Thompson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4206
•16 November 2021
Thompson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4206 (16 November 2021)
Division:GENERAL DIVISION
File Number: 2021/5869
Re:Ashley Thompson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:16 November 2021
Place:Melbourne
Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – applicant held class TY subclass 444 special category (temporary) visa – visa mandatorily cancelled under Migration Act – applicant concedes he fails character test – delegate decided not to revoke mandatory cancellation – applicant seeks review by Tribunal – threshold question as to whether applicant is in category of non-citizen non-alien – consideration of the tripartite test in Mabo case as established in Love and Thoms case limits reach of Parliament’s legislative power – Tribunal finds applicant does not meet tripartite test – applicant placed under guardianship as baby and then brought to Australia as infant – Tribunal further finds applicant is New Zealand citizen - ministerial direction under Act with which decision-makers must comply – primary considerations – protection of the Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence – what is meant by ‘family violence’ in the context of the Direction – the best interest of minor children in Australia – three relevant children – differing interests of children – expectations of Australian community – other relevant considerations – extent of impediments if applicant removed to New Zealand – impact on victims – links to the Australian community – any other relevant matter – decision under review affirmed
JURISDICTION – whether Tribunal has power to consider application for review – consideration of evidence about whether naturalization and aliens power under Constitution on the evidence supports finding applicant is a non-citizen non-alien – Tribunal satisfied on evidence that jurisdiction exists – applicant therefore entitled to have decision reviewed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 18B, 33A
Australian Citizenship Act 2007 (Cth), s 6(1)(d)
Commonwealth of Australia Constitution Act (Cth), s 51(xix)
Family Law Act 1975 (Cth), s 4AB
Guardianship Act 1968 (NZ), s 11Migration Act 1958 (Cth), ss 5G, 198, 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Harris v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re: [2021] AATA 753
Helmbright and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1872
Jameson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re [2021] AATA 2111
Love v Commonwealth of Australia; Thoms v Commonwealthof Australia [2020] HCA 3
Mabo v Queensland (No 2) (1992) 175 CLR 1
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433
Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
16 November 2021
PRELIMINARY
The Applicant in this matter is Mr Ashley Thompson. That is his legal name, although he has also been commonly known throughout most of his life, and not in a manner of subterfuge, as Mr Luke Robin. Some documents before the Tribunal in this matter were in the latter name. He will be referred to in the body of these reasons as Mr Luke Robin.
Mr Robin was born in Hastings, New Zealand, in 1993. For reasons that follow, the Tribunal has found that he is a New Zealand citizen.
Mr Robin arrived in Australia in November 1998 and has not departed. He held a Class TY Subclass 444 Special Category (Temporary) visa. This class of temporary visa entitles the holder to stay in Australia for an indefinite period but does not confer permanent residency rights. On 29 September 2020, Mr Robin’s visa was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) under section 501(3A) of the Migration Act1958 (‘the Act’) on the basis that the delegate was satisfied that Mr Robin had a ‘substantial criminal record’ as that term is defined in the Act and therefore fails the character test in section 501(6)(a) on the basis of section 501(7)(c) of the Act.
Mr Robin was invited to make representations to the Department of Home Affairs (‘the Department’), which he did on 27 October 2020. On 23 August 2021, another delegate of the Minister decided under section 501CA(4) of the Act not to revoke the mandatory cancellation of the visa.
Mr Robin has brought that decision of 23 August 2021 to the Tribunal for review, as the Act entitles him to do under section 500(1)(ba) of the Act.
A letter notifying the Applicant of the delegate’s decision not to revoke the mandatory cancellation of his visa is before the Tribunal and is dated 24 August 2021. There is a strict timeframe for the Tribunal to review these decisions. Under section 500(6L)(c) of the Act, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision, the Tribunal is taken to have affirmed the decision under review. That date in this matter is 16 November 2021.
HEARING
The hearing of the matter was on 4 and 5 November 2021 by videoconference, under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) and in accordance with the COVID-19 Special Measures Practice Direction issued by the President under section 18B of the AAT Act and dated 27 April 2020. Mr Robin represented himself and made submissions. The Minister was represented by Mr Greg Johnson of counsel, instructed by Mr Adrian Downie of The Australian Government Solicitor.
The Tribunal heard from the following witnesses called by the Applicant: Ms Jaye Williams, his former partner; Mrs Joan Gaspero, his great grandmother; Mrs Barbara Robin, his adoptive mother; and Ms Louise Mclellan, a friend.
The Tribunal admitted into evidence a volume of G (or ‘GD’) documents collated by the Respondent and lodged on 20 September 2021 (Exhibit R1) and a volume of supplementary ‘SGD’ documents lodged on 22 October 2021 (Exhibit R2). Mr Johnson also tendered a letter from Ms Mclellan provided to the Respondent prior to the hearing by the Applicant (Exhibit R3).
The Tribunal also admitted into evidence the following documents submitted by the Applicant:
(a)Statement of the Applicant dated 29 October 2021 (Exhibit A1);
(b)Statement of Ms Jaye Williams (Exhibit A2);
(c)Statement or Mr L. M. Cowan (Exhibit A3);
(d)Statement of ‘AW’, the Applicant’s son (Exhibit A4);
(e)Statement of Mrs Joan Gaspero (Exhibit A5);
(f)Statement of Mrs Barbara Robin (Exhibit A6);
(g)Birth certificate of AW (Exhibit A7);
(h)Birth certificates of AL and AE, the Applicant’s daughters (Exhibit A8);
(i)Letter from AW with photographs (Exhibit A9);
(j)Photograph A lodged 29 October 2021 (Exhibit A10); and
(k)Photograph B lodged 29 October 2021 (Exhibit A11).
The Respondent submitted a written Statement of Facts, Issues and Contentions. The Applicant also submitted a decision of the Tribunal, Re: Jameson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2111 (‘Jameson’).
LEGISLATIVE FRAMEWORK
What is the matter for the Tribunal to decide?
The Tribunal is not reviewing the decision of the delegate who refused to revoke the mandatory cancellation of Mr Robin’s visa. The Tribunal is making a fresh decision based on the law and the information before it. Both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate.
The Tribunal is required to make an evaluation of the factors for and against revocation. North ACJ said in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
The Tribunal therefore must decide two questions. First, whether the Applicant fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that Mr Robin fails the character test, there is a second question for the Tribunal to consider – is there ‘another reason’ the cancellation of his visa should be revoked.
THRESHOLD MATTER – does the Migration Act encompass the Applicant?
However, before the Tribunal moved to consider whether the discretionary power available under section 501CA(4) of the Act should be exercised in favour of Mr Robin, the Applicant raised a matter that is relevant to the jurisdiction of the Tribunal and the application of the Act to him. This is a claim that he be a non-citizen non-alien.
Mr Robin initially claimed to be an Aboriginal Australian. He raised these claims to the Department on 8 October 2021. The Australian Government Solicitor, acting on instruction from the Department, wrote a letter to the Applicant which relevantly said (SGD 141-142):
We are instructed to inform you that any claim to be Indigenous or to have ties to Indigenous Australians, including family members, may be relevant to the issues before the Tribunal.
It is a matter for you to file in the Tribunal any evidence that you consider will support your application and to serve copies of that evidence on us as the Minister’s legal representatives. This includes any material you wish to rely on in support of any claim to be Indigenous or to have ties to Indigenous Australians.
An officer of the Department wrote to the Applicant’s then legal representative on 19 October 2021 (SGD, p 146) saying it did not consider that he met the tripartite test established by the High Court of Australia in Mabo v Queensland (No2) (1992) 175 CLR 1 (‘Mabo’), at [70] to define Aboriginal Australians. This test was held by the majority of that Court in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (‘Love and Thoms’) to mean that the reach of the Parliament’s powers to make laws with respect to ‘naturalization and aliens’ pursuant to section 51(xix) of the Constitution, which is the power relied upon for the enactment of the Migration Act, does not extend to the validity of laws to remove certain persons from the migration zone. In short, that would mean, if Mr Robin satisfies the tripartite test, alienage would not be legally possible. He would effectively not be subject to deportation because he would not be in the category of an illegal non-citizen.
Brennan J in Mabo, at point 6 of [83] said:
Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.
These three elements enunciated by His Honour have become known as the ‘tripartite test’:
1(The first element) biological descent from the indigenous people and on mutual recognition of a particular person’s membership by –
2(The second element) that person, and –
3(The third element) by the elders or other persons enjoying traditional authority among those people.
These three elements together must be satisfied.
