a Tourist (Subclass 676) visa (G17/66).
On 29 August 2017, the Applicant was sentenced in Joondalup Magistrates Court to a conditional release order for 12 months with a $2,000 undertaking for the offence of “Unlawfully assault and thereby did bodily harm with circumstances of aggravation” (R2/S1). The Applicant was granted a spent conviction for this offence (R2/S1).
The Applicant departed Australia on 30 November 2019 (G17/59) and remains outside the migration zone.
On 21 November 2019, the Applicant lodged an application for a Return (Residence) (Class BB) visa (G14/48-53).
On 4 September 2020, the Applicant was issued a “Notice of intention to consider refusal of your visa application” under s 501(1) of the Migration Act on the basis that the Applicant did not satisfy the character test pursuant to s 501(6) of the Migration Act. (G18/67-71).
On 3 March 2022, a delegate of the Minister refused to grant the Applicant the visa on character grounds (G5/25-33). On 8 March 2022, the Applicant was notified of the Reviewable Decision by letter.
On 4 April 2022, the Applicant lodged an application to the Tribunal seeking a review of the Reviewable Decision (G2/4-10).
The Applicant voluntarily returned to Papua New Guinea on 30 November 2019. The Applicant is not in the migration zone, and therefore the matter is not expedited under s 500(6L) of the Migration Act, and the 84 day timeframe for handing down the decision does not apply.
THE ISSUE
The issue for determination is whether the Applicant passes the character test (as defined by s 501(6) of the Act); and if he does not pass the character test, whether the discretion in section 501(1) of the Migration Act to refuse the visa should be exercised.
THE HEARING AND THE EVIDENCE
The application was heard on 23 January 2023 in the Perth Registry. The Applicant was represented by Ms A Graziotti of Estrin Saul Lawyers and the Respondent was represented by Mr H McLaurin of Minter Ellison.
The Applicant appeared by MS Teams video and Ms Graziotti appeared in person. Mr McLaurin also appeared by MS Teams video. The Applicant gave oral evidence and was cross-examined.
There were two witnesses: the Applicant’s wife and psychologist Dr James McCue.
The Tribunal admitted the following documents into evidence:
(a)Applicant's Statement of Facts, Issues and Contentions, dated 12 August 2022 (Exhibit A1);
(b)Applicant's supplementary bundle of evidence, comprising pages 101-113, filed 16 August 2022 (Exhibit A2);
(c)Applicant's bundle of evidence, comprising pages 1-100, filed 12 August 2022 (Exhibit A3);
(d)Applicant's Psychological Opinion Report with attachments, dated 25 November 2022 (Exhibit A4);
(e)Applicant’s further statement, dated 18 January 2023 (Exhibit A5);
(f)Oil Search – PNG Limited payslip for the period beginning 29 December 2022 to 11 January 2023 (Exhibit A6);
(g)Papua New Guinea Kina to Australian Dollars Exchange Rate (Exhibit A7);
(h)Section 501 G-Documents, labelled G1-G21, comprising pages 1-99 (Exhibit R1);
(i)Respondent’s Supplementary Documents, labelled S1-S6, comprising pages 1-20 (Exhibit R2);
(j)Respondent's Statement of Facts, Issues and Contentions, dated 16 June 2022 (Exhibit R3); and
(k)Respondent's Reply, dated 23 August 2022 (Exhibit R4).
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
Section 501(1) of the Migration Act is as follows:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(d)(i) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:…
(d)in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia;…
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
The Tribunal notes that on 23 January 2023, the Minister made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA, under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021). However, as a decision in this matter was handed down on 2 March 2023, the applicable Direction for these written reasons is Direction No 90.
Paragraph 5.1 sets out the objectives of Direction No 90. Sub-paragraphs 5.1(1) and (2) provide:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test … is liable for refusal of a visa or cancellation of their visa.
(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501…” The principles are:
(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 measureable [sic] 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 noncitizens 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 noncitizens 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 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 measureable [sic] risk of causing physical harm to the Australian community.
In relation to the character test in the Migration Act, “Annex A – Application of the character test” (Annex A) to Direction No 90 provides an overview on discretionary visa cancellation or refusal and the character test. Section 2(6) of Annex A to Direction No 90 refers to s 501(6)(d) of the Migration Act, which states:
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
Section 2(6.1) of Annex A provides that:
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(d)(i) of the Migration Act provides that a person does not pass the character test if there is a risk that the person would “engage in criminal conduct in Australia”.
The concept of risk was discussed by Deputy President Forgie in QKVH and Minister for Home Affairs [2018] AATA 1855. Deputy President Forgie stated that (at [13]):
The word “
risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
"... 1 the chance or possibility of suffering loss, injury, damage, etc;…”.
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says,"...is more than a minimal or remote chance...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk" is not qualified by any adjective such as "significant”, "substantial”, “real”, any of which might have done so.
There is no question that QKVH has engaged in criminal conduct in the past but I am required to assess the risk of his doing so if permitted to remain in Australia in the future. His past conduct does, however, inform the future as do his actions and behaviour since his last offending.(Footnotes omitted.)
