Taylor and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 205
•16 February 2024
Taylor and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 205 (16 February 2024)
Division: GENERAL DIVISION
File Number(s):2023/9015
Re:Glenn Taylor
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Antoinette Younes
Date: 16 February 2024
Place: Sydney
The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
..................................[SGD]......................................
Deputy President Antoinette Younes
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 No. 99 – nature and seriousness of offending conduct – protection of the Australian community – conduct engaged in family violence – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – impediments to removal – significant brain injury – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 189, 197C, 198, 499, 501, 501CA
CASES
Buntin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1055
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Nepata v Minister for Home Affairs [2019] FCA 1197
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
16 February 2024
BACKGROUND
The Applicant is a national of New Zealand who was born in September 1974.[1] He arrived in Australia in 1978,[2] at the age of four years. He has departed Australia on six occasions since 1982, with his longest absence being over two years between 1993 and 1995. He has not departed Australia since his most recent arrival on 27 August 2000.[3] The Applicant held a Class TY Subclass 444 Special Category (Temporary) visa (the Applicant’s visa).
[1] Ex 6, 110-111.
[2] Ex 6, 87.
[3] Ex 6, 110-111.
The Applicant has an extensive criminal history. Between 1993 and 2023, he was convicted of over 35 offences including common assault, contravening apprehended domestic violence order (ADVO), drug possession, assault occasioning actual bodily harm and stalk/intimidation offences. On 28 March 2023, the Applicant was convicted by the Gosford Local Court of Assault police officer in execution of duty w/o abh (two counts), Stalk/intimidate intend fear physical etc harm (domestic), Stalk/intimidate intend fear physical etc harm (personal), Contravene prohibition/restriction in AVO (domestic), Contravene prohibition/restriction in AVO (personal) and Destroy or damage property <=$2000 (the 2023 convictions). He received an aggregate imprisonment sentence of 14 months commencing on 30 November 2022 and concluding on 29 January 2024, with a non-parole period ending on 29 May 2023.
On 27 April 2023, the Applicant's visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate determined that the Applicant did not meet the character test under subsection 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced, to a term of imprisonment of 12 months or more, and is serving a sentence of imprisonment on a full-time basis in a custodial institution.[4]
[4] Ex 6, 102-108.
On 18 May 2023, the Applicant made representations seeking revocation of the cancellation of his visa.[5] The request for revocation of a mandatory visa cancellation form included evidence of completion of a Remand Domestic Abuse course dated 2 February 2023.[6]
[5] Ex 6, 76-99.
[6] Ex 6, 99.
On 27 July 2023, the Applicant was convicted of Contravene probation/restriction in AVO (Domestic) and received a 12-month Community Correction Order (CCO) commencing on 27 July 2023 and concluding on 26 July 2024.
On 24 November 2023, the delegate found that the power under subsection 501CA(4) of the Act to revoke the cancellation under subsection 501(3A) of the Act was not enlivened.[7]
[7] Ex 6, 10-33.
On 30 November 2023, the Applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal).
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(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
(ii)…; 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.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(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
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) of the Act provides:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[8]
[8] Migration Act 1958 (Cth) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations”.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Respondent’s Statements of Facts, Issues and Contentions (SFIC), dated 15 January 2024 (Exhibit 1);
·The Applicant’s SFIC, dated 31 January 2024 (Exhibit 2);
·Applicant’s Tender Bundle, filed on 31 January 2024 (Exhibit 3);
·Applicant’s Additional Tender Bundle, Medical records, filed on 31 January 2024 (Exhibit 4);
·Respondent’s Tender Bundle, filed on 15 January 2024 (Exhibit 5); and
·G-Documents filed on 13 December 2023 (Exhibit 6).
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act and is generally concerned with the protection of the Australian community from the risk of harm. The character test deems persons to be of bad character if they fit any of the criteria listed.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was 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.
It is not in dispute that the Applicant does not meet the character test. On 28 March 2023, the Applicant was convicted by the Gosford Local Court of Assault police officer in execution of duty w/o abh (two counts), Stalk/intimidate intend fear physical etc harm (domestic), Stalk/intimidate intend fear physical etc harm (personal), Contravene prohibition/restriction in AVO (domestic), Contravene prohibition/restriction in AVO (personal) and Destroy or damage property <=$2000. He received an aggregate imprisonment sentence of 14 months commencing on 30 November 2022 and concluding on 29 January 2024, with a non-parole period ending on 29 May 2023.