The Department was not satisfied that the Applicant is biologically descended from an Aboriginal person; or that the information provided to date by Mr Robin establishes that he is recognised by the elders or people enjoying traditional authority within an Aboriginal community which continues to observe traditional laws and customs.
In his written statement of 29 October 2021 (Exhibit A1), Mr Robin wrote:
My biological mother, [name redacted] is unknown to me. I do not know her biological descent or anything else about her other than her name…. As for my biological father, I do not know who he is.
He went on:
My children [by which in context the Tribunal believes he means his daughters AL and AE] identify as Aboriginal and need to stay in their country and build that connection with their land. I understand that I do not meet the legal test for being recognised as an Aboriginal because I cannot prove whether or not I am biologically descended from an Aboriginal Australian. As I mentioned before, I was adopted at birth so I do not know anything about my biological lineage. However, me and my daughters are officially recognised by the Yorta Yorta community as indigenous. My children are registered with the DHS as being Aboriginal Australians. [AL] attends Koori First Steps kindergarten in [redacted]. Their mother, Jaye, is also in the process of being officially recognised by her Aboriginal community.
In his oral evidence, Mr Robin conceded that he was not biologically descended from an Aboriginal person. He said that he knew who his biological mother was and did not believe she was an Aboriginal Australian. Mr Robin said he has had contact with her once in his life, around 12 years ago. In relation to his biological father, Mr Robin said he did not know his name or his descent. When asked directly by Mr Johnson whether he had any reason to believe his biological father was Aboriginal Australian, Mr Robin responded, “Not really, no”. He went on, “As far as I am aware, I am not biologically descended but was recognised as a Yorta Yorta man.”
Mr Johnson asked Mr Robin whether he remembered a February 2021 conversation with officers of the Department where he said he did not identify as an Aboriginal or Torres Strait Islander. Mr Robin responded: “I am recognised as Australian Aboriginal, but I am from New Zealand”. He expanded that he meant he is recognised by a particular Aboriginal community.
Mr Johnson pressed the Applicant as to whether he identifies as Aboriginal. Mr Robin said “Biologically, no. My daughters and Jaye [i.e. Ms Williams] have been recognised by an Elder.”
Mr Robin said he was involved in an Aboriginal community where they helped him and tried to keep him on the right path. Mr Johnson asked if that resulted in recognition. Mr Robin responded: “Yes, I have Aboriginal friends.”
The Applicant told the Tribunal this was about ten years ago at Shepparton and that his last contact with the Yorta Yorta community was in 2018.
In evidence is a letter of Mr Leslie Cowan, who describes himself as a Wemba-Wemba Yorta-Yorta Elder. Relevantly, Mr Cowan wrote:
…[I have] known Ashley Robin (Luke Robins) …for some ten years. In this time Luke has been a respected Yorta Yorta man helping the community with Elders and children of all ages. Luke was learning culture and ethics…. As I have said, Luke is missed by his mob. Luke has two daughters to an Aboriginal Girl in Albury [who] he adores.
Consideration
It is accepted by the Tribunal, and was not disputed by the Respondent, that Mr Robin has been historically closely involved with the community of which Mr Cowan is an Elder. However, Mr Robin has not made an assertion that he is biologically an Indigenous Australian and, in his evidence, explicitly said that he was not.
Before the Tribunal was a letter from Mr Robin to the Department dated 19 November 2020. He relevantly stated:
I was born on [date redacted] 1993 in the city of Hastings in New Zealand, and adopted 1 week later. I do not know my Father and Mother and I have never had any contact with them, although I have been led to believe that my Mother now resides in Australia.
My adoptive parents and their three daughters and son are my sole family. My adoptive parents and I flew to Australia on 5th November 1998. These are the people I consider to be my family, and the people I refer to as family.
In his personal circumstances form submitted to the Department on 27 October 2020, Mr Robin wrote that he was born in Hastings, New Zealand, and is currently a citizen of New Zealand (GD, pp 92-93). He further noted that his adoptive mother Mrs Barbara Robin is an Australian citizen and his adoptive father, Mr John Robin, is a New Zealand citizen.
At GD p 116 was a letter from a firm of solicitors in New Zealand to Mrs Robin dated 5 November 1998. It confirms that the Applicant’s birth mother had consented to a custody and guardianship order under section 11 of the Guardianship Act 1968 (NZ). This order gave guardianship of Luke Robin to Mr and Mrs Robin until he attained the age of 16, and further indicated her agreement that he could live with Mr and Mrs Robin in Australia.
In her oral evidence, Mrs Robin confirmed that, when Luke was only a few days old, she and her husband took on care of the Applicant from his birth mother, with her consent. They lived together for the next four years in New Zealand and then moved to Australia to live. Mrs Robin confirmed that they sought the consent of Luke’s birth mother to emigrate, which she gave. The identity of Luke’s biological father was not disclosed to Mrs Robin at that time and has not been since. The father’s lineage is unknown.
In response to direct questions from the Tribunal, Mrs Robin said that there was no formal adoption process, as such, but from just a few days after he was born, she and her husband brought Luke up. I am satisfied that on all the evidence, in that sense, they are his adoptive parents, even if there is no evidence of a formal adoption order. I am further satisfied that the District Court of New Zealand made the relevant order for guardianship and custody to Mr and Mrs Robin until Luke Robin attained the age of 16 years.
Section 6(1)(d) of the Australian Citizenship Act 2007 provides that a guardianship under a foreign law satisfies the requirement for a person to be a ‘responsible parent’ under that Act in relation to an application by a person aged under 16. However, there was no evidence that any application for citizenship had been made or contemplated in Mr Robin’s case when he was a minor, and he did not claim to have applied as an adult.
The consequence of my consideration of the evidence is that I am satisfied that Mr Robin received New Zealand citizenship by birth, which he still holds. I am therefore satisfied that when he travelled to Australia as a little boy in November 1998 (GD, p 121) he received a Subclass 444 visa, the special category visa available only to New Zealand citizens, on his entry into the Australian migration zone.
The question of what material is required for a person, who is not an Australian citizen by birth or conferral, to satisfy a decision-maker that he or she is an Indigenous Australian is still not settled. Allsop CJ referred to this in McHugh v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs (2020) 385 ALR 405. The learned Chief Justice said, at [65]:
it is far from clear, and not the subject of debate before us, by what relevant normative standard or standards the question of biological descent for the purposes of the tripartite test is to be assessed: Is it genealogical or biological descent strictly by blood, or does it include other features, such as adoption, that may be encompassed within (if applicable) traditional Aboriginal law or custom? The question is to be posed and answered using the correct frame of reference or normative standard. The question is or may be more than one drawn from analytical jurisprudence or the principles of private international law as to the ascertainment of the proper law of a subject, once the subject is identified by a process of characterisation.
Along the same lines, in Helmbright and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1872 (‘Helmbright’), Mortimer J referred, at [49] to this area being a new and still developing aspect of Australian constitutional and administrative law. I note that at the time of writing Helmbright is being further considered by the Full Court of the Federal Court.
However, I must act on the law as I understand it currently to be. On the evidence before me, and in the absence of any evidence at all of the lineage of the Applicant’s biological father, Mr Robin has not been able to satisfy the threshold requirement of the tripartite test set down in Mabo. Because of the decision in Love and Thoms, if he did have proof which would satisfy that tripartite test, that would operate to constrain the Respondent taking action in relation to the Applicant in terms of the obligations under section 198 of the Act.
I have come to this conclusion because there is no evidence before me that Mr Robin had biological descent from an Australian Indigenous person. The Applicant had made an earlier claim to the Department that his adoptive sister (i.e. the daughter of Mr and Mrs Robin) had once told him that his father was an Australian Aboriginal man. However, he did not repeat this claim at the hearing or in his more recent representations, and it is not clear how his sister would know this, when Mrs Robin’s evidence was that she herself has never known the identity of the Applicant’s biological father. Therefore, the essential first element of the tripartite test has not been satisfied.
I stress that I make no finding that Mr Robin has not been recognised by an Aboriginal Elder who enjoys traditional authority because I do not have sufficient evidence as to whether Mr Cowan is in that category. However, it is not necessary for me to come to a conclusive view on that second question, because the first element of the tripartite test is not met.
Finding
The consequence is that the Applicant, as a person born in New Zealand of a New Zealand mother, and a New Zealand citizen by birth, is a non-citizen liable to be deported if he ceases to hold a visa. The provisions of the Act, explicitly the duty in section 198(2), apply to the Applicant.
The mandatory cancellation of the visa
Does the Applicant have a ‘substantial criminal record’?
