Toala and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 949
•25 April 2023
Toala and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 949 (25 April 2023)
Division:GENERAL DIVISION
File Number: 2023/0621
Re:Adrian Eddie Senio Toala
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 25 April 2023
Date of Written Reasons: 28 April 2023
Place:Brisbane
The decision under review dated 10 February 2022 is set aside and substituted with a decision that this Tribunal does not exercise the power conferred by s 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.
.......................[SGD]................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under section 501(2) of the Migration Act 1958 (Cth) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the power to cancel should be exercised under section 501(2) – consideration of Ministerial Direction No. 99 – decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)Cases
Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
28 April 2023
INTRODUCTION
Mr Adrian Eddie Senio Toala (‘the Applicant’) is a 27-year-old man, born in New Zealand in November 1995. He initially arrived in Australia in September 2001.[1] There followed some three subsequent departures from Australia which cumulatively caused him to be outside Australia for about five months. Aside from that approximate five-month absence, the Applicant has resided on a more or less permanent basis in this country since his initial arrival.
[1] Exhibit 1, p 45. Note: the Applicant settled here on a final basis with his family in February 2002.
The most recent visa held by the Applicant was a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’). On 22 November 2019, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) sent the Applicant a Notice of Intention to consider cancellation under s 501(2) of the Migration Act 1958 (‘the Act’).[2] On 2 January 2020 the Applicant made written representations to the Respondent going to the issue of why the Visa should not be cancelled.[3]
[2] Ibid, pp 68-71.
[3] Ibid, pp 72-128.
On 10 February 2022, a delegate of the Respondent decided to cancel the Visa pursuant to s 501(2) of the Act (Decision under review).[4] On 31 January 2023, this decision was communicated to the Applicant by email under cover of a letter from the Respondent’s Department.[5] The material also contains a duly signed acknowledgement by the Applicant confirming his receipt of the decision now under review on 31 January 2023.[6]
[4] Ibid, pp 21-36.
[5] Ibid, p 10.
[6] Ibid, p 14.
There followed an application to this Tribunal on 2 February 2023 seeking review of the abovementioned decision made by the Respondent’s delegate on 10 February 2022. I am satisfied this Tribunal has jurisdiction to review the decision pursuant to s 500(1)(b) of the Act.
The Hearing of this application proceeded before me on 12 and 13 April 2023. Oral evidence was received from:
·the Applicant;
·his mother, Ms Falute Toala;
·his de-facto partner, Ms Emalata Endemann;
·his sister-in-law, Ms Tausua (Donna) Toala;
·his work/business colleague, Mr Sione Fatai Lavaka; and
·the expert psychologist and associate professor in allied health, Dr Jacqui Yoxall.
The Hearing also received written evidence and the totality of that material was consolidated into an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
The offending history in Australia is of relatively short compass. We are talking about a history of eight offences dealt with across six sentencing episodes during the period January 2015 to November 2021. The offending was punished by cumulative head custodial time in the amount of 21 months plus the imposition of the cumulative amount of $2,100 represented by five fines. The totality of his criminal offending can be found in the table below:
Court Date Offence Sentence Queensland Magistrates Court November 2021 Common assault Conviction recorded
Fined $1,000
Compensation $500
Queensland Magistrates Court December 2016 Breach of Bail Conviction recorded
Fined $300
Queensland District Court
September 2016
Threatening violence by words or conduct at night – domestic violence offence Conviction recorded
Sentenced imprisonment: 12 months
Threatening violence discharge firearms or other act – domestic violence offence
Unlawful possession of weapons category D/H/R weapon – domestic violence offence
Conviction recorded
Sentenced imprisonment: 9 months
All terms of imprisonment to be served concurrently
Queensland Magistrates Court March 2016 Breach of bail Conviction recorded
$200
Queensland Magistrates Court September 2015 Contravene direction or requirement Conviction recorded
Fined $400
Queensland Magistrates Court January 2015 Unlawful possession of suspected stolen property No conviction recorded
Fined $200
The Applicant has also compiled a traffic history in this country.[7] It runs from (in terms of offending dates) March 2014 to February 2017, a period of approximately three years. It refers to some eleven offences. The traffic history can be summarised thus:
[7] Exhibit 4, pp 106-107.
·operating a motor vehicle as a learner driver under the direction of someone else not holding an open license – fined $176;
·failing to stop at a stop sign at an intersection – fined $330;
·operating a motor vehicle as a learner driver without the accompanying person being seated next to the driver (i.e the Applicant) – fined $176;
·unlicensed driving – fined $400 and disqualified from driving for a period of six months;
·driving while disqualified – disqualified from driving for a period of two years;
·executing a u-turn across a single or double continuous line – fined $204;
·exceeding the speed limit by less than 13 km/h (two offences) – fined $151;
·driving while disqualified - punished by the imposition of a 3 month custodial term that was suspended for a period of two years, with a further disqualification from driving for a period of four months;
·use/permit use of an unregistered four cylinder or two rotor motor vehicle – convicted, no fine;
·operating a motor vehicle while having a passenger 16 years or older in the car who failed to wear their seatbelt.
There is a further instance of two further offences the Queensland Police Service has recorded.[8] The first occurred in September 2014 and relates to travelling without paying correct fare which the Applicant received a $227.00 fine. The second occurred in July 2015 and relates to driving an uninsured motor vehicle on the road which was punished with convicted and no fine.
[8] Exhibit 4, p 108.
ISSUES
Section 501(2) of the Act provides that:
‘(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.’
Section 499(2A) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about either the performance of those functions or the exercise of those powers. For present purposes in reviewing a decision to cancel a visa pursuant to s501(2) of the Act, the Tribunal must have regard to the ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).
Part 1 of the Direction provides at paragraph 5.2 (‘Principles’) the framework within which decision-maker are required to approach the task of whether or not to exercise the discretionary power conferred by s 501(2) to cancel a visa. Those principles are as follows:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
There are two issues presently before the Tribunal:
(a)character test: whether the Applicant satisfies the Tribunal that he passes the character test[9] and, if not;
(b)exercise of discretion: whether the Tribunal should exercise its discretion conferred by s 501(2) to cancel the Applicant’s Visa.
[9] Section 501(2) of the Act.
If the Applicant succeeds on either the ‘character test’ ground or the ‘exercise of discretion’ ground, the weight of authority indicates that the Tribunal must not exercise the power conferred by s 501(2) to cancel the Visa previously granted to the Applicant. This would, in turn, involve the setting aside of the delegate’s decision made on 10 February 2022.
I will now address – in the context of the present case – each of the ‘character test’ and ‘exercise of discretion’ grounds in turn.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have ‘a substantial criminal record’. This phrase, in turn, is relevantly defined in s 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’.
There seems to be little or no question that the Applicant does not pass the character test by virtue of his ‘substantial criminal record’,[10] deriving from the imposition of terms of imprisonment upon him of twelve months or more.[11] In their respective Statements of Facts, Issues and Contentions (‘SFIC’), the parties are in agreement that the Applicant does not pass the character test.[12] This combined position derives from the cumulative custodial terms imposed in September 2016 of 12 and nine months imposed on the Applicant.
[10] Section 501(6)(a) of the Act.
[11] Section 501(7)(c) of the Act.
[12] Exhibit 2, p 3, [4(a)]; Exhibit 5, p 4, [22].
Accordingly, the Applicant cannot rely on s 501(2) of the Act to vitiate the Tribunal’s discretion not to exercise the power to cancel his Visa.
The remaining and determinative issue for this Tribunal thus becomes whether it should not exercise its discretionary power conferred by s 501(2) of the Act to not exercise its discretionary power to cancel the Visa previously granted to the Applicant.
IS THE TRIBUNAL’S DISCRETION PURSUANT TO S501(2) ENGAGED?
In considering whether to exercise the discretion in s501(2) of the Act, the Tribunal is bound in accordance with s499(2A) to comply with any directions made under the Act. In this case, the Direction has application.[13] The Direction (at Part 2, paragraph 6) compels decision-makers to take into account the abovementioned Primary and Other considerations in determining whether the Tribunal’s discretionary power conferred by s 501(2) of the Act is enlivened.
[13] That is, the abovementioned Ministerial Direction 99 described at footnote [11] of these Reasons.
The considerations relevant in the context of a cancellation decision comprise the five Primary and four Other Considerations described above.[14] I will now turn to addressing the applicable Primary and Other Considerations to determine whether the Tribunal’s discretion pursuant s 501(2) of the Act is enlivened.
[14] See [13] and [14] of these Reasons.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraph 8.1.1 Considerations
Paragraph 8.1.1(1)(a): there is consensus between the parties that the Applicant’s offending should be viewed very seriously.[15] This consensus is, to my mind, properly grounded when one has regard to the nature of the offences described at sub-paragraph (i), (ii) and (iii) of paragraph 8.1.1(1)(a) of the Direction. There is surely no cavilling with the proposition (and findings) that the offences that came before a Queensland District Court for sentencing in September 2016 was conduct that was undoubtedly violent[16], that it was perpetrated upon a woman[17] and that the charges were proffered as being committed in a domestic violence paradigm and that the Applicant was convicted and sentenced on those charges within a domestic violence paradigm.[18] It should also be noted that the Applicant has a conviction for a crime of violence imposed in November 2021 for the offence of common assault. This most recent offending falls squarely within the auspices paragraph 8.1.1(1)(a)(i) of the Direction.