As an aggregate sentence of 14 months is a term of imprisonment for 12 months or more within the meaning of s 501(7)(c) of the Act, the Applicant has a substantial criminal record and he does not pass the character test.
The issue before the Tribunal is whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[9] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced.
[9] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[10]
[10] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[11] The Direction specifies the relative, but not the actual weight to be given to those considerations; the weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[12] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the determination of the applicant’s case.[13]
THE PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’[14] It indicates that decision-makers should also give consideration 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.[15]
[11] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[12] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[13] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[14] Direction 99 [8.1(1)].
[15] Direction 99 [8.1(2)].
The seriousness of the Applicant’s conduct
The Applicant has a long criminal history that commenced in 1993, including the following:[16]
[16] Ex 6, 34-40.
·On 6 March 1997, the Applicant was convicted of Wilful Trespass and Trespass & Refuse Particulars.
·On 17 August 1999, the Applicant was convicted of Behave in offensive manner in/near public place/school, Resist officer in execution of duty-T2, Shoplifting value <=$2000-T2, Assault police officer in execution of duty w/o abh-T2, Assault occasioning actual bodily harm-T2 and Possess implements to enter/drive conveyance-T2.
·On 21 January 2003, the Applicant was convicted of Common assault-T2 and was sentenced to a 200-hour community service order.
·On 6 August 2004, the Applicant was convicted of Shoplifting value <=$2000-T2 and Common assault-T2 and was fined and sentenced to a 12-month section 9 good behaviour bond.
·On 29 June 2007, the Applicant was convicted of Contravene apprehended domestic violence order and was sentenced to an 18-month section 9 good behaviour bond.
·On 19 December 2007, the Applicant was convicted of Assault occasioning actual bodily harm-T2 and Steal from the person and was sentenced to 6 months imprisonment. The conviction was confirmed at the District Court of New South Wales on 10 October 2008, and in lieu of imprisonment, the Applicant received a 12-month section 12 bond.
·On 5 November 2008, the Applicant was convicted of Possess prohibited drug and was fined.
·On 6 February 2017, the Applicant was convicted of Assault officer in execution of duty-T2 and was sentenced to a 300-hour community service order.
·On 24 November 2017, the Applicant was convicted of Drive motor vehicle while licence suspended - 1st off and was fined.
·On 7 May 2018, the Applicant was convicted of Assault officer in execution of duty-T2 and the maximum period of his community service order was extended.
·On 12 December 2019, the Applicant was convicted of Shoplifting value <=$2000-T2 and Refuse/fail to comply with direction under Part 14, and he was fined.
·On 30 July 2020, the Applicant was convicted of Destroy or damage property <=$2000-T2 (two counts), Intimidate Police Officer on execution of duty w/o abh-T2, Stalk/intimidate intend fear physical etc harm (personal)-T2 and Assault occasioning actual bodily harm-T2. The Applicant received a nine-month imprisonment sentence with a non-parole period of six weeks for the Stalk/intimidate conviction and an 18-month CCO for the remaining convictions.
·On 24 June 2021, the Applicant was convicted of Contravene prohibition/restriction in AVO (personal), Destroy or damage property, Destroy or damage property <=$2000 (two counts) and Assault occasioning actual bodily harm. The Applicant received two months imprisonment for the contravention of AVO and a 12-month CCO for the remaining offences.
·On 28 October 2021, the Applicant was convicted of Not comply with noticed direction re s 7/8/9 - COVID-19, Not wear fitted face covering public transport waiting area and Use offensive language on public passenger vehicle/train etc and received a fine and a 6-month CCO.
·On 28 March 2023, the Applicant was convicted of Assault police officer in execution of duty w/o abh (two counts), Stalk/intimidate intend fear physical etc harm (domestic), Stalk/intimidate intend fear physical etc harm (personal), Contravene prohibition/restriction in AVO (domestic), Contravene prohibition/restriction in AVO (personal), threaten person with intent to influence witness – T1, and Destroy or damage property <=$2000. The Applicant received an aggregate imprisonment sentence of 14 months.
·On 27 July 2023, the Applicant was convicted of Contravene probation/restriction in AVO (Domestic) and received a 12-month CCO.