An Australian Criminal Intelligence Commission report dated 8 October 2020 (GD, p 26) (‘ACIC report’) relating to the Applicant’s criminal history was before the Tribunal. This report records that on 8 October 2019 Mr Robin was convicted of the offences of: Theft of a motor vehicle (three counts); Theft (four counts); Unlicensed driving (six counts); Reckless conduct endanger life (six counts); Theft from shop (shopsteal); Unlawful assault; Intentionally destroy property; Make threat to kill (two counts); Threat to damage property; Dangerous/negligent driving while pursued by police; Drive at a speed dangerous (two counts); Drive in a manner dangerous (two counts); Fail to stop vehicle on police direction (four counts); Dangerous driving while pursued by police (two counts); Traffic methylamphetamine; Resist emergency worker on duty; Obtain property by deception; Attempt to commit indictable offence (two counts); Contravene Community Correction Order (‘CCO’); He was also convicted of breaching a previous undertaking regarding an offence of Theft. He was sentenced to an effective total term of two years and three months.
I find that Mr Robin does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c). I am satisfied that he has a ‘substantial criminal record’ because he has been sentenced to a term of full-time imprisonment for a period of 12 months or more. That satisfies the ‘first limb’ required for the mandatory cancellation of a visa under this section of the Act.
Was the Applicant serving a sentence of imprisonment when visa cancelled?
Before the Tribunal were the sentencing remarks of the Magistrate, Mr Tan, on 8 October 2019 (GD, p 35), where a 27-month prison sentence was imposed as part of an aggregate sentence. A non-parole period of 17 months was set, and His Honour took into account 350 days of pre-sentence detention as time served. I am satisfied that Mr Robin was serving a sentence of full-time imprisonment when his visa was cancelled. Thereby the ‘second limb’ required under this section of the Act was also satisfied.
THE MINISTERIAL DIRECTION – DIRECTION NO. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
On 8 March 2021, the Minister made a direction under section 499, Direction No. 90 (‘the Direction’). The Direction commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
APPLICANT’S OFFENDING HISTORY
Mr Robin had four appearances before the Children’s Court in the period between 2008 to 2010. I will not particularise this youth offending and note he was given good behaviour bonds and matters were discharged without conviction. The Tribunal does not place great weight on offending by any applicant at this age, except to note that Mr Robin’s first appearance at Court was in 2008.
He was however before the County Court of Victoria in September 2010, when not yet 17. On this occasion he was convicted of the following offences: Burglary (two counts); Theft of a motor vehicle (three counts); Theft from shop (shopsteal); Theft; Unlicensed driving; Make threat to kill; Wilfully damage property (two counts); Possess controlled weapon without excuse; Criminal damage (intent to damage/destroy). He was placed on probation for 12 months.
In February 2012, at Wodonga Magistrates’ Court Mr Robin was convicted of the offence of Bring stolen goods into Victoria and fined $300. At the same Court in July 2012, he was convicted of the offences of Drive in a manner dangerous – improper use of motor vehicle; Unlicensed driving; Use unregistered motor vehicle on a highway. He was given a CCO for 12 months to undertake 75 hours of community work.
In November 2012, he was before the Wodonga Children’s Court relating to breaching a youth attendance order, failing to answer bail and a breach regarding an earlier conviction. He was ordered to be detained at a Youth Justice Centre for a period of five months.
In April 2013 before Wodonga Magistrates’ Court, the Applicant was convicted of the offences of: Burglary (two counts); Theft of a motor vehicle (two counts); Dishonestly receive stolen goods (three counts); Bring stolen goods into Victoria (two counts); Criminal damage by fire (arson) (two counts); Unlicensed storage of firearm and ammunition in an insecure manner (two counts); Theft of a motor vehicle; Possess controlled weapon without excuse; Prohibited person in possession of a firearm; Aggravated burglary – person present; Possess cartridge ammunition without licence or permit. He was given an effective State term of one year and six months’ imprisonment.
In June and August 2014, at Albury Local Court in New South Wales, Mr Robin was convicted of the offences of: Negligent driving (no death or grievous bodily harm); Drive conveyance taken without consent of owner; Never licensed person driving vehicle on road – first offence. He was fined and sentenced to three months’ imprisonment wholly suspended. A comprehensive bond was imposed by the Court with a range of conditions including education, drug and alcohol rehabilitation, curfew, no association with nominated person, required to live at a nominated address, and other conditions (GD, pp 31-32).
In September 2014 back in Victoria, Mr Robin was before Wodonga Magistrates’ Court and convicted of the offence of Theft and placed on a 12-month CCO.
In July 2015 before Albury Local Court, the Applicant was convicted of the following offences: Drive conveyance taken without consent of owner; Take and drive conveyance without consent of owner; Never licensed person driving vehicle on road – prior offence; Police pursuit – not stop – drive at speed – first offence; Intentionally throw object at vehicle or vessel with a risk to safety; Dishonestly obtain property by deception. He was given a total prison sentence of six months.
In November 2016 at the same Court, Mr Robin was convicted of the offences of: Drive motor vehicle during disqualification period – second offence; Police pursuit – not stop – drive dangerously – second offence (three counts); Not give particulars to other driver (three counts); Take and drive conveyance without consent of owner; Drive motor vehicle during disqualification period – second offence (two counts); Drive recklessly/furiously or at speed in a dangerous manner – second offence; Drive vehicle under influence of alcohol – second offence. He was given an aggregated term of imprisonment of 20 months and a bond with comprehensive conditions.
In October 2019, he was before the Court and convicted of breaching an undertaking made in September 2014 and fined. A breach of a CCO was also found proven. He was further convicted of the offences referred to earlier in these reasons.
CONSIDERATION OF THE DIRECTION
At paragraph 5.2, the Direction sets out principles which provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation of a visa under section 501CA of the Act. The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
The Direction also provides (Part 2, paragraph 7) that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
Part 8 of the Direction relevantly provides that, in making a decision under section 501CA of the Act, the following are 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 best interests of minor children in Australia; and
(4) Expectations of the Australian community.
Part 9 of the Direction provides that, where relevant, other considerations must also be taken into account. These considerations include, but are not limited to:
(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.
The wording in paragraph 9(1) of the Direction makes clear that the other considerations include those stipulated in the Direction, but a decision-maker is not confined only to those. This means that if there is another fairly put claim that something is relevant in the particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. The summonsed material indicates that some of Mr Robin’s offending fits into the second and third of these broad categories. There is no evidence before the Tribunal that the Applicant has committed any sexual crimes.
The Tribunal must also consider other categories of serious offending, including causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention. While there have been some adverse reports of Mr Robin’s conduct in immigration detention, there is no evidence of crimes in detention. It is arguable that the police pursuit offences of which Mr Robin has been convicted fall into the category of offending against a government representative in the performance of their duty, but the safer course to take is that it is not strictly in this category. Nonetheless, it is serious offending as Mr Robin acknowledged in the hearing, and the account of the pursuit meant that the safety of police, other road users and pedestrians was placed at risk.
At GD, p 38 was a transcript of a hearing at the Moorabbin Magistrates’ Court before Mr Tan, Magistrate. His Honour referred to an incident on Boxing Day 2014 when Mr Robin and two co-accused attended a service station in a small town on the Hume Highway in Victoria. Mr Robin was the passenger in a utility and filled the tank of the vehicle and two jerry cans with fuel before driving off without attempting to pay. The utility had been stolen from an address in Wodonga several days before and it was subsequently located, burnt-out, near Wagga Wagga, New South Wales. The value of the vehicle was $32,000.
In February 2015, the police attempted to intercept a vehicle being driven by Mr Robin and informed him the vehicle was to be impounded. Mr Robin refused to unlock the vehicle. He subsequently drove off in the vehicle, pursued by police, and entered parkland which His Honour stated was often used by pedestrians. Subsequently the police located the vehicle and impounded it. When it was unlocked a bag was discovered with $7,140 in cash in the centre console. The bag also contained two smaller bags of 2.5 grams of methylamphetamine. A few days later Mr Robin attended the Wodonga police station. He identified himself and said he wanted the police to: “stop f---ing with him and, if police didn’t, police would be f---ing sorry ‘because you’ll all be f---ing dead’.”
The following day Mr Robin was driving a vehicle in Wodonga and was captured by a speed camera driving 164 kph with an alleged speed of 160 kph in a posted speed limit zone of 60 kph.