[15] Exhibit 2, p 7, [23]; See also Transcript, p 122, line 31; p 131, line 13, p 132, line 4.
[16] Paragraph 8.1.1(1)(a)(i) of the Direction.
[17] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[18] Paragraph 8.1.1(1)(a)(iii) of the Direction.
The chapeau to paragraph 8.1.1(1)(a) of the Direction stipulates that conduct described in the following three sub-paragraphs is viewed very seriously by the Australian Government and the Australian community. I have no difficulty in reaching such a conclusion about the Applicant’s offending that was sentenced in September 2016. This paragraph 8.1.1(1)(a) therefore grounds a finding that the nature of the Applicant’s offending has been ‘very serious’. I so find.
Paragraph 8.1.1(1)(b) of the Direction refers to the types of crimes that may be considered serious by the Australian Government and its community. The Applicant has not committed any offence in the realm of causing another person to become a party to a forced marriage,[19] or being responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion;[20] or in relation to any crime committed during the Applicant’s time in immigration detention.[21]
[19] Paragraph 8.1.1(1)(b)(i) of the Direction.
[20] Paragraph 8.1.1(1)(b)(iii) of the Direction.
[21] Paragraph 8.1.1(1)(b)(iv) of the Direction.
However, in September 2015, the Applicant was convicted for ‘contravene direction or requirement’. As such, this is offending falling within the ambit of paragraph 8.1.1(1)(b)(ii) of the Direction because it was offending committed against government officials in the performance of their duties. The chapeau to paragraph 8.1.1(1)(b) stipulates that conduct of the type described in the following four sub-paragraphs is considered to be serious by the Australian Government and its community. I am satisfied that the Applicant’s failure to follow a lawful direction from a police officer does militate of a finding that the totality of his unlawful conduct in this country has been, at the very least, ‘serious’ and more likely ‘very serious’.
Paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(1)any violent offending he may have committed against women;[22]
(2)acts of family violence;[23] and
(3)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[24]
[22] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[23] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[24] Paragraph 8.1.1(1)(b)(i) of the Direction.
I am therefore precluded from taking into account the Applicant’s convictions imposed in September 2016 for the three offences committed against a woman[25] and which were also committed in a domestic violence context[26]. The Applicant has no convictions falling within the ambit of paragraph 8.1.1(1)(b)(i) of the Direction. When the sentences for these precluded offences are taken into account, we are left with a schedule of sentences that looks like this:
·fine $200, no conviction recorded;
·fine $400, conviction recorded;
·fine $200, conviction recorded;
·fine $300, conviction recorded; and
·fine $1000, conviction recorded.
[25] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[26] Paragraph 8.1.1(1)(a)(iii) of the Direction.
None of the above dot-pointed sentences involve the imposition of a custodial term. They are exclusively limited to the imposition of respective fines totalling barely $2000. The worst thing that can be said about the above dot-pointed sentences is that the fines gradually increase in quantum and there is a movement from the non-recording of a conviction to the actual recording of a conviction. Apart from those two items, it cannot be safely found that the sentences imposed on this Applicant for his non-precluded offending have anything of moment to say about the nature and seriousness of his conduct. That said, it should be noted the Applicant’s conviction in November 2021 for common assault[27] was imposed as a result of him spitting into the face of a complainant.[28] At best, this paragraph 8.1.1(1)(c) militates in favour of a finding that the Applicant’s offending has been of, at the very least, a ‘serious’ nature.
[27] Pursuant to s 335 Criminal Code Act 1899 (Qld).
[28] Exhibit 4, p 52.
I refer again to the Applicant’s traffic history that I have summarized above.[29] Much of the Applicant’s traffic history, and the penalties imposed for it, are unremarkable. However, he has compiled a significant traffic sentencing history for unlicenced and disqualified driving involving the imposition of not-insignificant fines and a disqualification from driving for over two years. It should also be noted that in March 2016, the Applicant was convicted of an offence involving his having a passenger in a motor vehicle that he was driving not properly restrained by a seatbelt.
[29] [8] of these Reasons.
I have elsewhere spoken of the nature of a non-citizen’s traffic history and how it speaks to the nature of that person’s offending.[30] While the imposition of a relatively small fine is not significant, a multi-year suspension of a person’s driving privileges[31] certainly is. The penalties imposed on the Applicant for his traffic offending do speak to the nature of his offending being, at the very least, of a serious nature, more likely ‘very serious’.
[30] Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45].
[31] Which it should be noted, included a three month term of imprisonment which was wholly suspended for two years.
Paragraph 8.1.1(1)(d) of the Direction compels an inquiry into the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. As mentioned earlier, this Applicant has committed eight offences across an approximate six year offending period. The offending was dealt with at six separate sentencing episodes. I am satisfied that the Applicant’s offending (which does, of course, include the Applicant’s traffic history) has been frequent. The next question is whether the offending demonstrates a trend of increasing seriousness. I am of the view that it does. His first three convictions were for (1) unlawful possession of stolen property (in the form of a cigarette lighter); (2) the abovementioned failure to follow the lawful direction of a police officer; and (3) a breach of bail.
There followed three convictions comprising the abovementioned very serious offences involving violence against a female victim in a domestic violence context that were punished in September 2016. There can be no question that these three offences are of a significantly greater level of seriousness than his first three convictions. There followed (in November 2021) the Applicant’s conviction for the abovementioned common assault offence involving spitting into a complainant’s face. These four offences are offences directly committed against the person and safety of another. They can easily be found to be more serious than the Applicant’s first three convictions.
Therefore, it can be safely found that the Applicant’s offending has been frequent and that it betrays a trend of increasing seriousness. This sub-paragraph 8.1.1(1)(d) therefore militates in favour of a finding that the nature of the Applicant’s offending has been at least of a ‘serious’ nature, more likely ‘very serious’.
Paragraph 8.1.1(1)(e): to my mind, the Applicant’s pattern of repeated offending reveals a number of cumulative effects. First, it seems obvious that he has failed to understand the boundaries of physically imposing himself against another person. His offences of violence against women is, to my mind, a very significant cumulative effect of his repeated offending in this regard. It is trite to suggest that the common assault/spitting incident punished in November 2021 was any more or less serious than the offending punished in September 2016. The latter is simply a different manifestation of the former. In particular, spitting at someone during a time of a global pandemic is, in and of itself, both reckless and potentially dangerous just as his more physically-oriented conduct punished in September 2016 was.
Second, the Applicant has a demonstrated pattern of failing to respect and follow lawful authority whether it be in the form of meeting conditions of bail or in the form of complying with lawful requirements for the ownership, management and control of a motor vehicle. Breaching bail results in associated authorities such as the police and law courts being compelled to take action in respect of such breaches. Breaching traffic laws and regulations does likewise but also places the public at risk of harm.
Third, the Applicant appears to have experienced little or no deterrent effect from the sequence of sentences imposed on him. He received non-custodial terms following commission of his first three offences. His next three offences (for the violent offending against a female victim in a domestic violence context), attracted cumulative custodial time of 21 months imprisonment. He clearly learned nothing and experienced no deterrent effect from the first three custodial sentences. As mentioned, the three offences attracting the custodial time were offences of violence committed against a woman in 2015. The Applicant apparently learnt nothing from the sentences imposed for that offending because he committed the abovementioned common assault/spitting offence in September 2020 for which he was punished in November 2021.
Paragraph 8.1.1(1)(f): I have earlier referred to the Applicant’s movement history in and out of Australia.[32] His most recent arrival was in April 2013. His first conviction was in January 2015. There is therefore no possibility of the Applicant providing false or misleading information to the Department in any incoming passenger card about his past offending. Further, I am not aware of the material otherwise demonstrating that the Applicant failed to disclose his prior criminal offending in any other document. This paragraph should be put to one side and rendered irrelevant.
[32] [1] of these Reasons.
Paragraph 8.1.1(1)(g): by letter dated 22 November 2019, the Respondent forwarded by pre-paid registered post a letter comprising a Notice of intention to consider cancellation of his Visa pursuant to s 501(2) of the Act. The relevant letter appears in the material.[33] The Applicant responded to this letter by making the usual and necessary representations to the Department about why his Visa should not be cancelled.[34] As I have mentioned earlier, the Respondent’s delegate ultimately decided (on 10 February 2022) to cancel the Visa.
[33] Exhibit 1, pp 46-49.
[34] Ibid, pp 51-65.
The abovementioned notice of intention to cancel was provided to the Applicant in November 2019. The delegate made the decision to cancel the Visa in February 2022. This decision was communicated to the Applicant in January 2023 by email under cover of a letter from the Respondent’s Department.[35] During the intervening period from November 2019 to January 2023, the Applicant:
·was convicted in November 2021 for the abovementioned common assault offence involving him spitting into the face of a female victim;
·was convicted in December 2021 for contravening a police banning notice;[36]
·committed a further offence of driving a motor vehicle without a driver license in April 2022 and;[37]
·committed a further offence of driving a motor vehicle without a driver license in July 2022.[38]
[35] Exhibit 1, p 10.