Annex A provides that the risk of the Applicant committing criminal conduct in the future must be based on “evidence suggesting that there is more than a minimal or remote chance” that the Applicant would engage in conduct for which a “criminal conviction could be recorded” (ss 2(6) and 2(6.1) of Annex A).
As noted by Deputy President Forgie, risk is not chance or possibility, and it is not theoretical. It is a risk, based on assessment of the evidence, such as to previous behaviour or conduct, but may also include other risk factors such as drug or alcohol use.
Senior Member Pintos-Lopez in HBDV and Minister for Home Affairs [2018] AATA 4409 at [50-51] (HBDV) stated that:
The state of satisfaction that the Tribunal must reach necessarily entails a prediction of future conduct. The Tribunal is required to reach a present state of satisfaction based upon evidence. It cannot, based upon that evidence, discount the possibility that there is “a” risk of future criminal conduct. That risk cannot be ruled out, as the Deputy President sought to explain in her example, in the case of any person and even more so in the circumstances of a person who has committed a criminal offence. Such an interpretation would render the formulation in s 501(6)(d)(i) otiose as the mere existence of past criminal offending without more would lead to a finding that a person is not of good character. It follows that the mere possibility that an applicant may in future engage in criminal conduct ought be excluded from the assessment. Similarly, trivial or immaterial risks.
I consider that properly assessed, there must be in the mind of the Tribunal, an apprehension of a risk of future offending. The Tribunal must conclude, on the basis of the evidence presented, that an applicant poses an actual and not theoretical risk of future criminal conduct
It is an objective test that requires the Tribunal to make an “evaluative judgment” when applying s 501(6)(d)(i) (Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2]).
It must be noted that s 501(6)(d) was amended by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) removing the word “significant” from the section and leaving it is “a” risk. The Explanatory Memorandum to the Bill provides that ([at 46]):
The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.
(Emphasis added.)
In assessing whether the risk of the Applicant engaging in criminal conduct is more than a minimal or trivial likelihood, the Tribunal will assess his criminal history, risk factors and the consequences of any future offending.
Criminal History
On 29 August 2017, the Applicant pleaded guilty to one charge of unlawful assault, occasioning bodily harm, in circumstances of aggravation (R2/1). The charge related to an incident with the Applicant’s wife at Perth Domestic Airport on 16 August 2017, after the Applicant arrived in a flight from Brisbane (R2/15-17).
The Applicant’s wife had been waiting in her car for the Applicant. Upon entering the vehicle, an argument broke out between the Applicant and his wife. The Applicant, who was sitting in the front passenger seat, hit his wife with his right opened palm to the right side of her face three times, causing her lip to bleed. The Applicant exited the vehicle, stating that he would like to drive, and walked to the rear of the vehicle. The Applicant’s wife then drove away, leaving the Applicant at the airport, and reported the incident to the police (R2/15-17).
For this offence, the Applicant was sentenced to a 12-month conditional release order, a $2,000 undertaking and given a spent conviction.
There were two other incidents involving the Applicant’s wife. The first occurred on 5 February 2014. The police were called to the Applicant’s family home after he returned from a local tavern intoxicated, arguing with his family that there was no dinner for him. According to the police incident report, he was yelling and abusive and his family feared his behaviour (R2/2).
The incident report noted that the Applicant’s wife perceived a risk to herself and the children and noted that the Applicant had “been drinking more recently and acting more erratically” (R2/3). The incident report states that there was no offence committed, although a police order was issued R2/2).
The second incident occurred on 22 December 2018. According to the police incident report (R2/10):
[The Applicant’s wife] said that he is an alcoholic and when he drinks he can sometimes become violent.
[The Applicant’s wife] had a swollen lump on her upper right side of her lip and when questioned, she stated it was from where [the Applicant] had hit her yesterday evening. She declined to provide exact details of the incident.
…
[The Applicant’s wife] requested information on application of Violence Restraining Order and will be attending Joondalup Magistrates Court tomorrow.
The Applicant’s wife provided the following description of the incident (A1/8):
In December 2018 I was at home, my husband was at the pub. He came home and became angry. I was joking around with him, I said something like "I threw your food in the bin" when he asked me about his dinner. He hit me once on the face. I called out and my daughter ran out of her room. I believe he was already angry about something else and took it out on me. I stayed in the house that night.
I went to the police the next day to tell them what had happened. I applied for a restraining order because I wanted to see a change in my husband and I wanted to scare him into changing his habits and attitude, particularly his anger problems. I didn't think that reporting his actions would lead to his visa being refused and him being stuck outside Australia, that was not my intention. I stayed for a day and overnight with a lady friend after I went to the police.
A Family Violence Restraining Order (FVRO) was made for a period of two years from 1 January 2019 (G9/40). The Applicant adhered to the terms of this order.
Assessing
The Applicant does not have an extensive criminal record. His only criminal offence, which he was given a spent conviction for, is the unlawful assault committed in August 2017. The Applicant’s offending history, limited as it is, is very specific - it involves domestic violence towards his wife. Therefore, the question before the Tribunal is in effect relatively simple, is there a risk, beyond the trivial or remote, that the Applicant will assault his wife or his family?
