TVTM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4168
•9 October 2020
TVTM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4168 (9 October 2020)
Division:GENERAL DIVISION
File Number: 2020/4410
Re:TVTM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R. West
Date:9 October 2020
Place:Melbourne
The decision of a delegate of the Respondent made on 11 July 2020 is set aside and the mandatory cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) is revoked.
[sgd]........................................................................
Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of a minor children – expectations of the Australian community – other considerations – decision set aside – cancellation revoked
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Gordon and Minister for Immigration and Border Protection (Migration), Re [2018] AATA 39
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Suhail Durani and Minister for Immigration and Citizenship [2013] AATA 273
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – Part C
REASONS FOR DECISION
Member R. West
9 October 2020
In these proceedings, the Applicant (‘TVTM’) seeks a review of the decision of a delegate of the Respondent made on 11 July 2020 not to revoke the mandatory cancellation of his Special Category (Class TY) (subclass 444) visa, which was cancelled on 20 December 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
An application for review of the delegate’s non-revocation decision was lodged with the Tribunal on 22 July 2020.
The cancellation of the Applicant’s visa under s 501(3A) of the Act followed his convictions in the Magistrates Court of Victoria at Dandenong on 23 October 2019 for unauthorised entry to premises, unlawful assault, intentionally destroying property, possession of a controlled weapon without excuse and possession of a prohibited firearm offences for which he was sentenced to an aggregate term of imprisonment of 15 months.
The Tribunal conducted a hearing of the application by video conference on 5 October 2020. The Applicant was represented by Ms Samantha Smith, a solicitor with WLW Lawyers. The Respondent was represented by Mr Gardner, a solicitor with Minter Ellison.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing proceeding on 5 October 2020 on the basis that it was conducted by audio/visual link. The Tribunal determined pursuant to s 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) that the matter be heard by video conference.
In conducting the review, the Tribunal has had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act, sequentially numbered from 1 to 231 (G Documents), and supplementary documents produced under summons and filed by the Respondent, sequentially numbered from 1 to 405 (SG Documents);
(b)documents tendered by the Applicant and marked as exhibits as listed in Attachment A; and
(c)the oral evidence of:
(i)the Applicant;
(ii)the Applicant’s partner, ‘T’;
(iii)the Applicant’s brother, ‘M’; and
(iv)Carla Ferrari.
BACKGROUND
The Applicant was born in Samoa in December 1985 and moved with his family to New Zealand when he was one year old. He is a New Zealand national. He first arrived in Australia at the age of 15 years on 22 August 1999 as the holder of Special Category (Class TY) (subclass 444) visa.
The Applicant has an extensive criminal record. His offending commenced shortly after his arrival in Australia when he was 17 years old and continued until his incarceration in 2019. A complete statement of the Applicant’s criminal record is set out in a national criminal history check produced by the Australian Criminal Intelligence Commission at pages 110 to 113 (inclusive) of the G Documents.[1] In summary his criminal conduct comprised:
[1] G10.
(a)In 2003, he was placed on a six months’ community based order without conviction in relation to charges for behaving in a riotous manner, public drunkenness and consuming alcohol when under 18 years.
(b)In September 2004, he received suspended sentences for offences of aggravated burglary – offensive weapon and intentionally causing serious injury and, in a separate court appearance in October 2004, he received suspended sentences for unlicensed driving, theft of a motor vehicle and negligence causing serious injury.
(c)In December 2007, he was convicted of unlicensed driving and driving in a manner dangerous and received a sentence of 3 months imprisonment to be served by way of an Intensive Correction Order.
(d)In June 2008, he was found guilty of breaching the Intensive Corrections Order, failing to answer bail, unlawful assault and criminal damage and was sentenced to terms of imprisonment of 14 days, one month and one day to be served concurrently.
(e)In November 2009, he was convicted of assault in company, assault police and resisting police for which he was sentenced to an aggregate of 45 days imprisonment.
(f)In March 2011, he was convicted of common law affray for which he was sentenced to 30 months imprisonment with 344 days suspended.
(g)In November 2012, he was convicted of driving while disqualified and exceeding the speed limit for which he was fined and was disqualified from driving for 2 years. The Applicant was again convicted of driving while disqualified and exceeding the speed limit in May 2013 for which he received a 4 month community corrections order.
(h)In September 2013, he was convicted of intentionally causing injury, affray and unlawful assault and sentenced to an aggregate six months imprisonment wholly suspended.
(i)In April 2016, he was convicted of common law affray and unlicensed driving and given a 12-month community correction order. He was convicted for breach of the correction order in August 2017 and made subject to an 18-month community correction order.
(j)In December 2018, he was convicted of fraudulently using a registration label and fined $1,000.
(k)On 15 February 2019, he was convicted of multiple offences, including breaches of the community correction order, for which he was sentenced to an aggregate of 48 days’ imprisonment.
(l)Finally, on 23 October 2019, he was convicted of unauthorised entry to premises, unlawful assault, intentionally destroying property, possession of a controlled weapon without excuse and possession of a prohibited firearm for which he received an aggregate term of imprisonment of 15 months.