[36] Exhibit 4, p 2.
[37] Ibid, pp 60-61
[38] Ibid, pp 64-65.
I am mindful that this paragraph specifically refers to a non-citizen receiving a formal warning, in writing, about the consequences of further offending on that person’s visa status. I am satisfied that the abovementioned letter from the Respondent (in November 2019) does constitute a ‘formal warning’ and that it was put to the Applicant ‘in writing’. However, and at the risk of splitting hairs, I am hard-pressed to glean any narrative in that letter saying anything about ‘…the consequences of further offending in terms of the non-citizen’s migration status…’. That said, there is little to cavil with the proposition that the Applicant was ‘on notice’ that the Respondent was considering cancellation. He plainly provided responsive material to the Department to prevent cancelation of his Visa.
I am therefore satisfied that although the Respondent’s letter of November 2019 does not contain language about the consequences of further offending on the Applicant’s Visa status, he was surely on notice that his offending conduct was the subject of scrutiny by the Department and that further offending would do nothing to fortify his prospects of avoiding cancellation. This paragraph 8.1.1(1)(g) therefore militates in favour of a finding that the Applicant’s offending in this country has been at least of a serious, more likely very serious, nature.
Paragraph 8.1.1(1)(h): the Applicant arrived in Australia initially came to Australia in September 2001 and settled here with his family in February 2002 as a six-year-old. As best as I understood the material, he has not committed offences in his country of origin (New Zealand) or elsewhere other than Australia. This sub-paragraph can be put to one side and rendered irrelevant for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely led me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
In his SFIC, the notion of the nature of harm if the Applicant were to reoffend is analysed through three lenses. First, there is an assessment of the nature of harm if the Applicant were to re-commit any of what is referred to as his ‘index offences’[39]. The contention put on behalf of the Applicant is as follows: ‘It is conceded that the nature of the harm that would occur were the Applicant to repeat the Index Offending is very serious.’[40] Second, there is an assessment of the nature of harm in relation to his ‘other offending’ which is defined as the balance of his offending aside from the index offences.[41] In respect of these categories of offences, the following is contended:
‘As for the Other Offending prior to 2020, it is respectfully submitted that the nature of the harm to individuals or the Australian community in the event that any of this Other Offending was repeated would not be very serious because all of the Applicant’s Other Offending prior to 2020 consists of non-violent offences.’[42]
[39] That is the very serious and violent offending against a female committed in a domestic violence context that was punished in September 2016.
[40] Exhibit 2, p 9, [36].
[41] Ibid, p 7, [22].
[42] Ibid, p 9, [37].
Third, the Applicant’s SFIC then refers to the Applicant’s conviction for common assault (spitting on a female victim) in November 2021. With regard to that conviction, the following contention is made: ‘While this behaviour is offensive, distasteful and certainly not acceptable, there is no evidence to suggest that the assault resulted in any physical injury or harm to the victim. This is reflected by the imposition of a non-custodial sentence.’[43]
[43] Ibid, p 10, [38].
The Applicant’s criminal history, while not substantive, nevertheless contains some very serious offences. I accept that any recommission of his ‘other offending’ would most likely not result in any form of substantial material harm to a victim. His petulant offences in the form of breaching bail and failing to follow a lawful direction from a police officer give rise to a ‘harm’ oriented towards consumption of the community’s law enforcement and judicial sentencing apparatuses. I will also mention the Applicant’s traffic history in the paradigm of his ‘other offending’. His traffic offending has not caused direct harm to others but has nevertheless had the potential to do so. For example, a police document in the material notes that in the course of apprehending the Applicant for unlicenced driving in April 2022, the attending police noted the Applicant had his two children (then aged two and four) in the vehicle and that neither of them were in booster seats or otherwise correctly restrained.[44] This is a prime example of how ‘other offending’ while not immediately causative of harm to others, nevertheless has the capacity to do so.
[44] Exhibit 4, p 60.
However, the position is very significantly different in the event of any recommission of his ‘index offences’. These are very serious offences involving making of threats of violence, the carrying out of actual violence against a female victim, all with the purpose of the Applicant seeking to exercise unlawful dominion over a female victim in a domestic context. It is not a stretch of the evidence to suggest that offending involving the discharge of a firearm can lead to quite horrible and catastrophic outcomes. We are all too familiar with ‘one punch’ offending that resulted in permanent or even fatal outcomes for the victim.
I am satisfied that if this Applicant were to re-commit any of his index offences, there would follow very serious physical, psychological and, quite conceivably, catastrophic harm to a victim(s). Any re-commission of the Applicant’s ‘index offending’ and the harm that it would cause would be, to my mind, so serious that any risk that it may be repeated would be unacceptable. I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I will refer to particular themes or elements that, to my mind, speak to the Applicant’s recidivist risk. The first is the sentence imposed on the Applicant for his ‘index offending’ in September 2016. On that sentencing day His Honour, Judge Koppenol of a District Court in Queensland sentenced the Applicant to two custodial terms of 12 and nine months respectively. His Honour ordered that those terms be served concurrently. By the date of the sentencing hearing, the Applicant had served a period of 81 days in pre-sentence custody. Taking into account those 81 days (or two and a half months), His Honour ordered that the Applicant be released on parole that day (being the day of the sentencing hearing). In other words, the sentencing judge was prepared to return the Applicant to the community after serving two and a half months of a 12 months head custodial term.
In his sentencing remarks, Judge Koppenol said these things:
‘Mr Ryan of counsel, on your behalf, submitted that your behaviour has been transformed since these events, and I accept that submission.
…
Now, Mr Toala, as I told you during submissions, I could easily have you returned to prison today, and I seriously thought about doing just that. In my view, our Courts must make very clear to offenders in your situation that this type of behaviour will not be tolerated, and that prison is appropriate. However, you have already served 81 days. You have made significant efforts towards rehabilitation and are continuing to do so.’[45]
[45] Exhibit 1, p 42, lines 15-16; lines 22-27.
The further point to be made about Judge Koppenol’s sentence is that His Honour was satisfied that the Applicant was abstaining from alcohol,[46] had taken significant efforts towards rehabilitation and that he was continuing to do so.
[46] Ibid, line 18.
The Applicant has not re-committed any of the ‘index-type offending’ since September 2016. He was returned to the community in September 2016 and remained there until taken into immigration detention upon receipt of notification of the delegate’s decision to cancel his Visa. This notification – and presumed taking into immigration detention – occurred in January 2023. He has therefore spent almost seven years in the community without committing any further ‘index offending’. There are two blots on his copy book in this regard. The first of those involves a conviction for breaching a bail condition in August 2016. This breach occurred before the date of his sentencing for the ‘index offences’ in September 2016 but was, for some immediately-apparent reason, not dealt with in a court until December 2016, some three months after his sentencing for the ‘index offences’.
The second blot on his copy book involves his conviction for the common assault-spitting offence committed in September 2020 and punished in November 2021. There is no cavilling with the finding that such conduct is appalling and unacceptable. Be that as it may, putting aside the risk of transmission of infectious disease, such conduct never had any prospect of causing any physical injury or harm to its victim. This conduct should not disturb a finding that the Applicant has not re-committed any of his index offending since September 2016.
Since September 2016, the Applicant has not been in a controlled environment. A common submission in these applications is that the Tribunal should receive evidence about rehabilitation and recidivist risk with caution in circumstances where those factors are propounded while the Applicant has been in either criminal custody or immigration detention. This is not a mandatory cancelation matter such that the Applicant was not taken into immigration detention straight after his completion of serving a prison sentence for offending against the criminal law. This is a discretionary cancelation matter where a person’s visa is cancelled while they are in the community.
Therefore, the Applicant can validly argue that he spent the best part of seven years in the community and, to use plain language, simply got on with his life. He met a new partner (Ms Emalata Endemann) with whom he has maintained a consistent and devoted personal relationship for six years and with whom he has fathered three Australian children aged respectively four, three and one year old. Further to that, he has established himself as a viable participant in the building and construction industry with particular reference to concreting and form work. I will have more to say about the Applicant’s work and business activities later in these Reasons. For present purposes, it suffices to say (and find) that he has successfully established himself in the building industry sufficiently enough to provide for himself and his family of five.
Therefore also, save and except for the abovementioned two blots on his copy book since September 2016, it cannot be found that the Applicant has not recommitted any of his ‘index offending’ because he has been in the controlled environment of prison and/or immigration detention.
The Applicant’s relationship with Ms Endemann also, to my mind, speaks to his recidivist risk. If he had a pre-disposition towards conducting himself in domestic relationships on the basis of how he behaved in the commission of his ‘index offending’ then one would expect to see something in the material about some type of domestic episode or other contretemps during the six year period the Applicant has spent with Ms Endemann. Yet the material is silent about any such episode.