The Applicant and his wife have been married for approximately 26 years, though it is noted that the FVRO and the separation occasioned by his visa cancellation has meant that the Applicant has not lived with his wife since 26 December 2018.
The incidents detailed above are the only recorded incidences of domestic violence perpetrated by the Applicant. It is entirely possible that it occurred more regularly and was not reported. The police report for the December 2018 incident records the Applicant’s wife reporting that the Applicant “…is an alcoholic and when [the Applicant] drinks he can sometimes become violent” (R2/10).
One of the Applicant’s daughters wrote to him in July 2022, stating that (A3/75):
I have forgiven you but will not lie about where I stand. As far as I am concerned, as long as I see you exhibiting the same behaviors that you have demonstrated during my lifetime thus far, I will continue to keep our relationship at arms length…
“Behaviors” could mean domestic violence, or behaviours such a drinking and yelling. The Tribunal did not have the opportunity to question the daughter as to what she meant in this email.
The Applicant did state that around the time of the incidents, when he was off work, he would drink five to six pints in the afternoon, two or three times a week (transcript/17).
For much of his career, the Applicant has worked in fly in and fly out roles in the resources sector, 28 days on and 28 days off around the time of the offences (transcript/25).
The Applicant’s absence and his relationship with alcohol has clearly been disruptive for his family. The Applicant’s wife specifically referenced his “anger problems” and a desire for him to change his behaviour (A3/91). It is noted that issues with alcohol and anger management may escalate to acts of domestic violence.
Past conduct can be a useful indicator for future behaviour, particularly if that conduct, and the circumstances that lead or give rise to it, are regularly repeated. The Respondent has stated that, given there is record of the Applicant engaging in abusive behaviour whilst intoxicated, it suggests his behaviour is far from isolated (R4/2). This contention is worthy of consideration and is not inconsistent with the 2014 and 2018 police incident reports and the statement of one of the daughters (R2/2-5 & R2/10-14; A3/75).
While the Tribunal cannot rule out unreported acts of domestic violence, it is a fact that the number of reported incidents in over twenty years of marriage are isolated. It is also possible that drunken and abusive behaviour, falling short of criminal offence, may have been more frequent.
At this point, it is appropriate to turn to the psychological opinion report submitted by the Applicant.
Psychologist report
The report, prepared by clinical psychologist Dr James McCue, notes that the Applicant was born in Papua New Guinea. The eldest of six sons, his father was a community school teacher and his mother was a stay-at-home parent (A4/3). The Applicant reported that his parents were focussed on their children’s education and his father was a disciplined person, teaching his children to do the right thing at home and at school. The Applicant stated that his father contributed to him having a good work ethic in later life (A4/4).
Dr McCue reported (A4/4):
[The Applicant] said that his father died approximately 10 years ago and that he remains close with his mother. As the eldest child he has assumed financial responsibility for his mother and siblings, and also commented “I tried to set the same example as my father (work ethic and discipline) for my brothers”. He explained, for example, that he has helped one of his brothers to open a business in Papua New Guinea, and has also paid the school fees for his nieces and nephews in Papua New Guinea.
These family obligations were also raised in the hearing. The Applicant stated that (transcript/31):
I’m the oldest in the family, so there’s a lot of expectations in our PNG culture on me, since my - my old man is no longer with us.
He also stated that only two of his brothers were currently working, three were not so he was paying the school fees for their children and that of another relative, four children in all, with a combined cost of around AUD $10,000 (transcript/22 and 31).
Dr McCue reported a childhood involving corporal punishment at school, but none at home after primary school age. The Applicant stated that he did not witness any violence between his parents. The Applicant’s wife is quoted as saying “I don’t think [the Applicant] learned that behaviour (abuse) at home. I think it is more because of cultural issues in Papua New Guinea” (A4/4).
The Applicant studied engineering at university, with post-graduate studies in Australia, commencing full time employment in 1993 and marrying his wife four years later.
Dr McCue reported (A4/6):
[The Applicant and his wife] both reported that [the Applicant] has a positive relationship with his daughters and there is no suggestion that he has engaged in aggressive or violent behaviour towards them. [The Applicant’s wife] stated, “They [sic] (daughters) have a good relationship with their father. He provides for them. Not that emotionally close, he has to ask and initiate and then they will share”. [The Applicant] acknowledged that his second-eldest daughter… has limited her contact with him because of his violence towards [his wife]. He described being understanding of her position and stated, “I’ve written her an apology, but she still wants distance. She is still close with her mother and sisters.
[The Applicant] and his family migrated to Australia in 2006 after [the Applicant] successfully obtained work with Rio Tinto. According to [the Applicant and his wife], they decided to relocate to Australia because it would afford their daughters a better lifestyle and better education. [The Applicant’s wife] commented that Australia provides more freedom for females, and this was something they both wanted for their daughters…
[The Applicant] spoke fondly of his daughters, explaining that his eldest daughter is engaged to a doctor in Bunbury and is now a mother to twins. He said that his second eldest daughter is studying at … university and is undertaking an internship… and it seems she has followed a similar career path... He explained that his youngest daughter has just completed high school.
