Tuivaiti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 2764
•28 August 2023
Tuivaiti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2764 (28 August 2023)
Division: GENERAL DIVISION
File Number(s): 2023/4097
Re:Desman Tuivaiti
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Raif
Date:28 August 2023
Place:Sydney
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Special Category visa.
.................................[SGD].......................................
Senior Member Raif
Catchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review affirmed.Legislation
Migration Act 1958 (Cth)
Migration Amendment (Aggregated Sentences) Act 2023 (Cth)
Cases
Pearson v Minister for Home Affairs [2022] FCAFC 203
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Raif
28 August 2023
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the cancellation of a Class TY Special Category (Temporary) Subclass 444 visa previously held by the Applicant.
The Applicant is a citizen of New Zealand, born in August 1993. He travelled to Australia in October 1996 and was granted the Special Category visa on arrival. Between 2011 and March 2022, the Applicant was convicted of a number of offences described below (noting that some convictions occurred when the applicant was a minor). For the most recent offending he was sentenced to at least 12 months imprisonment.
On 13 April 2022 the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) because it was determined that the applicant had a substantial criminal record. On 27 April 2022 the applicant made representations seeking revocation of the cancellation. The cancellation decision was affected by the decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 and the operation of the Migration Amendment (Aggregated Sentences) Act 2023.
On 9 June 2023 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation. The Applicant is seeking review of that decision.
For the following reasons, the Tribunal has concluded that the decision dated 9 June 2023 not to revoke the cancellation of the Applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(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.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 23 January 2023, Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘the Direction’ or ‘Direction 99’) was signed, coming into effect on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2(2) of Direction 99 states that:
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.’
The primary considerations which are set out in clause 8 of Part 2 of Direction 99 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 99:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[1]
‘Direction 65 [now Direction 99] 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’”[2]
[1] [2018] FCA 594.
[2] Ibid, [23].
While these comments were made in relation to the earlier Direction, they apply equally in the present case.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked?
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the National Criminal History Check Report relating to the Applicant. These indicate that the Applicant had been convicted of the following offences:
16/03/22
· Assault occasioning actual bodily harm (DV) (2 counts)
· Contravene prohibition / restriction in AVO (3 counts)
· Stalk / intimidate intend fear physical etc harm (domestic) (2 counts)
· Stalk / intimidate intend fear / physical etc harm (personal)
· Common assault
· Assault police officer in execution of duty without abh
· Intimidate police officer in execution of duty
· Resist or hinder police officer in the execution of duty
· Possess prohibited drug
Imprisonment (aggregate) 22 months
12/11/20
· Destroy or damage property < 2000
Fine $500
14/10/20
· Possess prohibited drug
Fine $750
01/04/20
· Drive motor vehicle during disqualification period
Dismissed s.10
03/04/19
· Larceny value <2000
· Drive vehicle, illicit drug present in blood
Fine $500
24/06/16
· Contravene prohibition / restriction in AVO (domestic)
· Common assault
· stalk / intimidate intend fear physical harm (domestic)
· drive vehicle, illicit drug present in blood
(call up) bond 18 months
16/12/15
· destroy or damage property <$2000
· contravene prohibition / restriction in AVO (domestic)
· common assault
· drive vehicle , illicit drug present in blood
(call up) s. 9 bond 12 months
27/03/15
· destroy / damage property
· contravene prohibition / restriction in AVO
S9 bond – 12 months
05/11/12
· assault occasioning actual bodily harm
Imprisonment 18 months (suspended)
07/03/11
· assault occasioning actual bodily harm
· steal from person
Probation 18 months
The Tribunal finds that in 2022 the Applicant has been sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
In his application for review the Applicant stated that the delegate failed to consider the length of his residence in Australia and the presence of his young children. The applicant states that he grew up in this country and all his family and friends are here. He states that he had committed ‘a few mistakes’ in his past but is a changed person and takes it seriously. He states that he has no family or support in New Zealand and is afraid of the uncertainty. In his evidence to the Tribunal the applicant stated that he came to Australia at the young age of 3 and has spent his whole life in Australia. His entire family is in Australia and he has no support in New Zealand and he fears that his mental health would decline if he was deported. He refers to the presence of his two young children who are Australian citizens. He states that he was never warned that this could happen and this was his first time in prison. The applicant states that he did not reoffend after he was released. The applicant states that he is deeply remorseful and has been punished enough.