The Applicant’s conduct falls within what the Direction views to be serious such as violent crimes, crimes of a violent nature against women, and acts of family violence.[17]
[17] Direction 99 [8.1.1(1)(a)].
In relation to the 29 June 2007 conviction of Contravene apprehended domestic violence order, the NSW Police Facts Sheet[18] indicates that on 6 February 2007 at 2:30am, the Applicant entered the bedroom of the victim, Ms M, with whom he had been in a de facto relationship for five years. Ms M was asleep with the couple’s two children. The Applicant threw a metal ash tray at the bed head of the victims, causing a loud noise and Ms M to wake up. The Applicant was affected by alcohol. He started to yell at the victim “You are the reason I’m going to gaol, I’m going to fucking kill you. I’m going to use your face as a bloody dart board”. Ms M became “extremely fearful” for her safety as the Applicant was “extremely aggressive”. The Applicant was in a rage while walking around the house, yelling, swearing and threatening Ms M. Ms M barricaded herself and her two children inside the bedroom with a wooden chest of drawers. At about 2.45am, the police attended the location and the Applicant was aggressive towards the police. Police discovered that at the time, there was an AVO in place in protection of Ms M from the Applicant.
[18] Ex 6, 64-66.
Regarding the 19 December 2007 convictions of Steal from the person and Assault occasioning actual bodily harm, the NSW Police Facts Sheet[19] indicates that on 26 January 2007, Mr W, the victim, and a group of nine friends boarded a train. The Applicant approached Mr W and demanded Mr W’s phone. The Applicant then hit Mr W on the face twice, causing severe pain to Mr W’s left eye which swelled and bruised.
[19] Ex 6, 61-63.
The facts relating to the 30 July 2020 convictions of Destroy or damage property <=$2000-T2 (two counts), Intimidate Police Officer on execution of duty w/o abh-T2, Stalk/intimidate intend fear physical etc harm (personal)-T2 and Assault occasioning actual bodily harm-T2, are in the NSW Police Facts Sheet,[20] which indicates that the Applicant was “well known to police for violent offences”. The incident occurred on 8 June 2020 when the Applicant contacted the police stating that someone had damaged his door and he suggested that he would take matters into his own hands. At about 12.30pm, the Applicant was outside in the common area of a unit complex. The Applicant was carrying a knife that had a black handle and the blade was about 15 centimetres long. The Applicant’s neighbour, Mr D, was the victim. The Applicant walked towards Mr D while he was holding the knife. When he was about three metres away, he ran towards Mr D’s unit and started kicking Mr D’s door and yelling abuse at Mr D, causing damage to the door and injury to Mr D’s eye. Whilst Mr D was standing at the door, the Applicant threw a large piece of concrete rock into the front glass window. The victim’s right forearm was injured as a result. Whilst in custody, the Applicant made several threats to cause further harm to Mr D, including threatening to kill him.
[20] Ex 5, 58-61.
The 24 June 2021 convictions of Contravene prohibition/restriction in AVO (personal), Destroy or damage property, Destroy or damage property <=$2000 (two counts) and Assault occasioning actual bodily harm, relate to circumstances described by the Sentencing Court as follows:
“The facts are as set out in the police statement and facts, I adopt those facts in my reasons for a decision. The victim in the matter is [Mr D] who is your neighbour at [address]. There was an AVO in place in conditions 1, 2 and 8. At about 9 o’clock or so on 19 April the victim was at his address when the doorbell rang. The victim was asleep at the time, you’ve been at the door asking how [Mr D] was doing and you were told you had an AVO and you could not be there. The victim was in bed asleep, he had not been feeling well.
At about 11 o’clock on the same night the witness has heard you yelling outside of the villa and recognised your voice and then heard the sound of metal clunking and was fearful for his safety and that of the victim. Later on it was notice that the stormwater grates, that are about 2 metres from the front door of the villa, were missing. In terms of the offending, police were contacted in relation to it and obtained a statement from the witness.
Then, on 20 April, police were called to the shopping centre as a result of a male causing a disturbance and they had located you. You were aggressive and agitated, clenching your fist, police have approached you and introduced themselves and then conducted a check and you have been arrested for a breach of a personal violence order. You were placed in the caged truck before being conveyed to Gosford Police Station. While in the cell you have ripped the outer lining of a mattress and continued to attempt to rip the inner foam mattress. That offence in relation to the mattress is the basis of the destroy or damage property as I understand it”.[21]
[21] Ex 6, 50-51.