Upon release from prison, the Applicant was taken into immigration detention.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test as defined in s 501; or
(b)there is another reason why the cancellation should be revoked.
The Applicant’s visa was cancelled under s 501(3A) of the Act as the delegate was satisfied that he did not pass the character test. Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that, for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The Applicant was convicted and sentenced to 15 months’ imprisonment.
The Applicant does not dispute that he does not pass the character test in s 501(3A) of the Act.
Accordingly, the sole issue before the Tribunal in these proceedings is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.[2]
[2] Re Gordon and Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [57].
Direction 79
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions.[3]
[3] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
In this case, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”) applies.
The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked. Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to the revocation of a cancellation decision are contained in Part C of the Direction. Paragraph 13 of the Direction provides for three primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. These include, but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation.
The principles in paragraph 6.3 are as follows:
6.3 Principles
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
EVIDENCE
The Applicant gave evidence that he was born in 1985 in Samoa. He was the youngest in the family. He said that he did not remember living in Samoa as his family moved to New Zealand when he was one year old. He said the family lived in Auckland until they migrated to Australia when he was 15 years old. He stated that he was greatly influenced in his upbringing by Samoan culture and that his parents, especially his father, were very strict and he would regularly get bashed if you do not do things right[4].
[4] Exhibit A1 at [3]
He said that he met his partner, ‘T’ when he was around 20 years old and they began living together after about one year. They were married in September 2012[5]. The Applicant and T had 10 children together, each aged 12, 11, 10, 8, 7, 6, 5, 3, 3, and 2 years.
[5] Exhibit A19
The Applicant said that he began drinking alcohol when he was a teenager and drank heavily throughout his twenties and would regularly drink to the point of blacking out. He said that in his thirties he started using various drugs and that his drug use got out of control. During this time, he worked in security at night clubs and as a truck driver during the day.
The Applicant acknowledged his criminal record and attributed his early criminal offending to his excessive drinking and drug taking and involvement in the club scene. He said that his failure to report under bail conditions and to comply with community corrections orders was primarily related to his commitment to working nights and also a day job.
On 7 May 2019, the Applicant was involved in an altercation with his partner at their home. The details of the altercation are set out in a police report.[6] The incident involved the serious assault of T at the hands of the Applicant (2019 Incident). As a result of that incident, the Applicant was convicted of offences including unlawful assault, unauthorised entry to property and intentionally destroy property. The separate offences of unlawful firearm possession arose from an incident where his partner accidently pulled a loaded shotgun from a cupboard where it had been kept by the Applicant and was shot in the foot when the gun discharged. For these offences, he was sentenced to 15 months’ imprisonment in the Dandenong Magistrates Court on 23 October 2019, and was made the subject of a family violence intervention order (IVO). In sentencing the Applicant, the Magistrate noted that the Applicant had plead guilty and made admissions to the police[7].
[6] G12 at p.131
[7] G11 at p.129
The Applicant’s partner gave evidence at the Tribunal hearing in support of the Applicant. She described her relationship with the Applicant as a loving relationship and described the Applicant as a loving and generous person and a good father. She described the background to the circumstances leading to the 2019 Incident. She said that at the time the Applicant had lost his job and was finding it difficult to find another job. The family were relying on Centrelink payments to survive and, in addition to their 10 children, the Applicant and his partner also had the Applicant’s parents and his brother, ‘A’, living with them and relying on them for support. T explained that the family was evicted from their house at this time. She said that the Applicant had resorted to drug use, principally ice, which affected him badly. She said that when the incident occurred, she saw a side of the Applicant that she had not seen before and his behaviour was out of character. She said he had never been violent towards her before.
T confirmed that an IVO had been taken out by the police following the 2019 Incident which prohibits the Applicant from having any direct contact with her or her children. She said that she sought the IVO at the time because she feared that the Department of Health and Human Services (Child Protection) would take her children if there was no IVO in place. She said that she has recently taken steps to have the IVO revoked, but as yet she has not been able to get the police officer responsible to sign the relevant forms.
The Tribunal also heard evidence from the Applicant’s brother, M, and from a clinical psychologist, Carla Ferrari, who provided a detailed report on the Applicant[8]. Statements in support of the Applicant were also filed by various members of his family[9].
PRIMARY CONSIDERATIONS
[8] Exhibit A16
[9] Exhibits A3-A15
Protection of the Australian Community
In considering whether the Applicant represents a risk to the Australian community, the Tribunal has had regard to the matters set out in paragraph 13.1 of Part C of the Direction.
Paragraph 13.1 provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
(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 conduct
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the Direction requires that decision-makers have regard to the factors set out in paragraphs 13.1.1(1)(a)–(i).
A consideration of the factors, relevant in the Applicant’s case, is set out below.