The Respondent submits that the primary decision should be affirmed, due to the seriousness of the offending (violence against his partners and other members of the community) and its long history. The Respondent submits that the applicant poses an unacceptable risk in the domestic violence context and more generally. The Respondent submits that the family violence consideration weighs against the revocation. The Respondent acknowledges that some of the considerations, including the Applicant’s strong family and social ties in Australia, the presence of his children, and the impediment if removed, weigh in favour of the revocation but the Respondent submits these considerations are not determinative.
The Tribunal’s considerations are set out below with regard to Direction 99.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 99 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Direction provides that violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Subparagraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. As stated above, the Applicant was sentenced to a term of imprisonment of 12 months or more. It is well-established that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets and, where available, the sentencing remarks.
There are before the Tribunal the sentencing remarks of Magistrate Price made in March 2022 in relation to the offences of assault occasioning actual bodily harm, contravene prohibition / restriction in AVO and stalk / intimidate intend fear physical etc harm. Her Honour set out the facts as follows. On 1 April 2021 the applicant was in the front passenger seat of a vehicle. While his partner stopped in a car park, the applicant had exited the vehicle, approached the passenger side window of the vehicle behind and spat on the victim’s face. The applicant then said that he would bash and smash the victim, stating ‘come on bro, get out of the car’. The applicant had made full admissions to the police when interviewed, stating it was in response to the victim telling him to hurry up and swearing at him. In oral evidence the applicant offered a different version of events, denying that he spat on the victim or threatened the victim. He said that he was ‘verballing’ the person and he said his saliva must have sprayed him. The applicant said that the victim had threatened to kill him while he had not assaulted the person. The applicant said that the victim had repeated used the horn. The applicant seems to suggest that it was the victim’s fault that he had engaged in the conduct described above. Her Honour noted that in terms of the seriousness, these matters were ‘relatively short lived’ and both matters are below mid-range.
With respect to the breach of the AVO, it is stated that the victim was the Applicant’s partner and they have two children together. There was an AVO in place at the time. Later, on the same day as the offences described above, the Applicant, his partner and their newborn baby were at a shopping centre. The victim told the Applicant that his behaviour was embarrassing to the family. This caused him to be aggressive with her and during the drive home the Applicant began to assault the victim and used his hand a number of times in karate chop fashion, hitting her to the face. A witness who called triple-0 stated that she observed the Applicant yelling at the victim, pulling her hair and hitting her a number of times to the head. When the police attended, she was observed to have bruising and swelling to her eye as a result of the assault. It is stated that the Applicant also yelled at the victim and made threats to kill her. When interviewed, he claimed he was acting in self-defence. In oral evidence, the applicant told the Tribunal that it was his partner who was hitting and slapping him. The applicant denied hitting his partner and said that, instead, he had pushed away her hand to prevent her from slapping him. He said that, if he had hit her, she would end up in hospital. The applicant also denies yelling at his partner or threatening her.
In response to the question whether the applicant had breached the AVO by staying with his partner, the applicant responded ‘so did she’. He seems to think that it was permissible for him to be in breach (noting that the AVO was issued to him and not his partner) if the others also did not behave in accordance with his expectations. In relation to the subsequent breach of the AVO, the applicant stated that it was his partner who was found in his place (after the neighbours called the police following an argument) and she was the one who had messaged and texted him. The applicant states that he wanted to see his children. Again, the applicant seems to suggest that it was appropriate for him to breach the AVO by having contact with his partner because she was also in breach. The Tribunal has formed the view that the applicant has little regard for the law and a willingness to break it when it suits his circumstances.
Her Honour describes the offending that took place on 27 November 2021. It is stated that the Applicant’s partner, the victim, was asleep in the bedroom with the children. The applicant entered the bedroom waking her up and telling her to get herself and the children up. He had grabbed her by the arm and tried to drag her from the room. When unsuccessful, he grabbed her hair, picking her up and pushing her. He struck her to the rear of the head causing pain. The applicant was yelling at her that they were not welcome at the address. The victim had offered to leave and attempted to pack her belongings while the Applicant continued to approach her and repeatedly hit and pushed her, causing a cut above the eyebrow. It is noted that the victim feared for her life and believed that the Applicant would kill her. The applicant also started to act aggressively towards the witness (the owner of the premises) who then concentrated on getting the children out of the house. In oral evidence the applicant admits that he tried to get his partner out of bed in order to look after the children but denied hitting or pushing her or pulling her hair. The applicant states that his partner was the one who had struck him and denied that his partner offered to leave. The applicant denied threatening the victim, stating that ‘she is still alive’. The applicant states that it was his partner who had the knife and had cut him, causing the bleeding. The applicant again suggested that he was the victim, rather than the perpetrator of the violence. He told the Tribunal that he only pleaded guilty for the more serious charges to be dropped. He denied the information that the witness observed the witness looking scared, injured and bleeding and repeatedly told the Tribunal that he had never hit her.