In sentencing remarks, the Court indicated that the seriousness of the Contravene prohibition/restriction in AVO (personal) offence was aggravated because it took place whilst the Applicant was subject to a CCO, which had been put in place in relation to the same victim.[22]
[22] Ex 6, 50.
In relation to the 2023 convictions and whilst on bail, the NSW Police Facts Sheet[23] sets out the circumstances of the offending including a threat to kill, sending around 100 harassing messages to Ms M, the Applicant spray painting the windscreen of a vehicle, and kicking a police officer and another on the knee. On 30 November 2022, the Applicant was heard on a bus saying “more shit will happen” if the victim did not get rid of the AVO.[24]
[23] Ex 5, 154-162.
[24] Ex 5, 158.
In breach of an ADVO, the Applicant called the victim twice on 11 May 2023 and once on 12 May 2023.[25]
[25] Ex 6, 58-60.
The Direction contemplates that a decision-maker is to view offences committed against government representatives or officials as serious.[26] The Applicant has multiple convictions for assault or intimidating a police officer, including being convicted in 1999, 2017, 2018, 2020 and 2023.[27] The Applicant’s conduct towards the police included the Applicant extending his middle finger to a police officer and telling him to “fuck off” several times, pushing his chest out onto the police officer resulting in the officer to move back slightly, grabbing the officer’s right hand and slapping the officer’s head, which led to the officer’s glasses to fall to the floor.[28] On 21 November 2019, the Applicant was arrested after stealing a mug from a café. Whilst on the way to the police station, the Applicant was noted to be “aggressive, kicking and hitting the caged walls of the truck” and was “yelling and pointing” at the police officers stating that they are “both fucking dead”.[29] On 10 November 2022, the Applicant kicked two police officers in their leg and knee.[30]
[26] Direction 99 [8.1.1(1)(b)(ii)].
[27] Ex 6, 34-40.
[28] Ex 5, 25-33.
[29] Ex 5, 47.
[30] Ex 5, 144.
The evidence before the Tribunal indicates that in August 2000, the Applicant provided incorrect information on his incoming passenger card by ticking that he did not have a criminal record.[31]
[31] Ex 6, 120.
During the hearing, the Applicant accepted the seriousness of his conduct, and although there were occasions when he could not recall the specifics of his conduct, he nevertheless expressed remorse and apologies for his conduct. The Tribunal is satisfied that the Applicant’s apologies and expressions of remorse are genuine.
In the SFIC, and in oral closing submissions, the Applicant contended that his criminal record should be considered in light of his traumatic brain injury, which occurred in Australia in 1997.
It is correct that the majority of the Applicant’s offending occurred after his brain injury. As to the extent of any impact the brain injury had on the Applicant’s offending, it is difficult to determine based on the available material. In any event, any such impact is potentially a mitigating factor for the Court’s consideration. The Tribunal accepts that the Applicant for many years has had a drug and alcohol issue. The Tribunal considers the brain injury and the drug and alcohol issues to be more relevant to the consideration of impediments to removal, which will be addressed by the Tribunal under the relevant consideration.
There is information before the Tribunal relating to allegations that on 2 July 2023, the Applicant was aggressive, bullying and intimidating towards other detainees.[32] During the hearing and on legal advice, the Applicant declined to answer questions, exercising his right against self-incrimination. The Respondent contended that this is probative evidence of concerning conduct during detention. The Tribunal notes those allegations, but based on the available information, the Tribunal is not satisfied that the Applicant’s conduct on 2 July 2023 was as described in the incident report.
[32] Ex 6, 116.
The Respondent made submissions that the Applicant’s repeated offending has “persistently burdened the resources of the police system, the court system and corrective services”. Although the Respondent accepted that the Tribunal is bound by the judgment of Buntin,[33] namely that such a consideration is irrelevant, the Respondent argued that the reasoning is “plainly wrong”, in that there is nothing in the “subject-matter, scope and purpose of the Act or Direction 99 which grounds such a finding or seeks to limit the decisional freedom of the Tribunal in that way”.[34] The Tribunal is bound by Buntin and although the Tribunal agrees with aspects of the Respondent’s submissions relating to decisional freedom, that freedom does not include making findings or drawing conclusions that a judgment is wrong. The Tribunal is of the view that the question of resources could potentially be dealt with under the primary consideration of strength, nature and duration of ties to Australia, specifically in considering whether the Applicant’s contribution to the Australian community is positive.[35]
[33] Buntin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1055 (‘Buntin’).