On the contrary, in her two statements, Ms Endemann speaks very positively about the Applicant’s qualities as a loving partner, father and inspiring family man. In her first statement dated 7 September 2019, she said the following:
‘I first met Adrian at Bremer State High School and since then, I have known him for a period of 7 years. We crossed paths again in 2016, and since then, we have created such great love and respect for each other, and have such a healthy and strong relationship. During our entire relationship, Adrian has respected me, loved me through all that he does, he has worked so hard to provide for not only our family, but for both mine and his immediate family, which Adrian does not hesitate to do. Since the day we met till now, Adrian’s personality hasn’t changed one bit. He’s filled with such positive energy always, very humorous and can never disappoint in making somebody happy, the most kindest man I know, very generous and has always been so out going. Over the years, Adrian has grown into a man that knows the value of family and respect and he has only been a member of the community of good character. We have made short and long term goals for our future and family. For some time now, we have been working towards buying our first house in the next year or so. With all this being said, we’ve planned to fulfill them in Australia, as we consider Australia home and we want our children to grow up with their grandparents, cousins and to have a better future for their education.’[47]
[47] Exhibit 1, p 91.
In her more recent statement dated 5 April 2023, Ms Endemann repeated her observations of the Applicant and confirmed a total absence of any domestic violence-type incidents between him and her akin to his ‘index offending’ committed in 2015. This is what she said in this second statement:
‘Adrian’s domestic violence offending happened when he was with his previous partner.
Since Adrian’s domestic violence offending in 2015 which was committed against his previous partner, Adrian has built a life with myself and our three children.
Adrian has not committed domestic violence against me during our relationship. He has never demonstrated any signs of domestic violence, nor has he made me feel trapped or worried about my safety or wellbeing.
I would not fear for my safety at all if Adrian were released. If Adrian had shown any behaviours of domestic violence towards us I would have removed my children and I from that environment.
If Adrian is allowed to remain in Australia, he would continue to have the support of myself and both of our families to ensure that he does not repeat any of his offending.
Adrian has matured a lot, even since his offending in 2020. He is one hundred percent focussed on supporting our children and myself, which will motivate him not to offend.’[48]
[48] Exhibit 7, pp 55-56, [12]-[17].
There is also evidence that the Applicant has completed certain rehabilitative courses. They are described in the Applicant’s SFIC as follows:
‘…it is submitted that the Applicant has completed relevant rehabilitation efforts towards family violence and his other offending, being the:
(a)Drug and Alcohol 101 course on 14 March 2023;
(b)Anger Management 101 course on 19 March 2023; and
(c)Domestic Violence 101 course on 27 March 2023.
The Applicant has also connected with DrugARM’s phone counselling service. DrugARM’s support services purportedly extend to “…relapse prevention, coping strategies, relationship skills, anger management, emotional regulation, mental health, and other life skills support.”’[49]
[Internal citations omitted]
[49] Exhibit 6, p 3, [9]-[10].
I approach the evidence around completion of these courses with some caution and trepidation for several reasons. It is clear that the courses have been completed in the month before the instant hearing and resulting decision. Their completion does not evince a more historical engagement with any rehabilitative process, but it may very well be the case that the Applicant may not have needed such engagement given his virtual seven years in the community without any further incidence of ‘index offending’. Further, the evidence at the Hearing before me about these courses was largely that of the Applicant and to a lesser extent, that of his mother and Ms Endemann. This is lay evidence which is inherently unsafe to rely on in circumstances where a finding about recidivist risk is sought to be based on a clinical finding that is best made by an expert.
The Tribunal also had the written and oral evidence of Dr Jacqui Yoxall, psychologist and associate professor in allied health. Dr Yoxall’s report is dated 5 April 2023 and is thus contemporaneous with these Reasons. She clinically assessed the Applicant via video conference on 24 February 2023 while the Applicant was in immigration detention. In her usual thorough way, Dr Yoxall took a detailed factual history from the Applicant with particular reference to his ‘index offending’, his ‘other offending’ and his traffic history. She also summarized the Applicant’s current personal circumstances noting the nature and extent of his domestic relationship with Ms Endemann and their three infant biological children. Dr Yoxall also noted the Applicant’s work activities in the building and construction industry with particular reference to the area of concreting. She also noted the significant financial and personal impact upon Ms Endemann and the three children consequent upon the Applicant’s removal from the family unit.
Dr Yoxall made a careful and meticulous summary of the nature of the Applicant’s relationships with his other immediate family members including his mother and father, his three younger siblings and his extended family comprising aunts/uncles, nieces/nephews and cousins. In addition, Dr Yoxall took her very usual and detailed relevant personal history from the Applicant noting (1) his primary and secondary schooling in the Ipswich area; (2) his affiliation with the Church of Jesus Christ of Latter-Day Saints; (3) his participation in the sport of rugby league for eight years; (4) his acquisition of a Certificate III in Landscape Construction together with his obtaining a graduate diploma at the Seminary of the Church to which he belongs. Dr Yoxall noted the Applicant’s consistent work history which saw him working for others until 2021-2022 at which time he commenced his own concreting business – specifically in October 2022. Dr Yoxall described the Applicant’s work in the concreting business thus: ‘He subcontracts himself and others out for concreting jobs. He said that he was working eight-to-ten-hour days, for five to six days a week. He said that he has never been unemployed and has never been fired from a job.’[50]
[50] Exhibit 7, p 68.
Dr Yoxall then took a detailed account from the Applicant about his offending. She quickly identified that the abuse of alcohol and illicit drugs (methamphetamines) was an early causative factor in and behind his offending. Dr Yoxall noted that the Applicant ‘…started drinking alcohol in 2014…’[51] and that he ‘…started using methamphetamines when he was 19 years old.’[52] His behaviour while engaging in this substance abuse led to his parents asking him to leave the family home. Dr Yoxall noted that ‘…his drug and alcohol use escalated after his parents kicked him out of home.’[53]
[51] Ibid.
[52] Ibid.
[53] Ibid, p 69.
Dr Yoxall noted that the Applicant’s parents were urging him to attend Church each week and that he was not doing so. She noted that the Applicant went to reside with his brother and the relative freedom of that lifestyle, in turn, caused the Applicant to feel ‘…that he was free to do as he chose, given that he was living away from his parents. He said that he “went wild”. He spiralled downwards with drugs.’[54] Dr Yoxall further noted that the Applicant met his previous domestic partner and victim of his very seriously violent domestic offending in the middle part of 2015. She noted that when the Applicant committed his ‘index offences’ in November 2015, both he and his then domestic partner (and victim) were both using methamphetamines.
[54] Ibid.
With particular reference to the circumstances around his ‘index offending’, Dr Yoxall said the following:
‘Mr Toala said that he has limited memory of the events on 11 and 13 December 2015. He said that, at that time, he was drinking and taking drugs on most days. He was losing things and having memory loss from substance use. He was angry and emotional. In regard to the offending, he said, “I was drunk and on meth for most of that week. I was upset. We were arguing. I didn’t have a job. [name of victim redacted] didn’t like me drinking”.’[55]
[55] Exhibit 7, p 70.
Dr Yoxall noted that the Applicant abstained from abusing alcohol and drugs during the 81 days of pre-sentence custody he did prior to the sentencing for his ‘index offending’ that occurred in September 2016. As will be recalled, Judge Koppenol released the Applicant on parole on the very day of the Applicant’s sentencing in September 2016. But Dr Yoxall said the Applicant told her that ‘Upon release on bail, he tried to abstain from drugs and alcohol. He said that he relapsed on three occasions.’[56] Dr Yoxall noted that at this time the Applicant (1) returned to live at the home of his parents; (2) re-engaged with his Church; (3) formed the relationship with his current partner, Ms Endemann; and (4) served the term of his release on parole without incident.
[56] Ibid, p 71.
Dr Yoxall made a summary of the relationship between the Applicant and Ms Endemann and recorded the Applicant telling her that Ms Endemman ‘…supported him and they have built a loving, stable, respectful and safe relationship together.’[57] Dr Yoxall recorded that Ms Endemann also comes from a strong Christian upbringing and that the Applicant thought ‘…she has been a substantial and positive influence upon him and has supported him to lead a good life.’[58] Dr Yoxall further noted the Applicant telling her that there had been no incidents of domestic violence in the relationship between him and Ms Endemann.
[57] Ibid.
[58] Ibid.
Dr Yoxall then asked the Applicant about his relatively recent pattern of Alcohol consumption and noted the following:
‘Mr Toala said that he continued to occasionally drink more alcohol then he intended. He said that he had a high tolerance to alcohol, noting that in a heavy binge drinking session he could drink many cans of premix spirits. He said that in 2020 he was going out with friends and cousins most Friday or Saturday nights, if not weekly, on a fortnightly basis. He said that he was binge drinking and was experiencing blackouts whilst drinking.’[59]
[59] Exhibit 7, p 72.
In terms of the nature of the Applicant’s most recent relationship with alcohol consumption, Dr Yoxall noted the following:
‘Mr Toala said that after the offending in September 2020 he stopped going out drinking with friends on a regular basis and stopped engaging in alcohol binges. He said that he started spending more time with his family and engaging in more exercise and training.’[60]
[60] Ibid, p 72-73.
