Thompson and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 96
•11 January 2023
Thompson and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 96 (11 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8857
Re:John Thompson
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member George
Date:11 January 2023
Date of written reasons: 8 February 2023
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 10 October 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
............[Sgnd].............
Senior Member George
Catchwords
MIGRATION – Class TY 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No.90 – offending very serious – decision under review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, at [26]-[27]
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, [44]FYBR v Minister for Home Affairs [2019] FCA 500
Pavey and Minister for Home Affairs [2019] AATA 4198, [44]
SECONDARY MATERIAL
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
8 February 2023
Mr Thompson (“the Applicant”) is a citizen of New Zealand.[1] The Applicant first arrived in Australia in June 2001, where he has substantially resided since.[2]
[1] Exhibit R2, G-Documents, G2, page 94.
[2] Exhibit R2, G-Documents, G2, page 82.
On 10 September 2001, the Applicant was granted a Class TY 444 Special Category (Temporary) visa.[3] On 15 March 2019, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as he failed the “character test”.[4] On 15 April 2019, the Applicant made representations seeking revocation of the cancellation decision.[5]
[3] Exhibit R2, G-Documents, G2, page 83.
[4] Exhibit R2, G-Documents, G2, pages 83-88.
[5] Exhibit R2, G-Documents, G2, pages 89-92.
On 10 October 2022, a delegate was not satisfied that the Applicant passed the “character test” and that there was not another reason why the cancellation decision should not be revoked.[6] This is the reviewable decision.
[6] Exhibit R2, G-Documents, G2, pages 13-26.
The Applicant lodged an application for review of the reviewable decision before the Tribunal on 27 October 2022. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing proceed by audio-visual means on the 4th, 5th, and 6th of January 2023. Oral evidence was received from the Applicant and his partner, Ms Monica Agudelo. The Applicant was self-represented. The Respondent was represented by Mr Morris of Clayton Utz.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No. 90 (“the Direction”),[7] to revoke the cancellation.
[7] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 14 March 2008, the Applicant was convicted in the Central Criminal Court of New South Wales for the offence of murder.[8] He was sentenced to 20 years imprisonment, with a non-parole period of 15 years.[9]
[8] Exhibit R2, G-Documents, G2, page 27.
[9] Exhibit R2, G-Documents, G2, page 27.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the refusal of the Applicant’s visa application should be revoked?
In considering whether to exercise its discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA has application.[10]
[10] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND and offending
The Applicant arrived in Australia in 2001 when he was 18 years of age. He was raised by his mother and maternal grandmother; his parents having separated before he was born.[11] From the age of five, the Applicant grew up with a stepfather who was a violent alcoholic.[12]
[11] Exhibit R2, G-Documents, G2, page 35.
[12] Exhibit R2, G-Documents, G2, pages 35-36.
The Applicant lived in New Zealand until 1994 where he was sent back to Samoa and remained there until 2001. The Applicant was sexually interfered with by a family member at the age of 11 and 12 years while in Samoa.[13]
[13] Exhibit R2, G-Documents, G2, page 36.
Upon the Applicant’s arrival into Australia, he met his father and lived with him in Queensland for a few months. He then moved to Sydney in late 2001. Between late 2001 and the date of his arrest, the Applicant worked as an offsider with two different councils where he did landscaping. His employment history also consisted of working in the demolition industry, washing trucks, security work and in 2004 he started working as a car-park attendant.[14] During his closing address, the Applicant emphasised the pride in his work as a car-park attendant.
[14] Exhibit R2, G-Documents, G2, page 36.
The Applicant commenced a relationship with the Deceased on 26 June 2003.[15]
[15] Exhibit R2, G-Documents, G2, page 36.
The Applicant was “smoking the drugs” by 2003,[16] which the Tribunal interprets as smoking “weed” or cannabis.[17] This drug abuse continued for many years, including during the Applicant’s period of imprisonment, when in approximately 2018 the Applicant started “making headways, I stopped smoking pot, I stopped shooting up ice, but it was just the bupe that I was struggling with”.[18] “Bupe” is the opioid buprenorphine.
[16] Transcript, page 6, lines 6-23.
[17] Transcript, page 18, line 5.
[18] Transcript, page 42, lines 12-13.
On 23 March 2005, in the Local Court of New South Wales at Campbelltown, the Applicant received a Bond for the following:
(a)One count of “Behave in offensive manner in/near public place/school”;
(b)Two counts of “Assault officer in execution of duty-T2”; and
(c)One count of “Resist officer in execution of duty-T2”.[19]
[19] Exhibit R2, G-Documents, G2, page 29.
