Tonga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 2484
•4 August 2022
Tonga and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2484 (4 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4046
Re:Gavin Michael Tonga
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:4 August 2022
Place:Brisbane
The decision under review is affirmed.
..................[SGD]......................................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category Temporary visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – breach of domestic violence orders – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member R Maguire
4 August 2022
INTRODUCTION AND BACKGROUND
By application made on 20 May 2022 the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 18 May 2022 made pursuant to
s 501CA(4) of the Migration Act 1958 (Cth) “the Act”), not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class TY Subclass 444 Special Category Temporary visa (“the visa”).
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) 28 days in accordance with reg 2.52, and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under s 501(6)(a) of the Act the person has a substantial criminal record as defined by
s 501(7). Relevantly, s 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
The Applicant is a 43-year-old citizen of New Zealand. The Applicant was born in New Zealand in 1979 and first entered Australia when he was 21 years old on 27 June 2000. The applicant has departed and returned to Australia a dozen times since, and his most recent arrival was on 20 September 2014.[1]
[1] Exhibit R1, S37 T Documents – G Documents (‘G Documents’), G18, pages 70-71
On 14 May 2021, the Applicant was sentenced in the Magistrates Court of Queensland to 12 months’ imprisonment for one count of Driving under disqualification, and a further sentence of fourteen months’ imprisonment for one further count of Driving under disqualification[2].
[2] Exhibit R1, G Documents, G1, G6, page 35.
On 28 June 2021, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to s 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test (substantial criminal record) on the basis that s 501(7)(c) was satisfied, i.e., that he had been sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 28 June 2021.[3]
[3] Exhibit R1, G Documents, G19, pages 72-76.
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with
s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister on 29 June 2021 within the period and in the manner specified.[4]
[4] Exhibit R1, G Documents, G10, pages 44-46.
On 29 September 2021, the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act,[5] and the Applicant made the present application to this Tribunal for a review of that decision.[6] The Tribunal has jurisdiction to review this decision pursuant to
s 500(1)(ba) of the Act.
[5] Exhibit R1, G Documents, G3, page 16 and G4, pages 17 – 26.
[6] Exhibit R1, G Documents G1, pages 1-6.
In these reasons, passages in bold other than headings represent emphasis added by the Tribunal.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 10 August 2022. It was therefore open to the Tribunal to make a decision prior to midnight, on
10 August 2021.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act.
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38] per North ACJ; Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [31] per Collier J, with whom Logan and Murphy JJ agreed.
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
· whether the Applicant passes the character test; and
· whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9] The Tribunal will address each of these grounds in turn.
[9] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Evidence before the Tribunal,[10] establishes that the Applicant was sentenced to
14 months’ imprisonment in the Magistrates Court of Queensland on 14 May 2021. Moreover, the Applicant conceded that he does have a substantial criminal record and does not pass the character test[11].
[10] Exhibit R1, G-Documents, G6, page 35.
[11] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’) lodged on 18 July 2022, page 2, para 13.
It is clear that this concession was properly made, as the custodial term imposed was “a term of imprisonment of 12 months or more”, and the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act and that the Applicant therefore cannot rely on
s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 90
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[12] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[12] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
Relevantly, the Direction states that:[13]
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
[13] Direction No 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 90”), page 5, Part 2, 6 – Exercising discretion.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of the Directions sets out four Other Considerations which must be taken into account. These considerations are:
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) links to the Australian community, including:
(i) strength, nature and duration of ties to Australia;
(ii) impact on Australian business interests.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[14]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.
[14] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
EVIDENCE BEFORE THE TRIBUNAL
Following the mandatory cancellation of his visa, the Applicant made a Request for Revocation on 29 June 2021.[15] The Applicant provided hand-written reasons for revocation as follows:
“Family support.
Consider myself to be Australian. All members of my family {including my children} are Australian citizens. I have nothing/no one in New Zealand, my life is here in Australia”.
[15] Exhibit R1, G documents, G10, page 46, under Reasons for Revocation.
Personal Circumstances Form
In his accompanying Personal Circumstances Form[16], (“PCF”) the Applicant gave his place of birth as Patea, New Zealand. He left blank the response to item 2 requesting his citizenship details and nominated both his parents as New Zealand citizens at birth currently holding Australian citizenship. He stated he first arrived in Australia on
27 June 2000 at Brisbane. He provided no details of people with whom he travelled to Australia. He provided an address at Loganlea where he intended to live if returned to the community. He gave his relationship status as engaged and gave October 2018 as the date the relationship commenced. He nominated his spouse/partner, and this person shall be referred to as NMR. He ticked the “Yes” box when asked “will you be living with this person upon a return to the community?”.
[16] Ibid, G11, pages 47-60.
In describing his relationship with NMR, and the impact of any negative decision upon her the Applicant said:
“We met through mutual friends – fell in love and have been together since 2018. We plan to marry and continue building a life together upon my release.
…
My incarceration has already had a negative impact on my partner. Should I be deported, I fear will push my partner into a severe state of depression and withdrawal. Furthermore, would leave my mother with less support and care”.[17]
[17] Ibid, page 50, under 7, Other Relationship Information.
The Applicant did not disclose any minor children under 18 years of age, yet when asked to describe his relationship with each of his minor children he stated:
“I play a role of father in my son’s life. I have always shown support to my son through his university studies to the present day. I have provided a strong father – son relationship. Now that he has graduated University I plan to have a great relationship with him”.[18]
[18] Ibid n 19, page 52.
The applicant described no impact on minor children of an adverse decision and listed no other minor children in his life.
When asked to describe living parents, stepparents, brothers, sisters, and adult children, the applicant nominated only a son who shall be referred to as “KM” born in 1997 and presently aged 24, an Australian citizen resident in Australia. He subsequently nominated 8+ uncles/aunts, 9+ nieces and nephews, and 7+ cousins.
When asked to describe the impact on these extended family members, the applicant stated:
“This would have a devastating impact on all my family emotionally, mentally and financially. This would cause/have a huge impact on my mother’s health as I will be the main carer and financial support of for her. Furthermore, the connection with all my family would have impact our family and our relationships”.[19]
[19] Ibid, page 55.
When asked to explain his criminal history and risk of reoffending and factors that he wanted the decision-maker to take into account, and courses or programs in which he had participated the applicant stated:
“My offending has been a consequence of a previous relationship breakdown, loss of employment and nil mental health support. Since being incarcerated – 12 months prior to coming to prison, I began addressing my offending behavior. …
Medium Intensity Substance Intervention Explore Program”.[20]
[20] Ibid, n 19, page 56.
The Applicant did not respond to a question whether he had previously received a warning from the Department and had offended since.
When asked to comment on his risk of offending in the future he stated:
“I strongly see very minimal risk to my future of offending, having spent time in prison has given a huge amount of time to myself, to reflect on the impact my offending has had on myself, my family, and my partner. I had already begun to work on my actions and behaviour before being sent to prison, my time in prison has given me more the reasons not to make choices that lead to crime. My family has suffered, and I see supporting them all the more value in my life”.[21]
[21] Ibid.
The Applicant stated that he was currently the subject of a Domestic Violence Order/Apprehended Violence Order but stated the details were unknown.
The Applicant further stated that he was currently engaged in a Tertiary Preparation Program with the University of Southern Queensland, and that he had an employment history in Australia from 2000 to 2020 with various construction and mining companies. He also stated regarding positive contributions he had made in Australia:
“I have made a large contribution to Australia by my studies and employment within the construction and mining sector. Having worked the whole time while being in Australia from residential construction to industrial mining. I have also contributed to my family, friends and community who live in Australia in both cultural and support”.[22]
[22] Ibid, n 19, page 58.
The Applicant described hardships which would be caused to members of the Australian community if he were to be removed as follows:
“As all my family – son, nephews, nieces, cousins siblings all live in Australia this would have an enormous impact on them and our community. This would leave my mother and father without their son, my son without his father, and my partner without her partner”.[23]
[23] Ibid.
When asked to provide health information, and in particular, whether he had any diagnosed medical or psychological conditions, the applicant ticked the “Yes” box and wrote:
‘Psychosis – Unspecified. Exact diagnosis is still being clarified’.[24]
[24] Ibid, n 19, page 59, under 12. Impediments to Return.
The applicant listed his medications as being Mirtazapine prescribed as an antidepressant, and Amisulpride, as being an antipsychotic medication. He also referred to an attached doctor’s letter[25] dated 27 September 2021. This letter was from the Queensland Government West Moreton Health, and signed by Dr. C Van de Belt, a Psychiatrist at Prison Mental Health Service. Relevant excerpts from this letter are as follows:
[25] R1, G documents, G17, page 69.
“This is a treating doctor’s letter that has been prepared on the request of
Mr Gavin Tonga.
I have managed Mr Tonga since 2 August 2021, while he has been in custody at the Woodford Correctional Center, in my role as a psychiatrist with the Prison Mental Health Service.
Mr Tonga is currently diagnosed with a Psychotic Disorder, unspecified.
Mr Tonga’s psychotic illness is a persistent illness and is not induced by substances. Ongoing assessment is required to further clarify the specific nature of his psychotic illness.
Mr Tonga has only a limited history of contact with mental health services.
Mr Tonga reported that he has experienced auditory hallucinations and grandiose and spiritual beliefs since his adolescence. Mr Tonga reported auditory and visual hallucinations in 2019, however he was not diagnosed with a psychotic illness.
Mr Tonga reported that he had assumed that his symptoms were culturally normative experiences, and it is likely that Mr Tonga has suffered from an untreated psychotic illness for many years. Mr Tonga has a family psychiatric history of Schizophrenia, which increases the risk of an underlying psychotic illness in Mr Tonga.