[The Applicant] reported that he provides financial support to his wife and daughters, including paying for the mortgage on their home and utilities. He said that he has also been assisting with his second-eldest daughter’s rent, car and mobile phone expenses. It impressed [sic] that financial support is the way [the Applicant] demonstrates his love and affection for his family. [The Applicant’s wife] described her husband as being “financially sound” and reliable and consistent in the way he has supported his immediate and extended family. Letters prepared by [the Applicant’s wife and eldest daughter] confirm that [the Applicant] provides significant financial support for the family, with his wife currently being dependent on him financially.
Dr McCue explored the Applicant’s domestic violence towards his wife and asked why he engaged in acts of violence towards her (A4/9-10):
[H]e stated that it was due to his “state of mind at the time” and his poor management of his work-related stress. He also acknowledged that prior to incidents of violence he had usually consumed alcohol and up to 6 pints of beer. He denied feeling intoxicated at the time of his aggressive and violent behaviour and refuted his wife’s previous claim that he was an alcoholic. He stated, “I’m a social drinker. I can go over a bit when I’m with friends”, which minimised the amount of alcohol he was reportedly consuming at times, according to his wife.
[The Applicant’s wife] commented on her husband’s behaviour in their relationship and stated, “We had arguments, not usually to the point of violence”. She commented that she perceived [his] alcohol consumption was problematic, contrary to her husband’s assertion, and believed his alcohol use increased at times he was stressed about work, or because of the pressure he felt being the eldest son and financially responsible for his extended family. She stated, “I didn’t agree with his drinking. He was drinking daily when on his break from work. Usually when he was drinking he was reasonable, but he had anger issues. He felt pressure because of being the eldest son; his family was always asking for money. If his buttons were pushed, he would be really angry”.
[The Applicant] explained that he does not believe his aggression and violent behaviour towards his wife is acceptable. He said, consistent with [his wife’s] comments that his frustration has built to the point where he becomes angry and his behaviour then escalates. He reported that the expectations of his extended family have been a source of stress for him. In addition to providing for them financially, he explained that he has been overseeing the construction of a family home in his family’s village in Papua New Guinea, in addition to his fly-in/fly-out work.
[The Applicant] reported that during times of increased stress, he finds his wife’s “persistence” and her “asking me that same questions over and over” as something that has exacerbated his frustration. He acknowledged that he has handled his frustration poorly and reported that he is seeking assistance to better manage his frustration and anger. [The Applicant’s] explanation of the way he reacts to his wife when he feels frustrated was consistent with his explanation outlined in the Decision by Delegate, dated 03/03/22. [The Applicant] expressed remorse for his behaviour during the current psychological assessment and stated, “What I did wasn’t okay… (After the assaults) I had immediate regret. She’s my wife, I shouldn’t do that to her”.
[The Applicant wife] explained that after [the Applicant’s] first incident of violence towards her in 2014 she suggested that he attend counselling, but he did not agree with her. She commented that she experienced fear because of his behaviour and some of his aggression had occurred while their children were present. She said that she reported his behaviour to police because she had hoped that police intervention would help her husband and “make him realise what he was doing was wrong and get help”. [She] explained that she and her husband were raised in a patriarchal culture, where “men are more dominant than women” and she believes that this has also been a factor in his past violence [sic] behaviour towards her.
Dr McCue assessed the Applicant’s risk of reoffending using the guidelines provided in the Spousal Assault Risk Assessment Guide - Version 3 (SARA-V3). This assesses risk factors across three domains: nature of intimate partner violence, perpetrator risk factors and victim vulnerability factors.
In terms of the first domain, the nature of intimate partner violence, Dr McCue found that his behaviour was chronic, and the behaviours have appeared to have escalated over time (A4/11).
Dr McCue expanded on the use of the term “chronic” during the hearing, detailing that (transcript/37):
Yes, so chronic has a specific definition according to the SARA. I will just try and find the definition for you now. So chronicity actually is a term that is used to define whether or not it has been a one-off incident or whether it is something that has occurred over a period of time. So the terminology in defining his behaviour is because it has occurred more than one occasion and it has occurred over an extended period of time - I think a period of years - that there has been separate incidents that have occurred and that is why the “chronic” is used in that context.
He continued in his report, stating that (A4/11-12):
Intimidation occurred in the form of [the Applicant] causing his wife to feel fear, for example, by him screaming at her. He has not engaged in more serious forms of intimidation such as stalking or actions that prevent her from living her daily life. He has caused physical harm to his wife on two reported occasions, such as bruising and cuts to her face. There are also elements of chronicity in [the Applicant’s] offending in that it has persistent across a number of years, with police attention being required on three occasions between 2014 and 2018. However, there was no evidence to suggest that his behaviour has been frequent in nature. It does appear that [the Applicant’s] behaviour has escalated from yelling to physical violence in the 2017 and 2018 incidents.