On 29 June 2005, in the Local Court of New South Wales at Campbelltown, the Applicant received a Bond requiring him to undertake the “Mayfields Recovery Program” and to “continue counselling with the Drum Youth Centre” for the following:
(a)One count of “Resist officer in execution of duty-T2”;
(b)Two counts of “Assault officer in execution of duty-T2”;
(c)One count of “Behave in offensive manner in/near public place/school”;
(d)One count of “Destroy or damage property <=$2000-T2”; and
(e)One count of “Assault officer in execution of duty-T2”.[20]
[20] Exhibit R2, G-Documents, G2, pages 28-29.
The Applicant’s evidence is that he completed 10 weeks of counselling.[21]
[21] Transcript, page 16, lines 20-21.
There was a history of domestic violence between the Applicant and the Deceased. On 30 August 2005, the Applicant had been convicted in the Local Court of New South Wales at Campbelltown of “Common assault-T2” and “Destroy or damage property <=$2000-T2”. The Applicant had punched the Deceased in the face. The Applicant was placed on a Bond for 12 months and the Deceased was granted an Apprehended Domestic Violence Order which, in addition to the general conditions, prohibited the Applicant from approaching her within 12 hours of consuming alcohol.[22]
[22] Exhibit R2, G-Documents, G2, pages 28, 32.
The Applicant’s offence of murder on 28 January 2006 was committed in breach of his Bond and Apprehended Domestic Violence Order.
The Deceased was 18 years of age when the Applicant murdered her. He was 22 years of age. They had one child from the relationship who was 19 months old at the time. He is the Applicant’s only child and is now an adult.[23]
[23] Exhibit R2, G-Documents, G2, page 32.
In His Honour’s sentencing remarks dated 14 March 2008, Hoeben J outlined the background facts to the Applicant’s offence of murder.[24] On 27 January 2006, the Applicant commenced drinking with a group of friends at about 10pm. At about 11pm the Deceased and her sister drove to where the Applicant was drinking with his friends and spoke for a short time. The Deceased left and picked up her son, being the son also of the Applicant, arriving home at about 11:30pm. During this period the Applicant had consumed about half a cask of wine and about six bottles of full-strength beer.
[24] Exhibit R2, G-Documents, G2, pages 32-33.
Between 4am and 5am, the Deceased’s ex-partner accused the Applicant of allegedly saying something about him to the Deceased. The Applicant denied this, and the Deceased’s ex-partner said “Well it would have had to come from your woman. I don’t know who else would say it. Why don’t you go home when you’re straight and sort it out with her”. The Applicant returned home. What then followed was a “violent and frenzied” murder by the Applicant of his partner.[25]
[25] Exhibit R2, G-Documents, G2, page 43.
His Honour described the Applicant’s offending in the following terms:
The offender arrived home some time between 5 and 6 am. The offender entered the house through the back door, which the deceased had left open for him. The offender walked up the stairs to the master bedroom where the deceased was sleeping. As the offender approached the deceased he was yelling in a loud voice calling the deceased a “fucking slut”. This woke the deceased and she said something like “What’s wrong?”. The offender then punched the deceased in the face and at the same time saying, “Why do you have to talk shit behind my back?”.
The offender’s recollection of what thereafter occurred is variable. On occasions he said that he had no further recollection and on other occasions he appeared to remember isolated events which occurred. I am satisfied that these islands of recollection accurately record what happened.
The offender recalled the deceased getting up and he continued to yell at her, repeatedly calling her a “slut”. At some point in time the offender recalled seeing the deceased on the floor of the bedroom. When the offender left the room he saw the deceased sitting up hunched over on the floor ‘crying or making some noise”. Witnesses in the neighbouring duplexes heard the offender yelling and heard a lot of banging.
At some stage during the assault on the deceased, [the Applicant and deceased’s son] woke up and climbed out of his cot. The offender recalled putting him back in his cot and going downstairs. The offender turned the television on and lay on the lounge from where he continued to yell at the deceased. At some stage the offender fell asleep.[26]
[26] Exhibit R2, G-Documents, G2, pages 32-34.
The precise sequence of events during the Applicant’s attack on the Deceased is unknown. However, the cause of death of the Deceased was due to a head injury and blunt force trauma.