During this period in custody, Mr Tonga has been treated as a voluntary patient. He has attended all medical reviews and has engaged well. Mr Tonga has trialled several antipsychotic medication (amisulpride 600 mg nocte) and it appears that his symptoms have started to improve. Mr Tonga has also presented with anxiety symptoms which improved following treatment with an antidepressant medication [Mirtazapine 30 mg nocte].
Mr Tonga will require ongoing management in the community and ongoing treatment with an antipsychotic medication after his release. The impact of
Mr Tonga’s symptoms on his ability to live independently and engage in regular activities requires continuing assessment to determine his support needs”.[26]
[26] Ibid.
The Applicant ticked the “Yes” box when asked if he had concerns or fears about what would happen to him if he would return to his country of citizenship, but did not articulate those concerns or fears. He said he faced no criminal charges or convictions in his country of citizenship and did not articulate any other problems he would face if he had to return to his country of citizenship.
The Applicant submitted a further statement[27] in the form of an email on 11 April 2022 the substance of which may be summarised as follows.
[27] R1, G documents, G12, pages 61-63.
The Applicant said that he was a different man from the one who had behaved badly in the past. He had completed substance intervention programs and also attended Narcotics Anonymous meetings in order to promote and maintain a drug and alcohol free lifestyle. He had been drug free for two years and alcohol free for five years. He said he was on “very good anxiety medication” and attended to counsellors for relationship and Drug and Alcohol issues.
He said that he experienced physical abuse as a child and had anxiety from an early age, that he had been unaware of his mental health condition.
The Applicant said that together with his family, he migrated to Australia in the year 2000 at the age of 21 and gained employment immediately and maintained steady employment from the time of his arrival in Australia until he was seriously injured at work near the end of 2015. He said that he sustained Bilateral Tendinitis which caused him to lose complete use of both his hands. He required medical treatment and a few months of physiotherapy, and slowly regained the use of his hands. He was however incapacitated for almost a year and during this time was unable to work and could barely fulfill the most basic of duties. He said this put a huge strain on both his financial situation and his personal relationship of 20 years which came to an end in 2016. He said this was a very traumatic event for him and as a result he became a “lost person”. He began to experience frequent panic attacks which left him paralyzed and at times caused him to hyperventilate. He began distancing himself from friends and loved ones and would often experience an overwhelming feeling of vulnerability which led him to missing appointments and important events. He stated:
“This unfortunately contributed to me attending Police stations, as a result of driving with no licence, but not being able to exit the car which led to bail issues, and on many occasions, failing to appear in court”.[28]
[28] Ibid, page 62.
The Applicant said that during the diagnostic phase of his treatment for anxiety it was found that he had been experiencing schizophrenia since he was about 17 years old. He said that now that he was stable, he had become aware that stressful situations exacerbated his symptoms.
The Applicant said that he had used driving as a means of dealing with his anxiety, and that he did not hold a current driver’s license when he was found behind the wheel of a motor vehicle.
The Applicant said that he had now been educated to handle stressors differently and without having to break the law in any way. He had prepared a future plan involving a GP Mental health plan, family support, ongoing substance intervention, and was compliant with medication for both anxiety and schizophrenia.
The Applicant stated that he was currently in a relationship and was the subject of a DVO in respect of it. He said this order was placed upon him by the police for reasons he did not understand and against his and his partner’s will. He said his partner had no involvement in the situation which led to the DVO, but the police had informed him that he was to stay away from his partner. He stated, “Both my partner and I tried to explain things to the police but were told to sorted out in court.”[29] He said he had breached the DVO once as a result of being in the company of his partner which he said, was at her request. He said he was convicted without punishment as his partner informed the judge that she had given him consent to be with her.
[29] Ibid.
He further stated:
‘Having the DVO in place has presented much difficulty for both my partner and I and after many attempts to have the DVO removed my partner was able to have the DVO varied in November 2021 enabling us to continue our relationship with three minor conditions, restoring for us the view of marriage in the very near future’.[30]
[30] Ibid, n 30, page 63.
The Applicant took full responsibility for his actions and expressed embarrassment and strong remorse for his conduct. He said he would never repeat this type of behaviour again as he wished to focus his efforts towards his family and return to being a contributing member of the community once again.
The Applicant said that whilst incarcerated he was afforded the opportunity to enroll in the Tertiary Preparation Program made available through the University of Southern Queensland. He said he had completed the first semester with three remaining semesters to complete in order to gain entry to USQ but was yet to decide upon a later academic path.
The Applicant said he planned to resume employment as a Rigger, enabling him to promote and maintain living a healthy lifestyle with his partner and family.
The Applicant stated that his entire family, from siblings to first and second cousins and his circle of friends are all resident citizens of Australia. He said he had lived in Australia for half his life and wished to become an Australian citizen as Australia is his home. He said Australia was a country built on second chances, and he asked to be given a second chance.
Letters/statements in support of the applicant
In support of his application, the Applicant also provided statements from several of his friends.
In a handwritten statement[31] dated December 2021, Mr B J Wightman, an Aboriginal Elder stated that the Applicant had been a part of his community for 10 years, and had shown younger members of the community knowledge and wisdom. He said the Applicant was needed to keep his skills going in the future.
[31] R1, G documents, G13, page 64.
The Applicant also provided a typed unsigned statement[32] dated 10 January 2022 from Ms D I Uren, who described herself as an Aboriginal elder and community relator.
Ms Uren who said that the Applicant had been part of the Aboriginal family for six or more years and was adopted as one of their own. She described the Applicant as a hard worker who had the support of the Aboriginal community. She said he had put in a lot of hours helping out younger aboriginals who were very fond of him, and she considered he would be a loss to the Aboriginal community.
[32] R1, G documents, G14, page 65.
The Applicant also provided an undated typed statement[33] by Ms S Barwick, who described herself as an Australian citizen, and knew the Applicant firstly as a neighbour, and then as a friend. She described the Applicant as a man of good standing in her tight knit community, and “a man of the people”. She said the Applicant had a firm sense of community and good family values. He was one of the first to volunteer if anyone was in need of assistance for things such as working bees, mowing a sick neighbour’s yard, bringing a meal for an elderly neighbour or even cleaning up the street after a storm. She described him as having “good old-fashioned values” and a “good role model”.
[33] R1, G documents, G15, page 66.
The Applicant also provided a copy of an email[34] dated 7 April 2022 from NMR, an Australian citizen, who described herself as the Applicant’s partner.
[34] R1, G documents, G16, pages 67-68.
The body of the email is set out:
“I am an Australian citizen, and I am writing on behalf of my partner
– Gavin Michael Tonga, in regards to the following:
Re: DVO
Re: Breach of DVO
Re: Variation of DVO
1. On 8 August 2020, my partner, Gavin Tonga, whilst in my presence, was involved in a verbal dispute with a female friend friend [sic] of mine. In my opinion my friend was out of line and became aggressive towards Gavin so before the situation got heated Gavin walked away. Soon after the police arrived. The police informed me that they intended to place a DVO on Gavin as my friend had said that he was displaying threatening behaviour towards us both. However this was not the case. I tried to explain what had happened to the police and they informed me that they would talk to Gavin before making a decision. The following Monday I drove Gavin to the Logan Central Police Station to sign in where he was then informed that he was to have a DVO place [sic] on him for my protection.
Gavin and I both tried talking to the police about this and I strongly opposed the order being in place, however we were told to sort it out in court. I mean no disrespect to the law and its processes however this DVO is unjustified and has only caused issues for us.2. On 20 November 2020 whereby Gavin was found in my company by the police and charged with breach of DVO. This happened as a result of Gavin and I being asleep in bed where I had requested Gavin to stay with me. Again I informed the police of the situation however the charge remained. On 14 May 2021 Gavin was convicted of breaching the DVO on 20 November 2020 and given no punishment as a union was consentual [sic].
3. I made many attempts to have the DVO removed and on 18 November 2021 I successfully had the DVO varied enabling contact between the two of us with little to no restrictions. Under the varied conditions of the DVO Gavin can now contact me with my permission. Although I give Gavin my full authority to contact me whenever he may please, the fact that there is still somewhat of a DVO in place brings me some discomfort. This DVO has had a huge negative impact on my life as I had had minimal contact with Gavin throughout his period of incarceration. I understand and agree with police protection orders and how they are put in place to help victims of violence of any kind and again I hold no disrespect for the law and its processes however this is one case where the police have got it wrong and have finally created obstacles in what is a beautiful relationship between two people.
4. Gavin is a compassionate, kind natured, thoughtful and caring person. He is not a hardened criminal, nor does he deserve to be deported. Gavin suffers from anxiety and both him and I started working on this before he was incarcerated. Gavin also helped me, as he has many others, to have become a difficult period in my life and even though he’s faced with obstacles of his own at the moment, he still puts mine, and the welfare of others, to the forefront. I love this man and wish to marry him and be by his side for the rest of my life. Our community would suffer a great loss should Gavin be deported and this would indeed be a great injustice as he has done so much for our community through the kindness of his heart, and continues to do so even whilst in detention. Please revoke the decision of cancelling his visa”.[35]
[35] Ibid.
Applicant’s history of offending and other serious conduct
The Applicant’s criminal history and other serious conduct is informed by the following documents:
(a)
Australian Criminal Intelligence Commission Check Results Report dated
16 November 2021;[36]
[36] R1, G Documents, G5, pages 27-32.