Principle (a) – violent and/or sexual crimes are viewed very seriously
The Applicant has been convicted of multiple crimes of violence. The seriousness of such conduct is illustrated by his conviction in September 2004 for aggravated burglary which involved an attack, in concert with another assailant, on the victim in his home with a golf club and a baseball bat causing serious injury to the victim[10]. Similarly, in March 2011, he was convicted of affray. The sentencing remarks of the Court reveal that the circumstances giving rise to the charge were serious. The Court noted that the offence occurred at a nightclub where the victim was set upon by the Applicant, his brother and his cousin in the toilet and sustained serious injuries to his head and face and bled profusely. The Sentencing Judge stated that the photographs tendered at trial are graphic in their bloody horror[11].
[10] SG2 at p.254
[11] G14 at p.142
There is no evidence that the Applicant has been involved in criminal behaviour of a sexual nature.
Principle (b) – crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed
The Applicant’s conviction for assault against his partner in October 2019 began with a verbal altercation at their home. The police record[12] states that the Applicant and his partner argued in their garage over financial matters, the Applicant became enraged and chased his partner around their car and the partner ran into her bedroom followed by the Applicant. The Applicant punched his partner in the head while she was kneeling on the floor covering her head. When the partner grabbed a microphone stand to ward him off the Applicant pulled the stand from her hand and struck her on the shoulder with it. An IVO was subsequently issued against the Applicant.
[12] G12 at p.131
Police Incident reports also note a family violent incident perpetrated by the Applicant on
5 August 2018 in which the Applicant allegedly struck the affected family member several times[13].[13] SG2 at p.260
Notwithstanding the existence of an IVO against the Applicant which prohibits his direct contact with his children, there is no evidence that the Applicant has acted violently toward children, and the evidence of his partner and other witnesses is that he has been restrained in the disciplining of his own children and has not acted violently toward them.
Principle (c) – crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious
The Applicant was convicted of offences of assault police and resist police in 2009 for which he was sentenced to 45 days in prison. The Applicant’s criminal record does not show any other convictions for offences against government officials or in relation to vulnerable members of the community such as the elderly or disabled.
Principle (d) – the sentence imposed by the courts for a crime or crimes
The Applicant’s criminal record shows he was sentenced to imprisonment on five occasions, in 2019 for 15 months, in 2019 for 48 days, in 2011 for 30 months, in 2009 for 45 days and in 2008 for 14 days and one month to be served concurrently. In addition, the Applicant has received several suspended sentences and community correction orders as alternatives to imprisonment.
These sentences confirm the seriousness of his offending.
Principle (e) – the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
The Applicant’s criminal record spans the period from 2003 until his incarceration in 2019. He has recorded convictions frequently and regularly over that entire period. While the Tribunal accepts the submission of the Applicant that this does not necessarily indicate that he has been constantly involved in criminal activity over that time, it does indicate that he has been actively involved in criminal activity at various times during the period.
There is no definite trend of escalating seriousness in the Applicant’s offending. Rather, it would be more accurate to say that there was ongoing crime of varying types and seriousness throughout the period.
Principle (f) – the cumulative effect of repeated offending
There is clearly a concerning cumulative effect of the Applicant’s repeated offending.
Principle (g) – whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending
There is no evidence that this principle is relevant.
Principle (h) – whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)
The Respondent did not issue a formal warning to the Applicant about the consequences of further offending in terms of his migration status as a non-citizen.
Principle (i) – a crime committed while the non-citizen was in immigration detention… is serious
There is no evidence that the Applicant committed any crime while in detention.
Cultural Background
The Applicant asserted that the nature and seriousness of his offending should be read in a context of intergenerational trauma and possible undiagnosed mental health issues resulting from a violent and strict upbringing.
It was asserted that the cultural background of the Applicant has not been appropriately addressed in the context of a Western criminal justice and rehabilitation setting, resulting in a lowered ability to properly participate in such processes, and a lower standard of culpability should therefore be attributed to the Applicant in respect of his repeated interactions with the criminal justice and rehabilitation process to date.
The Tribunal accepts that the Applicant’s cultural background and violent upbringing may be relevant to the underlying reasons for the Applicant’s behaviour and any steps the Applicant may need to take to avoid further offending. The Tribunal does not accept that such factors are relevant to an assessment of the seriousness of the Applicant’s criminal conduct and the potential for harm to members of the community that could result from a repetition of that conduct.
Having regard to the factors set out in paragraphs 13.1.1(1)(a)–(i), the Tribunal is satisfied that the Applicant’s criminal conduct, being characterised by repeated violence and disregard for community standards of behaviour is serious.
Paragraph 13.1.2 of the Direction states:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm
The Applicant’s past offending has involved violence and resulted in serious physical and no doubt psychological harm to his victims. It has also included weapon possession offences, especially the insecure storage of a loaded shotgun, dishonesty offences and serious driving offences.
The Tribunal is satisfied that, should the Applicant engage in any further conduct of the kind for which he was previously convicted, it has the potential to cause significant harm to members of the Australian community.