Upon arrival at the residence, police found the following objects located near on or around the Deceased’s body:
Neck and glass fragments from a Jack Daniels Tennessee whisky bottle. Half a metal television stand fitted with wheels (the glass base of the stand had been smashed and glass fragments located). Broken television casing. Broken television screen. Pedestal fan with dented white metal pipe. Metal candelabra (tangled in the deceased’s’ hair).[27]
[27] Exhibit R2, G-Documents, G2, page 34.
The blood spatter analysis reached the following conclusions:
(a) The extent of the blood splatter deposited throughout the main bedroom indicated a prolonged assault.
(b) The concentration of bloodstains low on the wall suggested that the victim was lying on the floor during part of the assault.
(c) The presence of six separate bloodlines of travel suggests a minimum of seven blows.
(d) The extent of the damage to items, the facial and head injuries on the deceased and the amount of impact spatter and transfer suggested a sustained assault.[28]
[28] Exhibit R2, G-Documents, G2, page 34.
His Honour found:
… beyond reasonable doubt that the assault was prolonged and sustained and that not only did the offender punch the deceased on a number of occasions, but he also kicked her whilst she was lying on the floor against the wall.[29]
[29] Exhibit R2, G-Documents, G2, pages 34-35.
During that morning the Applicant went upstairs and saw the Deceased lying naked on the bedroom floor. He saw the Deceased was covered in blood, badly bruised, and had a swollen eye. He also saw a large amount of blood on the floor and walls. The Applicant attempted to wake the Deceased but said she felt cold. The Applicant’s clothing and shoes had blood on them.
Under cross-examination, the Applicant explained his reaction upon finding the Deceased. He said:
APPLICANT: So yes, I held her in my arms, and I’d seen the wound there and, yes, that’s when I realised, the memory came back, the anger, I thought about it and I was like whoa. And there was a piece of glass there, I was going to stab it in my neck and - but that’s when I heard [the Applicant’s son] coming up the stairs, I heard him call out, dad, dad, and that split second, I was like, shit, you know, like - - -
MR MORRIS: At this time, were you aware [the Deceased] had passed away?
APPLICANT: At this time I was like, what the fuck? I don’t know if she was passed out, or dead but when she was cold I was like, my god, my god, but because [the Applicant’s son] was there, I thought, fuck, I’ve got to get my shit together. And that’s when I thought, I need to run and get some help, you know, so like, I thought going to my aunty, she came back, she helped me. But at that same time, we had someone try to go and call an ambulance, we don’t know what’s going on.[30]
[30] Transcript, page 28, lines 40-45; page 29, lines 1-7.
The Applicant’s son was wearing a nappy and had his mother’s blood on him from laying down next to his mother’s body.[31]
[31] Transcript, page 29, lines 43-45; page 30, lines 21-23.
After an ambulance arrived, arrangements were made for the Applicant to attend Campbelltown Police Station. The Applicant was subsequently placed under arrest for the murder of the Deceased,[32] convicted of that offence, and gaoled. His Honour noted that
There was no question but that the offender is genuinely remorseful about his conduct. He voluntarily surrendered himself to the police. He has substantially co-operated with the police. His plea of guilty is consistent with this genuine remorse. His letter to the Court and behaviour while in custody support that conclusion.[33]
[32] Exhibit R2, G-Documents, G2, pages 34-35.
[33] Exhibit R2, G-Documents, G2, pages 43-44.
During the hearing, the Applicant gave evidence that “I will always carry the life that I took, probably never forget - I will never let myself forget or forgive myself”.[34]
[34] Transcript, page 8, lines 13-14.
In his sentencing remarks, His Honour addressed the Applicant’s risk of recidivism. His Honour remarked:
In relation to mitigating factors, it was submitted on behalf of the offender that he was unlikely to re-offend (s 21A(3)(g)) and that he had good prospects of rehabilitation (s 21A(3)(h)). I am not satisfied that this can be stated in such unequivocal terms. The offending was associated with poly-substance abuse which has continued. Although Dr Westmore and the Probation and Parole Service refer to the fact that the offender has some insight into his problem, neither could offer any unqualified assurance that the offender would be unlikely to re-offend. The offender would need to first bring his substance abuse under control. There remains doubt as to whether that can be achieved.[35]
[Emphasis added]
[35] Exhibit R2, G-Documents, G2, pages 43-44.