(b)
The Protection Order issued in the Magistrates Court at Beenleigh on
12 August 2020;[37]
(c) Department of Home Affairs File Note dated 6 May 2022[38];
(d) Sentencing remarks of Acting Magistrate Finger in the Queensland Magistrates Court at Beenleigh on 14 May 2021;[39]
(e) The Queensland Court outcomes report dated 13 June 2022;[40]
(f) Forty-eight Queensland Police Service Court briefs;[41]
(g) Queensland Government Department of Transport and Main Roads Traffic Record;[42]
(h) Magistrates Court of Queensland Verdict and Judgment records;[43]
(i) A bundle of warrants for apprehension for failure to appear;[44]
(j) A bundle of warrants for apprehension for failure to surrender into custody[45].
[37] Ibid, G7, pages 37-39.
[38] Ibid, n 39, G8, page 40.
[39] Ibid, G6, pages 33-35.
[40] Exhibit R2, Supplementary G Documents, S1, pages 1-7.
[41] Ibid, S2 – S48, pages 8-281.
[42] Ibid, n 43, S49, pages 282-287.
[43] Ibid, S69 – S37, pages 392-411.
[44] Exhibit R3, Respondent’s Further Supplementary T Documents, FS5, pages 88-108.
[45] Exhibit R3, FS6, pages 109-157.
The Tribunal notes from the Australian Criminal Intelligence Commission Check Results Report that the list of offences committed by the Applicant extends to five pages,[46] and apart from one offence committed in 2005, is confined to a period between April 2016 and November 2020, represented by 47 court briefs over some 54 months[47].
[46] R1, G Documents, G5, pages 27-32.
[47] Ibid, n 43, S1, pages 2-4.
A summary of the applicant’s criminal offending and traffic history is found in paragraphs 3 and 4 of the Respondent’s Statement of Facts Issues and Contentions (“SFIC”)[48] and is set out below for convenience:
[48] R4, Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2022, pages 1-3.
Venue Date of
conviction/result
Date of offence Offence Penalty Beenleigh Magistrates Court 24 October 2005 8 October 2005 Contravene direction or
Requirement
No conviction recorded; fined $450 Obstruct Police Officer Beenleigh Magistrates Court 12 September
2016
20 April 2016 Failure to appear in accordance
with undertaking
On all charges, conviction recorded; sentenced to 7 days imprisonment, to be suspended for 12 months cumulative 26 October 2015 Failure to appear in accordance
with undertaking
25 May 2016 Failure to appear in accordance
with undertaking
21 June 2016 Failure to appear in accordance
with undertaking
24 August 2016 Failure to appear in accordance
with undertaking
Beenleigh Magistrates Court 9 December 2016 - Breach of order imposed on 12
September 2016
Conviction recorded, no
further action
23 March 2016 Assault or obstruct police officer 16 April 2016 Assault or obstruct police officer 16 April 2016 Trespass – entering or remaining yard or place for
business
On all charges, no conviction recorded; fined $500 16 April 2016 Possessing dangerous drugs 16 April 2016 Possess utensils or pipes etc
that had been used
9 September 2016 Trespass – entering or
remaining in dwelling or yard
On all charges, no convictions recorded, not further punished 4 June 2016 Contravene direction or
requirement
4 June 2016 Not being endorsed to possess
restricted drug
9 September 2016 Contravene direction or
requirement
Between 7 August 2016
and 10 September 2016
Breach of bail condition Between 23 September
2016 and 27 September
2016
Breach of bail condition 30 September 2016 Breach of bail condition 3 October 2016 Breach of bail condition 10 October 2016 Breach of bail condition 16 April 2016 Not being endorsed to possess
restricted drug
No conviction recorded,
not further punished
Beenleigh Magistrates Court 14 July 2017 9 June 2017 Failure to appear in accordance with undertaking Conviction recorded; sentenced to 1 month
imprisonment cumulative
- Suspended sentence fully
invoked
Suspended sentence
fully invoked cumulative
Richlands
Magistrates Court
26 December
2017
18 October 2017 Failure to appear in accordance with undertaking Conviction recorded;
sentenced to 3 months imprisonment concurrent
Beenleigh Magistrates
Court
8 June 2018 23 May 2018 Failure to appear in accordance with undertaking Conviction recorded; sentenced to 4 months
imprisonment cumulative
Beenleigh Magistrates Court 30 January 2020 30 November 2017 Serious assault police officer Conviction recorded on all charges; sentenced to 3 months imprisonment concurrent Between 21 December
2017 and 25 December
2017
Receiving tainted property 30 November 2017 False entry in record 8 March 2018 Assault or obstruct police officer in public place while adversely affected by intoxicating
substance
Conviction recorded; community service time 40 hours 30 November 2017 Possessing dangerous drugs On all charges, conviction recorded; not further punished 30 November 2017 Possess utensils or pipes etc
for use
30 November 2017 Possess tainted property 24 December 2017 Possessing dangerous drugs 24 December 2017 Unlawful possession of
restricted drugs
24 December 2017 Breach of bail condition 24 December 2017 Contravene direction or
requirement
9 March 2018 Possessing dangerous drugs 12 April 2018 Breach of bail condition 18 April 2018 Breach of bail condition 3 May 2018 Assault or obstruct police officer 3 May 2018 Contravene direction or
requirement
31 March 2018 Possess tainted property 3 May 2018 Breach of bail condition 18 May 2018 Breach of bail condition Between 4 June 2018
and 7 June 2018
Breach of bail condition 6 May 2019 Breach of bail condition 25 June 2019 Breach of bail condition 12 October 2019 Breach of bail condition 28 October 2019 Obstruct police officer Beenleigh Magistrates Court 12 January 2021 9 December 2020 Failure to appear in accordance
with undertaking
On all charges, conviction recorded; sentenced to 3 months imprisonment cumulative 7 December 2020 Failure to appear in accordance
with undertaking
4 December 2020 Failure to appear in accordance
with undertaking
30 October 2020 Failure to appear in accordance with undertaking Conviction recorded; sentenced to 2 months
imprisonment cumulative
4 December 2020 Failure to appear in accordance
with undertaking
Conviction recorded; not
further punished
Beenleigh Magistrates Court 14 May 2021 - Breach of community service order imposed on 30 January 2020 Conviction recorded; not further punished; order(s) revoked; no
further penalty imposed
Between 25 October
2020 and 17 November
2020
Breach of bail condition Conviction recorded; sentenced to 3 months
imprisonment concurrent
1 November 2019 Unlawful use of motor vehicles aircraft or vessels – use On all charges, conviction recorded; sentenced to 6 months
imprisonment concurrent
27 June 2020 Receiving tainted property On all charges, conviction recorded; sentenced to 4 months
imprisonment concurrent
26 April 2020 Possess tainted property 7 July 2020 Possess tainted property 1 November 2019 Fraud – dishonestly make off without paying Conviction recorded;
sentenced to 3 months imprisonment concurrent
27 June 2020 Breach of bail condition On all charges, conviction recorded; not further punished 20 July 2020 Possess utensils or pipes etc
for use
7 July 2020 Possess utensils or pipes etc
for use
31 August 2020 Possessing dangerous drugs 31 August 2020 Possess property suspected of having been acquired for the purpose of committing a drug
offence
31 August 2020 Possess tainted property 19 October 2020 Breach of bail condition 20 November 2020 Contravention of domestic
violence order
Beenleigh Magistrates Court 14 July 2021 31 August 2020 Unlawful use of motor vehicles
aircraft or vessels – use
On all charges, conviction recorded; sentenced to 3 months
imprisonment concurrent
8 September 2020 Possess tainted property
In addition, records produced under summons from the Queensland Department of Transport and Main Roads set out the Applicant's lengthy history of driving offences in Australia (Exhibit R2, Supplementary Bundle of Documents (S49, pages 282-287). In summary, it shows that the Applicant has committed the following offences:
(k)driving under the influence of liquor on one occasion on 6 April 2002 (170 BAC), for which he was fined $500;
(l)
speeding by less than 13 km/h over the speed limit on two occasions
(24 August 2015, 13 February 2016), for which he received fines on each occasion;
(m)
speeding between 13 km/h to 20 km/h over the speed limit on four occasions
(18 September 2003, 30 December 2003, 4 November 2004 & 4 August 2007), for which he received fines on each occasion;
(n)
speeding between 20 km/h to 30 km/h over the speed limit on one occasion
(15 November 2004), for which he received a fine;
(o)
unlicenced driving on six occasions (23 March 2016, 16 April 2016,
28 February 2017, 21 April 2017, 21 May 2017 & 30 October 2019), for which he received fines, periods of further disqualification and periods of imprisonment;
(p)disqualified driving on eight occasions (10 September 2017, 14 September 2017, 18 September 2017, 26 April 2020, 20 July 2020, 8 September 2020,
18 November 2020 & 7 January 2021), for which he received periods of further disqualification and periods of imprisonment;(q)
being involved in a crash and failing to fulfil duties on one occasion
(18 November 2020), for which he was fined; and
(r)making a U-turn at an intersection on one occasion (6 February 2006), for which he received a fine.
In addition to the foregoing, the Tribunal has had regard for the sentencing remarks of His Honour Acting Judge Finger[49] in the Beenleigh Magistrates Court on 14 May 2021, extracts from which are set out below:
[49] Exhibit R1, G-Documents, G6, pages 33-35.
His Honour: Right. Mr Tonga I have taken into account your plea of guilty to all these charges. I have taken into account – it is certainly not an early plea in relation to most of the matters, but it is a plea of guilty and that goes to your credit. I have taken into account what Mr. Sushames has had to say on your behalf. I have taken into account your appalling criminal history, you’re appalling traffic history, which tells me you drive whenever you want to drive, and you do not care what the Court says.