The likelihood of re-offending
The first thing to note about the Applicant’s criminal history is that he has a
well- established track record of repeat offending. He has in the past not been deterred from offending by having been apprehended and convicted. He has not been deterred by periods of incarceration and he has not been responsive to the Courts imposing
non-custodial sentences. Put bluntly, the Applicant’s history suggests that there is a very high risk that he would reoffend if allowed to re-join the Australian community.However, the Applicant asserts that he has changed since his conviction in October 2019 and he is now committed to breaking with the pattern of his past and he will not resort to criminal conduct in the future if released. The task for the Tribunal is, therefore, to assess the risk of reoffending in light of the Applicant’s assertions in this regard, but mindful of his established past conduct.
The first consideration is the professional assessment of the clinical psychologist Ms Carla Ferrari who assessed the Applicant by video conference in September 2020. Ms Ferrari assessed the Applicant’s mental health and noted[14]:
In respect to clinical considerations and based on [TVTM]’s self-report, psychometric assessment, clinical presentation at interview and available collateral information, he does not present with any current clinical diagnosis per the Diagnostic and Statistical Manual of Mental Disorders (DSM-5; American Psychiatric Association, 2013). This is positive and highlights improvement in his mental state and stability since ceasing substance use.
[14] Exhibit A16 at [97]
She noted, however, that there were applicable historical diagnoses including Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD) and a history consistent with a Stimulant Use Disorder (Amphetamine-Type) and an Alcohol Use Disorder, which was in sustained remission in a controlled environment.
She assessed the Applicant against the Drug Use Disorder Identification Test[15] and he scored 8/44 indicating a moderate risk of drug-related harm in the 12 months preceding his offending. She also assessed the Applicant against the Alcohol Use Disorders Identification Test[16] and he scored 0/40, which places him in the low range for alcohol-related harm. In both cases Ms Ferrari noted that the Applicant was currently in sustained remission in a controlled environment.
[15] (DUDIT; Berman, Bergman, Palmstierna and Schlyter, 2003)
[16] (AUDIT; World Health Organization, 2001)
Ms Ferrari administered the Spousal Assault Risk Assessment Guide[17], a 20-item measure based on both static and dynamic risk factors that have been clinically and empirically identified as those more predictive of spousal abuse. She found that the Applicant exhibited partial or definite evidence on only four of the 20 risk factors and she assessed him as having a low risk of future general reoffending.
[17] (SARA-V2; Kropp, Hart, Webster & Eaves, 1999 and 2008)
Ms Ferrari also commented in her oral evidence on two earlier assessments of the Applicant’s risk of reoffending. He was assessed in 2016 by Community Corrections Services as a moderate risk of re-offending and not suitable for a community corrections order[18]. Ms Ferrari gave evidence that the assessment was an ongoing process and that the assessment may have been accurate four years ago, but it did not take account of the fact that the Applicant has now addressed his mental health and substance abuse issues. She was also asked to comment on the assessment by Community Correctional Services in January 2019[19] that the Applicant’s failure to comply with the community corrections order showed he was engaging in a level of impression management and had a limited willingness to comply with the requirements of the order. Ms Ferrari stated that the Applicant’s poor engagement was due to cultural issues and that it is only recently that he has started treatment.
[18] SG1 at p.19
[19] SG1 at p.169
The Tribunal also notes that the Applicant was assessed as a medium risk of re-offending by Corrections Victoria in December 2019,[20] and that he was involved in two incidents involving violence while in prison in May 2019 and in January 2020.[21]
[20] SG3 at p.322
[21] SG3 at pp. 272-319
The Applicant points to cultural factors which have contributed to his violent offending and his failure to address his criminality in the past.
The Applicant first asserted that his offending, and especially his violent offending, was largely the product of cultural influences. He said that he suffered abuse as a child because of the strict and often violent parenting by his father. This abuse led him to have mental health problems which he did not understand because of the attitudes in Samoan culture where mental health issues were not recognised and regarded as weaknesses. This then led him to the abuse of alcohol and drugs and to develop anger and aggression in response to stressful situations, which was made worse under the influence of the alcohol and drugs. These observations were confirmed by Ms Ferrari in her psychological assessment report.[22]
[22] Exhibit A16 at p.11
The Applicant also attributed his past failure to address his continuing criminal behaviour due to a lack of culturally appropriate interventions in Victoria.
Having observed the Applicant during the hearing, and noting the support he has received from his partner, his children and his wider family, the Tribunal is satisfied that the Applicant has made some genuine efforts to reassess his life. The Tribunal is satisfied that he now has a better understanding of why he has offended in the past and what he needs to do to avoid doing so in the future.
However, the Tribunal does not underestimate the difficulties faced by the Applicant. First, he is a product of his culture and would return to that cultural setting if released into the community. The Applicant has acknowledged that excessive use of alcohol and violent behaviour are common in his experience of Samoan male culture. Others in the community will have preconceived ideas of who he is and how they will expect him to behave. In addition, it is possible that situations will arise, as they have arisen while he has been in custody,[23] which will test his ability to respond without recourse to violence.
[23] On 22 May 2019 the Applicant was involved in a physical altercation with another prisoner while in Barwon prison in which a prison officer was injured, and again in January 2020 the Applicant was involved in a violent incident with another prisoner who he described as a bikie who was attempting to stand over him.