With regard to other factors considered pertinent in assessing the seriousness of intimate partner violence, [the Applicant] has not used threats, and he has not engaged in sexual harm towards his wife. He has also not caused serious harm, according to the definition of serious harm employed by the SARA-V3. That is, his violence did not involve a weapon, he has not engaged in strangulation of his wife or attempted to asphyxiate her, and [the Applicant’s wife] was not hospitalised as a result of her injuries.
With respect to the second domain, the perpetrator risk factors, Dr McCue found that of six salient risk factors, two risk factors were present. They were substance use and “distorted thoughts about intimate partner”, the latter explained as patriarchal views that enable him to perceive it was acceptable to control and discipline his wife in response to his frustrations (A4/12).
In terms of the final domain, victim vulnerability factors, Dr McCue noted that the Applicant’s wife would live with the Applicant if he returned to Australia and that she was financially dependent on him. Dr McCue found that the financial relationship could be a barrier to prevent her leaving the relationship, this point is discussed in greater detail below (A4/13).
Dr McCue found the Applicant’s wife had a supportive network, was aware of community resources available to support victims of partner violence and that she had a history of reporting his behaviour (A4/13). Dr McCue also noted that the Applicant’s wife (A4/13):
…did communicate a traditional belief that the vow of marriage is solemn and a commitment to God. She said that she would be unlikely to break this, unless [the Applicant] ever wanted to divorce. Although this belief may present as a victim vulnerability factor, it is also balanced against [her] willingness to report her husband’s abusive and violent behaviour, and to either leave or have him removed from the family home to protect herself.
Dr McCue concluded that (A4/16-17):
An assessment of [the Applicant’s] risk of perpetrated actions of intimate partner violence in the future was undertaken using the SARA-V3. This risk assessment revealed that [the Applicant’s] prior violence had persisted over a number of years, but had been infrequent with no evidence of other controlling, threatening or emotionally abusive behaviour. He has two pertinent risk factors; his holding distorted beliefs about the acceptability of intimate partner violence, and his alcohol use. [The Applicant’s] risk of engaging in a similar level of violence towards his wife in the future is predicated on him managing the identified risk factors. There is no evidence to suggest that he is at imminent risk of violence towards his wife, should he be permitted to return to Australia, or that he is at risk of frequent violence towards her. He is also unlikely to re-offend in a way that demonstrated an escalated level of violence.
In terms of [The Applicant’s] risk factors, I understand that he has reduced his alcohol use and he has developed strategies to better manage his anger. As a result of the current consequences of his behaviour, [The Applicant’s] attitudes regarding the acceptability of violence in his relationship have been challenged. Notwithstanding his reported gains through treatment to date, [the Applicant] would benefit from further psychological counselling aimed at directly challenging any remaining attitudes that condone or endorse the use of violence in his relationships. Continued counselling would also enable [the Applicant] to continue practicing and receiving feedback on his anger management techniques, as well as assist him in managing his alcohol use. [The Applicant] continuing with regular psychological treatment would assist in mitigating any risk of re-offending in a similar manner.
Domestic violence is a serious offence. This is reflected in guidance given to decision makers in Direction No 90 on how domestic violence is to be treated. It is also true that the Applicant’s offending and behaviour, while patently unacceptable, is at the less severe end of the spectrum of offending. The risk of reoffending is towards the lower end. However, the Respondent contends that the risk of reoffending remains.
The Respondent contends that limited weight should be placed on the fact that the Applicant complied with the FVRO, pointing out that the Applicant’s conditional release order expired only four months before the December 2018 incident. Moreover, that during the period since the FVRO was put into place, the Applicant has only been in the country for 126 out of 735 days (17 per cent of the time) and has not returned to Australia since 30 November 2019 or lived with his wife since 26 December 2018. As a result, the Respondent contends that the Applicant’s behaviour is completely untested in their household (R4/2).
The Respondent has contended that the Applicant’s expressions of remorse and acceptance of responsibility are both belated, not genuine and designed to achieve a favourable visa outcome (R4/2). The Respondent contends that the apology email to his family dated July 2022 (A3/76) is too little, too late (R4/3).
The Respondent has also observed there is very little evidence regarding the nature of the treatment and outcome of the counselling the Applicant has accessed through his Employment Assistance Program (EAP) (R4/3). The Respondent submitted during the hearing that (transcript/70):
The applicant’s psychological treatment so far has been limited to four sessions of EAP counselling with a psychological clinician over Zoom or over Microsoft Teams rather than a psychologist and has been directed only to managing [the Applicant’s] anger rather than his alcohol abuse or his attitudes to women and he only dealt in a limited way with stress, according to [the Applicant]. Therefore the tribunal should conclude that this treatment has not effectively addressed the risk factors identified by Dr McCue.