Her Honour states that the applicant was given direction by the police to lay on the ground and place his hands behind his back but failed to comply with the direction. (In oral evidence the applicant stated that he was assaulted by the police but had fully complied with direction.) The OC spray and a taser were deployed and the police were able to handcuff him. Her Honour states that these matters were aggravated because they are subject to bail, had taken place in the home of the victim and in the presence of the children. Her Honour determined that the matters sit above the mid-range.
Her Honour referred to the sentencing assessment report, noting concern that the Applicant minimised his behaviour in all instances by placing blame on the victim. Her Honour refers to the history of drug and alcohol abuse and it is noted that the applicant had admitted to violent outburst and aggressive behaviour when he feels provoked or threatened, particularly when he is under the influence of drugs or alcohol. Her Honour states that it clear form the report that he lacks insight in relation to the offending and his previous response to supervision was poor, with frequent failures to report for intervention in 2017. Importantly, Her Honour had formed the view that, at the time of sentencing, the prospect of rehabilitation was very poor and that there was a risk of institutionalisation.
Her Honour assessed the offending to be aggravated, as it occurred in the presence of a child. Her Honour found that the assault occasioning actual bodily harm sits around mid-range and the intimidation above the mid-range of seriousness.
Her Honour refers to the incident taking place on 24 April 2021 (contravention of the AVO, intimidation and assaulting police). It is noted that an AVO was in place and the applicant was on bail at the time of offending. On this occasion the police attended the address of his partner, the victim. The police attempted to arrest the Applicant. He aggressively swung his arm saying ‘don’t touch me’. It is stated that the police feared for his safety and drew and covered his taser. When the officer directed the Applicant to obey instructions, the Applicant made several threats of violence and continued to make threats to harm the police throughout the arrest. He continued with the threats once he was handcuffed and was aggressive when placed in the rear of police van, using his feet to kick the officer. Her Honour notes that the offence was aggravated because the Applicant was subject to bail at the time. She states that the contravention of the AVO is below mid-range while the intimidation and assault police is around mid-range.
With regard to the offence of possession of prohibited drug, Her Honour states that the Applicant was detected with 1 gram of cannabis at a railway station.
The Tribunal has had regard to the Police Facts sheet in relation to the March 2015 offending (contravene prohibition / restriction in AVO). It identifies the victim as the applicant’s de facto partner. It is stated that on 12 March 2015 the Applicant was served with an interim AVO while in police custody. The AVO prohibited the applicant from making contact with the victim. On 14 March 2015 the victim received a text message believing it to be from the Applicant. She reported attended the police station to report the incident but was turned away by the police. On 24-25 March 2015 the victim received 19 text messages from the Applicant. One of the messages said “I feel sorry for you [victim’s name] youse [sic] are all dumb cunts, your [sic] a shit root and a dumb cunt”. Other messages contained similar material. When the police cautioned the applicant, he said ‘Fuck man they are only words’.
With respect to another incident in March 2015, the Police Facts sheet indicates that the applicant was the subject of an AVO which prohibited contact with the victim. On 27 March 2015 had sent a message to the victim sating ‘I miss you’. The victim felt scared and intimidated and contacted the police. When questioned by the police, the applicant stated that his brother had sent the text message from his phone. The police verified with the applicant’s brother that he was not in the company of the Applicant and did not send the message. He said that the applicant had contacted him and asked him to take the blame for texting the victim. The Police Facts sheet indicates that whilst dealing with the accused, he showed no regard for his actions and continually stated that he did not send the text and accused others of doing that.
With respect to the common assault offence, the Police Facts sheet indicates that on 11 March 2015 the applicant and his de facto partner had an argument while packing belongings as they had to move house. The argument escalated to the point where the Applicant began saying things like ‘you are disgusting, your body’s disgusting’. Later that day the Applicant used his t-shirt, which he spun around forming a tight strip of cloth, and he used it to whip it across the face of the victim, striking her several times. The Applicant then struck the victim’s face with an open hand, striking her across the lips. The victim’s mouth was bleeding. The Applicant then grabbed the victim, forced her to the ground, picked her up and threw her on the bed. On the following day the Applicant threw the victim’s sunglasses worth $200 over the balcony.