A week later, the Applicant drove a different vehicle to a service station in Wodonga, filled the tank and drove off without attempting to pay. Later that morning Mr Robin and a co-accused were observed driving cars erratically, overtaking in the emergency lane and narrowly missing other motorists, causing them to take evasive action to avoid collision. Two days later Mr Robin was arrested, having abandoned a vehicle he was driving after a minor collision and fleeing on foot. He was remanded in New South Wales. At the Albury police station, he said he wished to be interviewed by Victoria police officers. He was interviewed and made certain admissions.
In January 2016, a Victoria police divisional van was on a suburban patrol. It encountered the Applicant driving a vehicle. He drove away at high speed on the wrong side of the road, switching off the car’s headlights. The police later that night encountered the vehicle again, but it drove off at speed. There are other reports of failing to pay for petrol, driving erratically and on the wrong side of the road and colliding with another vehicle.
His Honour referred to a person having their wallet stolen from a shopping centre car park in Frankston in November 2018. Later that day, Mr Robin performed an online transaction at a retail outlet and entered the credit card details of the victim of the wallet theft, in attempting to purchase a mobile phone valued at $2,049. Mr Robin also attempted to purchase a laptop computer and a printer with a total value of $2,736 and when asked to provide a customer name entered ‘Jaye Williams’. The Applicant then attempted to purchase another mobile phone at a different retail outlet, again entering the name of Ms Williams. Mr Robin then purchased some alcohol and cigarettes at a supermarket and used the stolen credit card for a ‘tap and go’ purchase at the checkout. This was captured on closed circuit television. The Magistrate noted that all the online purchases were terminated without Mr Robin obtaining the goods.
The Magistrate went on to describe a further incident involving Jaye Williams, who had been the domestic partner of the Applicant and is the mother of two of his children. I will consider the details of that incident later in these reasons.
There is no doubt that Mr Robin has amassed a substantial criminal record for someone of his age. The Tribunal does not conclude that this offending has been characterised by violence, but there have been some instances of violence. There are many examples of theft of property and, especially, fuel. He has stolen motor vehicles and motorcycles. He has committed crimes of dishonesty. In particular, Mr Robin’s driving record is nothing short of appalling. Many of his offences have involved driving at high speed and dangerously, with scant regard for other road users, some of whom he has collided with, and pedestrians.
The Direction requires me to consider whether Mr Robin has been previously warned about the consequences of further offending in terms of his migration status. There was no evidence before me that there had been any previous warning from the Department.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to consider both the nature of harm should Mr Robin engage in further criminal or other serious conduct and the likelihood of him so engaging.
If the Applicant used a motor vehicle in the manner he has, there is no doubt that other members of the public would be placed in real danger. It is accepted that some of his theft offending has related to funding his drug addiction, but that does not account for all of it, and in any event while it provides context, it does not constitute an excuse.
In his oral evidence, Mr Robin agreed that he has breached parole orders and bonds in the past and that his offending has progressively become more serious. He said: “Yes, [my offending has] gone from shop theft to unlawful assault. In 2016 there was only one incident. I wanted to change. Until 2018 I did try. 2012-2016 wasn’t the best. It did get worse. I accept that.”
The Tribunal notes that there is a report from Junee Correctional Centre dated 22 March 2016 (SGD, p 114) which states:
Whilst previously remanded in custody, ROBIN has been identified as a disruptive influence within the inmate population and has consistently demonstrated extremely poor behaviour. ROBIN’s criminal and custodial antecedents indicate a propensity for non-compliant behaviour and it is obvious that he threatens and intimidates other inmates for personal gain. It is also noteworthy that he has been heavily implicated in the illicit drug trade throughout his custodial history.
He told the Tribunal he had now ceased taking illicit drugs and the only medication he is now on is pain relief for a back injury. He said that he had learnt to deal with stress in different ways, by going for a walk or having a cigarette: “I don’t get worked up anymore. I control myself.”
Mr Robin said he had recently decided, of his own volition, to cease his methadone treatment. He did so with the intention of going, as he put it “cold turkey” because he does not want to continue that treatment. That is understandable and even commendable. He also said that he has been attending zoom meetings of Narcotics Anonymous while in detention. That also shows an acceptance of his drug habit. However, I am not convinced that he has put in place a well-thought through plan for how to deal with the challenges he would face back in the community. Mr Robin said in his oral evidence that some of his behaviour in the two or so years prior to his most recent prison sentence was because he has been on the run and “always looking over his shoulder”. He said this added to his stress. That is accepted. But that is only one part of the equation, it does not show an insight into why he committed the offences in the first place, putting aside his drug taking.
It would seem to me that Mr Robin has very serious anger management issues. An example can be seen above in his attendance at Wodonga police station, it appears for the sole purpose of verbally threatening police officers in general.
The Applicant gave evidence about his drug problem and creditably said it remained an addiction, even if he currently was not taking illicit drugs. He said it was something he would always have to be alert to, to avoid sliding back. However, it is notable that significant parts of his offending and other conduct took place when he was not drug-affected. The events of November 2018 which are discussed below are an example. As are some of the events in immigration detention.
Counsel for the Respondent took Mr Robin to various incidents that have occurred while he has been in immigration detention. A report (GD, p 130) recorded Mr Robin having a dispute with Immigration Detention Centre (‘IDC’) staff and started pouring packets of dietary supplement powder onto the ground. He accepted the contents of the report and told the Tribunal: “I got annoyed. I walked away and didn’t hurt anyone.”
A further report (GD, p 131) recorded a female IDC manager informing Mr Robin that he was getting a new roommate. The report states that Mr Robin said he will “punch” the other detainee if he comes into the room. He then became verbally abusive and swore at the manager, saying that if he receives a roommate he will “cave their head in”.
Mr Robin said that the report was not correct at all and that he had a medical certificate saying he could not have a roommate, which he offered to the manager but which she refused to take from him. When asked why he had such an exemption, the Applicant said: “For difficulties regulating my mood.”
The report recorded that Mr Robin directed a stream of obscenities at the IDC manager. When asked directly by the Tribunal if he did respond in the way described to the manager, he said: “I did tell her to f--- off. She didn’t care. I told her to f--- off and walked back into my room to get away from her.”
Mr Robin agreed that this showed he was not regulating his emotions as recently as July 2021. The Tribunal notes that he received certain formal sanctions while in the IDC, as is recorded in the reports. These do not, to my mind, amount to “crimes” within the terms of paragraph 8.1.1.(b)(iv) of the Direction, but they do indicate that the Applicant has a significant anger management problem, with behavioural and conduct incidents as recently as three months before the hearing.
There were several other reports of incidents in detention. In July 2021, Mr Robin was reported for passing an unknown item of contraband through the fence of the IDC (GD, p 135). When asked about this by counsel, Mr Robin conceded that he did pass cigarettes to other detainees against the rules because he said some of them were coping less well in detention, and it helped them.
At GD p 137 was a report of Mr Robin kicking a trash can and thereby causing damage to a drainpipe in July 2021. The Applicant conceded he did kick the can, out of frustration, but that the damage to the pipe was an unintended consequence. There were other reports (for example, GD, p 138 and p 141) of Mr Robin swearing at IDC and kitchen staff, and a report of him swearing to a detention centre nurse.
Mr Johnson said that while the Applicant did not have a record of violent offending, he did have a record indicating an inability to make good decisions and allowing his anger to flare up. Mr Robin responded: “Yes, I accept that. I do struggle with certain things. I know in my heart I’ve come a long way, with the visa cancellation and getting off methadone. I am learning from my mistakes and I am getting under control.”
On the evidence before me, I consider there remains a real risk that Mr Robin would re-offend in the wider community, and possibly also in a domestic situation if his anger overwhelmed him. He has shown a consistent disregard for authority and the law. Much of his offending has stemmed from his inability to control his anger, and that seems to have continued in prison and detention until quite recently. I am satisfied that this real risk, given the consequences that have flown and could flow, is one that is unacceptable. This primary consideration therefore weighs relatively strongly against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct.
The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise 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 person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence. There was no evidence before me of formal warnings.
To decide whether a series of offences committed by Mr Robin on 27 November 2018 fit within the category of offences or conduct intended to be encompassed by paragraph 8 of the Direction, it is first necessary to outline the factual events of the day, which were in the Court transcript in the GD.
The series of events on 27 November 2018
At GD, p 47, the prosecutor addressing the Moorabbin Magistrates’ Court on 8 October 2019 said:
The victim in this matter being a Jaye Williams was at a home address in Mentone with her 10-month-old daughter [redacted]. Her ex-partner being the accused had been staying at the address for approximately one week. Their previously [sic] relationship of 12 months ended approximately three months prior to this incident.