In terms of the impact of incarceration on the Applicant, Dr Yoxall noted these things:
·remorse and acceptance of responsibility: Dr Yoxall thought the Applicant had demonstrated ‘genuine remorse for his past offending’ and that he ‘accepted responsibility’ for his unlawful conduct;[61]
·development of insight: Dr Yoxall opined that the Applicant ‘demonstrated a reasonable level of personal insight’. She noted that the Applicant had reached a state of realization ‘that alcohol misuse is a problem for him and that it is a factor in nearly all his past offences.’ Dr Yoxall was satisfied that the Applicant had abstained from illicit drug use for over seven years but that he ‘has struggled, until the last two years to resolve his binge drinking of alcohol.’ She further noted that the Applicant ‘now avoids alcohol because he is aware of the impact that it has on his judgement and he doesn’t want to risk making any further mistakes or engaging in any further offending.’[62]
·behaviour in custody: Dr Yoxall noted the Applicant’s good behaviour during his time in both criminal custody and immigration detention;[63]
·plans for the future: Dr Yoxall noted the Applicant ‘has realistic and feasible plans for the future’ involving (1) resumption of his parental role; (2) resumption of his role as Ms Endemann’s partner; and (3) returning to his work as a concreter.[64]
[61] Ibid, p 74, [9.1].
[62] Ibid, pp 74-75, [9.2].
[63] Ibid, [9.3]
[64] Exhibit 7, pp 74-75, [9.4].
Dr Yoxall made a summary of the Applicant’s current functioning. She noted the Applicant’s feelings of distress and anxiety upon being placed into immigration detention and that he was experiencing ongoing worry and rumination as a result of being separated from his partner and infant children. She noted the Applicant was exercising every day and that he was not experiencing panic attacks, not having any suicidal thoughts and that his appetite had not changed.
During the period of her assessment of, and interaction, with the Applicant, Dr Yoxall noticed no anomalies in his appearance or behaviour. His matter of speech and response to questions was organised, articulate and not indicative of any disorientation. He noted no anomalies of speech or thoughtform. Dr Yoxall specifically opined that ‘There was no indication of psychotic symptoms. He described his mood as ‘okay’ noting he uses strategies to manage his mood and maintain a positive outlook.’[65]
[65] Ibid, p- 76-77, [10.2].
Dr Yoxall’s report then involves itself with assessing the Applicant’s recidivist risk. Her analysis and findings on this specific issue are predicated with the usual disclaimer such that ‘No risk assessment will result in a zero or no risk of reoffending.’[66] The detailed process involving assessment of and recording of specific measuring variables utilized by Dr Yoxall to assess recidivist risk appears in her report. For present purposes, it suffices to record that she applied the following risk analysis tools to assess the Applicant’s recidivist risk:
[66] Ibid, p 77, [11].
·level of service inventory – revised (LSI-R): this methodology assesses then static risk/need domains as a means of identifying risk/needs variables with a view to assessing a person’s recidivist risk. Higher scores are indicative of an increased recidivist risk. The Applicant scored 10, which placed him in the approximate[67] 10 percentile of offenders representing the lowest recidivist risk. In other words, approximately[68] 89-90 percent of the normative sample[69] scored higher than the Applicant in terms of recidivist risk. Dr Yoxall notes any score below 13 ‘indicates low risk of reoffending and a low level of rehabilitation needs’;[70]
[67] I say ‘approximately’ because in her report (see Exhibit 7, pp 80-81), Dr Yoxall makes a specific percentile finding which was slightly altered during the course of her oral evidence.
[68] I say ‘approximately’ because in her report (see Exhibit 7, pp 80-81), Dr Yoxall makes a specific percentile finding which was slightly altered during the course of her oral evidence.
[69] This testing methodology uses a normative sample of North American offenders.
[70] Exhibit 7, p 80-81.
·Hare Psychopathy Checklist (PSL-22): this methodology comprises a 22-item checklist designed to identify personality traits and observable behaviours that are identifiable in persons with a psychopathy pre-disposing them to offending. Respective scores of zero (for ‘not present’), one (for ‘possibly present’) and 2 (for ‘present’) therefore gives a worst-case scenario score of 44. The higher the score, the greater the presence of psychopathic indicators pre-disposing a person to offend. After applying the 22-item checklist to the Applicant, Dr Yoxall’s report noted that the Applicant scored zero out of 44 and that he thus represented a low likelihood of recidivist risk based on this testing methodology;
·Spousal Assault Risk Assessment Guide (SARA): this is a 20 item checklist designed to screen for risk factors of spousal or family related violence. After applying this assessment tool, Dr Yoxall opined thus:
‘…Overall this equates to the category of “low to moderate” where the only two outcome options on this measure are either, ‘low to moderate’ or “high” risk of reoffending in terms of domestic violence.
A significant factor in predicting risk of spousal assault is the fact that Mr Toala has not reoffended in 7 years since the offending in December 2015.’[71]
·Violence Risk Appraisal Guide (VRAG): the VRAG is an actuarial tool for the prediction of violent recidivism. It provides a probability (ranging from zero to 100 percent) that an offender will commit a new violent offence within a specified period of return to the community. It uses 12 personal characteristics to establish recidivist risk. Following application of this tool on the Applicant, Dr Yoxall’s un-concluded opinion was expressed thus:
‘On review of the normative sample used to develop the VRAG, the seven year base rate of violent recidivism was 31% and the 10 year base rate of violent recidivism was 43% Using the VRAG, a total score of 1 was calculated for Mr Toala. This score is assigned to Risk Category 5. Among offenders in the development sample for the VRAG, 46 % obtained higher VRAG scores, and approximately 35 % in the assessed person’s category reoffended violently within an average of 7 years (48 % within an average of 10 years) after release. It is not possible to determine whether Mr Toala is most similar to the 35% of the normative sample that reoffended within 7 years or the 65% of the normative sample that did not re-offend within 7 years.’[72]
·HCR-20: this is a structured professional judgement tool for the estimation of a person’s likelihood of violent offending. It looks for the presence (or non-presence) of (1) historical items causative of previous offending; (2) any present clinical items that could become causative of offending; and (3) any risk management items in terms of future recidivist risk. Each of those items are coded zero for ‘absent’, one for ‘for possibly present or present to a limited extent’ and two ‘for an item that is definitely present’. Upon application of the HCR-22 tool, Dr Yoxall opined thus:
‘In consideration of these factors, Mr Toala has a low loading on the historical scale risk items, no loading on the clinical scale risk items and a very low loading on the risk management scale items. Mr Toala’s score on the HCR-20 is 7/40. Such a score is generally considered to accord with a low risk of violence. [It should be noted that “low risk” is the lowest risk possible on the HCR-20.]’[73]
[71] Ibid, p 84.
[72] Exhibit 7, p 85.
[73] Ibid, p 87.
Dr Yoxall’s ultimate recidivist risk analysis in relation to this Applicant may be summarised thus:
·risk factors: she noted the Applicant had static risk factors comprising his past offending and that he also had some dynamic risk factors comprising his association with negative social peer groups and his drug and alcohol misuse. Dr Yoxall noted that despite past protective factors in the form of his stable de facto relationship with Ms Endemann and supportive family and pro-social friends, none of these factors were sufficient to prevent his common assault/spitting conduct in 2020, and nor was the possible cancelation of his Visa which had been clearly communicated to him in the abovementioned letter from the Respondent to him dated 22 November 2019.
·changed circumstances: Dr Yoxall opines that the Applicant’s past obliviousness to protective factors ‘has changed’. She opines that:
‘He is now acutely aware of the risk of being deported. He is extremely distressed and anxious about this. The fear of further separation from his children and partner, and or time exposed to the criminal justice system and or prison are very strong deterrents to future offending. He is now more open to engagement in any rehabilitation recommended.’[74]
·actual level of recidivist risk: in the event of the Applicant’s return to the community now, Dr Yoxall opines that his recidivist risk level ‘is low’.[75] There seem to be two main predicators on this finding. First, the fact that he has not re-offended in the last seven years.[76] Second, that he maintains his ability to abstain from alcohol use and to engage in recommended rehabilitation and treatment. If he does so Dr Yoxall opines that ‘it is my view that his risk of general offending is low.’[77]
·the nature of any offences if the Applicant re-offends: Dr Yoxall opines that such offending would be in the realm of general offending as a result of alcohol misuse and/or traffic offending as opposed to offending in a domestic violence context which is what his abovementioned index offences were.
[74] Exhibit 7, pp 88-89.
[75] Ibid, p 89.
[76] Presumably, save and except for the common assault/spitting incident in 2020.
[77] Exhibit 7, p 89.
As mentioned, Dr Yoxall also gave lengthy oral evidence at the Hearing. In her evidence-in-chief she explained the nature of the various testing methodologies she applies on the Applicant and how she arrived at the scored outcomes for each of those tests. Towards the conclusion of her evidence in chief, and following her reiteration of a low recidivist risk, she was asked about what the Applicant’s future offending might look like:
‘MS SAMUTA: Dr Yoxall, you’ve made assessments that Mr Toala has a low risk using various tools that we’ve just spoken about. If he does reoffend, what’s your view on what the future offending might look like?