In oral evidence the applicant denied that he had acted in the way described in the Facts Sheet. He told the Tribunal that he acted in self-defence and would not let his partner to ‘beat the shit out of him’. The applicant told the Tribunal that on most occasions (when he is alleged to have committed family violence) he was acting in self-defence and had been trying to defend himself against ‘crazy girls’.
With respect to the May 2016 offending the Police Facts Sheet states that the victims are the applicant’s siblings. On 16 May 2016 the Applicant was present at the family meeting and was becoming aggressive and agitated. The applicant had stated ‘shut your mouth or I’ll bash ya’. (He told the Tribunal he stated ‘shut your mouth’ but denied stating ‘I’ll bash ya’). The applicant had grabbed a family member by the shirt, pushed and thew punches on at least one occasion. He told the Tribunal that he was not taking medication at the time, his brothers were picking on him and his step-father was ‘acting like a lunatic’. The applicant told the Tribunal that his brothers were against him and were “putting him down”. The applicant seems to blame the victims for his conduct.
There was another incident when the applicant is described to have smashed the windscreen of his partner’s car. The Facts Sheet indicates that there was an argument after the applicant demanded money to buy cannabis. The applicant denied that, stating in his evidence to the Tribunal that there was an argument over their daughter and while he did not smash the windscreen, he had ‘pushed’ it which resulted in a crack for which his mother paid. The applicant told the Tribunal that his partner was not afraid of his conduct. The applicant concedes that he had ‘pushed and shoved’ his partner later on but denied that constituted an assault on her. The applicant told the Tribunal that it was his ex-partner who had assaulted him and he had simply ‘copped it on the chin’.
There are also before the Tribunal the police notes in relation to the applicant’s conduct, as well as notes evidencing breach of bond. Police Notes in relation to the November 2011 incident (resulting in the offence of assault occasioning actual bodily harm) indicates that the applicant had attended a party uninvited, was involved in an altercation and punched a woman, breaking her jaw. The applicant told the Tribunal that he did not punch but only hit, distinguishing the two actions by stating he had not used a closed fist. He said he had acted in self-defence because his ankle was broken in the fight. The applicant gave various excuses for his behaviour, stated that he had no recollection of the event (despite pleading guilty) and repeatedly told the Tribunal that he acted in self-defence and was also injured during the fight. The applicant seems to blame the victim or her uncle for his conduct. While he also acknowledged that his actions were wrong, the excuses the applicant continues to offer for causing significant physical harm to a female victim indicates that the applicant lacks insight into his conduct.
There are notes from the Corrective Services NSW relating to the applicant’s activities during detention in 2017, progress notes from Psychological Programs dated 2015 and other notes relating to the earlier conduct. There is a Community Corrections pre-sentencing report from 2015 and a sentencing assessment report from November 2021. The Tribunal has also had regard to the IHMS records. There is evidence that the applicant had been involved in an altercation while in detention. He admits that he tried to hit another person but claims it was in self-defence. The applicant told the Tribunal that ‘nothing happened’ and it was ‘just a misunderstanding’.
The applicant told the Tribunal that he last used cannabis while in Villawood IDC around July 2022 because ‘he was exposed to corruption’ at VIDC. He admits to using ‘one joint’ stating that he had not used drugs since that time. . The applicant seems to blame his drug use on others or the system (‘corruption in VIDC’). The applicant told the Tribunal that he only used Ice once. When he was referred to the IHMS record which suggested he was an ‘ice smoker on and off in the last two years’, the applicant seems to have admitted it but said he was not addicted to drugs. The sentencing remarks in March 2022, summarised above also refer to the use of drugs. The applicant then conceded that he used Ice in the past on more than one occasion, stating that he may have used it three times since 2020, contrary to his initial statement. The applicant again stated that he used Ice in Villawood because of his exposure to corruption in VIDC. It is not clear to the Tribunal how any corruption in VIDC would have forced the applicant to use illicit drugs against his wish. The Tribunal is of the view that the applicant persistently blames others for his conduct and his choices.