There are several key factors identified by the Applicant to be addressed in avoiding further criminal conduct.
Abstinence from alcohol and drugs
The Tribunal readily accepts that drugs and alcohol have played a major part in the Applicant’s prior offending and the key to the Applicant’s rehabilitation will be his ability to control his use of alcohol and drugs.
The Applicant gave evidence that he has abstained from drug and alcohol use in prison and while in immigration detention. He has produced a urinalysis drug test report dated 31 August 2020[24] showing negative test results for all tests conducted while he was in Port Phillip and Barwon prisons prior to going into immigration detention. On the basis of this evidence, the Tribunal accepts that he has been drug and alcohol free since his incarceration. However, the Tribunal also notes from the report that the Applicant returned consistent negative results while in prison in 2010, 2009 and 2008 and yet, when released, he went on to resume drug and alcohol use and to commit further crimes.
[24] Exhibit A18
Participation in counselling
Ms Ferrari reported that the Applicant has completed a program and counselling in custody and is committed to continuing to participate in this in the community[25].
[25] Exhibit A16
The Applicant stated that he had seen a counsellor while in prison and this had helped him open up and understand his issues, although he did not provide details of the sessions he attended. When asked whether he was continuing to see a counsellor in detention the Applicant replied that he was not. He said that if anything comes up he puts his name down but the opportunities are limited at the moment because of COVID-19. He also acknowledged that he had been prescribed an antidepressant while in prison but had decided not to continue its use while in detention because he said he did not want any drugs in his body and preferred to get healthy by exercising.
The Applicant provided a certificate evidencing that he had completed a 24 hour (closed) Managing Ice Addiction Program (level III) on 13 November 2019 and a Release Related Harm Reduction Program on 17 December 2019.[26] He stated that he intends to complete the Men’s Behaviour Change Program, a pre-condition for the removal of the IVO, if he is released.[27] As to detention, the Applicant stated:
I have been trying to keep busy, at the moment I am signing up for courses but there are no activities running due to COVID-19.
[26] Exhibit A17
[27] Exhibit A1 at [49]
While the Tribunal is satisfied that these interventions are positive signs that the Applicant understands the need for rehabilitative action and has taken some steps to act on that understanding, the steps taken to date fall well short of what is required to address the Applicant’s underlying mental health issues and predisposition to substance abuse.
Ms Ferrari noted in her report that according to the SARA risk guidelines, the recommended treatment interventions for the Applicant’s specific risk factors include:
(a)intensive supervision and monitoring (of mental state deterioration and substance use which increase risk of violence);
(b)individual psychological treatment for anger management, substance use, and mental health as well as psychoeducation;
(c)relationship counselling to improve conflict resolution and communication;
(d)alcohol and drug testing and treatment.
The evidence does not establish that this level of intervention has been achieved or is clearly planned for the future.
Obtaining regular employment
The Applicant tendered a letter from a Mr ‘J’, the Operations Manager of Stonetrend Pty Ltd, a stone, tile and waterproofing supply, fabrication and installation company, confirming an offer of employment to the Applicant as a site supervisor.[28] Mr J was not called to give evidence, but the Tribunal accepts on face value that the Applicant has the prospect of paid employment if he is released. The Tribunal also notes that the Applicant’s sister-in-law, ‘AT’, said in her statement[29] that she and her husband would help the Applicant get work in the construction industry.
[28] Exhibit A22
[29] Exhibit A14 at [20]
Not re-engaging with the club scene and his former associates
In his evidence the Applicant acknowledged that he needs to avoid becoming involved with the club scene and expressed a commitment to do so. It was a major source of his access to drugs and provided a setting in which violent confrontations would occur. The Applicant stated[30] in relation to his time in detention:
I try to stick around my friends and spend time at the gym. Being in the detention is just like jail. There are more drugs in jail then on the street, but I am determined to turn the page on my life. It is very hard, but I managed to stay away from drugs in prison and that is what I want to do in detention as well. I just stay close to the boys who are going through the same thing as me and we encourage each other to do better. I am surrounding myself with positive people. I have to make this time count.
[30] Exhibit A1 at [50]
The Tribunal accepts the Applicant’s current commitment not to become involved with the club scene if he is released. However, his work as a security supervisor in nightclubs was a source of income for him. If he were to secure employment with Mr J’s company upon his release, it would diminish the financial incentive for him to seek out employment in the club scene or in the security industry generally. However, the Tribunal anticipates that there may be circumstances in the future which test the Applicant’s resolve not to be drawn into that line of work again.
Support from his family and the community
Ms Ferrari noted in her report that:
Research identifies that in order to target the risk factors for offending identified in Pacific Islander populations, focus on cultural identity, education and employment, cultural disengagement, increasing involvement in prosocial activities, and socioeconomic security must be considered. Involvement of family and cultural ties also strengthens the individuals mental health and assists in reducing recidivism.