At approximately 11 am the accused had a shower and asked Williams to get his clothes ready. When the accused got out of the shower his clothes weren’t ready and an argument has [ensued]. In the loungeroom of the address, the accused threw a cup of coffee at the wall. Williams went to the bedroom and heard something smashing [in] the loungeroom. The accused entered the bedroom and pulled the mirror off the wall. Williams told the accused to get out. The accused walked to the other side of the bed and Williams pushed him back. Williams was holding her 10-month-old daughter at the time. The accused hit Williams with an open – the summary doesn’t say, Your Honour, to the right side of the face.
Williams then ran to the loungeroom followed by the accused and the accused kicked over the coffee table. Williams fell backwards onto the lounge. The accused sat on top of Williams and his knee has made contact with the victim in the ribs area. It’s noted contact was not hard. Williams was 17 weeks pregnant and feared it would hurt the baby. The accused was the father of the unborn baby.
The accused asked for the car keys and was refused. The accused then went through Williams’ pockets locating the keys. The accused picked up the baby bag and had the 10-month-old baby with him. The accused went out to the car followed by Williams. The accused gave the baby to Williams and told her to put her in the backseat threatening that he would drive the car through the front window if she didn’t do so.
Williams put the baby in the car when a neighbour, being [name redacted] has come over. The accused got out of the car challenging [the neighbour] to fight. Williams finished putting the baby into the car seat when the accused reversed the car while the door was open hitting Williams in the right arm with it. The accused drove away and Williams collapsed to the ground where she was assisted by a neighbour. Williams went into another unit. The accused returned to their unit and stayed approximately five minutes before leaving again. He left before police arrived.
During the incident, the accused threatened to kill his 10-month-old daughter and himself, if the police came the accused stated he would crush the car and kill them both. He then left the scene. An ambulance attended and transported Williams to hospital.
The accused was driving a [make and registration number of car redacted]. He didn’t have permission to take the vehicle from Williams or the vehicle’s owner, being Williams’ mother…who is not licensed to drive.
The police sighted the vehicle on the Nepean Highway.
Police have attempted to intercept the vehicle activating emergency lights and sirens. The accused increased the speed of the vehicle weaving in and out of traffic. He was travelling with his 10-month-old baby in the rear passenger seat of the vehicle. The accused refused to stop…
Subsequently the police located the vehicle stopped in traffic. They attempted to approach it on foot. Mr Robin then drove on the footpath to evade them. He subsequently drove across a service station apron at an intersection in Malvern and, according to the Court report, an unknown elderly female crossing the road was forced to take evasive action, as was an unknown male pedestrian crossing near Hawksburn Railway Station. Mr Robin continued to drive at speed and drove through a red light, narrowly missing a tram. He crossed MacRobertson Bridge at Toorak, collided with another vehicle, but did not stop. He continued onto the Monash Freeway reaching, according to the Court transcript, 120 kph on Toorak Road. During the pursuit, police collided with two trucks and were forced to abandon the pursuit. Mr Robin refuelled the car and drove off without paying for the petrol. He then arranged with an associate to meet up, abandoning the vehicle. He then met another associate and transferred to a third vehicle.
With this third associate, Mr Robin stopped at a service station at Donnybrook. At this time the police caught up with them. Mr Robin was seated in the vehicle with his daughter. Police demanded he show his hands. They then smashed the rear passenger window and told Mr Robin to get out of the vehicle. He did not react. He was pulled from the vehicle and arrested. The prosecutor’s summary to the Court as set out above was accepted by counsel for Mr Robin. It was largely accepted by the Applicant in his oral evidence at the hearing.
Does any of this conduct constitute ‘family violence’?
The Tribunal concludes that this conduct, which led to the conviction of Mr Robin on six counts of Reckless conduct endanger life, Unlawful assault and two counts of Make threat to kill, involves ‘family violence’ in that context of that term in the Direction.
At paragraph 4(1)(a) the Direction says that:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
There is no definition of ‘family’ in the Direction. There is also no definition in the Act. The closest that the Act comes is at section 5G which deals with family members and relationships and makes clear that a de facto partner or a child of a person, or of whom a person is a child, are included. At the end of section 5G the Act relevantly states: “This does not limit who is a member of a person’s family or a relative of a person.”
After defining the term ‘family violence’, paragraph 4 of the Direction goes on to provide examples of behaviour that may constitute ‘family violence’ to include actions that do not involve physical contact. It is stated to include, for example, stalking (paragraph 4(1)(c)); repeated derogatory taunts (4.1(d)); intentionally damaging property (4(1)(e)); intentionally causing death or injury to an animal (4(1)(f)); unreasonable denial of financial autonomy or financial support (4(1)(g) and (h)); preventing a family member from maintaining connections with family, friends or culture (4(1)(i)) or unlawfully depriving a family member his or her liberty (4(1)(j)).
The definition in paragraph 4 has been largely taken from section 4AB of the Family Law Act 1975 and in the context of the Direction is, I conclude, intended to be broad. I come to this conclusion because of the wording of paragraph 8.2(2) which states:
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven however described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(Emphases added.)
It is relevant to note that the Family Law Act 1975 also does not explicitly define the word ‘family’. In its ordinary meaning, it can be taken to be a group of persons united by ties of marriage, blood or adoption and interacting with each other in their respective social positions, usually those of spouses, parents, children and siblings.
In the judgement of the Full Court of the Federal Court of Australia in Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 (‘Vu’), O’Callaghan J (with whom Katzmann and Stewart JJ concurred) quoted with approval a decision of the Supreme Court of the United Kingdom, Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433 (‘Yemshaw’).
The Supreme Court was considering the meaning of the phrase “domestic violence or other violence” in a case where a married woman had left the matrimonial home (rented in her husband’s name), taking the children with her, after complaining of her husband’s behaviour which included shouting at her in front of the children, denying her housekeeping money, not treating her ‘like a human’. Ms Yemshaw was scared that if she confronted him, he would hit her or take the children away. A United Kingdom statute allows a person to be regarded as homeless (in terms of receiving priority public housing) if occupation of a residence will lead to violence from some other person occupying the premises or the threats of some violence. The local government housing officers decided Ms Yemshaw was not homeless as her husband had never actually hit her or threatened to do so, so concluded there was no ‘violence’. Ms Yemshaw sought administrative review, which was unsuccessful. Further appeals followed until the English Court of Appeal decided “violence” in the context of the statute was limited to physical conduct. That decision was then appealed to the Supreme Court.
In allowing the appeal brought by Ms Yemshaw and setting aside the judgement of the Court of Appeal, Lady Hale SCJ (Lord Hope DPSC and Lord Walker SCJ agreeing; Lords Rodger and Brown SCJJ separately concurring) said, at [19]):
…I can readily accept that [physical violence] is a natural meaning of the word [violence]. It is, for example, the first of the meanings given in the Shorter Oxford Dictionary. But I do not accept that it is the only natural meaning of the word. It is common place to speak of the violence of a person’s language or of a person’s feelings. Thus the revised 3rd edition, published in 1973, also included ‘vehemence of personal feeling or action; great, excessive, or extreme ardour or fervour…passion, fury’; and the 4th (1993), 5th (2002) and 6th (2006) Editions all include ‘strength or intensity of emotion; fervour, passion’. When used as an adjective it can refer to a range of behaviours falling short of physical contact with the person…
As noted in Vu, at [57], her Ladyship went on to say, at [27] of Yemshaw:
“Violence” is a word very similar to the word “family”. It is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time…
This broader notion of what may constitute ‘family violence’ set out in Vu accords with the construction of the Direction which, as explained above, explicitly includes examples of non-physical conduct which may fulfil the definition in the primary consideration.
Must people be living together at the time of the offence or conduct?
In his oral evidence, Mr Johnson noted that the prosecutor told the Court (GD, p 47) that the Applicant’s relationship with Ms Williams had ended three months prior to the series of incidents. Mr Robin said: “We say we still had a relationship. We didn’t break up until 2018 or 2019.” Mr Robin said he had moved into other accommodation, and then had moved back into the same house as Ms Williams. Ms Williams, when asked in her evidence whether the Applicant was living with her, said: “We had two places. A unit and a cabin in a caravan park.” The evidence is therefore somewhat confusing. It is not clear to me whether Mr Robin and Ms Williams were, in fact, living together in November 2018 on the day this series of incidents took place. Their evidence seems to be that the romantic relationship had ended, and that Mr Robin had moved into a cabin at a nearby caravan park.