The Tribunal finds that much of the Applicant’s conduct involved violence and threats of violence towards women, including his partner and family members, as well members of the public. There was also an assault towards a police officer in the execution of duties and multiple breaches of the AVO. Some of the offending occurred when the applicant was on bail and, significantly, some of the domestic violence incidents occurred in the presence of the children. The offending occurred over a lengthy period of time. while the applicant told the Tribunal that he is remorseful and is a changed person, it is significant, in the Tribunal’s view, that the applicant repeatedly told the Tribunal that he always acted in self-defence, that on many occasions he was the victim and that, despite his guilty pleas, he had often done nothing wrong. The Tribunal has formed the view that the applicant lacks insight into the seriousness of his conduct and its impact on the victims.
The Tribunal has formed the view that the offending was extremely serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it could be repeated may be unacceptable.
In this case, the offending involved violence and threats of violence in relation to his partner and violence towards others. The Tribunal is of the view that there could be significant harm to women experiencing violence and significant harm to children who are either victims of such violence, or who observe violence perpetrated by or against their parents. There is also harm to the community if members of the public cannot safely go about their business. The Tribunal finds that, should the Applicant engage in further criminal or other conduct of the same nature, the harm to others could be significant.
The Tribunal has considered the risk of the Applicant reoffending and the evidence of rehabilitation achieved.
In his revocation request the applicant states that he is a hard-working individual and had been working in the construction industry for 11 years since. The applicant refers to having a successful career and states that he finished school in Australia where he has learned everything. He has two children born in Australia and a former partner living in Australia. His dream is to obtain Australian citizenship. The applicant states that he had ‘stuffed up. Committed a criminal offence but jail had changed his life. He has now been sober for five months and will continue to be sober and will stay away from the life of crime. He has spent the majority of his life in Australia and had referred to various voluntary activities he had been involved in.
The applicant states that it was his first time in custody. He has been diagnosed with schizophrenia and placed in the mental health unit of jail. He had been working with a team of doctors and his mental health is now stable. He will have a team to support him post-incarceration and NDIS support. He did not have such support in the past.
The applicant stated that he believes he is a low-risk offender as his mental health was not supported with medication at the time of his offence and he is now on medication which had stabilised his schizophrenia. The applicant states that he would ensure he uses the supports in place to keep his mental health in check to be a good father to his children. The applicant states that he had always tried to live an honest and good life. His mental health issues started in Year 11 but were undiagnosed. He now has his mental health under control with the right supports in the community and with the support of NDIS and his family upon release. The applicant states that he no longer uses drugs and alcohol.
In his statement to the Tribunal of 14 July 2023 the applicant refers to his upbringing and depression that he felt as a young adult. He refers to the attempted suicide at the age of 16. He states that he had been diagnosed with depression and has been taking anti-depressants daily. He states that around the age of 17 or 18 be developed other mental health problems, around 2014 he started hearing voices and was admitted to Calvary Mater mental health psychiatric ward where he was diagnosed with schizophrenia. The applicant states that he did not take his diagnosis seriously and was in denial. He was admitted on other occasions, in 2016 and 2020. the applicant states that he only started being compliant with anti-psychotic [medication] after his incarceration in 2021 as he realised what he could do. The applicant states that being in jail was a turning point in his life and he has been compliant [with medication] and had also been compliant when he was in the community between December 2022 and April 2023. He states that he had arranged monthly depot injections and had stayed out of trouble.
The applicant states that he did not recognise before that his visa could be cancelled and the possibility of losing everything had also had an effect on him. The Applicant states that after his release, he obtained a job in January 2023 and tried to stay productive, joined his local rugby league team and moved in with a friend who will offer him accommodation upon release. He will also have a job if he is released. He saw his family regularly and visited his mother where his children stayed overnight.
The applicant refers to completing domestic violence courses in jail and states that he would now remove himself from the situation and walk away. He states that he feels more in control of his emotions and it is easy to regulate his emotions on the medication. The applicant states that he has missed out on being with his family and children and does not want to be an absent father like he himself had experienced. He states that he recognises the consequences if he breaks the law again. There is also before the Tribunal a statement from the Applicant’s mother and the Tribunal has had regard to it.
The applicant’s repeated evidence to the Tribunal is that he was the victim rather than the perpetrator, that he often acted in self-defence and he denied that he could have caused fear to his partners who were subjected to the family violence. Having regard to the applicant’s statements, the Tribunal is not convinced that the applicant had acquired much insight or skills as a result of the courses he completed.