I have taken into account what Mr. Sushames says; that most of these are driven by drugs. I have also taken into account that in relation to the offences from
1 November 2019, you have served 92 days in custody, and on the balance of these charges, you have served one day in custody but you have been in custody, in effect, on – since 15 January – all 11 January, and your parole is suspended.
I have also taken into account that you committed some of these offences whilst you are on parole.Now, you need to know, whenever you come back before the Courts again for these sorts of offences – for any sort of offences now, the only thing the Court has got to decide is how long are you going to prison for and when you get out. So that is the reality. Unless you wake up to yourself, you’re going to spend a long time in prison. In relation to the breach of the community service, I certainly find that breach proven. Having regard to the fact that you did 14 hours of a community service, and having regard to the charge, and your time in custody, there is no further penalty, and there is no further action. There is no re-sentence.
In relation to the unlawful use of a motor vehicle charged on 21 November 2019, you are convicted. You are sentenced to six months in prison, and in relation to the taking the fuel, three months in prison, and the unlicensed driving, six months in prison. And in relation to those charges, time served of 92 days between
1 November 2019 and 30 January 2020, and 11 January this year is time already served. In relation to the driver licence disqualified 26 April 2020 you are convicted and sentenced to nine months in prison, and you are disqualified for two years – sorry three years from holding or obtaining a driver’s licence.In relation to the possession of the tainted property, the passport, driver’s licence and bank cards on that same date, you get four months in prison and the property is to be returned to the rightful owner. The breach of bail on 27 June. You are convicted and not further punished. Receiving the tainted property 27 June, you are convicted and sentenced to four months in prison. In relation to the possession of utensils – two glass pipes – 7 July last year at Slacks Creek, you are convicted and not further punished. Possession of the tainted property – because – four months in prison.
Driving whilst disqualified by a Court order – 20 July 2020 at Slacks Creek. You are convicted and sentenced to 10 months in prison and you are disqualified for four years from holding or obtaining a driver’s licence. And the other charge, the possession of a glass pipe, you are convicted and not further punished. The breach of the bail condition on 19 October, you are convicted and not further punished – that is last year. Breach of a bail condition between 25 October and
17 November last year by failing to report, you are convicted and sentenced to three months in prison. In relation to the disqualified driving on 18 November at Mount Warren Park, you are convicted and sentenced to 12 months in prison.The breach of the protection order, you are convicted and not further punished. In relation to that disqualified driving, you get disqualified for five years from holding or obtaining a driver’s licence. And in relation to the disqualified driving on
7 January 2021 at Slacks Creek you – I have taken into account all your history. You are convicted and sentenced to 14 months in prison and you are disqualified for five years. In relation to all those periods of imprisonment that I just mentioned, time served of one day on 11 January is time already served.I am going to fix a parole eligibility date having regard to the fact that you have been there since January, of today. That means you can apply for parole today. When that gets heard is a matter for the parole authority, but you can certainly apply for parole today, and you cannot drive for period of five years. If you come before the Courts again for a disqualified driving charge, you will probably do the maximum of 18 months in prison. You understand that. All utensils are forfeited to the Crown, and any property recovered is to be returned to the rightful owner. …”[50]
[50] Ibid, pages 34-35, lines 1-21.
The Tribunal has also had regard for a Department of Home Affairs file note dated
6 May 2022 extracts of which are as follows[51]:The Department has received the following information in relation to [the applicant’s] criminal conviction from the Queensland Place Service Court Brief in relation to breach of Domestic Violence Order on 5 February 2020.
Facts of the charge:
…On the 12th day of August 2020, a domestic violence order was granted in the Beenleigh Magistrate’s Court naming the defendant as the respondent and NMR as the aggrieved. The order is in force from the 12th day of August 2020 until and including the 12th day of August 2025. The order stipulates the mandatory condition plus five [5] other conditions. One of the other conditions states that the defendant is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved leaves, works, or frequents.
At approximately 9:10 PM on Saturday, 21st November 2020, police attended [an address] after locating the suspect’s motor vehicle a silver Peugeot convertible bearing false plate 633KSS in the car park of the unit complex.
Please enter the unit and located the defendant in a bedroom where he was subsequently arrested on this and other outstanding matters. The defendant was in breach of the order by being at the premise. The defendant was subsequently transported to Eagleby Police Beat.
The defendant declined to be formally interviewed in relation to the matter.
The defendant was subsequently charged at Eagleby Police Beat where he was released on bail to attend Beenleigh Magistrates Court on Monday, 7th December 2020.
[51] R1, G Documents, G8, page 40.
There is also evidence before the Tribunal that the Applicant was previously the subject of a DVO which expired on 24 March 2018[52]. In addition, there is evidence that he has used methamphetamine and suboxone whilst in custody[53]. Moreover, he has on one occasion presented at a police station under the influence of a substance, aggressively resisted arrest, attempted to leave, and had to be tazed[54].
[52] Exhibit R2, Supplementary G Documents, S50, page 294.
[53] Ibid, page 326.
[54] Ibid, n 56, page 329.
The Applicant has expressed concern that he may have some PTSD and consequences of service in Yugoslavia and Timor with the New Zealand military[55].
[55] Ibid, page 346.
An incident report of 5 December 2018 recorded that the applicant had a prohibited article namely Buprenorphine in his possession whilst in custody[56]. A further incident report of
11 April 2021 recorded that the Applicant was in possession of an unknown white powder packaged in plastic which is recorded as being a powder form of alcohol[57].[56] Ibid, n 56, S61, page 375.
[57] Ibid, S62, pages 379-380.
The Applicant is also recorded as having completed a Substance Abuse program,[58] two courses in food preparation[59] and a series of automotive maintenance courses[60]
[58] Ibid, n 56, S66, page 389.
[59] Ibid, S67, page 390.
[60] Ibid, n 56, S68, page 391.
The Applicant is reported as having a good work history of 17 years working as a scaffold and a rigger prior to his marriage breakdown and the emergence of health issues following which there was a long period of unemployment[61].
[61] Ibid, S75, page 413.
The Applicant denied to Queensland Corrective Services (QCS) that he had New Zealand criminal history[62]. However there is a report that he had one conviction aged 17 in
New Zealand for an offensive fighting in a public place for which he was fined $100.[63][62] Ibid, page 414.
[63] Ibid, n 56, S50, page 324.
A QCS report dated 12 March 2018 records that the applicant was to be required to undergo a drug test which was deemed it necessary due to his lack of honest disclosures around drug use. The applicant consented to this but then absconded before it could be carried out[64].
[64] Ibid, pages 331-333.
A report of 31 January 2020 records that the applicant had stated that he has weak tendons in his wrists as a result from working as a rigger, and disclosed his last drug use was methamphetamine and Suboxone whilst in custody[65]. There is also a record that the applicant reported on 1 March 2018 that he had smoked over one point of ice on his last day in custody due to anxiety and stress about potentially being deported[66].
[65] Exhibit R2, Supplementary G Documents, S50, page 326.
[66] Ibid, page 336.
A Substance Abuse Risk Note and an associated Attitude Risk Note dated
18 August 2017[67] record:
“Substance Abuse Risk Note
Tonga denied any recent methamphetamine use but advised he had “tested” some for a friend recently. Given he presents with antisocial attitudes and methamphetamine appears to have contributed to his offending as well as the breakdown of his relationship and loss of employment, Tonga was directed to obtain a mental health care plan and a referral to intervention to address these needs via psychological intervention. He was verbally directed to complete this prior to his next contact; he confirmed his understanding.
Attitude Risk Note:
Disengaged was endorsed, as it appears Tonga has limited motivation to engage with agency to identify and address his offending behavior”.
[67] Ibid, n 68, S50, pages 348-9.
A QCS report created on 15 June 2022 refers to an earlier report dated 31 January 2020 which noted[68]:
“Mr Tonga reported a history of illicit drug use; namely ICE and Subutex. He reported high levels of these substances in custody attributing this to a coping mechanism for his anxiety. He denied any current illicit drug use, noting he intends to also discuss this with his GP as he does not wish to continue using.”
…
He advised that since his release from custody, he has used on approximately five occasions and has also been using Subutex on a daily basis which he was using in custody. He reported he began using it when first incarcerated and used it to slow himself down off Ice. Mr Tonga denied that ice use or withdrawals causes him to become violent but it is noted that one of his current charges of Assault or obstruct police officer while adversely affected by an intoxicating substance involved his making threats to a police officer that he would harm her”.
[68] Ibid, S75, page 415.
An QCS Risk of Re-Offending Assessment dated for August 2017 gave the Applicant a total score of nine with the range of scores 1 to 20, with 20 being the highest risk of reoffending.[69] A further such report dated 4 July 2018 gave the applicant a total score of 13, with the range of scores 1 to 22 where 22 was the highest risk of reoffending.[70] A further such report dated for February 2020 gave the Applicant a score of 14 with a range of scores from 1 to 20 where 20 was the highest risk of offending.[71]
[69] Ibid, n 58, S82, page 441.
[70] Ibid, S78, page 429.
[71] Ibid, n 58, S76, page 423,
Statutory declaration of the applicant
On 18 July 2022, the applicant delivered to the Tribunal a signed unwitnessed statutory declaration of that date in which he confirmed the veracity of his statement of
11 April 2022[72].
[72] Exhibit A2, Applicant’s Tender Bundle, 1, pages 1- 7.
He further described his early years in New Zealand with his parents and seven siblings. He described a normal childhood, but in a rough neighbourhood. Economic hardship in New Zealand led him to seek employment opportunities in Australia in the year 2000. He said that if he ever goes back to New Zealand he would not have anyone to accommodate him. Everyone he knew had already moved to Australia at the same time that his family moved.