The applicant has also provided no evidence that he intends to engage in any other psychological treatment other than through BSS other than the reference to couples counselling. Now, the fact that Dr McCue does not identify [the Applicant] as posing a serious or imminent risk is not the point. The test is whether he poses a risk, and based on the evidence, in the absence of treatment directed at the risk factors identified by Dr McCue it can’t be concluded that the applicant poses only a minimal or trivial risk.
A second point would be that the tribunal should place minimal weight on the applicant’s engagement with BSS Psychology as evidence that the applicant has rehabilitated or that he’s sufficiently addressed those risk factors identified by Dr McCue. The only evidence about these sessions is two attendance forms that were provided. They’re in the applicant’s bundle at around page 78 and the email from BSS Psychology dated… August which attaches some reports to attach some documents referring to negative emotion and cognitive distortion, although those documents have not been provided.
Now, without any objective evidence from a psychologist to detail the nature of the treatment that’s been provided to him, and [the Applicant’s] responsiveness to that treatment, little weight we would say should be afforded to this treatment as evidence in rehabilitation. In any event, based on the information in the applicant’s own statement, it’s apparent that the counselling sessions did not address alcohol abuse or his attitudes to women, and Dr McCue has said that he’d need much more comprehensive treatment to identify these more fundamental issues than the limited sessions that are offered through the EAP service.
Given the applicant’s only engaged in this counselling on 30 March 2022, around four years, give or take from the offences, and after the delegate’s refusal decision, as conceded by [the Applicant], this treatment appears to be undertaken partly to achieve a favourable outcome in this proceeding…
When questioned about counselling sessions he had undertaken, the Applicant stated that (transcript/12-13):
We - it’s mainly around anger management and how I react, the aggression that I face and leads into the situation at that time. So, our counselling was around - mainly around, you know, the anger; how I manage my anger depending on the situation at hand.
And do you feel like this has had any impact on your relationship with your wife?
It has opened up a lot of venues for us. We’ve even discussed, you know, having counselling sessions with BSS. They have six sessions, free sessions, per year. I finished my - I had four last year. This year will be another six available for me. So, I’ve already talked with [the Applicant’s wife] that we need to go through BSS and get more counselling on it.
Do you mean go through together?
Go through together. Yes.
Had [the Applicant’s wife] ever suggested counselling before?
Yes. She did. Even when we were going through all these issues she suggested to me that we need to go and seek counselling, marriage counselling, but I ignored it without knowing the impact it would have on me and my family. Now that I’m going through all of this, I’ve spoken to her and that’s the first thing we will do as soon as I come down to Perth.
And why do you think that you ignored her suggestion before?
I thought I was at right. I think there’s nothing wrong with me, but then after going through all this now I feel that I need to change.
Have you ever done any counselling before?
No. Not at all. I’ve never done any counselling in my career, in my entire career. The ones that I went to are the first.
(Emphasis added.)
The Respondent contends that there is limited detail regarding these sessions, and it was motivated by a desire for a positive visa outcome. Dr McCue was asked about the Applicant’s motivations during the hearing, whether seeking EAP sessions was motivated by a desire to change or support his visa review. Dr McCue responded that (transcript/42):
In my opinion those things are very difficult to separate. I think that he absolutely wants to be able to return to Australia and he wants to return to his relationship and I think therefore on some level you can’t exclude the possibility that his motivation to engage was really around having a strong application to return to Australia. That said, in my conversations with him he was certainly able to talk about some of the techniques that he had explored. He certainly talked about how he had become a bit more comfortable in talking about some of these things, which isn’t necessarily his usual way of coping and that he was quite open to engaging in psychological counselling therapy moving forward as well, but hadn’t found it to be a completely awful experience or an experience where he didn’t actually get any benefit.
So should engaging - or could engaging in that counselling be viewed as evidence that he takes responsibility for his behaviour? I think it can be viewed in that way, even if it is, in part, motivated more by the visa application. The fact that he’s had to show up and talk about his behaviour and be accountable for a session does imply on some level that there is some responsibility taken there. And even if the greater percentage of his motivation has been to support his visa application, that doesn’t mean that he can’t get some therapeutic benefit from that. Clients can be mandated for treatment all the time. It doesn’t mean they don’t get any benefit from it.
When considering the future risk the Applicant may present to his wife, the motivation may be of less relevance if the sessions provided the Applicant with some therapeutic benefit and addressing his behaviours. Nevertheless, the Respondent’s contention that the Applicant’s actions are motivated not by a desire to change his behaviour are not without merit. However, the Applicant’s actions and words are also consistent with that of a man who has been separated by his family for a long time and has had ample time to reflect on his behaviour, its effect on his family and himself.
The Tribunal accepts that there is limited information surrounding the EAP sessions the Applicant has attended, and more comprehensive therapy is recommended. The Tribunal is also mindful that the provision of the appropriate counselling services for the Applicant in Papua New Guinea would fall significantly short of that available in Australia. The World Health Organization, for example, has identified significant gaps in the provision of mental health services in Papua New Guinea[1], demonstrating that there are numerous barriers to accessing those services.
[1] John Grundy et al, ‘Independent State of Papua New Guinea Health System Review’ (2019) 9(1) Health Systems in Transition 1, 138.