The applicant provided to the delegate a medical report prepared by Dr Daniel Smoothy, psychiatric registrar at Justice Health. Dr Smoothy states that the Applicant has a diagnosis of schizophrenia since 2014 and has had a number of psychiatric assessments during his incarcerations. He has been treated with aripriprazole and sertraline and in the past with antipsychotic medication, psychoeducation, counselling, mental health facility admissions and case management by community and prison mental health services. It is stated that his condition is currently fully treated and stabilised, and no other treatment is likely to fully remedy the impairment, but psychological therapy may reduce the risk of relapse and result in the better control of symptoms. It is stated that his disability is permanent. Dr Smoothy states that the applicant has significant difficulty with communication, social interaction, learning, self-care and self-management, emotion regulation and impulse control. He is prone to experiencing delusions and auditory hallucinations. These symptoms had been severe enough to significantly affect his psychosocial functioning, employment and led to incarceration. It is stated that his condition is chronic and likely to run a relapsing and remitting course but could be stabilised with ongoing mental health treatment. Dr Smoothy states that the symptoms have, and are likely to continue, to affect his ability to maintain personal and professional relationships and meaningful employment for at least the following two years.
The applicant provided a declaration to the Tribunal in which he outlined his background and upbringing and his struggles with mental health.
The applicant submits that he is now fully compliant with medication. The applicant’s mother in oral evidence to the Tribunal had also expressed the view that if the applicant was ‘on top of his medication’ he will not reoffend. It is possible and even likely that the risk of reoffending would be significantly reduced. However, the applicant’s own evidence is that he stopped taking medication in the past and he could not offer an explanation why he did so. While the applicant claims to have gained insight into the benefits of the medication, the Tribunal is of the view that his future compliance with medication cannot be guaranteed. Should the applicant cease taking his medication in the future, the Tribunal is of the view that there will be a high risk of reoffending. Even if the applicant does comply with medication, his long history of offending, lack of insight into his offending and his failure to take responsibly for his conduct do not suggest that the applicant is rehabilitated.
The Tribunal has had regard to all the evidence before it. The applicant claims that he is now a changed person but, as noted above, in his oral evidence to the Tribunal he repeatedly denied his wrong doing, stated that he was usually acting in self-defence against ‘crazy girls’ and was on many occasions the victim rather than the perpetrator. The applicant denied the information in the various Facts Sheet, stating that it only reflects the victims’ side of the story and much of it is ‘lies, lies and lies’. The applicant repeatedly blamed others, including the victims, for his conduct. The applicant seems to genuinely believe that it is the fault of others that his conduct resulted in harm to others.
It is also of some concern to the Tribunal that the applicant continued to use illicit drugs while in VIDC when the applicant claims he was more cognisant of his need to comply with the law and the consequences of his non-compliance, including the cancellation of his visa. Despite the applicant’s assertion that he has changed, that the drug use was only on one or limited occasions, and his compliance with schizophrenia medication, he continued to engage in conduct that is contrary to the law by taking illicit drugs.
The Tribunal has formed the view that, despite the various rehabilitation engagements and the applicant’s ongoing treatment, he lacks insight into his conduct and its impact on others. The Tribunal accepts the Respondent submission that such a risk is independent of the applicant’s compliance with his medication. That is, even when compliant – as he is now – the applicant lacks insight into his offending and he continued to engage in criminal conduct by using illicit drugs in 2022. He told the Tribunal that he decided to use drugs as he was feeling stressed. The Tribunal is of the view that there is a real possibility that the applicant will use drugs in the future, particularly if he is feeling stressed or under pressure and that will also increase the likelihood of him engaging in criminal conduct.
The Tribunal is of the view that the applicant would again readily and willingly engage in similar conduct if he determines that doing so would protect his interests. The Tribunal is of the view that the risk of reoffending remains and it a real risk.
The Tribunal acknowledges the applicant’s evidence that he is now better supported in relation to his mental health and no longer uses alcohol or illicit drugs. The Tribunal is unpersuaded by that evidence. While the applicant is now compliant with his medication, there is no guarantee that he will continue to comply in the future, having previously chosen not to take the medication. As noted above, the Tribunal has formed the view that the risk of reoffending remains even in circumstances when the applicant does comply with the medication.
Having regard to the nature of the Applicant’s past convictions involving violence in the context of domestic relationships, offending against members of the public and more general disregard for the law (evidenced by drug use and resisting police), the applicant’s ongoing lack of insight into his conduct and attempts to minimise his own culpability, the Tribunal’s view that there remains a real risk of reoffending.