[34] Ex 1, [42].
[35] Direction 99 [8.3(4)(a)(ii)].
The Tribunal is satisfied that the Applicant’s conduct is serious. It has involved violence and other unlawful conduct against women and public officials in the course of performing their duties. The Applicant has received multiple sentences of imprisonment and CCOs. Terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved.
Although there was a lengthy period of non-offending, between 2009 and 2016, the Applicant’s offending has been frequent and extensive; the Applicant has been convicted of over 35 offences from June 1993 to July 2023.
For those reasons, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[36] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[37] The Tribunal needs to consider the likelihood and consequences of further offending.[38]
[36] Direction 99 [8.1.2(1)].
[37] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[38] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
The Applicant argued that he is of mature age (49 years old), he is drug-free and has actively engaged in medical treatment, including seeing a Drug and Alcohol Counsellor, a psychologist, a psychiatrist, and attending the SMART recovery program while in detention. The Applicant contended that these factors mean that he does not represent an unacceptable risk to the Australian community.
The Respondent contended that in case of the Applicant re-offending, it is highly likely that the offending would involve physical, financial and psychological harm on members of the Australian community, including public officials. Domestic violence offending would result in an unacceptable physical and psychological harm to the victims. The Respondent argued that the cumulative effect of the Applicant’s extensive criminal record, frequency of offending, and the increasing seriousness indicates a strong likelihood of recidivism.
The Tribunal appreciates that past conduct is not necessarily an accurate predictor of future conduct, as there are multiple factors involved in one’s future behaviour. However, this does not mean that past conduct is not relevant; the Applicant has an extensive offending history, and it is correct that there is a significant gap when the Applicant did not offend. During the hearing, the Applicant explained the role that employment played in him not offending. Relevantly, in sentencing the Applicant on 24 June 2021, the Court referred to the period of non-offending, noting the following:
“With regard to your criminal history it is clear that you have got a lengthy 20 criminal history including for prior matters of violence. It is interesting to note though that you had a gap in offending, it would appear, between 2008 and 2016. So that gap in offending, obviously, is something to your credit. It is unfortunate then it seems to have lapsed back into offending, but obviously not to the same degree and you were dealt with by this court with community correction orders. So there is some prospect of rehabilitation simply based on that history.
Your sentence assessment report is really very reflective of the pattern of your history where clearly there is an impact of a history of alcohol and drug misuse. I note that you say at the time of this offence you were using methylamphetamine and misusing alcohol. Again, that is quite consistent with the nature of the offence that took place”.[39]
[39] Ex 6, 50.
In a Sentencing Assessment Report dated 16 March 2023, and in relation to risk assessment, the Applicant was assessed to be at a “high risk” of reoffending.[40] Counsel for the Applicant submitted that the Tribunal ought to give that report limited weight given the fact that there is no mention of the Applicant’s brain injury in the report, which raises concerns about the reliability of the conclusions drawn by the author. The Tribunal is of the view that while the report makes no mention of the Applicant’s brain injury, it is possible that the consideration of the brain injury could have led to a conclusion that the risk of re-offending is in fact heightened as a result of the brain injury. In any case, this is speculative. The Tribunal is persuaded by Counsel’s submissions that the lack of consideration of the brain injury means that limited weight ought to be given to that report. However, IHMS records give some indication of risk; on 21 June 2023, a Mental Health Nurse noted that the Applicant’s risk to others is “moderate due to current anger and impulsivity”.[41]
[40] Ex 5, 172.
[41] Ex 5, 391.
The Applicant has undertaken various courses and attended counselling. The Applicant indicated that in 1999, he completed a 10 month rehabilitation program for addiction at the Salvation Army William Booth and also attended AA meetings.[42] He has been involved in the SMART Recovery program at Villawood Immigration Detention Centre.[43] The Applicant provided a Letter of Completion for a Remand Domestic Abuse course dated 2 February 2023.[44] In the Sentencing Remarks dated 28 March 2023, it is noted that the Applicant’s then representative conceded that “there is work to be done in terms of his rehabilitation”.[45] In sentencing remarks dated 14 June 2021, the Court indicated that the Applicant needed “to address the issues with regard to drug and alcohol misuse”.[46]
[42] Ex 6, 94.