A report by the New South Wales Department of Corrective Services reveals that,[36] whilst imprisoned, the Applicant was punished for various offences including:
(a)“Fail Prescribed Drug Test” in December 2018;
(b)“Possess Drug Implement” in January 2019 and February 2017 and September 2014;
(c)“Prepare, Manufacture Alcohol” in December 2016;
(d)“Fail Prescribed Urine Test” in January 2014 and January 2011;
(e)“Possess Drug” and “Poss Create Proh Goods” in August 2012; and
(f)“Poss consume alcohol” in December 2011.
[36] Exhibit R2, G-Documents, G2, pages 51-52.
The Applicant was also involved in several other incidents whilst imprisoned,[37] some of which involved violence and property destruction.
[37] Exhibit R2, G-Documents, G2, pages 53-181.
The Applicant’s evidence is that he commenced a methadone program on 25 July 2019 upon the urging of his brother after a medical incident involving buprenorphine.[38] He has sought psychological assistance,[39] and attended domestic abuse and drug abuse classes.[40]
[38] Transcript, page 43, lines 15-28.
[39] Exhibit R2, G-Documents, G2, page 110.
[40] Exhibit R2, G-Documents, G2, pages 135-147.
The Applicant has been supported by his partner Ms Monica Agudelo.[41] Ms Agudelo and the Applicant have been in relationship since December 2019,[42] they are engaged to be married,[43] and they regard Ms Agudelo’s biological daughter as their daughter.[44] This child was born in October 2009 and is now aged 13 years old (‘the Child’).
[41] Exhibit A3.
[42] Transcript, page 26, lines 8-12.
[43] Transcript, page 26, lines 14-17.
[44] Transcript, page 26, lines 34-35.
In Ms Agudelo’s undated letter of support provided to the Tribunal she described the Applicant’s relationship with the Child in the following terms:
In this letter of support and acknowledgment is for my partner John. As we have now reached 3 years in our relationship with our daughter [her name].
… He has lost seeing his own child growing up, as well as our daughter [her name] that he has experienced talking to from primary to high school and has experienced small things like what she liked, to her dislike’s and what this new world offers.
… With John I feel loved and cared, I see his honesty, I see how caring John not only with me but also with my daughter.[45]
[45] Exhibit A3.
In her letter of support for the Applicant, dated 8 July 2020, the Child wrote:
I am his daughter, having a father that is here for me would make me feel so happy to know that he is with me and not being deported. If my father was deported it would make me feel heart broken and would not be able to have my father come to all my father and daughter stud we do at school like draw or be with him and do activities with him.
I know he did bad in the past, but I also know that he has changed alot. Please consider my feelings as a child at the age of ten, as I grew up without a father.[46]
[46] Exhibit R2, G-Documents, G2, page 120.
There is an emotional bond between the Applicant and the Child.[47] However, the Applicant and the Child have never physically met. They have only met through video chat.[48] Ms Agudelo has always refused offers of financial assistance from the Applicant.[49] Outside of telephone and video calls, the Applicant has not performed the duties that would ordinarily be expected of a father although he is committed to doing so if given the chance.[50]
[47] Exhibit A2.
[48] Transcript, page 27, lines 1-2.
[49] Transcript, page 27, lines 4-10.
[50] Transcript, page 11, lines 25-28.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant has been convicted of murder of his relatively young female domestic partner, who was the mother of his son. This offending is viewed very seriously by the Tribunal.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant has committed several offences, on numerous occasions against police in the performance of their duties. This offending is viewed seriously by the Tribunal.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[51]
[51] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant was sentenced to a period of 20 years imprisonment for murder, with a non-parole period of 15 years. This period of incarceration followed the granting of Bonds by Courts for previous offending. The Tribunal considers this custodial sentence to be objectively very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant assaulted police on several occasions before assaulting the Deceased in 2005. He murdered her in 2006. The Applicant’s offending was frequent and increased in seriousness prior to the murder.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s violent offending towards the Deceased is that a young woman died, leaving a young son behind to grow up without his mother.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not regard this factor to be relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.
The Tribunal does not consider that factors (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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:
oinformation and evidence on the risk of the non-citizen re-offending; and
oevidence 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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The Applicant has expressed remorse for his offending, in particular for the murder of the Deceased. He has taken some steps, albeit belatedly, to address his substance abuse issues. He is in a pro-social relationship with Ms Agudelo and aspires to perform the duties that would ordinarily be expected of a father if released into the Australian community.
Although the Applicant’s parole conditions are not before the Tribunal, this Tribunal generally views supervision on parole as a protective factor that guards against recidivism. Parole is not, however, a guarantee against engaging in further criminal or other serious conduct.