The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(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
The Applicant had been convicted of offending that involved domestic violence. The offending was in relation to his two partners and his siblings. The Tribunal finds that the conduct engaged in constitutes family violence.
This consideration also weighs heavily against the revocation.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
In his statement to the Tribunal dated 14 July 2023 the applicant states that he came to Australia at the age of three with his parents and siblings and had only been to New Zealand once. The applicant’s mother, in her statement, refers to the close-knit family and the applicant looking after his younger siblings when growing up. She refers to the children missing their father.
The Applicant had been residing in Australia for over 25 years. His immediate family, including parents, siblings and two minor children, live in Australia. The applicant told the Tribunal that he had left home when he was 18 and since that time has had minimal contact with his three siblings, although they talk to each other. The applicant told the Tribunal that he wants to maintain a relationship with his former partner (the mother of his children) although he acknowledges that they have not been able to speak to each other for some time.
In his Personal Particulars form the applicant refers to his relationship with TA and states that they had a relationship for over 6 years, have two children and may get married one day. In oral evidence the applicant denied an intention to marry her. The applicant acknowledges that there is presently an AVO in place, until early 2026, preventing his contact with his partner and two children. The applicant’s evidence to the Tribunal suggests that it is very unlikely that the applicant will re-establish a relationship with his former partner.
The Tribunal accepts that he has formed significant ties to the community (the applicant refers to participation in various activities), as well as employment, family and social ties. The Tribunal accepts that the applicant has spent the majority of his life, and formative years in Australia.
The Tribunal has formed the view that this consideration weighs heavily in favour of revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has two younger children and his evidence to the delegate is that he wants to remain in Australia and be a good father to his children. The Tribunal is mindful, however, that there is an AVO in place that prevents the applicant’s contact with the children until early 2026 and he told the Tribunal that he would be allowed to make video calls to his children if he is tested drug-free and in the meantime, he has received photographs and information about his children from DOCS.
It is also significant that some of the offending in relation to the Applicant’s partner occurred in the presence of his children. The Tribunal is of the view that it is not in the best interests of any child to observe or experience family violence perpetrated by or against their parents.
The applicant does not at present seem to have a meaningful relationship with his children but the Tribunal accepts his evidence that he wishes to have that relationship in the future. The Tribunal accepts that it may not be possible or practicable if the applicant does not reside in Australia. The Tribunal generally accepts that it may be in the best interests of the children to have a meaningful relationship with both parents. However, the Tribunal also finds that it is in the best interests of children not to experience or observe domestic violence. Thus, the applicant’s presence in Australia and the best interests of his children are predicated upon the applicant not engaging in any conduct in the future similar to his past conduct.
Overall, the Tribunal has formed the view that it is in the best interests of the Applicant’s children to maintain a close relationship with the Applicant (provided it is free of family violence). The Tribunal accepts that it is in the best interests of the Applicant’s children if the cancellation of the Applicant’s visa is revoked.
That consideration weighs heavily in favour of the revocation.
Expectation of the Australian Community
Paragraph 8.5 of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
Paragraph 8.5(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 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[3] 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.[4]
[3] [2019] FCAFC 185 (‘FYBR’)
[4] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs[2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct, the community expectations would weigh heavily against the revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding.
In his Personal Circumstances form completed when released from detention, the applicant suggested that people are after him in New Zealand. He explained to the Tribunal that when he was in detention, he had an altercation with someone who had been deported to New Zealand and this person had threatened his life if he was to go to New Zealand. the applicant suggested that this person had links with the Comanchero bikie gang.
The Tribunal found the applicant’s evidence to be very vague. The applicant told the Tribunal that there were multiple witnesses to the altercation but he had never reported it, either in detention or since that time. He told the Tribunal he has not had any contact, nor had experience any problems, since the alleged threat took place in detention. The applicant stated that there had been no attempt to harm him in over a year since the alleged incident took place, despite the potential presence of this person’s associates in Australia. The applicant does not claim that the authorities in New Zealand would deny protection to him.
The Tribunal does not consider that the applicant’s evidence gives rise to Australia’s non-refoulement obligations with respect to the applicant.
The cancellation of the visa under section 501 means that the Applicant will be liable for removal, and he will not be entitled to be granted another visa and will not be able to return to Australia to see his children or be with his family or for any other reason.