[43] Ex 3, 2.
[44] Ex 6, 99.
[45] Ex 6, 43.
[46] Ex 6, 50.
The Applicant contended that he has a strong support network in Australia including his brother and sister, who would assist.[47] The Applicant’s sister provided a Statutory Declaration dated 30 January 2024 expressing her willingness to assist the Applicant.[48] In oral evidence, she clarified that although she would not be able to provide accommodation, she would assist the Applicant in other ways. The Tribunal can only speculate about the impact of her assistance, if any, on the risk of re-offending. The Applicant referred to a friend, Mr R, who could assist the Applicant, but the Applicant referred to him as a “user”, that is a drug user. The Tribunal is persuaded by the Respondent’s submissions that association with Mr R could elevate the risk of the Applicant re-offending.
[47] Ex 6, 121.
[48] Ex 3, 3-4.
The Respondent contended that the Applicant lacked insight and remorse for his offending. The Sentencing Court on 14 June 2021 noted “in terms of the insight, it does appear to have somewhat minimal based on the report”.[49] The Sentencing Assessment Report dated 24 July 2020 referred to the Applicant’s limited insight.[50] During the Tribunal hearing, the Applicant came across as being remorseful and showing a degree of insight. The Tribunal is of the view that it is fair and reasonable to consider perceptions about the Applicant in the context of his significant brain injury.
[49] Ex 6, 50.
[50] Ex 5, 84.
The Tribunal acknowledges the Applicant’s efforts at rehabilitation and the Tribunal accepts the Applicant’s evidence that he is drug free, as this is supported by IHMS records. However, looking at the evidence cumulatively, the Tribunal is satisfied that there is a risk of the Applicant engaging in further criminal conduct. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[51]
[51] Direction 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[52]
[52] Direction 99 [8.2(3)].
The Applicant has been convicted of offences relating to family violence. On 29 June 2007, the Applicant was convicted of Contravene apprehended domestic violence order. The Applicant threw a metal ash tray at his former partner, Ms M, in the presence of their two young children. He threatened to kill her. On 28 March 2023, the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (domestic) and Contravene prohibition/restriction in AVO (domestic). The Applicant sent 100 harassing text messages to Ms M and threatening to kill her and execute others. On 27 July 2023, the Applicant was convicted of Contravene prohibition/restriction in AVO (domestic). The Applicant called Ms M on three occasions whilst he was incarcerated.
The Applicant is subject to two AVOs imposed on 28 March 2023 until 27 March 2025.[53] The AVOs are for the protection of Ms M and another female victim.[54]
[53] Ex 5, 175-180.
[54] Ex 5, 175-180.
The Tribunal considers the Applicant’s family violence conduct to be serious. In terms of rehabilitation achieved and as mentioned earlier, in February 2023, the Applicant completed a Remand Domestic Abuse course whilst incarcerated. However, looking at the evidence cumulatively and for reasons explained earlier, the Tribunal is not satisfied that this means that the Applicant has achieved a level of rehabilitation to minimise the risk of reoffending. On balance, the Tribunal finds that any rehabilitation achieved so far does not mean that it is unlikely that the Applicant would engage in further family violence conduct. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.
The Tribunal gives this consideration significant weight against revocation.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[55]
[55] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant arrived in Australia in 1978 at the age of four years.[56] He has departed Australia on six occasions since 1982, with his longest absence being over two years between 1993 and 1995. He has not departed Australia since his most recent arrival on 27 August 2000.[57]
[56] Ex 6, 87.
[57] Ex 6, 110-111.
The Applicant has contended that he has significant ties to Australia, including all of his immediate family members who reside in Australia, except for his father who resides in New Zealand.
The Applicant has two adult sons in Australia, who are Australian citizens. He has no contact with the two sons due to the AVO. He states that he intends to recommence his relationship with the sons. The Applicant believes he has an adult daughter who is an Australian citizen but he has never had a relationship with the daughter. In his personal Circumstances Form, the Applicant noted that he has two brothers and a sister, who are New Zealand nationals and live in Australia. He has two uncles, two aunts, and two cousins who are Australian citizens. He has three aunts/uncles who are in New Zealand.[58]
[58] Ex 6, 93.