His Honour made it clear in his sentencing remarks that he was not persuaded that the Applicant was unlikely to re-offend, or that he had good prospects of rehabilitation. His Honour noted that the murder “was associated with poly-substance abuse which has continued” and that there remained doubt as to whether the Applicant would be able to bring his substance abuse under control. In His Honour’s view, this issue of substance abuse was central to whether the Applicant was likely to re-offend.[52]
[52] Exhibit R2, G-Documents, G2, pages 43-44.
Despite the years that have passed since the sentencing remarks were made, the connection that His Honour identified regarding the Applicant’s drug abuse and risk of re-offending remains. Since 2018, the Applicant has increasingly brought his drug abuse under control. However, there is insufficient evidence before the Tribunal for it to be satisfied that the Applicant’s substance abuse has resolved. On the evidence before it, the Tribunal is not satisfied that the Applicant would not engage in poly-substance abuse if released into the Australian community.
The Tribunal is conscious 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.
The Applicant murdered the Deceased. He did so in breach of his Bond and an Apprehended Domestic Violence Order. The Applicant had previously assaulted the Deceased. He had also previously assaulted police in the performance of their duties. With the Applicant’s unresolved substance abuse issues, the risk that the Applicant may engage in further criminal or other serious conduct is unacceptable. This weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
The term “family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful. A non-exhaustive list of family violence includes:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, [of] his or her liberty.
It is unnecessary to repeat the relevant evidence and findings considered in Primary Consideration 1 for the purposes of Primary Consideration 2. The Applicant’s conduct of murdering his partner, the Deceased, constitutes family violence. Similarly, the Applicant’s prior assault of the Deceased also constitutes family violence.
Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.
The Applicant arrived in Australia in 2001 and was frequently committing criminal offences by 2005. In 2006, the Applicant’s offending escalated in seriousness to murder.
Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.
The primary cumulative effect of the Applicant’s repeated acts of family violence is that the Deceased was killed. Her son has had to grow up into adulthood without the benefit of his mother.
Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
The Applicant accepted responsibility for his offending when he entered his pleas of guilt. He has taken positive steps towards his personal development in recent times; however, he has not abstained from drugs and alcohol whilst imprisoned.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.
The Applicant breached a Bond and an Apprehended Domestic Violence Order, which protected the Deceased, when he murdered her. That Apprehended Domestic Violence Order was a clear direction by a Court about the consequences of further acts of family violence.
The sub-paragraphs of paragraph 8.2(3) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: The best interests of minor children in Australia AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3), respectively, contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. The Tribunal will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.3(4) of the Direction requires the Tribunal to consider 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).
Through Ms Agudelo, the Applicant has had a relationship with her daughter for approximately three years. The relationship between the Applicant and the Child has become parental. Nevertheless, the Applicant and the Child have never physically met. Their contact has been limited, as has the paternal role that the Applicant has performed due to his incarceration and detention.
Sub-paragraph (b) of paragraph 8.3(4) of the Direction causes a decision-maker to examine 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.
Notwithstanding issues of substance abuse and risks of recidivism, the evidence before the Tribunal is that the Applicant presently plays a positive parental role in the life of the Child. Given that she is aged 13 years old, and if supported by Ms Agudelo, it is possible that the Applicant could play a practical and supportive role in the life of the Child if he were released into the Australian community.
Sub-paragraph (c) of paragraph 8.3(4) of the Direction points to 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.
There is no evidence before the Tribunal that the Applicant’s prior conduct has had any negative impact on the Child. Similarly, the evidence before the Tribunal does not support a finding that the Applicant’s likely future conduct would have a negative impact on the Child.
Sub-paragraph (d) of paragraph 8.3(4) of the Direction causes a decision-maker to consider 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. Where the evidence indicates that there may be ongoing harm to a child caused by separation from the non-citizen, the decision-maker should evaluate the significance of the harm, its quality and character.[53]
[53] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, [44].
To the extent that the Applicant and the Child have never had physical contact, they would not be physically separated. The Applicant and the Child could continue to have telephone and video contact.
There is no objective evidence before the Tribunal of any ongoing harm that would be caused to the child by the removal of the Applicant from Australia.
Sub-paragraph (e) of paragraph 8.3(4) of the Direction points to whether there are other persons who already fulfil a parental role in relation to the child.
The evidence is clear that Ms Agudelo has sole parental responsibility for the Child whilst the Applicant is in detention.