However, on the facts Mr Robin was at Ms Williams’ house that day, having a shower. He had asked Ms Williams to put his clothes out for him. She failed to do so, and that is what precipitated the argument. This suggests to me that a personal relationship of some sort had continued. It is also notable that the setting was a household with Ms Williams and her and Mr Robin’s 11-month-old daughter, and notably that Ms Williams was 17 weeks pregnant with a second daughter, with Mr Robin as the father.
I conclude that it is not necessary for there to be a continuing intimate relationship, nor indeed for persons to be cohabiting, for conduct to constitute ‘family violence’, in the compass of this primary consideration. What is required is the commission of offences or other conduct within the definition of paragraph 4 of the Direction.
‘Family violence’ offences or conduct must be in a particular setting
As Lady Hale SCJ said above in Yemshaw, neither “‘family’ nor ‘violence’ are terms of art”. What is required is an examination of the specific circumstances and context, in this case of the purpose of this part of the Direction to decide whether particular offending or serious conduct constitutes ‘family violence’. My interpretation of that is:
a) Whether the non-citizen’s offending or other conduct fits broadly within one of the categories in paragraph 4; and
b) Whether there is, or has recently been, a relationship between the non-citizen and the victim which is qualitatively different from a relationship between the non-citizen and other persons, such as friends or work colleagues.
The relationship does not have to be, or to have been, sexual. It could for instance be a child-parent relationship, or a sibling relationship. It would seem to me that an examination of the circumstances and the setting of the offences will be telling as to whether or not it can reasonably fit what is within the scope of ‘family violence’ in the Direction.
In the summary of facts accepted by the Applicant’s counsel at Court, it is clear that Mr Robin threatened Ms Williams and coerced her to place their infant daughter into the baby seat in the car by threatening to drive into the front of Ms Williams’ house. It caused Ms Williams to be fearful (for her safety and that of their daughter). It is reasonable to conclude, even though she was very young, that AL would also have been distressed about what was taking place.
In his oral evidence at the hearing, Mr Robin admitted throwing the coffee cup against the wall that day. He agreed that he led police on a highspeed pursuit while his daughter was in the back seat and said: “Yes, I hate myself for it. I was scared to lose her. She is everything I ever wanted. It was stupid. I wasn’t thinking right.”
The Applicant agreed that his actions that day showed disregard for the law. He went on: “I should have handed myself in at the start to avoid all this. Should have pulled over. Shouldn’t have even got in the car. I won’t drive again.”
Mr Johnson asked the Applicant about the threat recorded in the prosecutor’s summary to the Court of threatening to kill his daughter and “crush” the car. Mr Robin responded: “I don’t recall that. I would never hurt my baby. She is everything to me. I would have threatened to kill myself because I wasn’t in a good head space.”
Mr Johnson asked if he denied the threat to kill his daughter. Mr Robin responded: “Honestly, I don’t recall. If I said it, I said it. I would never have been able to go through with it.”
In terms of paragraph 8(3)(a) of the Direction, there has not been frequent family violence conduct by the Applicant. While the events in November 2018 were objectively very serious, there is no evidence of a history of family violence or conduct. It is clear to me from his written and oral evidence that Mr Robin (in terms of paragraph 8(2)(c)(i) accepts responsibility for his conduct that day. Whether he understands (paragraph 8(2)(c)(ii)) the impact on Ms Williams and on AL is less clear. AL was of course very young so her appreciation of what was occurring was limited; the Applicant told police she was asleep in the car during the pursuit. That of course, given the danger to the child, is not an exculpatory fact.
Paragraph 8(2)(c)(iii) of the Direction requires the Tribunal to also examine efforts to address factors which contributed to the conduct. Mr Robin seemed to focus on his drug addiction, his methadone regimen and how he has ceased it, and that he had not taken illicit drugs while in detention. Even if the Tribunal accepts all of his contentions, the Applicant did not seem to grasp the fact that it was his inability to control anger and, on his evidence, not illicit drugs, which triggered the series of events. He stated in his evidence that he was not drug-affected when he had the altercation with Ms Williams which led to him going off with AL in the car that day.
Even if the Tribunal accepts that Mr Robin had not actually formed a coherent intention to harm his daughter, I cannot go behind the fact that he was convicted of making threats to kill. In addition, the very fact of having a young infant in the car with him during an erratic police pursuit, involving high speed, dangerous driving, and at least one collision, axiomatically placed that child at very grave risk. Apart from his dangerous and negligent driving, his conduct that day also included damaging of property, coercion, and assault, all within a domestic setting.
While there has not been a history of family violence in Mr Robin’s history, and noting that Ms Williams gave oral evidence in support of him at the hearing, I consider that this series of incidents on the day of the police pursuit with AL in the car is a very serious example of conduct that this primary consideration is intended (where relevant to the particular offences or conduct of a non-citizen) to take into account.
I conclude that, even though this was, on the evidence, an isolated incident not reflective of Mr Robin’s historical conduct towards Ms Williams or any of his children, its magnitude and the lives placed in danger by the actions, satisfies me that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Direction requires the Tribunal to make separate determinations about relevant minor children where there is evidence that their interests might differ.
Mr Robin has three children, his son AW, and his two daughters AL and AE. All are minors. I consider that the personal circumstances are such that AW should be considered separately from the Applicant’s two daughters.
The Applicant’s son, AW
AW is an Australian citizen and was born in 2010. He is in the care of his great grandparents, Mr and Mrs Gaspero. Mrs Gaspero gave evidence at the hearing.
In terms of AW’s mother, Mr Robin said he has contact with her about once a year. She has never been a significant part of AW’s life since he was aged about one year old. Mrs Gaspero confirmed that she and her husband have had care for AW in their home since he was born. Mrs Gaspero said that there had been no physical contact between AW and his mother since 2019 and she “didn’t speak to him very often”.
Mrs Gaspero said that Mr Robin first met AW when he was aged six, but has had more contact since then, through the Victorian Department of Health and Human Services (‘DHHS’). AW is in the legal guardianship of DHHS. Mrs Gaspero said she meets around every month with local DHHS officers, in the nature of a monitoring meeting. Some funds are provided for AW’s clothes and education but otherwise she and her husband provide all his needs. AW is attending primary school and is keen on sport.
Mr Robin agreed that he has never had primary care of AW. He said that he accepted if he was released into the community he could not “just grab him”, nor did he want to. He accepted he would have to earn contact rights to the satisfaction of DHHS. Mr Robin said he had been allowed supervised visits and then, after a time, had progressed to unsupervised visitors. Mrs Gaspero confirmed this in her evidence.
Mr Robin said that his contact with AW has been limited because of his stints in prison. He said that he was able to have phone and zoom calls when he was in prison and now that he is in immigration detention and has a mobile phone, he has daily contact with his son.
Mr Johnson said to the Applicant that he could still have access by phone and videocall to AW if he was back in New Zealand. He responded: “If I was to go back to New Zealand, I don’t know how he will cope. He doesn’t have a mother. I don’t know how he would go. He is a ward of the State, so I can’t ask him to come with me.”
Mrs Gaspero said she had discussed with DHHS what would happen if Mr Robin was released into the community. She said the advice they gave was that if the Applicant stayed clean from drugs, he would be able to see AW at weekends. Mrs Gaspero said:
If he stays clean, it would be better for AW. Having his Dad would be good for him because he doesn’t have a mother who really cares. She forgets his birthday. Luke doesn’t. I would like Luke to be in AW’s life because he shows an interest. Luke would have to go through DHHS before he was able to see AW. They will give him a chance if his visa is returned.
The Tribunal considers that the evidence Mr Robin gave about AW was genuine. He has regular contact and, before going to prison, was able to see him on some weekends and build a bond. It is a fact that Mr and Mrs Gaspero are of venerable age. Mr Gaspero is in his 90s and Mrs Gaspero in her 80s. As she said to the Tribunal, she “was given a baby when 72”. Their contribution to the care and bringing up of AW is only to be greatly admired.
It is factual that the Applicant has not had parental care of AW at any time in his young life. It is also accepted that, as a ward of the State, AW would not be able to go to New Zealand if Mr Robin was repatriated, and possibly not until he was an adult. This is a very significant factor in the mind of the Tribunal.
When asked had he thought about the effect on AW if he relapsed into taking drugs, Mr Robin said that he had not thought about that, and only that his son had said to him “please do the right thing for me”. Mrs Gaspero said that she and her husband would be prepared to care for AW until he is 18 but noted that it was becoming more onerous because of their age.
The Tribunal makes a determination that it would be in the best interests of AW for the mandatory cancellation of the visa to be revoked. Even though the physical contact has been limited and there are others in a “parental role” in terms of the term in the Direction, the fact that AW is a ward of the State means he could not easily accompany his father to New Zealand, or visit him there.