He described seven instances of returning to New Zealand between 2004 and 2014 mainly for funerals, but also for weddings. He said his last remaining relative in
New Zealand was his grandmother who passed away at the age of 86 years, but he did not state the year.
The Applicant said that he worked in the construction industry after he moved to Australia, before launching his own scaffolding company which employed about 16 people. He said the business was good until 2007 when he began to feel it was overwhelming, at which time he began doing scaffolding contract work for mining companies.
The Applicant said that on 29 August 2015 he got bilateral tendinitis from his work from overuse of the muscles, and essentially lost the use of his hands. He said it took him a year to regain the use of his hands, and whilst he can now do normal activities he can no longer do heavy lifting for long as he previously used to. The pain was intermittent and he was on work cover until February 2016.
The Applicant expressed the view that he could get meaningful work, but was no longer employable in the construction industry. He expressed the hope that he could get educated and work perhaps in psychology, and also expressed the hope that he might work operating a Franna with his brother in Darwin from January 2023 after he had finished his parole.
The Applicant went on to describe the history of his 20 year relationship with his former partner TM, the mother of his 24-year-old son; KM, an Australian citizen, with whom his relationship is “not as close as it should be”. The applicant said he is “open to a civil relationship” with TM. He also said that KM has recently graduated from university, and is aware of the prospect of the Applicant’s deportation, but the Applicant has not discussed this at great length with him.
The Applicant said that in the later years of his relationship with TM he spent a lot of time away from her either working offshore or in the mines. His injury to his hands occurred when he took employment closer to home in an effort to prepare their relationship. He considered that his partial incapacity added to the decline of his relationship which ended in February 2016. He said[73]:
“It really affected me and my life went downhill I was homeless and sing [sic] drugs a lot at this time. I was using ice and it got very regular. I understand now I was using it to cope with my life and escape. I used Subutex once in goal [sic] to cope but I realized using this wasn’t the solution to my problem. I was offered it around five times from other inmates, but I turned down these offers as I do not want these things in my life”.
[73] Ibid, 1, page 4, [17].
The Applicant’s description of his relationship with NMR and her children included the following[74]:
“18. I am in a relationship with a new partner named NMR but it is currently on hold until I sort myself out. We are engaged but I can’t see it as an option at the moment. Obviously because I have to have to worry about myself I have to get myself on track. She’s very supportive of my sobriety. She gives me mental stability and I could see us being happy once we sort things out.
19. My partner is currently struggling to cope without me, and as a result I fear she may have allowed negative influences near, and if ever it might hold me back to making some changes. I can assure you my main priority right now is myself. I am focusing in staying clean and sober. I can’t help anyone if I don’t help myself.
20. My fiancé has four children, ages 5 to 13. I know them very well, they call me Gav, and they also know that I am currently in detention. My relationship with their mother is currently on hold until I sort myself out. I hope to live with them as family in the future”.
[74] Ibid.
The Applicant said that he also had seven nieces and nephews in Australia only four of whom were minors. He described his sister’s three sons who shall be referred to as
D, [13 years] J [9 years] and C [7 years], and said he had a good uncle relationship with them. He said he did not have much contact with his brother’s daughter who shall be referred to as CT [aged 14].
The Applicant offered very limited comment on his criminal history, saying that having done courses and gotten mental health treatment he could look at his criminal record with a clear mind, and felt ashamed, knowing he could do better. He blamed his failures to appear charges on anxiety.
The Applicant described the breakdown of his past relationship and stated that he had been diagnosed with schizophrenia, psychosis, and anxiety, but was now medicated. He said he had taken many steps to be drug free, and had been drug free since 2020. He said he had gotten drug testing inside the detention centre and it was always clean. He said he had daily exposure to drugs while in detention, but chose not to participate.
The Applicant’s future plans were to complete a one year Tertiary Preparation Program at the University of Southern Queensland, and then look at mentoring youth, social economics, or psychology.
Upon release he would prefer to live in Darwin, even though he had not been there. He described it as a safe place, and where his brothers and sisters are.
The Applicant also referred to the Medium Intensity Substance Intervention Program and the “Do-it-program” he had completed, which had helped his anger management problems. He had also completed a driving course, but would buy a bike or use public transport if he does not get his licence back.
The Applicant also stated that he had organised a mental health plan through his GP, and said he would still use it even if his visa is not returned.
Statutory declaration of Mrs D I Broughton – applicant’s mother
The Applicant’s mother, Mrs D I Broughton (“Mrs Broughton”), an Australian citizen, provided a signed unwitnessed statutory declaration dated 17 July 2022[75].
[75] Ibid, n 76, 2, pages 11-18.
Mrs Broughton gave a broad outline of her life and family history. All but one of her children live in Australia.
Mrs Broughton described the Applicant’s childhood as normal, but described ethnically based bullying at school. She said that she and her husband enrolled the Applicant in karate so that he could defend himself. She said they lived in a gang area “where the kids wanted to grow up to be gangsters.” She described a bleak jobs outlook as forming the basis of her and her husband’s decision to move to Australia. The Applicant followed them to Australia the following year, and began working with his father and brothers. The Applicant’s ex-partner and son moved to Australia after he did. It was only after the applicant went to jail that she realised how serious his mental health problems were. She recounted that he had told her that he was now being treated and taking medication for his mental health.
Mrs Broughton said the Applicant had taken Ice and marihuana, but never in front of her, although he admitted it when she confronted him. She believed that his drug taking had worsened his mental health and contributed to his offending.
Mrs Broughton said she was aware of her son’s driving offences and bad behaviour, and recounted how she had admonished him for it. She believed he was sorry and ashamed of his behaviour. She believed he was drug free since he was in prison and detention. She believed he was working hard so as not to re-offend. She said that the applicant’s son; KM “probably knows” about the Applicant’s situation.
Mrs Broughton expressed the view that if the Applicant is deported, all of her grandchildren will be “very sad and heartbroken” as he has a very good relationship and close bond with all of them, and they would be deeply affected.
Mrs Broughton said she no longer had any family in New Zealand. She then said she had a daughter who lived and worked on a trawler in New Zealand who could not offer him accommodation.
Mrs Broughton said she and her husband had offered the Applicant accommodation in their safe four bedroom home, and expressed knowledge and understanding of his mental health needs. She expressed the view that he was ready to return to be an effective contributor to society.
Letter from Ms S Tonga – the applicant’s sister
The Applicant also provided a signed letter[76] dated 17 July 2022 from his sister;
Ms S Tonga (“Ms Tonga”), who lives in Sydney, and echoed the sentiments expressed by her mother. Ms Tonga said she was aware of her brothers criminal offending, and said it resulted from his battle with his mental health, work injuries and drug and alcohol issues. She expressed the belief that he is genuine, and has changed for the better.
[76] Ibid, 3, page 19.
Ms Tonga stressed her brothers strong ties to Australia, including his 24-year-old son, parents, siblings, and their families with the exception of a sister who was adopted out as a baby, and presently lives and works on a trawler and has no place of her own in which she could accommodate the applicant.
Ms Tonga expressed the view that her brother should be given a second chance, had been a good contributor as an employer in his own business, and as an employee. She said that he cared about his employees and ensured they were able to provide for their families when they were in danger of losing their jobs.
Ms Tonga said that she knew the Applicant was very sorry and regretful for his past conduct, and if he is returned to New Zealand he would have nobody to support him and his family would be devastated. She expressed strong support for the Applicant in confronting his mental health issues and said she was willing to help in any way.
Letter from Ms W Cock– the applicant’s sister
The Applicant also provided a signed letter[77] dated 18 July 2022 from another sister;
Ms W Cock (“Ms Cock”), a registered nurse with three children, the above named D, J, and C, who lives in the Northern Territory.
[77] Ibid, n 76, 4, page 20.
Ms Cock acknowledged her brothers “unfortunate past” and generally echoed the feelings expressed by her mother and sister above. She acknowledged that his offending was wrong and that he had been a risk to the Australian community, but expressed the belief that he had taken steps to become a good contributor as he once was in previous times.
She said that in the recent past:
“I have not had a great relationship with my brother due to the choices he had made and getting himself on the wrong side of the track, but I believe that he should get his visa back as I know he is capable of rehabilitation with the right mindset and support system.”
She stated that if returned to New Zealand, the Applicant would have nobody to support him and that her children would be “sad and heartbroken, especially the 13-year-old son, D”. She said the children had not seen their uncle since he was imprisoned, but he always maintained active support in their pursuit of the passion to play Rugby. She also expressed strong support for her brother and begged the Australian government to allow them to stay in Australia.
Ms Cock said their entire immediate family lived in Australia and had done for over 20 years apart from a sister who was adopted out as a baby and presently lived and worked on a trawler and was unable to offer him accommodation. She expressed concerns that sending the Applicant to a country where he would have no support would do him more harm than good.
Email from Mr C Tonga – the applicant’s brother
The Applicant also provided an email[78] dated 1 July 2022 from his brother; Mr C Tonga (“Mr Tonga”) who works as Projects Crane Coordinator at the McArthur River Zinc Mine in the Northern Territory. This email was an offer of full-time on-site employment as an Advanced Rigor/Franna Operator at Freo Cranes and expressed confidence that the Applicant’s skills and experience would make him a great asset to the growth of the company.
[78] Ibid, 5, pages 21-22.
Whilst the author expressed no specific knowledge of the Applicant’s past offending or serious conduct, the email continued[79]:
“We understand that you are currently experiencing a trying time, and should you make it through this. We would like to hear from you to discuss your role within our team.”
[79] Ibid.
The Tribunal has also had regard for the WorkCover Queensland letter[80] dated
18 February 2016 which set out the applicant’s compensation entitlements.
[80] Ibid, n 76, 6, page 23.