Sub-paragraph (g) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any 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.
There is no evidence that the Child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally.
Sub-paragraph (h) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence that the Child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
For completeness, the Applicant has various nieces and nephews.[54] However, there is insufficient evidence before the Tribunal for it to be satisfied that he plays a meaningful role in their lives or that he would do so if released into the Australian community.
[54] Exhibit R2, G-Documents, G2, pages 101, 122.
The sub-paragraphs of paragraph 8.2(4) of the Direction, in their totality, have limited weight in favour of revocation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 has limited weight in favour of revocation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[55]
[55] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government, which the decision-maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant moved to Australia in 2001 when he was 18 years old and is now aged 39 years.
(b)Prior to his incarceration, the Applicant had a reasonable employment history.
(c)The Applicant murdered his domestic partner after previously assaulting her.
(d)The Applicant assaulted police.
(e)The Applicant’s criminal conduct is very serious.
(f)The Applicant’s preparedness to commit crimes raises serious character concerns.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) International non-refoulement obligations
The Applicant does not pursue claims with respect to Australia’s non-refoulement obligations and no claim arises on the evidence. Accordingly, a consideration of Australia’s non-refoulement obligations is not relevant.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is aged 39 years old and, despite his long-term substance abuse, is in relatively good physical health. He is medicated for anxiety and depression.[56]
[56] Exhibit R2, G-Documents, G2, page 104.
There is no evidence of any substantial language or cultural barriers that the Applicant would face were he removed to New Zealand.
There is no evidence before the Tribunal of social, medical or economic supports in Australia for which the Applicant is eligible that would not be available to him in New Zealand. Nevertheless, the Tribunal is satisfied that the Applicant’s re-integration into the Australian community would be assisted by Ms Agudelo. It is also reasonable to infer that the Applicant would be assisted by the structure of his parole in re-integrating into civil society.
Accordingly, the Tribunal is satisfied that the extent of the Applicant’s impediments if removed from Australia to New Zealand carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration 9(1)(c) requires that decision-makers must consider the impact of the s 501 or s 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.
The Tribunal notes the full range of the Applicant’s criminal offending and the scope for numerous victims beyond the Deceased. Nevertheless, there is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims. Accordingly, the Tribunal does not regard this consideration to be relevant.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2, respectively:
(a) the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In guarding against repetition in considerations, there is limited scope for the Tribunal to take into account the considerations of an Applicant’s family where family members are also the Applicant’s victims.[57]
[57] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, at [26]-[27].
The Applicant has resided in Australia for over 20 years, although most of that period has been spent in custody. During his incarceration, the Applicant abused drugs and was involved in numerous infractions. This has limited the Applicant’s pro-social networks in Australia since his murder of the Deceased and his incarceration for that crime.
The Tribunal notes that the Applicant does not presently have any contact with his son with the Deceased.
The Applicant’s father and brother, and Ms Agudelo and the Child, will be most impacted by any decision to deprive the Applicant of the privilege of returning to the Australian community.
Accordingly, the Tribunal is satisfied that the Applicant’s strength, nature, and duration of his ties to Australia carry some weight in favour of exercising the discretion to revoke the mandatory cancellation of his visa.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;
(c)impact on victims: not relevant; and
(d)links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against revocation;
(b)Primary Consideration 2 weighs very heavily against revocation;
(c)Primary Consideration 3 has limited weight in favour of revocation;
(d)Primary Consideration 4 weighs very heavily against revocation; and
(e)The weight attributable to the four-listed Other Considerations as found above.
The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1, 2 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations.
A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 10 October 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 140 paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Associate
Date of Decision:
Date of Written Reasons:
11 January 2023
8 February 2023
Date of Hearing:
4-6 January 2023
Solicitor for the Applicant:
Self-Represented
Solicitor for the Respondent:
Mr O Morris
Clayton UtzANNEXURE A – Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions
R
22/12/2022
22/12/2022
04/01/2023
A1
Applicant’s Statement of Facts, Issues and Contentions
A
Undated
12/12/2022
04/01/2023
R2
Section 501 – G-Documents
R
Various
16/11/2022
04/01/2023
A2
Applicant’s ‘Bundle of Documents’ – Birthday card, Birthday cards (2) and Easter card.
A
Undated
12/12/2022
04/01/2023
A3
Applicant’s Letter of Support of Monica Agudelo
A
Undated
12/12/2022
04/01/2023
2
8
0