The Applicant’s daughters, AL and AE
The Applicant has two young daughters. AL is aged three and AE is aged two, both are Australian citizens by birth. Their mother is Ms Jaye Williams, who gave evidence at the hearing.
Mr Robin said that it is the usual arrangement that AL and AE live with their mother but that, if he is released into the community, they have agreed to a ‘50/50’ arrangement. Ms Williams in her evidence said that what they had agreed to was a shared weekend arrangement. Mr Robin said his intention would be to get accommodation near where Ms Williams lives so that the girls could easily go to their school when staying with either parent.
Mr Robin said that he wanted to get employment and had an offer to do some fencing from a friend, and perhaps some scaffolding. He was asked about his persistent back injury and whether that would affect scaffolding work, and he suggested he could obtain a forklift licence and do work of that nature.
In her evidence, Ms Williams confirmed she and the Applicant had initially been friends and then the friendship had turned into a romantic relationship, resulting in the births of AL and AE. She said that, while that relationship had ended, they remained close friends. Ms Williams said she would be concerned if Mr Robin resumed drug-taking and, if he did, he “wouldn’t be near my kids. They’ve already been through a lot.”
Ms Williams said she had seen a difference in the Applicant since he has been in prison and detention, and that he no longer bottles up his emotions and gets angry. She said that Mr Robin has her support and, while she expected he would face stress in the community, the difference was that he would not be “looking over his shoulder” (i.e. evading justice).
The Tribunal notes Mr Robin’s evidence that he was directly involved in AL’s life when she was very young, feeding her and caring for her, particularly when Ms Williams was pregnant with AE, because it was a difficult pregnancy. The Applicant admitted he has not been involved in AE’s life because he has been in custody and detention.
In his oral evidence, Mr Robin admitted using illicit drugs while living in the same house as AL but was adamant that he did not do so in her physical presence, saying he would “go outside or to a friend’s place”.
The Tribunal determines that it would be in the best interests of AL and AE for the mandatory cancellation of the visa to be revoked. Notwithstanding in the incident outlined in detail above, Mr Robin placed AL in great peril in the police pursuit, Ms Williams’ evidence that he loves his daughters is significant. It is however clear that Ms Williams plays the primary parental role in the lives of their daughters, assisted by her mother, who lives nearby but who is recovering from cancer, and (currently) by a live-in female family friend.
In his evidence Mr Robin referred to a new relationship he has struck up with a Ms White, which he said commenced about two months after he entered immigration detention. Ms White has a two-year-old child and the Applicant said she had visited him in the IDC, with the child. There was little further evidence about this relationship, which would seem to me to be nascent, and insufficient evidence for me to make a determination about any effect the revocation of the visa would have on Ms White’s child.
The Direction requires me to consider, where relevant, certain factors. I am not convinced that Mr Robin will play a positive parental role in the future in relation to any of his three children. That is not to say he does not love them, nor that he does not have good intentions towards them. However, his conduct has not historically been in their best interests and he has not been significantly involved in their lives.
If Mr Robin was repatriated, there would be an effect on AW, AL and AE, especially the first two. While they could continue to contact him by telephone and other electronic means, that is a poor substitute for physical interaction. In terms of known views, the Tribunal notes that AW provided a written statement supporting the revocation of the cancellation of the Applicant’s visa. The Direction requires me to consider whether there is evidence that any relevant minor child has been exposed to family violence perpetrated by the Applicant. I conclude that AE has been, as a young girl, but, while the danger to her was obvious, because of her age I do not conclude there would be any lasting impact.
Overall, the Tribunal finds that this primary consideration weighs in favour of revoking the cancellation of the visa. The weight is relatively strong but tempered by:
(a)The serious incident of family violence affecting AL; and
(b)The lack of direct care Mr Robin has had for any of the children, except for a short time when AL was very small.
It is also conditioned by the Applicant remaining free from illicit drug use.
Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In 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, of the following kind:
…
The Direction then goes on to list specific sorts of conduct, one of which is explicitly relevant to Mr Robin’s criminal history. Paragraph 8.4(2)(a) refers to acts of family violence.
As the Direction says, the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A supplanted direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).
The plurality of the Court said that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’. That means they are what the executive government has declared, in the Direction, are its views. They are not what a decision-maker, including this Tribunal, may seek to derive by some other assessment or process of evaluation.
Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which is an acknowledgement of the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct.
Mr Robin’s November 2018 offending would, in the Tribunal’s view, significantly affect the weight of this deemed expectation against revocation of the visa cancellation. In his long police pursuit, it is not hyperbole to say that the Applicant placed several lives at risk, not only his own and his infant daughter’s, but also other road users and police officers who were involved in accidents, and therefore exposed to potential injury, as a direct result of trying to apprehend him.
The Tribunal finds that this primary consideration weighs strongly against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
International non-refoulement obligations (paragraph 9.1)
The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has certain international treaty obligations which it must honour.
In the event the Tribunal affirms the decision, the Applicant would be repatriated to New Zealand, which, as is discussed above, is his country of citizenship. The Respondent submitted that this consideration was not relevant. The Tribunal agrees with that submission. While the Applicant expressed strong views about repatriation, they related to matters that properly should be considered under impediments if removed, not in this consideration.
The Tribunal finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments Mr Robin could face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
As discussed earlier, Mr Robin left New Zealand aged four with his adoptive parents and has not returned (GD, p 121). He said he has no links with New Zealand. Although Mr Robin said he spoke to his birth mother once, “about 12 years ago”, his mother was unaware of that contact when she was asked during her evidence. For her part, Mrs Robin said she has had no contact with the Applicant’s biological mother since the guardianship order was signed in 1998.
When asked various questions about what he would do in the event he is repatriated, Mr Robin largely declined to speculate, other than to say, “it would break me”. When asked whether he thought he could secure employment, the Applicant said: “Probably not to be honest. I would probably break. I’ve got no family.”
When Mr Johnson said that he would still want, in these circumstances, to keep in touch with his family in Australia, Mr Robin said: “Everything I do is to be there for them to help them through rough times. May as well go back to gaol.”
Noting that he had previously done trusswork, Mr Robin said in response to a question from the Tribunal that he has had three jobs in trussing, but he was familiar with wood and trusses are now largely made from metal. He said he would not be able to go back to that work because he has hurt his back but might pursue a forklift licence.
Counsel for the Respondent said the Minister does not take issue with Mr Robin having a back injury that prevents heavy lifting work but suggested other work might be possible. Mr Robin responded that all the jobs he has obtained in Australia have been through other people; he did not know how to go about finding employment more generally.
At GD, p 110, Mr Robin wrote that he has completed several courses while in prison. He listed them as: certificate I in general education for adults; certificate II in kitchen operations; certificate II in cleaning; certificate II in infectious diseases; a first aid course; a traffic management course and a forklift licence. He said that he had obtained a white card. No certificates or other proof was provided that they have been completed, and in fact the Applicant later referred to undertaking a forklift licence course. However, assuming that they have been, all would add to the suite of skills Mr Robin has in terms of potential future employment.
At GD, p 110 the Applicant also said he had undertaken a “24-hour drug and alcohol programme” while at HM Prison Barwon. There were no other details about this course. He also said, as mentioned above, that he has participated in on-line meetings of Narcotics Anonymous.
The Tribunal notes that, apart from the back injury, Mr Robin appears generally well. He asserted that he had had a “minor stroke”, but there was no evidence about that before the Tribunal. Even if I were to accept that evidence, Mr Robin’s intention in Australia was to get a job fencing, so it would appear he did not consider he had any medical condition would affect him working, save perhaps he could not do the work he used to do in roof trussing because of stress to his back.
I note that Mr Robin would not face language or cultural barriers in New Zealand, which has a society as close to Australia’s as any other nation. The Respondent rightly submitted he would have difficulties in transitioning if repatriated. There was no evidence before me that Mr Robin as a New Zealand citizen would not have ready access to social welfare support provided by New Zealand Government agencies, including to find work, if he is repatriated.
The Tribunal accepts, however, that because Mr Robin has lived in Australia for the last almost 24 years and does not have any contacts in New Zealand, he would face loneliness and certain stresses if returned. Although his adoptive father is from New Zealand, there was no evidence before me of any relatives who might be able to provide support or assistance. He suggested his biological mother now lives in Australia, but, in any event, I cannot assume she would be in a position to help him, even if she still resides in New Zealand.