The Applicant asserted in his Statement of Facts, Issues and Contentions that:
Of the interventions available for people of Pasifika heritage, the Church is one of the only such appropriate mechanisms available in Victoria. Transparency and accountability in a community setting with an appropriate facilitator is stated to be one of the only forums to appropriately address offending such as family violence within the Pasifika community. The Applicant’s adult life has seen him break with the church; however, the consequences of the Applicant’s recent offending have caused him to acknowledge the necessity of returning to this forum.
The Applicant’s partner and immediate family all expressed a willingness to support the Applicant if he is returned to the community and the Applicant specifically identified his brother M as an important role model. M had been involved in some of the Applicant’s earlier criminal activity but now claims to have reformed. The Applicant noted in his statement that:
My brother [M] turned his life around by focusing on his love for his kids and going back to church. I see things in his life that I could do to make the same change. He has told me he wants to help me and guide me to make that change. I am willing to do anything
The Applicant’s brother M gave evidence[31] that following his release from prison in 2011 he gave up smoking and alcohol and committed to the Mormon church. He became involved with youth programs and was called to the bishopric, which he described as the pastor and 2 counsellors that look after the whole congregation.[32] He said that he is well placed to assist the Applicant with addressing past traumas and learning new life skills, having lived through similar experiences.
[31] Exhibit A8
[32] Exhibit A8 at [18]
The Tribunal is satisfied from this evidence that the Applicant will have appropriate support through his family and community to give him an opportunity to reform.
Remorse
In his evidence to the Tribunal, the Applicant expressed his remorse for his conduct towards his partner specifically, and vowed never to repeat it. His partner confirmed that he was remorseful for what he has done and that he calls her daily to say sorry and to assure her that he has changed and will make things better.
The Applicant also expressed his remorse more generally for his crimes but in less specific terms. His brother M and his father[33] each confirmed that the Applicant was remorseful and genuinely wanted to mend his ways.
[33] Exhibit A6 at [23]
The Tribunal is satisfied that the Applicant is genuinely remorseful about the effect of his conduct on his partner, his children and his wider family, and this is likely to exert a positive influence on him to not re-offend. However, the Applicant’s remorse towards the other victims of his crimes and the Australian community generally was less evident.
Having regard to all of the evidence, the Tribunal finds that the there is a moderate risk of the Applicant re-offending. On the positive side, he has come to an understanding of the underlying mental health and cultural issues affecting his behaviour. He has abstained from drug and alcohol use for a prolonged period, albeit in a supervised environment. He has the support of his family and the prospect of full-time employment. However, on the negative side, he has a history of repeated offending and while he has taken some steps to address his underlying substance abuse issues, those steps are not sufficient to persuade the Tribunal that there is a strong chance he can avoid relapse into drug or alcohol abuse in the future. If this occurs his history suggests that he is likely to reoffend.
Conclusion
The Tribunal finds that the Applicant represents a moderate risk of serious harm to members of the Australian community if allowed to remain in Australia. The protection of the Australian community is a primary consideration under Direction 79 and the Tribunal finds this factor weighs heavily against revocation of the cancellation of the Applicant’s visa.
Best interests of minor children in Australia affected by the decision
Paragraph 13.2 of Part C of the Direction provides:
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) 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.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In this case, a consideration of the interests of minor children involves a qualitative as well as a quantitative analysis.
The minor children identified by the Applicant whose interests might be affected by a decision not to revoke the cancellation of the Applicant’s visa are:
(a)the Applicant’s 10 children; and
(b)the Applicant’s 16 nieces and nephews who range in age from 17 years to one year[34].
[34] See family tree at Exhibit A25
The Tribunal was provided with statements by the Applicant’s elder children ‘ML’ (12), ‘D’ (11), ‘J’ (10) and ‘R’ (8)[35] each expressing their desire to be reunited with their father and attesting to the role he plays in their lives. The Tribunal readily accepts that it is in the best interests of each of the Applicant’s children to have him fulfill his role as their father. Each of these four elder children confirmed that the Applicant maintains regular contact with them from detention and previously from prison by electronic means, but the Tribunal accepts that this is a poor substitute for his physical presence.
[35] Exhibits A3, A4, A5 and A15
The Applicant asserts that the wellbeing of his children would be adversely affected by continued separation from him. The Tribunal has reviewed the extensive submissions made on this point in the Applicant’s Statement of Facts, Issues and Contentions. Without reiterating the points made, the Tribunal accepts that it is well recognised that the separation of a child from its parent is likely to have a substantial detrimental effect on the child’s social, emotional and cognitive development and general wellbeing[36] even if contact is maintained over telephone and other electronic media.
[36] Suhail Durani and Minister for Immigration and Citizenship [2013] AATA 273
Direction 79 requires the Tribunal to consider the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the children.
There is no evidence that the Applicant has abused or neglected any of his children in any way or that any child has suffered or experienced emotional trauma arising from his conduct. Police reports of the 2019 Incident[37] indicate that the children were in the house at the time of the assault by the Applicant on his partner T, and the eldest son ML played a role in shepherding the children away from the violence and intervened to try to stop the assault. While it could be anticipated that these events may have traumatised ML and the other children, their statements filed in the proceedings freely acknowledge the incident but take a positive view of their father nevertheless. The evidence of the Applicant’s partner and others supports the Applicant’s assertion that he has never been violent with his children. The existence of the IVO would be an impediment to the Applicant reuniting with his children, but he has committed to completing the Men’s Behaviour Change Program and his partner has commenced a process to have the IVO set aside.