DR YOXALL: It’s my view that his offending is substantially linked to his ability to abstain from alcohol abuse, and I’m saying that now, rather than alcohol and drug abuse, because he’s demonstrated his ability, as far as the info available to me goes, his ability to authorities bundle stain from drugs, certainly methamphetamines for, you know, a matter of up to seven years. So that the issue at hand, in my view, is alcohol and alcohol abuse specifically.
…
But he doesn’t have a large number of common risk factors to indicate a person with a propensity towards violence in a variety of different areas of his life. I would expect that his reoffending would potentially fit in the space of, if it was alcohol‑related, to be lower level in the sense of public nuisance, causing a disturbance, those types of things.’[78]
[78] Transcript, p 95, lines 35-43; p 96, lines 5-9.
Dr Yoxall was also cross-examined. She was initially asked about the Applicant’s risk of reoffending being linked to his ability to abstain from alcohol and to engage in recommended rehabilitation. Dr Yoxall confirmed that the Applicant’s key predispositive issue is his binge drinking.[79] She was also asked about the importance of support the Applicant received from his family as a means of managing his relationship with alcohol and Dr Yoxall said ‘…its very important for everyone that manages substance misuse issue or recovery from or abstaining…’[80]
[79] Transcript, p 97, lines 44-47; p 98, line 1.
[80] Ibid, p 98, lines 38-40.
It was put to Dr Yoxall that the Applicant told the Tribunal that he does continue to drink to excess and that he becomes intoxicated two to three times a month. She was specifically asked whether the Applicant told her this during their consultation. Dr Yoxall said ‘he didn’t say two to three times a month. He did say to me that he’d reduced the intensity of the binge drinking and the frequency.’[81] There followed this exchange the Respondent’s representative and Dr Yoxall:
‘MS LAIZANS: Given that Mr Toala has given evidence that he does drink to the point of intoxication two to three times per month, and your opinion is that drinking alcohol does increase Mr Toala’s risk of recidivism, would you agree that, therefore, two to three times a month, there is a greater risk of recidivism for Mr Toala?
DR YOXALL: Yes, I’d agree that whenever he’s binge drinking there’s a greater risk, yes.’[82]
[81] Ibid, p 99, lines 39-40.
[82] Ibid p 100, lines 14-19.
Dr Yoxall was then taken to the findings and measurements recorded in her various testing methodologies performed on the Applicant. The following then transpired between her and the Respondent’s representative:
‘MS LAIZANS: So in your clinical opinion, would you consider that Mr Toala does currently have a problem with alcohol?
DR YOXALL: Potentially, and I’m going to explain why. The definition of whether somebody has alcohol misuse goes beyond the number of drinks somebody drinks and how frequently they drink. So it is to do with other factors including tolerance to alcohol, increased tolerance as time goes on, engagement or experiences of negative outcomes and persistence of the use, and I could go through all the details there, but I would need more information about the impact of that alcohol use to determine that it was currently a misuse disorder, a problem, if that makes sense. And that might seem to not make sense to the layperson, but the information that I had is that he had reduced the alcohol in terms of intensity and frequency of binge and that he hadn’t had any negative outcomes to his alcohol use over a period of about two years before.’[83]
[83] Transcript, p 101, lines 10-22.
Dr Yoxall was taken to the risk represented by this Applicant in terms of his commission of another domestic violent offence to the same type of severity as occurred in December 2015. She said the following:
‘MS LAIZANS: Thank you. Are there, in your opinion, any factors that may emerge in Mr Toala’s life that would increase his risk of committing another domestic violence offence of any level severity?
DR YOXALL: Yes, yes, there are factors for everyone, particularly people that have engaged in domestic violence before. He doesn’t have a range of pre‑existing experiences that we often find with perpetrators of domestic violence, and I can go into that, but you know, one of those is early witnessing of domestic violence and modelling in the home. He doesn’t have that, as far as I’m aware. The domestic violence that he engaged in was ‑ as far as I’m aware, it was extreme one could say. It was within a very short, brief period of time. It was in the context of a relationship, as I understand it, that certainly was heavily impacted by substance use, drug and alcohol…
…
So in terms of his future, the years that he’s had in what he describes as a stable relationship, a respectful relationship, and a non ‑ a relationship that does not involve domestic violence with his current partner and mother to his children certainly are important in terms of changing patterns. That’s the key piece with domestic violence, is changing patterns and beliefs.
…
And a lot of those factors that generally increase someone’s risk of engaging in domestic violence are of course involved in that Spousal Risk Assessment that I did, or the measure that I used. So for him, in and of himself, I don’t think that ‑ I think the issue is return to drugs. I think that would be a key…
…
But we’ve also got a substantial maturation there. The difference a 20‑year‑old, in that context I just described, to the person that I understand, and how he’s functioning now, is quite a substantial change. But risk is always risk and we can’t say that anybody has no risk.’[84]
[84] Ibid, p 106, lines 26-37; line 47; p 107, lines 1-5; lines 22-25; lines 27-30.
Dr Yoxall was then taken to the deterrent (or other) effect of a future Visa cancelation episode on the Applicant’s level of recidivist risk. The specific exchange occurred thus:
‘MS LAIZANS: Do you consider that if Mr Toala is returned to the community, and this experience and this part of his life becomes an increasingly distant memory, that his risk of offending will resultantly begin to rise, as they won’t be that approximate consequently (indistinct)?
DR YOXALL: Not necessarily, no…But the piece here is the shock of the permanent loss and disconnection from his children and his partner and his family… I wouldn’t agree that that would be ‑ that as he recovers from this experience, and as he moves forward in his life, that would make him more at risk of engaging in further behaviour that puts that at jeopardy again.’[85]
[85] Transcript, p 107, lines 34-38, lines 40-42; lines 44-47.
There followed some questions from me. The two principle areas of my questioning were, first, the extent to which family responsibility and business responsibility serve as protective factors against this Applicant’s level of recidivist risk. I took Dr Yoxall through the nature of the Applicant’s work and business activities involving, as they do, not just the provision of remunerative work for himself, but also the placement of others (over 20 such ‘others’) at job sites from which those other people derive an income and livelihood. I also took Dr Yoxall to the vulnerable state of his domestic partner, Ms Endemann and their three infant children aged 4, 3 and 1 year old respectively to be able to provide for themselves in the event of his removal from their lives. I then put the following question to her and she responded thus:
‘SENIOR MEMBER: To what extent, if at all, is that burden, or those burdens of responsibility protective against him committing further offences?
DR YOXALL: Yes. In my opinion it’s a high protective factor, both of them, but predominately the family responsibilities to his partner and to his young children. And I think that the peace there is, what I referred to before, around the level of maturation, the growing up that’s happened between, if you like the beginning of this - of his issues around 19, 20, and where he is - over eight years, and where he is now. I think it’s a substantial protective factor. And I don’t think he takes it lightly in terms of his business. He did talk to me about what he does with the business, and the impact of his absence, and his, you know, his feelings of guilt and letting down the people that rely on him, as you’ve described.’[86]
[86] Ibid, p 117, lines 27-37.
Second, I was interested in Dr Yoxall’s views on whether the reality that the Applicant’s brother had gone through a similar Visa cancellation or denial process would have any deterrent impact on the Applicant’s level of recidivist risk. This is what she said:
‘SENIOR MEMBER: …Should the tribunal take anything negative from the reality that his own brother has gone through a similar visa cancellation or visa denial process, in terms of his recidivist risk?
DR YOXALL: I don’t - I don’t think so, no. Look, I think, you know, I think the average person might be able to say, well, you know, he saw his brother go through it, he should have thought differently. I understand the brother’s older; I understand he was younger; this is his pathway. His brother has also, actually, as I understand it, made good with his life. And so, that would be, again, another factor that would support Mr Toala to do the same.’[87]
[87] Transcript, p 117, lines 39-47.
Findings about, and assessment of, recidivist risk
It is, to my mind, notable that the judge who sentenced the Applicant for his ‘index offending’ was sufficiently convinced about the Applicant’s low level of recidivist risk such as to immediately release him on parole after serving two and a half months in pre-sentence custody. This is not a case where the Applicant has been in criminal custody and then taken into immigration detention such that he has been out of the community for the cumulative total of those two custody/detention periods. On the contrary, the Applicant has been in the community since September 2016. He only taken out of the community in the latter part of January this year and placed into immigration detention. He therefore spent those intervening six-seven years in the community and, with the exception of the irresponsible and stupid common assault/spitting offence in 2020 and some relatively minor traffic matters, he has not re-offended at all and has certainly not re-offended in the realm of his past ‘index offending’.
On the contrary, he has spent those six-seven years commencing and successfully maintaining a domestic relationship with Ms Endemann which has produced three children aged four, three and one. He has also spent those six-seven years in gainful employment either working for others or for himself. In working for himself, he has proven to be enterprising, resourceful, resilient and collaborative. As will be noted during my discussion around his ties to Australia, numerous other people speak of the Applicant’s work history – especially his current work in the concreting business – in exactly these terms. This reconfiguration of the Applicant’s life has occurred in the uncontrolled environment of the community at large. It has not occurred – as is often seen in these types of visa cases – in the closed confines of criminal custody and/or immigration detention.