Because of the lack of family support in New Zealand, the Tribunal finds that this consideration weighs very slightly in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of the Applicant’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean; first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker.
Ms Williams gave written and oral evidence in support of Mr Robin’s visa being restored. Mr Johnson noted she did not give any evidence of concerns for her safety or those of her daughters in the event the Applicant was released into the community.
I conclude that there would be an adverse impact on Ms Williams in the sense of Mr Robin not being able to provide weekend care for AL and AE. However, I consider that this is properly considered under other relevant considerations relating to the best interests of minor children and ties with Australia.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider the impact of the decision on Mr Robin’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. I must have regard to how long the Applicant has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.
Mr Robin’s adoptive parents reside in Australia; his adoptive mother is an Australian citizen and his adoptive father has the right to remain in Australia indefinitely. There was evidence before the Tribunal that they would be adversely affected if he were deported. Mr Robin stated in his personal circumstances form provided to the Department (GD, p 100) that he has two adoptive sisters and one adoptive brother. He did not provide much further information about them and what contact he maintains with them. However, it is reasonable for the Tribunal to assume that, as he grew up with them, they would want him to stay in Australia. He also says that he has eight nieces and nephews but did not provide any other details about them. There is no evidence if any are minors.
In terms of his relationship with his adoptive siblings, Mr Robin wrote (Exhibit A1) that he initially grew up with Mr and Mrs Robin living in the town of Emerald in Queensland, which he remembers as a happy time. He then wrote:
In terms of my criminal offending, I started crime at a young age. I began to be shipped around Australia with different family members, not having the things I wanted or needed due to them having their own children to care for as well. I decided to take things into my own hands, trying to obtain what I wanted and needed dishonestly, even though I knew it wasn’t the right thing to do. When I was about 12 or 13 I moved to Brisbane. I was suspended for smoking. Then moved to Perth, was expelled from that school for misbehaving and as a result my brother in law gave me a beating and also kicked me. I moved to Victoria with my sister. The purpose of this was to steer me away from the trouble I was getting into in Queensland. I started attending school in Wodonga. Sometime later I had an altercation with a teacher and was suspended. As a consequence, my sister’s family kicked me out of the home and I ended up on the street…
As I have mentioned, Mr Robin was aged four when he was brought to Australia. He started offending in August 2008, aged 14 (GD, p 34). He has made some contribution to Australia during his work roof trussing, but I consider this positive contribution has been outweighed by his offending, because he has particularly committed many property and driving offences, both of which have a direct impact on innocent members of society.
I accept that his parents would be adversely affected if Mr Robin was returned to New Zealand, noting that they have lived in Queensland for many years until recently moving to the Northern Territory of Australia, and the Applicant has had periodic contact with them for some years. Nonetheless, Mrs Robin gave sincere written and oral evidence in his support. The adult who would most be affected would likely be Ms Williams. I consider her oral evidence about them maintaining a genuine and close friendship, even with significant stresses, was genuine. At GD, p 103, Mr Robin refers to the effect on his ‘ex-wife’ if he is deporting in having to raise the children on her own, and I assume on the evidence that he was here referring to Ms Williams.
Ms Mclellan gave supportive evidence about Mr Robin and said she has kept in regular contact with him over the years. She told the Tribunal that she was prepared to offer him accommodation should he be released into the community.
I find that this sub-consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would “significantly compromise the delivery of a major project, or delivery of an important service in Australia”.
Mr Robin has some limited work record, working for three roof trussing companies. He described this part of his life as a happy one, earning a living. It is notable, however, that he was evading justice at this time. I do not believe that his employment record rises to the level contemplated by this part of the Direction. Whether Mr Robin remains in Australia or not would not affect a major project or service in Australia. I therefore find this sub-consideration is not relevant.
However, I conclude that this consideration weighs overall in favour of revoking the mandatory cancellation of the visa because of the effect Mr Robin’s removal would have on his immediate family and weighs neutrally.
Additional submission
As mentioned earlier, the Applicant handed up a recent Tribunal decision of Senior Member Fairall in Jameson. In that case, the learned Senior Member placed weight on the fact that Mr Jameson’s partner and children were Australian Aboriginal. Mr Jameson was a New Zealand citizen. His long-time de facto partner had a criminal record and the Tribunal observed that there was no certainty she would be able to enter New Zealand. The Tribunal concluded, at [4], that there is no realistic prospect of the children joining Mr Jameson in New Zealand, and then said that separation from their indigenous mother was neither desirable nor in the public interest. It was not apparent from the reasons that such separation was in the offing, but nonetheless the Tribunal’s conclusion was that the family unit would “disintegrate”.
The facts in Mr Robin’s case are distinguishable from those in Jameson. Ms Williams has expressed no wish or intention to relocate to New Zealand, and in fact Mr Robin’s submissions were based around his expectation that if repatriated he would be separated from AL and AE (and AW). Referring to AL and AE, Mr Robin relevantly wrote in his statement (Exhibit A1):
They would not be able to relocate to New Zealand with me. My daughter’s mother has a life here…. We’re not together anymore. Her mother has cancer and is in remission, she will not leave them behind. My children identify as Aboriginal and need to stay in their country and build that connection with their land.
Another distinguishing feature in Jameson was (at [67]) that the de facto relationship of Mr Jameson and his partner was of 14 years duration and was still extant, which is not the case for Mr Robin and Ms Williams. However, a common fact of Jameson and Mr Robin’s case is the separation that would inevitably occur between the Applicant and his son and two daughters, all of them young, if he is returned to New Zealand.
I agree with SM Fairall that unwelcome relocation of Indigenous Australians (especially minors who essentially may have no say in the matter) to another country as a direct consequence of the cancellation of the visa of a non-indigenous parent can be a relevant factor to take into account, because of the potentially damaging effect of loss of connection with land and country. (This point was also generally made by Member Burford in Re: Harrisand Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753, at [185].) However, I do not find, in the circumstances of this case, that this factor is engaged.
CONCLUSION
The primary consideration in the Direction relating to protection of the Australian community weighs heavily against the Applicant. He has persistently offended, sometimes in a dangerous manner, especially with his driving record. He has shown a consistent disregard for the law. It has ranged from routinely stealing petrol, taking cars and other vehicles, and many instances of dangerous driving and other serious motoring offences. His casual – and defiant – attitude to authority has continued through his conduct in prison and, most recently, has been seen in the incidents reported in immigration detention. With this history and lack of respect for authority, I have concluded that there is a real risk of him re-offending.
The primary consideration relating to family violence weighs heavily against him for the series of incidents in November 2018, extensively outlined above. The primary consideration relating to the expectations of the Australian community also weighs against the Applicant.
The primary consideration concerning the best interests of minor children affected by the decision weighs in favour revoking the visa cancellation, but that weight is significantly tempered by the fact that, except for a brief period relating to the older of his daughters, Mr Robin has not played a significant parental role in any of his children’s lives. The weight attaching to this consideration is also conditioned by whether the Applicant will abstain from illicit drugs, which he has taken in the past while living in the same house as a young child.
Of the other considerations, that relating to non-refoulement obligations is not relevant on the facts in the case of a person who is returnable to New Zealand. The consideration relating to the extent of impediments if removed weighs marginally in favour of revoking the mandatory cancellation, but the Tribunal finds that the real challenges that Mr Robin will undoubtedly face will not be insurmountable. The consideration weighing to impact on victims has been found to weigh neutrally. The consideration relating to links with the Australian community weighs relatively heavily in favour of revocation because the Applicant has spent almost all his life in Australia and has no family with whom he has contact in New Zealand.
The Tribunal is not limited only to the contents of the Direction in considering the exercise of the discretion under section 501CA(4) of the Act and can consider any other relevant matter. Aside from the suggestion by Mr Robin of him having Australian Aboriginality, subsequently withdrawn, and his citizenship, the Tribunal has not identified any matter in this category.
Any consideration in the Direction can be determinative but paragraph 7(2) of the Direction states that primary considerations should generally be given more weight than other considerations. Having considered all the evidence and weighing the considerations set out above, I am not satisfied that this general principle should be displaced. In this case I am not satisfied that the discretion available in section 501CA(4)(b)(ii) of the Act is enlivened. As a consequence, the decision under review is affirmed.
DECISION
Under section 43(1)(a) of the AAT Act the Tribunal affirmed the decision under review.
I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 16 November 2021
Dates of hearing:
4 and 5 November 2021
Applicant:
Mr Ashley Thompson (Self-Represented)
Counsel for the Respondent:
Mr Greg Johnson
Solicitors for the Respondent:
The Australian Government Solicitor
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