However, when considering the Applicant’s access to counselling, it is necessary to address how this relates to the risk of reoffending. As detailed above, Dr McCue wrote that (A4/17):
Notwithstanding his reported gains through treatment to date, [the Applicant] would benefit from further psychological counselling aimed at directly challenging any remaining attitudes that condone or endorse the use of violence in his relationships
The question that logically follows, as pointed out by the Respondent above, is that if a risk was of a minimal or trivial likelihood, would there be benefit for further psychological counselling aimed at directly challenging remaining attitudes that condone or endorse the use of violence in the Applicant’s relationship?
These attitudes relate to one of the risk factors, namely a patriarchal view that it is acceptable for the Applicant to control and discipline his wife in response to his frustrations. The requirement to further challenge these views would suggest a threshold of risk that may rise above the trivial or minimal. This requires further consideration.
During the hearing, Dr McCue also recommended further treatment in order to “manage those risk factors and to further reduce his risk… (transcript/44).” The risk factors also include alcohol, which the Applicant still consumes when he is not working, though he has given an undertaking to his wife to not drink when he is with her (transcript/15). The Respondent has also highlighted this risk factor as remaining present (transcript/71). The drinking was also referenced by Dr McCue during the hearing (transcript/36):
The impression I formed was that his alcohol use at the time was a contributing factor to his behaviour towards his wife and to his level of violence and I believe it was a risk factor. At the time I had noted - because I had also asked his wife about his alcohol use as well - I certainly got the perception that [the Applicant] probably minimised the amount he was drinking or the impact of his drinking, but certainly I felt that it was a risk factor.
Assessing in isolation, the recommended benefits of further counselling and treatment, and addressing his alcohol consumption, suggests that these risk factors are still present.
These risk factors have been treated to some extent. It is noted that the Applicant reportedly has increased awareness of the behaviours that led to the incidents with his wife, and he states he has taken responsibility for them (A5; transcript/12 and 15). He has undertaken some form of counselling. The Applicant’s wife states that the Applicant has changed and he is remorseful (transcript/55), an observation she also reported to Dr McCue (transcript/39).
The Tribunal is satisfied these particular risk factors have been reduced, and the likelihood of reoffending is, in all probability, tending towards the lower end. However, given the need for further treatment, the risk cannot be said to be at the threshold of minimal or trivial likelihood.
However, despite the Applicant’s need for further treatment, there are other factors that must be taken into account, beyond the risk factors identified by Dr McCue in the SARA-V3 assessment. These factors may have a material effect on the Applicant’s risk of reoffending.
These factors include the consequences to the Applicant and his family if he were to reoffend and their role in deterring the Applicant from reoffending.
Deterrence from reoffending
In assessing the risk of the Applicant engaging in criminal conduct, it is evident that his wife’s willingness to report that offending requires consideration. Her willingness to report his offending, if he was allowed to return to Australia, would presumably present a deterrence to reoffending.
The Applicant’s wife stated that (transcript/55-56):
… I made it clear to him that if he chooses to reoffend again, I will not hesitate to report him to the police.
The Respondent has noted that (transcript/76):
Given that financial dependence, we would still say that it may pose a barrier to her in fact reporting future offending by her husband. Indeed in the past, after the 2018 incident, she was unwilling to provide the full details to the police. It’s not clear why she’d be more willing to do so now, given that she’s fully aware of the consequences of doing so.
This financial dependence requires further consideration.
The Applicant has financially supported his family throughout his separation from them (transcript/12 and A5). Two of his daughters have also attested to this support in written statements provided to the Tribunal (A2/108-112). The Applicant has been well paid in his career, indeed in the 2019 – 2020 financial year, his taxable income was approximately $414,000 (A3/28). He has stated that his company, subject to the outcome of this matter, would reduce his salary to that of a Papua New Guinea based employee (A5).
The Respondent has questioned whether this reduction would occur, noting that there is no written evidence to that effect (transcript/26-27). This is true; however, it would be a curious commercial decision for a company to continue to pay the Applicant an expatriate salary, rather than a local one.
The Applicant’s wife and family have a vested financial interest in a positive outcome. The Applicant’s wife has a significant degree of financial dependence on the Applicant. However, it is noted that his adult daughters are to varying degrees, self-sufficient and establishing their own families and careers.
The Applicant’s financial support could, as the Respondent notes, reduce the likelihood of the Applicant’s wife reporting any reoffending. However, she has reported it before. Moreover, even if that were to endanger the financial support she receives from him, she has stated that (transcript/56):
I mean, I don’t really need much to live on, but like to me, like I wouldn’t be a burden to my daughters. And I don’t intend to go on Centrelink, but I know that my daughters will support me. So two of them, are almost going to… two younger ones, so - I believe they… to financially assist me in whatever I need...
The Tribunal is satisfied that while the Applicant’s wife’s financial dependence could be a barrier, she could also, with the assistance of her daughters, manage the financial disruption that would occur should she report any reoffending to the police.