The Tribunal has also had regard for the GP Mental Health Care Plan Patient Assessment completed on 10 April 2022[81]. This document recorded a diagnosis of chronic depression and schizophrenia, accompanied by medications of Lurasidone 80 mg[82] and Mirtazapine[83] 30 mg tablet. It also recorded;
“RISKS AND CO-MORBIDITIES: Strong FHx of bipolar schizophrenia – one elder brother and 2 cousin 2 coursin (sic) have committed suicide.
No active suicidal ideation”.
[81] Ibid, 7, pages 24-25.
[82] For schizophrenia disorder refer to Exhibit A2, 9, page 110.
[83] Ibid, for mental distress.
The Tribunal has also had regard for copies of extracts of photocopies the Applicant’s “My Relapse Prevention and Management Plan and Anger Management Workbook provided by the applicant[84], and the numerous records from International Health and Medical Services (IHMS) provided by the Applicant[85].
[84] Ibid, n 76, 8, pages 26-32.
[85] Ibid, pages 33-121.
Extracts of notable reports in the applicant’s IHMS records include:
a) At his Health Induction Assessment[86], on 22/11/2021, he reported a history of schizophrenia diagnosed whilst incarcerated. He denied a history of self/harm suicide ideation. Reported brother has Bipolar/Schizophrenia, 2 cousins and father has mental health issues. Previous marihuana smoker, last use 14 years ago. Methamphetamine use (ICE) 2020, smoked. Occasional illicit Subutex use whilst incarcerated. Rare alcohol use. Appointment for Psychiatrist and Mental Health booked;
[86] Ibid, n 76, 9, page 105
b)
The Applicant’s diagnosis of schizophrenia disorder was confirmed by
Dr I Schader on 23 November 2021[87], who also recorded “Significant family history of MH issues; has a brother with a psychotic illness and 2 cousins (siblings) known to have committed suicide. Used to smoke THS and ICE from mid-2020. All the medications have dampened down his voices but not fully removed. History of schizophrenia currently controlled on medication”;
[87] Ibid, pages 103-4.
c) At a mental health consultation on 23 November 2021[88], the Applicant reported that he self-harmed at the age of 15 and after his relationship ended. He would head bang the wall, but denied any other form of self-harm;
[88] Ibid, n 88, page 102.
d)
At a further mental health consultation[89] on 26 November 2021, psychiatrist,
Dr J Spencer (“Dr Spencer”) reported that the Applicant was showing good compliance with his mental health medications. The Applicant had not been medicated for his mental health whilst in the community, and recorded no time in hospital for his mental health. His mental state from a psychosis point of view appeared stable;
e) On 6 December 2021 a further mental health consultation with a mental health nurse[90] recorded: Client appears underlying psychotic illness now well controlled with medication compliance; Impression: Appears underlying psychotic illness now well controlled with medication compliance;
f) On 24 December 2021[91], the Applicant told psychiatrist, Dr Spencer that he was “feeling pretty normal” and that he was “overall, doing very well“. Dr Spencer also recorded “no delusions or psychotic symptoms ... much more relaxed and happy today … denies suffering perceptual disturbances … not suicidal”;
g) On 19 March 2022, the Applicant told a mental health nurse[92] that he was glad that he was substance free, and did not want to go through the times he was on ICE again;
h) On 15 March 2022[93], the Applicant denied to a mental health nurse that he had any ideation to intentionally harm self or others;
i) On 11 June 2022, a mental health nurse recorded:
Impression: Appears underlying psychotic illness continues to be well controlled with medication compliance; Client has responded well to education and planning and organising; Currently denies acute risks and is focussed on the AAT.
[89] Ibid, n 76, 9, pages 96-98.
[90] Exhibit A2, Applicant’s Tender Bundle, 9, page 95.
[91] Ibid, pages 87-89.
[92] Exhibit A2, Applicant’s Tender Bundle, 9, page 75.
[93] Ibid, page 57.
The Tribunal has also had regard for a black-and-white photocopy of five pieces of artwork headed Gavin’s Art provided by the Applicant[94].
[94] Exhibit A2, Applicant’s Tender Bundle, 9, page 122.
Evidence at Hearing
The hearing took place via Microsoft Teams on Thursday 21 July 2022 and
Friday 22 July 2022. The Applicant was represented, by Ms M Mamarot of South West Migration and Legal Services and the Respondent was represented by Ms C Laizans of Minter Ellison Lawyers, Sydney. The legal representatives agreed that the 84th day for the making of a decision was Wednesday 10 August 2022, a Public Holiday in the city of Brisbane. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received written and oral evidence from the witnesses as below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Register Annexure attached hereto and marked “A”.
On behalf of the Applicant, the accuracy of the history alleged against him in the Respondent’s Statement of Facts Issues and Contentions (“SFIC”) and the fact that he did not pass the character test were conceded.[95]
[95] Transcript of 22 July 2022, page 68, lines 18-22.
Following introductory remarks, commencement of the substantive hearing was delayed as the Applicant did not have copies of all of the exhibits before him, and due to failures in technology.
Evidence of Gavin Michael Tonga
The Applicant gave evidence under affirmation, and confirmed his signature on the statement at Exhibit A2, and its accuracy.
The Tribunal adjourned early for lunch so as to avoid fragmented cross-examination. Resumption after lunch was delayed because of a national break down in the MS Teams service, and the hearing could only resume at approximately 1:40 pm.
Under cross-examination, the Applicant confirmed that he had accepted his criminal history as set out in material before the Tribunal. He was referred to the details of numerous offences and generally accepted the accuracy of the reports. He was repeatedly invited to offer comment on specific instances of his offending but did not do so.
He specifically acknowledged being in possession of laptop computers and telephones suspected of being stolen, a dangerous drug, and offered no explanation for providing a false name to police.
When questioned regarding his contravention of a domestic violence order, he acknowledged that he was aware of the conditions. He did not agree that he was aware that he was breaching the order, as he was there by invitation, and did not realise that was a breach. He acknowledged that he had a false number plate on his vehicle when breaching the order.
The Applicant was taken to the detail of his Traffic Record, and agreed with it. When questioned regarding the six occasions of unlicensed driving from March 2016 to
October 2019, and eight occasions of driving whilst disqualified from December 2017 to January 2021, he had nothing to add.
The Applicant was questioned regarding his unwitnessed statutory declaration, Exhibit A2, page 9, paragraph 9, wherein he specifically stated that he did not have a criminal record in New Zealand. The following exchange occurred[96]:
[96] Transcript of 21 July 2022, page 17, lines 8 – page 18, line 4.
Okay. I would like to finally ask you a couple of questions about your offending history outside of Australia. I understand that in your most recent statement, which is in your tender bundle - so, this is document A2 and this is your statement at paragraph 9. So, you’ve stated here that you were involved in a fight in New Zealand and you were, quote, ‘Apprehended for it’; can I ask what you mean by apprehended?---Well, the police were called and I was taken into custody.
Okay. So, you were arrested; is that correct?---Yes, I think so. Like, yeah.
Okay. But, is it correct that you weren’t charged with any offences on that occasion?---If I remember correctly, I was charged with fighting in public and that was it.
Okay. So, you go on to stay that you don’t have a criminal record in New Zealand. But, if you were charged with the offence of fighting in public; is it correct that you therefore do have a criminal record in New Zealand?
---Well, to be honest, I don’t know.
Okay?---I don’t remember going to court or – yes.
Okay. And was that your only interaction with police in New Zealand?---No.
Okay. Are you able to explain to the tribunal what your interactions were?
---Well, I was from a rough neighbourhood. So, there was a lot of interactions with police.
Okay. Are you able to explain what the nature of those interactions were? Were you arrested for any other incidents?---Not that I can remember. Just I remember a lot of questioning, a lot of taking back to the police station for questioning on different incidents that may have taken place or things like that.
Okay. And I understand that you moved to Australia when you were about age 21; is that correct?---Yes, ma’am.
Okay. And do you recall roughly sort of when your interactions with police began? I appreciate you won’t be able to put a specific age on it. But, roughly how old were you first interacted with police in New Zealand?---To be honest, I don’t remember.
Okay?---Because, that was – yes, I don’t remember.
The Applicant described how he had struggled after the breakdown of his 20 year relationship with his former partner with whom he shares an adult son who lives with her, and said he has no contact with her now.
The Applicant explained why he had described himself as a “lost person” in a statement in support of revocation. He explained that with the relationship breakdown, life as he knew it had changed, part of him was missing and he did not feel complete for a long time and it was hard for him to get over. He said yes and no when asked if it was a mutual decision to break up. He blamed outside influences. He was then homeless living on the street for some time until he was able to find a place. Asked to explain how this triggered his offending, he said he fell into the wrong crowd, was ashamed and did not know who to reach out to.
The Applicant gave evidence of his extended family in Australia. All his siblings live in Australia, three in Darwin, one in Sydney, Brisbane and Melbourne. His parents live in Brisbane. He tried to reach out to his relatives during this time and through no fault of theirs he did not know how to relate to them. He said he needed to get over it by himself.
When asked about his new relationship, the Applicant said that his partner lives with two of her children and her brother at Noosa, She has two other children. All of her children are all under the age of 14. They share the same father, but he has no involvement in their lives, and does not see them.
The Applicant said that he did not know when he last used illicit drugs. He was not using when he met his new partner and never used drugs in front of her. She was aware of his drug history. He was not aware if she had a history of substance abuse. She was seeking assistance in respect of a traumatic prior relationship and a fear of men, and he has had to deal with some of those issues. There were issues of faithfulness, but he was still planning to marry her. His family, mother and sisters were on good terms with his partner. His brothers have not met her. He did not know if his mother and sisters approve of the relationship.