As mentioned, the Applicant has formed what appears to be a strong and enduring domestic relationship with Ms Endemann. They have known each other since their high school days. The nature of their relationship is important in terms of the Applicant’s recidivist risk because it stands in stark contrast to the destructive relationship the Applicant maintained with the victim of his ‘index offending’. That was a relationship based on substance abuse including, primarily, methamphetamine abuse in which both he and she were involved.
There is no reason to reject Dr Yoxall’s findings around the Applicant’s levels of remorse and acceptance of responsibility for his past unlawful behaviour. There is likewise no reason to reject Dr Yoxall’s findings about the Applicant’s current level of personal insight involving, as it does, a realization that the abuse of alcohol has been the primary causative factor in virtually all of his past offending. Likewise one can accept that the Applicant now wants to moderate his intake of alcohol because he does not want to make future mistakes similar to those he has made in the past when he was significantly abusing both alcohol and drugs.
Not very much can be taken from the rehabilitative courses completed by the Applicant in March of this year for reasons I have already stipulated. The ultimate question thus becomes to what extent can it now be safely found that the Applicant has overcome or can otherwise successfully manage his consumption of alcohol? The unhelpful factors are that, try as they have, neither the Applicant’s mother or Ms Endemann, have succeeded in convincing the Applicant to completely abstain from alcohol consumption. As against that, we have two primary other factors. First, the Applicant has proceeded to get on with his life by (1) returning to his Church and the beliefs it teaches; (2) obtained certificate qualifications in landscape construction; (3) obtained graduate diploma qualifications from the Seminary of his Church; and (4) has maintained a consistent pattern of engaging in remunerative employment.
Second, we have the findings of Dr Yoxall who spoke of the Applicant having changed and now being acutely aware of a risk of deportation and the very significant that impact would have on the welfare and wellbeing of Ms Endemann and their three minor children who almost exclusively rely on him for their subsistence. As she said in her oral evidence, in relation to this Applicant ‘we’ve…got a substantial maturation there. The difference a 20-year-old…to the person that I understand, and how he’s functioning now, is quite a substantial change.’ And further, when Dr Yoxall noted that the Applicant has now experienced ‘the shock of…permanent loss and disconnection from his children and his partner and his family.’
I have recounted (to the best extent I understood each of the relevant methodologies) the scores Dr Yoxall allocated to the Applicant after applying some five testing methodologies upon him. The essential point arising from each of those results, is that the Applicant scored at the lowest possible level – in terms of recidivist risk – in relation to all of those tests. I accept that Dr Yoxall conceded in cross-examination that she had to perform a slight variation of one or two aspects of her measurements but, in the final analysis, none of those adjustments materially altered the Applicant’s level of recidivist risk referable to the given assessment tool.
I accept Dr Yoxall’s finding that the Applicant – if returned to the community now – represents a low recidivist risk and that such risk can be isolated towards a risk of offending in the realm of general offences and/or traffic offending rather than domestic violence offending which exclusively constituted his ‘index offending’. I accept that the Applicant continues a relationship with alcohol to the point of intoxication up to two-three times per month and that Dr Yoxall agreed that ‘whenever he’s binge drinking, there’s a greater risk.’ But even in the circumstances of that level of alcohol usage, the Applicant has, over the last six-seven years self-regulated to the extent that he has not re-committed any of his ‘index’-type offending.
As against that, we have the evidence (and expert opinion) of Dr Yoxall who said that what the Applicant has experienced in terms of the cancelation of his Visa is not something that will become a distant memory for him such that his risk of re-offending will rise as the memory of this Visa cancelation episode fades. Dr Yoxall was satisfied that the shock experienced by the Applicant resulting from the enforced deprivation of his right to be with his partner and his family together with the broader and very significant impacts on his work and community life, has been such that he would not want to place those critical elements of his life in jeopardy every again. I agree with this finding of Dr Yoxall.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) of the Direction provides:
‘Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.’
I address this sub-paragraph 8.1.2(2)(c) out of an abundance of caution and for the sake of completeness. This matter does not involve a, ‘refusal to grant a visa to a non-citizen’. It involves an issue of whether this Tribunal does or does not exercise the power conferred by s 501(2) to cancel a visa that has been granted to the Applicant. This specific paragraph is not relevant to determination of this application.
Conclusion: Primary Consideration 1
I will now apply (to the extent possible) the factors appearing at paragraph 8.4(4) of the Direction to these other minor children. There is no doubting the durability of the Applicant’s relationship with these other minor children, especially the four children of his brother Andrew. While there is durability in the Applicant’s relationship with both Andrew’s and the other minor children, it cannot be safely found that the nature of those relationships has been parental. As against that, the Applicant has been a constant presence in the lives of those children because he has not spent lengthy period of time in either/or criminal custody or immigration detention. Sub-paragraph 8.4(4)(a) therefore militates moderately in favour of this Tribunal not exercising its power to cancel the Applicant’s Visa.[241]
[241] Paragraph 8.4(4)(a) of the Direction.
Although the Applicant has been consistently present in the lives of these other minor children, it cannot be said he will play a ‘positive parental role’ in their respective futures because such a role will be undertaken by those who primarily care for those children. He will play a positive loving uncle-type role. In their lives until the attain the age of 18 years. But that is not a parental role. Paragraph 8.4(4)(b) of the Direction therefore only slightly militates in favour of this Tribunal not exercising its power to cancel the subject Visa.
The evidence of the respective parents of these other minor children, while speaking in relatively glowing terms about the Applicant’s qualities as a father and uncle, does not contain much detail about whether his past conduct has adversely impacted those specific children or whether any future conduct by him would adversely impact them. Sub-paragraph 8.4(4)(c) of the Direction is therefore of little or no assistance in assessing any weight to the best interests of these other minor children.
There is reliable evidence that the Applicant has maintained contact with his biological children via Facetime. There is little to deny the reality that he would be able to similarly communicate with these other minor children if removed to New Zealand. However, that capacity to so communicate does not displace the extent of the impact these other minor children would experience if the Applicant were physically removed from their lives and they were not able to communicate with him on a face-to-face basis as they have done in their lives thus far. Sub-paragraph 8.4(4)(d) of the Direction is therefore of little or no assistance in assessing any weight to the best interests of these other minor children.
It is plain from the evidence that there are other people who already fulfill a parental role in relation to these other minor children. It is difficult to see how sub-paragraph 8.4(4)(e) facilitates the allocation of any favourable weight to the Applicant.
In their evidence to this Tribunal, the respective parents of these other minor children have spoken about how at least some of them would be impacted by the Applicant’s physical removal to New Zealand. While we do not know the actual views of these children (or at least those old enough to express those views), we do know from their parents that the children have come to expect and anticipate the Applicant’s physical presence in their lives. Therefore, sub-paragraph 8.4(4)(f) of the Direction moderately militates in favour of a finding that this Tribunal should not exercise its power to cancel the subject Visa.
There is nothing in the evidence suggestive of the terms of sub-paragraphs 8.4(4)(g) and (h) having been engaged and, accordingly, both of those sub-paragraphs can be put to one side and rendered neutral for present purposes.
Findings about the other relevant minor children
I have sought to apply each of the relevant sub-paragraphs at paragraph 8.4(4) of the Direction to the evidence before me as it relates to these other minor children. I have concluded that their interests moderately militate in favour of this Tribunal not exercising its power to cancel the subject Visa.
Conclusion: Primary Consideration 4
Overall, the cumulative best interests of the 12 children listed in Exhibit 8, when analysed through the lens of an application of the relevant sub-paragraphs of 8.4(4) of the Direction lead me to a finding that this Primary Consideration 4 is of very heavy weight in favour of this Tribunal not exercising its power conferred by s 501(2) of the Act to cancel the subject Visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[242] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[243]
[242] Paragraph 8.5(3) of the Direction.
[243] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The 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.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[244]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[244] Paragraph 8.5(2) of the Direction.
I have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraphs (a) by virtue of his commission of acts of family violence; [245] and (c) by virtue of the victim of his ‘index offending’ being a woman; [246] and (d) by virtue of his conviction for ‘contravene direction or requirement’.[247] This means the Australian community expects that the Australian government can and should cancel this Applicant’s Visa.
[245] Paragraph 8.5(2)(a) of the Direction.
[246] Paragraph 8.5(2)(c) of the Direction.
[247] Paragraph 8.5(2)(d) of the Direction.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[248]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[249]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[250] and
(f)If a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[248] Paragraph 5.2(4) of the Direction.
[249] Ibid.
[250] Paragraph 5.2(5) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [214], the term, ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa since 8 April 2013[251] until it was cancelled on 10 February, 2022.[252] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[253] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[254] Therefore the application of this sub-paragraph (a) is not applicable to the Applicant.
[251] Exhibit 1, p 46
[252] Ibid p 36
[253] Regulation 444.511 of the Migration Regulation 1994 (Cth).