The Applicant’s sister provided a Statutory Declaration and gave evidence in support of the Applicant. The Tribunal notes that the Applicant’s sister stated that she is “not very close to [her] siblings”.[59] There is evidence that the Applicant has had no contact with his two sons for many years,[60] although the Applicant has indicated that he has a close relationship with them.[61] The Applicant contended that non-revocation and potential deportation would have a negative impact on their relationship.[62]
[59] Ex 3, 3.
[60] Ex 5, 36.
[61] Ex 6, 93.
[62] Ex 6, 93.
The Applicant concedes that his ties to his family are not strong, but that they are nevertheless his immediate family.
The Respondent has contended that there is no evidence that the Applicant has positively contributed to the community in any way. The Tribunal notes that the Applicant has worked in Australia for many years and in that sense he has contributed in a positive manner. However, his contribution is also to be considered in the context of his long history of offending which would have impacted on police, judicial, health, and other relevant resources.
The Tribunal is satisfied that given the lengthy period the Applicant has spent in Australia, and although his ties may not appear to be strong, they are nevertheless ties which need to be considered in the context of a person who is vulnerable due to his brain injury and drug and alcohol dependence. It is reasonable to suggest that it is plausible that his criminal conduct, particularly the family violence, adversely impacted on his relationships and the strength of those ties.
On balance, the Tribunal gives this consideration some weight in favour of revocation.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[63]
[63] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three children that are over the age of 18 years old. This consideration does not apply to them.
The applicant has four minor nieces and nephews. He provided the name of one nephew.[64] The Applicant indicated that he and his Australian nieces and nephews “are not feeling good”.[65] The relationship between the Applicant and his nieces and nephew is non-parental, and it is difficult to see what impact, if any, non-revocation would have on the children. Moreover, there is some merit in the Respondent’s contention that it is unlikely that the Applicant would play a positive role given the extensive offending and substance abuse.
[64] Ex 6, 91.
[65] Ex 6, 92.
However and as a general principle, the Tribunal is of the view that the best interests of the Applicant’s minor nieces and nephews may be best served by revocation of the cancellation, as among other things, that would give him an opportunity to develop what can be a meaningful relationship with the minor children.
As such, the Tribunal gives this consideration some weight in favour of revocation.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially 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.[66] In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of a kind that includes acts of family violence.[67]
[66] Direction 99 [8.5(2)].
[67] Direction 99 [8.5(2)(a)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[68]
[68] Direction 99 [8.5(3)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[69]
[69] Direction 99 [8.5(3)].
The Federal Court of Australia’s decision in FYBR is significant.[70] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[71] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[72]
[70] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[71] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[72] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[73] that it is not for the decision-maker to make his or her own assessment of the community expectations,[74] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[75]
[73] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[74] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[75] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
The Tribunal is satisfied that the Applicant has been convicted of multiple serious offences, including family violence. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancellation of the Applicant’s visa because of his conduct.
The Tribunal gives this consideration significant weight against revocation. However, this is moderated as the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance. The principle at paragraph 5.2(5) of the Direction indicates that Australia ‘will generally’ afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[76] Direction 99 introduced the principle that the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. The Applicant has been in Australia for most of his life, including during his formative years.
THE OTHER CONSIDERATIONS
[76] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
The Applicant has not made any protection claims and the material before the Tribunal does not reveal any potential protection claims.
Accordingly, the Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is 49 years old and he suffers from significant traumatic brain injury arising from an assault perpetrated upon him in 1997. The Applicant has provided articles relating to the impact of brain injuries.[77] Although the articles are general and do not relate to the Applicant specifically, they are informative and provide insight into the potential effects of a brain injury. More specifically, there is evidence before the Tribunal that the Applicant was assaulted and sustained a traumatic brain injury “including a depressed, left [temporoparietal] skull fracture and an underlying contusion”.[78]
[77] Ex 3, 5-175.
[78] Ex 5, 1-3.
A report of a Clinical Neuropsychologist of 21 July 1997 indicated that the Applicant’s behaviour during assessments is suggestive of a “moderately severe disorder of executive control, manifest as disinhibition. His poor organizational skills, manifest when dealing with unstructured an unfamiliar information during testing, are further evidence of executive system dysfunction”. The report recommended that the Applicant required supervision in domestic and community activities.[79]
[79] Ex 5, 3.
An imaging report dated 24 August 2023, confirms that the Applicant has “extensive post-traumatic encephalomalacia involving the left temporal, parietal and occipital lobes with further involvement of both anterior-inferior temporal lobes as well as the frontal lobes including the left gyrus rectus.”[80]
[80] Ex 4, 11.