The Applicant said that he has been apart from his partner for 18 months and this is stressful. He has explained to her that he needs to sort himself out and she is happy to wait until he is ready. At the moment he will not reside with her if returned to the community.
The Applicant confirmed that he intends to move to Darwin at the start of 2023 after his parole finishes, and said his partner is aware of this plan. She intends to move there as well with her children. She has enquired about schools for the children but he did not know what other steps she had taken.
The DVO remains in force between them, but has been modified to allow contact with her consent. He did not ask her to give evidence at the hearing as it would be stressful as it is.
The Applicant described himself as a hard worker and said got an injury from working too hard. This coupled with his relationship breakdown and job loss contributed to his offending. He has still not recovered full use of his hands. His WorkCover entitlements ended in 2016, and he had done “under the table work” clearing yards, but had not applied for any formal jobs.
Questioned regarding the job with brother, he said it was different from his normal line of work. He would be controlling mobile cranes. He did not know if he would be able to do that work with his hand issues. Between now and January he would study rather than seek work, and pursue the Tertiary Preparation program.
The Applicant was not able to explain how his mental health contributed to his offending. He did not realise that he had a problem and it did not become evident until he broke up with his partner. It was not a proper diagnosis until last year, but was mentioned to him in 2018. He takes his medication regularly and has a Mental health plan put in place by his GP. This was done on 10 April 2022, and is his first mental health care plan. He has not yet commenced working with the psychologist, and has not yet identified one. The Applicant said he will work with his GP to implement the plan if possible, and that he has addressed his mental health concerns during incarceration and detention.
The very frequency of this Applicant’s offending presents a significant concern that its repetition would result in all the harm that would flow from a continuing demonstration of recklessness and indifference to court orders, laws, and rules intended to make Australia a safe society, including for serving police officers. Repetition might include further drug, property and dishonesty offences as well as regular serious traffic offences. Harm could include the physical safety and well-being of road users, and police officers in the performance of their duty. Victims of crime could suffer loss of or damage to their property and physical or psychological injury. A further offence of disqualified driving could see the applicant imprisoned for a lengthy term at the taxpayer’s expense. The Applicant’s history over the past six years suggests that if the applicant does re-offend in future, any
re-offending is unlikely to be an isolated episode, and he is unlikely to be compliant with any associated future bail or parole requirements. There could be increased costs of law enforcement and an added burden to legal administration which the taxpayer would have to fund.The likelihood of the non-citizen engaging in further criminal or other serious conduct
In assessing the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has had regard for his history, and his past efforts at reforming himself.
The Applicant is a 43-year-old male who although suffering from mental illness, appears to be managing it well, and to be compliant with his medication.
In the past, frequent interactions with police, and numerous court orders and periods of incarceration have not dissuaded the Applicant from further serious frequent offending when released back into the community.
The Tribunal accepts that whilst the subject of a regulated lifestyle, the Applicant has worked towards rehabilitation, and undertaken various courses as discussed above to help him deal with his issues, and that he has a mental health plan which he has stated that he intends to follow regardless of the outcome of this application. The benefits of the applicant’s efforts at rehabilitation are yet to be tested when he is free from the strictures of confinement and at liberty in the community, as is his resolve to adhere to his medication and career plans.
The Tribunal accepts that the Applicant’s criminal offending occurred around the time of the breakdown of a former relationship, significant physical injury, and subsequent loss of employment, when he had not been prescribed mental health medication, but does not accept that his mental health necessarily contributed to his offending. Indeed his appalling traffic history precedes his relationship breakdown by many years.
The Applicant maintained that he continues to be in a relationship with NMR, but described the relationship as “on hold”[131], yet he maintained that he still intended to marry NMR notwithstanding faithfulness concerns[132], but was not going to reside with her on his return to the community, notwithstanding his prior statement in his PCF that he would be residing with her in that circumstance[133]. This creates an air of uncertainty about the future of the relationship. This uncertainty is increased by the fact that NMR was not called to give evidence, and has previously stated that she had “minimal contact” with the Applicant whilst he was incarcerated[134]. The uncertainty surrounding the future of this relationship – particularly in the light of the extant DVO - raises a strong concern with the Tribunal, as the applicant has previously identified relationship breakdown as a trigger for his offending.
[131] Transcript of 21 July 2022, page 22, line 44 - page 23, line 9.
[132] Ibid, page 21, lines 15-30.
[133] Exhibit R1, G Documents, G11, page 50.
[134] Ibid, G16, page 68.
There is also a degree of uncertainty about the applicant’s other future plans. The Applicant told the Tribunal that he proposes to seek to complete an entry course into the University of Southern Queensland and then undertake a subsequent course of study which he is yet to select. It remains to be seen whether the applicant will be able to fulfill his parole obligations and successfully achieve entry into the University of Southern Queensland. He would live with his parents in Brisbane (the same environment where previous drug taking occurred) for the duration of his parole or until such time as they move to the Northern Territory in 2023, and he would relocate there, live with NMR, and take employment with his brother. In that context, any future academic plans for study at USQ appear to fade into uncertainty.
The Applicant has expressed confidence of gaining employment in the Norther Territory in 2023 as outlined in evidence by his brother, Mr C Tonga after completing his parole. The precise nature of that employment is also uncertain, as it may be impacted by his residual bilateral tendonitis, however, there does appear to be a capacity to accommodate the Applicant in employment even if that is the case. However, before the Applicant could commence such employment he would first have to successfully complete his parole obligations, without the strictures of life in prison or detention. It is a long time since the applicant has spent six months at liberty without offending, and in the short term he is planning to reside in the same environment where he previously used drugs, and this is a concern for the Tribunal.
Evidence before the Tribunal shows that a Risk of Re-Offending Assessment of for
August 2017 gave the Applicant a score of nine points where a range of scores one point [low risk] to 20 points [high-risk][135]. A more recent report[136] of 5 January 2018 gave him a score of 13 on a scale of one – 22. It can be seen that this represents a slight elevation in risk of reoffending. A further report[137] of 4 February 2020 gave the Applicant 14 points on a scale of 1 to 20, again a slight further elevation in risk of reoffending. That report also included are noted elsewhere that:
“…His last response to parole in 2018 was considered unsatisfactory due to further offending, ongoing ice use, and failing to engage in interventions”.[138]
[135] Exhibit R2, Supplementary G Documents, S82, page 441.
[136] Ibid, S80, page 435.
[137] Ibid, n 138, S76, page 423.
[138] Ibid, S75, page 414.
Against this background, of concern to the Tribunal is that whilst there appears to have been progress in the strictly regulated environments of prison and immigration detention, left to his own devices in the community, [even with the intervention of parole officers] he has not shown himself to be capable of “engaging in interventions” and living a responsible lifestyle since 2016, in the community at large. This raises a concern about whether, left to his own devices, he would adhere to his Mental Health Plan, or his academic and career plans.
It is possible that a future failure to self-medicate either by itself, or in association with a further relationship breakdown could lead the Applicant to further offending. Having said that, there is no clear expert evidence that the applicant’s mental illness contributed to his criminal offending, and the Tribunal specifically requested both counsel to take it to such evidence if it existed.
The Tribunal considers having regard to the Tribunal’s findings as to the Applicant’s credibility, the risk of reoffending reports referred to above, and the numerous uncertainties and risks associated with the Applicant being returned to an unregulated environment, his risk of reoffending is medium.
Applying the principles in paragraphs 5.2(3) and (5) of the Direction, the Tribunal is of the view that the harm that could be caused from future similar offending is so serious that even countervailing considerations are insufficient to justify revoking the mandatory cancellation of the Applicant’s visa.
CONCLUSION: PRIMARY CONSIDERATION 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides[139]:
[139] Ibid, n 16, pages 7-8.
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is no clear evidence before the Tribunal that the Applicant has engaged in acts of physical family violence, and this consideration is therefore given neutral weight.
CONCLUSION: PRIMARY CONSIDERATION 2
Primary Consideration 2 is given neutral weight.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction[140] provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[140] Ibid, page 9.
It is first necessary to identify the children actually or possibly relevant to this proceeding.
In his PCR, at item 8, the Applicant listed no minor children of his own, and neither did he list any nieces or nephews as being in his life, or describe any contact with such children[141].
[141] G Documents, pages 51-55
On the Applicant’s behalf, it was submitted that the Applicant has no biological minor children of his own. The only children nominated in Exhibit A1 were the children of those of his siblings, and it was conceded that he does not play a parental role in respect of any of them. His three nephews; identified earlier as D (aged 13), J (aged 9), and C (aged 7) have lived with their parents in the Northern Territory since 2016. They and their mother have visited the applicant’s mother in Brisbane once or twice a year since that time, and have spent time in company with the applicant on those occasions when he was at liberty. The precise extent of this time is not clear on the evidence before the Tribunal. They have had no contact with him whilst he has been incarcerated or in detention.
The Applicant told the Tribunal that he saw his nephews and niece at least once a week up until 2016, but his time with them lessened in consequence of his methamphetamine use. He has had no face to face contact with the children since they moved to the Northern Territory, and none since he was imprisoned or in detention.[142] He did not have a parental role with any of them
[142] Transcript of 21 July 2022, page 30, lines 19-37.
The Tribunal accepts that the older two children D and J, will be impacted to some uncertain degree should the Applicant be deported. There will be a lesser impact on the child C. The Tribunal gives some slight weight to the best interests of these three children in favour of revocation of the mandatory cancellation.
The Applicant also has a 14 year old niece; CT who lives with her mother in Darwin, but he does not appear to have much of a relationship with her, and said he is “not talking to them at the moment.[143]” The Tribunal does not have sufficient evidence before it to allow it to determine what impact if any the Applicant’s deportation will have on his 14 year old niece. The best interests of this child are given neutral weight.