The Tribunal is of the view that consideration weighs marginally in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 30 years of age. He refers to the recent diagnosis of schizophrenia and the ongoing treatment, stating that it will continue upon his release from detention. He provided to the delegate a medical report prepared by Dr Daniel Smoothy, which is summarised above. There is also a report by Dr Raj Jishi and notes prepared by Justice Health (which refer to the diagnoses of depression and schizophrenia). There is no evidence before the Tribunal concerning the availability (and the accessibility) of appropriate treatment in New Zealand.
It is not apparent that there would be any language or cultural barriers if the applicant was to live in New Zealand. His evidence to the Tribunal is that he has trained as a concreter and would look for work in that field if he was to return to New Zealand.
However, the applicant has not lived in New Zealand since he was a young child. He states that he will be homeless with no family or other support in New Zealand. The Applicant’s evidence to the Tribunal is that he would have no support network in New Zealand and he is concerned about the deterioration of his mental health. The Tribunal accepts that the applicant may have limited or no social or economic support available to him in New Zealand.
The Tribunal accepts that, given the length of time the applicant had stayed in Australia and the period of his absence from New Zealand, that there may be a significant impediment to the applicant if he is removed from Australia.
The Tribunal finds that this consideration weighs strongly in favour of the revocation.
Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal concerning the impact on victims. This consideration is neutral.
Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
(1) ‘Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal concerning any business interests. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant has committed serious offences, being repeated domestic violence offending against his partners, some of which was committed in the presence of his children. There was also violent offending in relation to other members of the public. The applicant had not complied with the directions of the police. The Tribunal has found these to be very serious offences and these occurred over a lengthy period of time. The nature of his past offending is such that the Applicant’s conduct is against the expectations of the Australian community.
The Tribunal has found that the Applicant has little insight into his conduct as he had repeatedly blamed others for his conduct and believes himself to the victim. The applicant sought to minimise his behaviour and failed to recognise the effect of his actions upon others (denying, for example, that his partner would have felt fear due to the domestic violence incident). The Tribunal is not satisfied that the Applicant is now rehabilitated and finds that there remains a real risk of reoffending.
The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation. The fact that the Applicant had engaged in family violence also weighs strongly against the revocation.
A significant factor that weighs strongly in favour of the revocation is the strength, nature and duration of the Applicant’s ties to Australia. The Tribunal accepts that the Applicant’s immediate family (including his former partner, children, siblings and parents, as well as some extended family) live in Australia. He told the Tribunal that he does not intend to establish contact with his father ‘s family in New Zealand. The Tribunal accepts that, given the length of the applicant’s stay in Australia, he is unlikely to have any social or other support in New Zealand. The Tribunal accepts that the applicant has formed social, family and employment ties in Australia. The Tribunal has formed the view that the extent and duration of the Applicant’s ties to Australia weigh strongly in favour of the revocation.
The Tribunal places some weight on the best interests of the Applicant’s minor children. The Tribunal accepts the evidence that the Applicant wants to maintain a relationship with his children and generally accepts that it is in the best interests of children to receive the care of both parents. In the circumstances of this case, the Tribunal gives this consideration limited weight because the applicant has had limited contact with the children due to the operation of the AVO and he is unable to contact the children until early 2026 (while he spoke about being able to arrange video contact, there is no evidence that he has made arrangements to do so). The Tribunal is also mindful of the fact that some of the offending occurred in the presence of the children. The Tribunal has formed the view that the best interests of the children will only be met if there is no further domestic violence offending and if the applicant does re-establish a relationship with his children when he is able to. The possibility of these factors occurring cannot be determined with any certainty at present. The Tribunal gives this consideration some, albeit limited weight in favour of the revocation.
The Tribunal has determined that the non-refoulement obligations do not arise in this case, however the legal consequence of the decision is that the applicant is removed from Australia and would be unable to return to Australia and be with his family. The Tribunal accepts that there would be significant impediment to the applicant and others if he is removed from Australia, including the applicant’s ability to re-settle in New Zealand (noting in particular the length of his absence from the country, his mental health and other considerations) and separation from his family in Australia. These factors weigh in favour of the revocation.
Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. In the particular circumstances of this case, The Tribunal has decided that these considerations outweigh other considerations that weigh in favour of the revocation.
The Tribunal has decided that there is no other reason to revoke the cancellation. The Tribunal finds that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Special Category visa.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Raif
........................................................................
Associate
Dated: 28 August 2023
Date(s) of hearing:
15 August 2023
Applicant:
In person
Solicitors for the Respondent:
Mr C Burke, Sparke Helmore
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
-
Jurisdiction
0
7
0