[37] SG1 at p.258
The Tribunal also notes that Direction 79 requires that the best interests of each child should be given individual consideration to the extent that their interests may differ. Having considered the evidence the Tribunal finds that the Applicant’s two eldest sons ML (12) and D (11) have issues which warrant separate consideration from the general issues affecting them and their siblings.
In her evidence, T raised the particular difficulties the two older boys, ML and D, were having at school and how they were struggling without the support of their father[38]. She said that they had been in trouble at school and were each seeing a counsellor. The Tribunal accepts that the need for the boys to have a father’s guidance and support at a difficult time in adolescence is a consideration warranting the Tribunal’s attention.
[38] Exhibit A2 at [51]-[53]
T also gave evidence of the difficult circumstances the children have to endure without their father. T is a sole parent looking after ten children on her own. She has no income other than Centrelink payments[39]. These difficulties have been exacerbated by the COVID-19 restrictions which have imposed on T the added burden of home schooling. The Tribunal readily accepts that the assistance of the Applicant in managing the household and the income he could earn in full time employment would have significant benefits for the children, as well as for T.
[39] Exhibit A20
The Applicant’s brother, M, gave evidence that the Applicant is a popular member of the family with the children and he has favourite uncle status among his nieces and nephews. It is, of course, beneficial for children to have contact with their full extended family and for this reason the Tribunal accepts that it is in the interests of the nieces and nephews for the Applicant to remain in Australia. However, it is clear that each of these children has their own immediate family for support and the Applicant would not play any meaningful role in a parental sense. Accordingly, the Tribunal gives this factor limited weight.
Overall, however, the best interests of minor children, which is a primary consideration under Direction 79, strongly favours revocation. The needs of the Applicant’s children, both by reason of their financial and domestic circumstances and the overwhelming parental load which has fallen on T, strongly commends the return of the Applicant to the family.
In assessing this factor, the Tribunal notes that T and some of the children have expressed an intention to move to New Zealand should the Applicant be deported. The Respondent argues that this means that the interests of the minor children should be given less weight because the children’s interest in having their father as part of the family can be met even if the cancellation of his visa is not revoked.
The Tribunal does not accept this submission. First, there is no guarantee that the family will move to New Zealand. T was not definite in saying that she would do so. In addition, she gave evidence that if she did decide to move, she could not do so easily. The family is of limited means. T estimated that it would take several years to save enough money to be able to afford the airfares and other expenses in moving and setting up in New Zealand. In addition, some of the children expressed reservations in their statements about having to give up their life in Australia, including changing schools and losing contact with their friends and extended family. A move to New Zealand would be disruptive to the lives of all of the children and could well have long term implications for their academic, social and psychological development.
Taking all of these matters into account, the Tribunal is satisfied that the interests of minor children strongly favours revocation of the cancellation of the Applicant’s visa and it gives this consideration substantial weight.
Expectations of the Australian Community
Paragraph 13.3(1) of Part C of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The majority of the Full Court of the Federal Court has explained that paragraph 11.3, which mirrors the wording of paragraph 13.3:
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[40]
[40] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75]-[76].
The Tribunal accepts that the Applicant has acted contrary to the expectations of the Australian community by failing repeatedly to obey Australian laws while in Australia.
The Applicant’s criminal history reveals a long-standing disregard for the laws of Australia.
The Tribunal finds that this consideration weighs substantially in favour of not revoking the Applicant’s visa cancellation.
OTHER CONSIDERATIONS
Paragraph 14 of Part C of the Direction requires that other considerations be taken into account, where relevant. These considerations include (but are not limited to):
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 14.1 of Part C of the Direction sets out the principles to be applied in considering claims which may give rise to international non-refoulement obligations. In this case, the Applicant, who faces deportation to New Zealand, has not raised any such claim.
The strength, nature and duration of ties
Paragraph 14.2 of Part C of the Direction provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia at the age of 15 and has lived in Australia continually since then, a period of over 21 years. The Applicant has a large extended family in Australia and he is strongly connected to the local Samoan community. He has worked in Australia and has friends and associates here. The Tribunal gives this consideration some weight, but the weight which might otherwise be attributed to it is diminished by the fact that the Applicant began offending within a short time after he arrived and has continued to offend regularly throughout his time in Australia. On the other hand, the Tribunal does recognise that the Applicant has worked hard and raised a family and made some contribution to the community, including mentoring youths.
On balance, this consideration weighs in favour of revocation but not strongly.
Impact on Australian business interests
Paragraph 14.3(1) of Part C of the Direction provides:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence in this case that the revocation of the Applicant’s visa could have an impact on Australian business and especially the delivery of a major project or an important service.