A report by Dr Hanna, Physician, dated 14 August 2023, confirmed the Applicant’s head and brain injury.[81] More recently, an IHMS consultation report of a Psychiatrist on 21 December 2023 referred to the Applicant’s brain injury:
“[The Applicant scored] 14/18 on Frontal Assessment Battery. Main deficits were in lexical fluency and similarities testing…
Also reported he has a visual field defect which affected his seeing the dots on the trailmaking test…
[The Applicant engaged] reasonably and was cooperative with testing. Not agitated. Slowed verbal response. Affect mildly flattened. Appeared perplexed on a couple of occasions. No thought disorder but concrete in his manner. No overt psychosis. No suicidal ideation…
MRI on 24/8/23 showed extensive post traumatic encephalomalacia…
Has evidence of enduring cognitive deficits which are most likely secondary to the head injury. Deficits on both MOCA and FAB today…
Has reasonable capacity to understand basic information regarding his immigration matters”.[82]
[81] Ex 4, 15-16.
[82] Ex 5, 274.
The Applicant has also been treated for depression and anxiety.[83] He has had a drug and alcohol issue but has not used drug and alcohol for some time. He has seen multiple health professionals in Australia. He was in receipt of the Disability Support Pension.
[83] Ex 6, 96.
There is evidence before the Tribunal that the Applicant may suffer from schizophrenia.[84] This issue was explored extensively during the hearing. The Tribunal requested the parties to look into this matter further and on 6 February 2024, the Tribunal received confirmation from IHMS that there is no formal diagnosis of the Applicant having schizophrenia. Based on the available information, the Tribunal has not concluded that the Applicant suffers from schizophrenia.
[84] Ex 5, 394.
Although the Tribunal accepts the Respondent’s contentions that the Applicant could continue to receive commensurate treatment in New Zealand, which has comparable medical services available to that of Australia, the Tribunal is of the view that the brain injury presents a significant impediment in the Applicant’s ability to settle in New Zealand, and navigate a different environment.
The Tribunal also accepts that the Applicant would have access to the same social, medical and economic support available to other citizens of New Zealand. However, that access must be considered in the context of his brain injury which would impact his ability to understand, engage, and navigate new procedures. It is not far-fetched to suggest that the brain injury could impact his ability to find employment, housing, and a support network. The Applicant has his father in New Zealand, but the father is elderly (born in 1945)[85] and it is doubtful that he would be able to assist the Applicant in a meaningful way.
[85] Ex 6, 93.
On the cumulative evidence, the Tribunal is satisfied that if removed from Australia, the Applicant would experience significant mental, emotional, practical and financial hardships, which would be difficult to overcome given his significant brain injury.
In light of the above, the Tribunal is not persuaded by the Respondent’s submissions that this consideration weighs slightly in favour of revocation of the cancellation. The Tribunal is satisfied that on balance, significant weight in favour of revocation is to be given to this consideration, and the Tribunal does so.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[86]
[86] Direction 99 [9.3].
The Tribunal does not have specific information about any impact of non-revocation or revocation on the victims.
The Tribunal gives this consideration neutral weight.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of impact on an Australian business.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The visa cancellation process is not intended to be a formulaic exercise, but rather a holistic approach, giving appropriate weight to the considerations under the Direction. The Applicant has been convicted of serious and violent offending, and some of his convictions relate to family violence and violence against public officials, all of which are viewed seriously under the Direction. There is also a risk of reoffending.
An important consideration for the Tribunal is that the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance. The principle indicates that Australia ‘will generally’ afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[87] Direction 99 introduced the principle that the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. The Applicant has been in Australia for most of his life, including during his formative years.
[87] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
Another significant issue in this case is the Applicant’s brain injury, which the Tribunal considers to be an important consideration in terms of an impediment.
Although there are aspects against revocation, the Tribunal is satisfied that the cumulative evidence indicates that the aspects in favour of revocation outweigh the aspects against revocation. Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
117. I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.
................................[SGD]...................................
Associate
Dated: 16 February 2024
Date of hearing(s):
5 & 6 February 2024
Counsel for the Applicant:
Mr P Berg
Solicitor for the Applicant:
Ms M Mamarot, SouthWest Migration & Legal Services
Solicitor for the Respondent:
Mr L Dennis, Mills Oakley
0
11
0