[254] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [214], the Applicant has resided in Australia from February 2002 when he was 6 years old. He is currently aged 27 years. He has a demonstrated work history in Australia. He has fathered three biological children in Australia who are respectably aged four, three and one years old. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Act
In relation to sub-paragraph (c) of the abovementioned paragraph [214], I repeat that the Applicant resided in Australia from the age of six. He is currently 27 years of age. He has resided in Australia since February 2002. He has spent 80 percent of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [214] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. The augmenting element to this finding is that, as I have found earlier, he has spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [214], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his ‘index type offending’ of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s ‘index offending’ conduct and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [214], I have found that the Applicant’s offending is inherently of the type captured by, specifically, sub-paragraphs 8.5(2)(a),(c) and (d). Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. This is the case even in circumstances where, as I have found, he represents a low recidivist risk of causing physical harm to the Australian community. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour even where he represents a low recidivist risk.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [214], I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of his very serious ‘index type offending’, I am of the view (and I find) that the community expects the Government can and should cancel his Visa.[255]
Conclusion: Primary Consideration 5
[255] Paragraph 5.2(3) of the Direction.
Primary Consideration 5 confers a certain, but not determinative, level of weight in favour of this Tribunal exercising its power conferred by s 501(2) of the Act to cancel the cancel the Applicant’s Visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequence of the decision
I agree with the submission of the Applicant that the material before the Tribunal is not suggestive of any claim or finding that Australia’s non-refoulement obligations are enlivened in respect of this Applicant.[256] This submission is echoed by the Respondent who submits that this Primary Consideration (a) is not relevant to the instant determination.[257] I am mindful of the legal consequences of the within Decision as enumerated in this Other Consideration (a). My ultimate determination of this matter does not impact upon or otherwise engage any of the legal consequences appearing at 9.1(1) and (2) of the Direction. This Other Consideration (a) is of neutral weight.
[256] Exhibit 2, p 25, [123]
[257] Exhibit 5, p 11, [65]
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his PCF, the Applicant was asked ‘Do you have any diagnosed medical or psychological conditions?’ He ticked the ‘No’ box and described no physical or psychological conditions that were affecting him.[258] He did not record any medication currently prescribed to him nor did he mentioned being under the care of any doctor or other clinician. [259]
[258] Exhibit 1, p 64
[259] Ibid.
In the SFIC filed on his behalf, the following contentions are put as impediments to the Applicant establishing himself in New Zealand and otherwise maintaining basic living standards in that country:
·that he will struggle to find work in the concreting industry in New Zealand due to a lack of industry ties and connections in that country compared to the extent of his connections in Australia where he would much more readily be able to find employment;[260]
·that even if he was able to find work in New Zealand, his sole income would be insufficient to support his family of five. This is because in Australia, as a result of running his own concreting business, he makes enough money to support his family on his single income;[261] and
·that he will face significant cultural barriers in New Zealand despite being a citizen of that country.
[260] Exhibit 2, p 25, [126].
[261] Ibid, [127].
For reasons that will appear in my following discussion around the componentry of this Other Consideration (b), each of these contentions can be safely rejected. I will commence with a discussion and analysis around paragraph 9.2(1)(a). This Applicant is 27 years of age and in the prime of his life. There is no evidence of any medical of psychological condition affecting him - either currently or in his past. The Applicant’s age and health are not factors comprising of any impediments upon and removal to New Zealand.
Paragraph 9.2(1)(b): In the SFIC filed on his behalf, it is suggested that his ethnicity as a Samoan (rather than a Māori) exposes him ‘significant cultural barriers in New Zealand’.[262] I reject that submission because the Applicant has spent almost 80 percent of his life in Australia. He was born in Auckland, New Zealand in 1995. He lived there until he was six years old. He has never resided in Samoa and it suffices to say that people of Samoan ethnicity abound in New Zealand. I am hard-pressed to understand how his Samoan ethnicity give rise to a current impediment upon a removal to New Zealand.
[262] Ibid , p 26, [130].
Although not strictly binding for present purposes, this Tribunal (differently constituted) has previously found: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…]’[263]. As mentioned, the Applicant has spent almost 80 percent of his life in this country. I am therefore not of the view that the Applicant will face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand.
[263] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Sub-paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support that would be available to the Applicant in New Zealand were he returned to that country. The Applicant has specific skills and relevant work experience in the concreting and formwork industry. While he may lack his current level of ties and connections to that industry in New Zealand compared to Australia, this does not equate to a position of him struggling to find work in that industry in New Zealand.
To the extent the Applicant may require governmental assistance in the form of publicly available health care and/or social security or welfare benefits to assist with his re-settlement in New Zealand, he will have access to those types of supports to the same extent as is generally available to other citizens of that country. In terms of social support, it can be safely found that the overwhelming quotient of his family – immediate, extended – all reside in Australia.
The same can be said about his social contacts. While he may know or be related to other people in New Zealand, it does not mean that the level of familiarity is such that the Applicant can rely on those people to offer immediate lodgings to a family of five. The relative absence of social contacts in New Zealand can be found to be an impediment to the Applicant’s removal to, and re-establishment in, New Zealand.
I have found that the Applicant’s age and health[264] will not act as impediments upon a return to New Zealand. I have also found that he will not face any substantial language or cultural barriers[265] if returned to that country. The extent of any weight allocable in the Applicant’s favour pursuant to this Other Consideration (b) is to be found in the relative absence of family and/or social support[266] he would have if returned to New Zealand. On the basis of this specific impediment (and no other), I am of the view that this Other Consideration (b) confers a moderate, but not determinative, level of weight in favour of this Tribunal not exercising the power to cancel the Applicant’s Visa.
[264] Paragraph 9.2(1)(a) of the Direction.
[265] Paragraph 9.2(1)(b) of the Direction.
[266] Paragraph 9.2(1)(c) of the Direction.
Other Consideration (c): Impact on victims
The parties appear to in agreement that this other consideration is of neutral weight due to there being no contemporaneous evidence suggestive of any impact of this decision on any of the Applicant’s victims.[267] I agree.
[267] See Exhibit 2, p 26, [133]; see also Exhibit 5, [65].
Other Consideration (d): Impact Australian business interests
Paragraph 9.4(1) compels an assessment of the impact on Australian business interests as a consequence of the Applicant’s removal. It is not propounded by either party in their respective SFIC’s[268] and I am of the view (and I find) that this Other Consideration (d) is not relevant.
[268] See Exhibit 2, p 26 [134]-[135]; see also Exhibit 5 [65].
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderate, but not determinative weight to not exercise the power to cancel the Applicant’s Visa;
(c)impact on victims: is of neutral weight;
(d)Impact on Australian business interests: is not relevant.
CONCLUSION
Should this Tribunal exercise its power to cancel the Applicant’s Visa?
Section 501(2) of the Act provides that this Tribunal can make a decision not to exercise the power to cancel the Applicant’s Visa. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Applicant does pass the character test. Accordingly, the Tribunal should, pursuant to s 501(2) of the Act, not exercise the power conferred by s 501(2) to cancel the Applicant’s Visa. I make this finding on the basis that the Applicant does pass the character test.
In reaching this conclusion, I have had regard to the considerations referred to in the Direction. With regard to the weight I have allocated to each of these Primary and Other Considerations, I find as follows:
(a)Primary Consideration 1: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising its power conferred by s 501(2) of the Act to cancel the cancel the Applicant’s Visa;
(b)Primary Consideration 2: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising its power conferred by s 501(2) of the Act to cancel the Applicant’s Visa;
(c)Primary Consideration 3: confers very heavy weight in favour of this Tribunal not exercising its power conferred by s 501(2) of the Act to cancel the Applicant’s Visa;
(d)Primary Consideration 4: confers a very heavy weight in favour of this Tribunal not exercising its power conferred by s 501(2) of the Act to cancel the subject Visa;
(e)Primary Consideration 5: confers a certain, but not determinative, level of weight in favour of this Tribunal exercising its power conferred by s 501(2) of the Act to cancel the cancel the Applicant’s Visa.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 together with the weight I have allocated to Other Consideration (b), are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal not exercising the power conferred by s 501(2) of the Act to cancel the Applicant’s Visa.
Consequently, I do not exercise that discretion.
DECISION
The decision under review dated 10 February 2022 is set aside and substituted with a decision that this Tribunal does not exercise the power conferred by s 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s Visa.
I certify that the preceding 242 (two-hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.................................[SGD]..................................
Associate
Dated: 28 April 2023
Dates of hearing: 12 and 13 April 2023 Solicitor for the Applicant: Jennifer Samuta (Director) Samuta McComber Lawyers Solicitor for the Respondent: Claire Laizans(Associate) Minter Ellison
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED 1 Section 501 G-Documents
(bookmarked G1 – G47, paged 1-162)Various 7 February 2023 2 Applicant’s Statement of Facts, Issues and Contentions (paged 1-27) 7 March 2023 7 March 2023 3 Applicant’s Tender Bundle
(paged AT1-AT39)Various 7 March 2023 4 Respondent’s Supplementary Documents (bookmarked S1 – S14, paged 1-62) Various 27 March 2023 5 Respondent’s Statement of Facts. Issues and Contentions (paged 1-12) Various 27 March 2023 6 Applicant’s reply to Respondent’s SFIC
(paged 1-5)4 April 2023 4 April 2023 7 Applicant’s supplementary Tender Bundle (includes additional submissions paged AT40-AT99) Various 5 April 2023 8 List of relevant children provided by the Applicant (Email submission) 12 April 2023 12 April 2023 ANNEXURE A
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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