The Applicant stated that (A3/97):
I know that if I reoffend, [my wife] will report me and I will be deported from Australia. I also know that I wouldn’t be able to see my wife and daughters again, and that my daughters would be extremely angry at me for hurting their mother. [My wife] herself would not give me another chance. I don’t think she would even get a restraining order because she would know it would be better and permanent to have me removed from Australia.
From the Applicant and his family’s perspective, there is a considerable degree of jeopardy involved in this matter, and not merely from a financial perspective. A positive outcome would reunite the family, a negative one, from their perspective, may result in permanent physical separation.
The Respondent has rightly noted that (transcript/76):
And finally to my friend’s point about the inability of [the Applicant] to never re-enter Australia, to never be granted a visa, we would just say in response, the tribunal shouldn’t speculate about future decision making. It’s indeed possible that in the future he would be granted a visa; we just don’t know and it’s not something that should be speculated upon for the purpose of this proceeding.
This is indeed true; however, the Applicant and his family are quite entitled to see it differently. As such, the consequences for the Applicant if he were to reoffend are considerable, indeed life altering for both him and his family.
The Applicant’s family are members of the Australian community. His daughters have grown up in Australia, experiencing very different childhoods to the one they would have experienced had they grown up in Papua New Guinea. Their future is in Australia.
Visiting their father in Papua New Guinea involves considerable cost. There are also safety issues, a point the Applicant’s wife made during the hearing (transcript/57). The Applicant and his family are acutely aware of the serious ramifications should the Applicant be granted a visa and reoffend.
Reoffending, from the Applicant’s perspective, would see him return to Papua New Guinea. He would be physically separated from his wife, daughters and grandchildren, perhaps permanently. His contact would be limited to electronic means and, if his children visited, it would be infrequent. His ability to financially support his family, something he takes pride in, would be significantly diminished. From the Applicant’s perspective, this would be something of a life sentence. These factors are given significant consideration when considering the Applicant’s risk of reoffending should he be allowed to return to Australia, given the consequences could be severe.
CONCLUSION
In summary, when considering the risk of the Applicant engaging in criminal conduct in Australia, the Tribunal notes that his criminal history is limited. It involves one recorded incident of domestic violence to his wife.
The risk factors that led to this offending have been treated to some degree, although the need for further treatments suggests, that though they are low, they are above the threshold of minimal or trivial likelihood. However, the assessment of these risks factors is through the SARA-V3 assessment tool. This tool does not assess the broader family context of the Applicant and the extent to which the deterrence, posed by what would happen to him and his family in the event of him reoffending, further treats those risks.
The Tribunal is satisfied that the Applicant’s wife would be able to report any future offending, noting the support she would have from her immediate family. This is a significant deterrence, given what may follow from a subsequent offence.
The Tribunal gives significant weight to the Applicant’s understanding of what the consequences would be if he were to reoffend.
The Applicant’s representative submitted during the hearing that (transcript/63):
..the applicant’s wife has known him for more than three decades. She was the victim of his offending, and she had two years during which she had no contact with the applicant, in which time to reflect on their relationship and to develop independence. She’s come to the tribunal today to demonstrate her ongoing support for her husband and her willingness for him to return to their home. Dr McCue considered her ability to identify and respond to abusive behaviour within her relationship to be a factor that reduces any likelihood of the applicant’s behaviour being repeated. That is the applicant knows that his wife will not hesitate to go to police if he reoffends. He knows that she knows what consequences will ensue for him if he cannot manage his anger and he lashes out at her. She knows that if she goes to police the consequences for the applicant will be long lasting and devastating. She reported the last incident to police in an attempt to get the applicant to seriously reflect on and examine his behaviour and make changes.
He has done that and he has demonstrated to her that he’s committed to a better future together. Refusing his visa would not only act a further punishment for the applicant but would also have serious consequences for his wife who only wanted him to make the changes that he has now made. These factors all contribute to the applicant’s risk of reoffending being no more than minimal or remote, or not rising to the level that would cause him to fail the character test.
It is true that the effect of the Applicant’s offending on him and his family has been significant and severe. It has had the effect of separating the family for several years, noting that his offending did not result in a custodial sentence. The Applicant clearly accepts this is the result of his actions.
The very serious consequences upon the Applicant and his family if the Applicant was to reoffend, significantly reduces the likelihood of his reoffending and risk of engaging in criminal conduct in the future in the event that he is allowed to return to the Australian community.
The Tribunal is satisfied, having regard to these factors, that the Applicant’s risk of engaging in criminal conduct is of minimal or trivial likelihood.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
3 March 2022 to refuse the Applicant’s Return (Residence) (Class BB) visa pursuant to
s 501(1) of the Migration Act, is set aside and substituted, such that the Tribunal finds the Applicant passes the character test under s 501(6) of theMigration Act.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Member S Barton
..............[Sgd]..........................................................
Associate
Dated: 18 April 2023
Date of hearing: 23 January 2023 Solicitors for the Applicant: Ms A Graziotti, Estrin Saul Lawyers Solicitors for the Respondent: Mr H McLaurin, Minter Ellison
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