[143] Ibid, page 31 lines 41-44.
The Applicant’s partner has four children who were not individually identified either in the Applicant’s PCF[144], Exhibit A1[145], or evidence by name, gender, under the age of 14. It appears that only two of them live with their mother full time. The other two lived with her sister when not with their mother. He had contact with these children for about 12 months prior to his imprisonment but has not seen them since. The applicant told the Tribunal that the parental role is filled by their mother and her sister[146]. He also said he saw them a lot and loved them a lot. Any future role the applicant may play in the roles of these children is subject to the numerous uncertainties discussed above, including whether his relationship with their mother ever ceases to be “on hold”. The evidence before the Tribunal is not sufficient to allow it to determine what direct impact if any, the Applicant’s deportation will have on these children. However, as discussed below in relation to the children’s mother; NMR, the impact the Applicant’s deportation is likely to have on their mother; NMR may well have a flow on impact in respect of these children, and the Tribunal therefore gives the best interests of these children some slight weight in favour of revocation of the cancellation of the applicant’s visa.
[144] Ibid, n 19.
[145] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions lodged on 18 July 2922.
[146] Transcript of 21 July 2022, page 32, lines 1-9.
CONCLUSION: PRIMARY CONSIDERATION 3
The best interests of the children mentioned above weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind[147]:
(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 possession 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.
[147] Ibid, n 16, pages 9-10.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states[148]:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”.
[148] Ibid, n 16, page 10.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[149]
[149] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 4
The Applicant in this case has, as a mature man, committed many offences in rapid succession since 2016, and has been imprisoned on no less than six occasions. Although he has lived in Australia for over 20 years, and has contributed to some degree during that period, he also committed his first serious offence of drink driving some ten months after his arrival in Australia. The applicant has shown a blasé attitude towards respecting Australian law on many occasions over many years.
He has had many opportunities to redeem himself, but has chosen instead to reoffend on many occasions. In doing so, he has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is an unacceptable risk that he will offend again. The Tribunal accepts that his record of criminal and other serious conduct is such that the Australian community would expect that his visa remain cancelled.
CONCLUSION: PRIMARY CONSIDERATION 4
Accordingly, Primary Consideration 4 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
9.1 International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence.
This Other Consideration is not relevant.
9.2 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[150]:
(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.
[150] Ibid, n 16, page 12.
The Applicant is a 43-year-old man, who suffers mental health issues which are presently well controlled with medication, and should be able to remain so in New Zealand. He has previously suffered a seriously debilitating injury in the form of bilateral tendonitis, which does not appear to present an insurmountable obstacle to his employability in Australia, and therefore should not do so in New Zealand either.
The Applicant has expressed confidence in his capacity to return to full time employment. The Applicant’s optimism is reflected in the job offer he has received from his brother, and there does not appear to be any reason to believe that the applicant would be any less employable in New Zealand than he might be in Australia.
There do not appear to be any significant language or cultural barriers to his return to
New Zealand, as he has lived a substantial part of his life there. It is well acknowledged that New Zealand has a comparable system of social, medical and economic support to that of Australia, and this support would be just as available to the Applicant in establishing himself and maintaining basic living standards as they are to other citizens of that country. There is no reason to believe he will not be able to receive any medical treatment he may require in New Zealand.The Tribunal accepts that the Applicant will face deeply personal challenges returning to his home country. He will be physically isolated from all members of his immediate and extended family. The Tribunal accepts that the Applicant has no relatives or friends to whom he is close in New Zealand, and this is likely to be a painful adjustment for him as well as for his loved ones in Australia. He has spent nearly all of his adult working life in Australia. It follows that he has no support network of any description in New Zealand, and he will very much have to fend for himself, and there is a real potential for his mental health to suffer. He will need to pay close preventative attention to his mental health, and drug abstinence.
This Other Consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
9.3 Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no relevant evidence before the Tribunal so as to enliven consideration of this paragraph.
In the absence of other relevant evidence, the Tribunal gives this Other Consideration neutral weight.
9.4 Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors:
· the strength, nature and duration of ties to Australia[151]; and
· the impact on Australian business interests[152]
[151] Referring to Paragraph 9.4.1
[152] Referring to Paragraph 9.4.2.
9.4.1 Strength, Nature and Duration of Ties to Australia
Decision makers are required by paragraph 9.4.1(1) to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
With the exception of his sister in New Zealand who was adopted out as an infant, all of the Applicant’s immediate family fall to be considered under paragraph 9.4.1(1) of the Direction.
There is very limited evidence before the Tribunal so as to allow it to form a view as to the impact of this decision on his former partner TM, or their son; KM. He does not appear to have any particular relationship with TM, and has had very limited contact with KM, who did not provide a statement or appear to give evidence or express concerns about the possibility of his father’s deportation. In this circumstance the Tribunal is unable to discern any significant impact on either TM or KM, noting that the applicant has stated that his relationship with KM is “not as close as it should be”.
The Applicant’s partner, NMR in her email discussed earlier at paragraphs 62 and 63 expressed her love for, and plans to marry the applicant and be beside him for the rest of his life, and recorded that he had helped her through a difficult period in her life.
The Tribunal accepts that NMR will be significantly impacted by this decision, and that in consequence of the impact on her, there may be a flow on effect as regards her children. NMR may need to contemplate either terminating the relationship, or relocating to
New Zealand in order to maintain it. Presumably there would be attendant difficulties whichever course she took, particularly in regard to relocating her children should she decide to move to New Zealand to be with the applicant. The impact on NMR and the potential impact on her children in this context weighs in favour of revocation.
The Tribunal accepts that the applicant’s parents will also be significantly impacted by this decision. The Applicant’s father has his own mental health issues and these may be aggravated. In addition, both parents have the challenges and worries of dealing with mentally ill children, and added to this will be how the applicant fends for himself by himself in a land which though not unfamiliar to him, he has no one to whom he is close and can turn to in difficult times.
The Tribunal accepts also that the Applicant’s siblings and their children will all be impacted to varying degrees by this decision, as there may well be a flow on effect from the impact on their parents and grandparents.
Decision makers are required by paragraph 9.4.1(2) to have regard to the strength nature and ties the Applicant has to the Australian community having regard to how long the applicant has resided in Australia, including whether the applicant arrived as a young child, noting that less weight should be given where the Applicant began offending soon after arrival in Australia, and more weight should be given where the applicant has spent time contributing positively to the Australian community. Decision makers must also have regard to the strength, duration and nature of any family ties or social links with Australian citizens, permanent residents, or those who have an indefinite right to remain in Australia.
The Applicant was a 21 year old adult at the time of his arrival in Australia and he commenced offending within 12 months of his arrival. In consequence of this the Tribunal gives less weight to the period the Applicant has resided in Australia having regard for paragraph 9.4.1(2)(a)(i) of the Direction.
In his favour, the Applicant does have employment history in Australia until 2016. In addition, the Tribunal gives weight to the letters of support he had received from community members and which are discussed at paragraphs 59-61 above.
The Tribunal also accepts that the applicant has very strong life-long family ties and other social ties of long duration with Australian citizens, permanent residents, or those who have an indefinite right to remain in Australia.
This Other Consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
9.4.2 Impact on Australian Business Interests
There is no evidence before the Tribunal that the Applicant’s deportation will impact on Australian business interests in the manner contemplated by Direction 90.
Overall, the Applicant’s links to the Australian community weighs in favour of revocation of the mandatory cancellation of his visa.
FINDINGS: OTHER CONSIDERATIONS
The application of the Other Considerations in the present matter can be summarised as follows:
(a) international non-refoulement obligations: neutral weight;
(b) extent of impediments if removed: weighs in favour of revocation;
(c) impact on victims: neutral weight; and
(d) links to the Australian community: weighs in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal finds as follows:
· Primary Consideration 1 weighs very heavily in favour of non-revocation;
· Primary Consideration 2 is given neutral weight;
· Primary Consideration 3 weighs slightly in favour of revocation;
· Primary Consideration 4 weighs heavily in favour of non-revocation; and
· To the extent that Primary Consideration 3 and Other Considerations (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1 and 4.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
301. I certify that the preceding 300 (three hundred) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.................[SGD].............................................
Associate
Dated: 4 August 2022
302. Dates of hearing:
303. Date of final submissions received:
304. 21 & 22 August 2022
305. 18 July 2022
306. Applicant:
307. By videoconference
308. Solicitor for the Applicant:
309.
310. Solicitor for the Respondent:
311. Ms Marta Mamarot
312. South West Migration & Legal Services
Ms Claire Laizans
Minter Ellison Lawyers
ANNEXURE A – EXHIBIT REGISTER
Exhibit Number Description of Exhibit Party Date of Document Filing Date R1
S37 T Documents
- G Documents
(G1-21, paged 1-110)R Various 2 Jun 2022 R2 Supplementary G Documents
(S1-S83, paged 1 -443)R Various 6 Jul 2022 R3 Respondent’s Further Supplementary T Documents
(FS1 – FS23, paged 1 – 324)R Various 15 Jul 2022 R4 Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2022
(paged 1-12)R 6 Jul 2022 6 Jul 2022 A1 Applicant’s Statement of Facts, Issues and Contentions lodged on 18 July 2022
(paged 1-5)A N/A 18 Jul 2022 A2 Applicant’s Tender Bundle
(1 – 10, paged 1 – 122)A Various 18 Jul 2022
Exhibit R2, Supplementary G Documents, S44 ,page 251 and Transcript of 22 July 2022, page 69,
lines 8-11.
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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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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