Impact on victims
Paragraph 14.4(1) of Part C of the Direction provides:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness
The principal victim of the Applicant’s recent offending is his partner, T. She has made it clear in her evidence that she wants to give the Applicant a second chance and strongly favours his release into the community so that he can resume his role as her partner and father to his children. T’s support is echoed by the members of her extended family in Australia, including her own children. A decision not to revoke the cancellation of the Applicant’s visa would therefore be contrary to her interests.
There is no evidence as to any impact on other victims of the Applicant’s criminal behaviour of a decision not to revoke the cancellation of his visa. Aside from the 2019 Incident, the most recent instance of violent behaviour dates back to August 2017 when he was convicted of common assault which resulted in a short prison sentence. Other offences since April 2016 concern failure to comply with community correction orders and dishonesty offences in which there is no ascertained victim. The Tribunal can accept that the victim of these crimes may not be well disposed to the Applicant and not be in favour of revocation, but in the absence of any real evidence as to the effect of a decision on the other victims, this should be given little or no weight.
On balance, the impact of an unfavourable decision for the Applicant on the Applicant’s partner, as the victim of his recent crimes, and her extended family favours revocation and the Tribunal gives it some weight in assessing the issues before it.
Extent of impediments if removed
Paragraph 14.5 of Part C of the Direction provides:
(1) 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 substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant is a New Zealand national, although he has not lived there as an adult. His family are principally residents of Australia, although he has some relatives living in New Zealand. He identified some aunties and uncles and a cousin who was deported from Australia[41] but he has had little contact with them. The principle impact of a move to New Zealand he identified was the problems he would have in staying connected with his children unless and until they could join him.
[41] Exhibit A1 at [52]
The Applicant also asserted that he would have difficulty establishing himself in New Zealand, especially obtaining suitable housing and employment.
The Tribunal does not doubt that the Applicant would experience some difficulty in establishing himself in New Zealand. That is always the case when people are relocated from one country to another. However, he is a relatively young man and in robust physical health. While he has some issues with substance abuse and unresolved psychological issues, he has not asserted that they would prevent him from working in Australia or establishing his life in the community. He would have to deal with those issues in New Zealand to avoid further criminal conduct as he would if he remained in Australia. There are no language or cultural barriers to him adapting to life in New Zealand. The social system and social welfare arrangements are substantially similar. The Applicant has skills which can be utilised in employment.
Taking these matters into account, the Tribunal is satisfied that there are no long term impediments to the Applicant establishing himself and maintaining basic living standards in the context of what is generally available in New Zealand.
Other Considerations
The considerations set out in paragraph 14 of Part C of the Direction is not an exhaustive list and it is open to the Tribunal to consider any other relevant consideration in deciding whether there is another reason to revoke the cancellation of the Applicant’s visa. In this case, the Applicant has raised three further matters.
First, the Applicant asserts that revocation is the interests of his extended family. Evidence was given by the Applicant’s brother, M, that the Applicant is a much-loved member of his extended family and that they would be distressed if he were deported. The Applicant’s father said in his statement[42] that he and the Applicant’s mother would be distressed to lose contact with their son and potentially his daughter-in-law and 10 grandchildren if the Applicant is deported. He acknowledged that he is currently fit enough to visit New Zealand, but said that he was not sure how long this would be the case because of his age and health issues.
[42] Exhibit A6 at [32]
The Applicant’s nephew said in his statement[43]:
If my Uncle was deported I would not only be losing my Uncle, but someone who has always been in my life and has played a big role in it. He has been there for me ever since I was little, like a parent.
A similar sentiment was expressed in the statements of the Applicant’s nieces.[44]
[43] Exhibit A13 at [8]
[44] Exhibit A11 at [11], Exhibit A9 at [23]
On the basis of this evidence, the Tribunal is satisfied that it is in the best interests of the members of the Applicant’s extended family for the cancellation of his visa to be revoked and it gives this consideration some weight.
Secondly, the Applicant argued that:
There are strong reports from New Zealand officials, at the highest level, that they are furious with Australia deporting persons to New Zealand once those people have integrated into Australian society. The Tribunal should not contribute to angering our closest friend.
This is not a relevant consideration. The essential thrust of the Direction is the need to balance the interests of the Australian community against the interests of the Applicant in determining whether there is another reason to revoke the cancellation. Whether the deportation of the Applicant would anger some New Zealand official is not a relevant consideration in making that assessment. In any event, it is an assertion without evidence.
Thirdly, the Applicant raises the issue of his likely prolonged stay in immigration detention if the cancellation is not revoked because of the travel restrictions associated with the COVID-19 pandemic and points to the financial cost to the Australian taxpayer of doing so. The Tribunal accepts that it is relevant to consider the likely impact of any decision not to revoke, including the length of time that a person may spend in immigration detention. Rather than the cost, the Tribunal’s concern is the human rights of the Applicant and any exposure to prolonged detention.
The effect of the COVID-19 pandemic and restrictions is difficult to predict and government decisions are affected by the dynamics of the pandemic and its public health implications. The Tribunal is not in a position to accurately predict what travel restrictions may apply within Australia and between Australia and New Zealand even in the near future. Given this uncertainty, the Tribunal accepts that there is a risk that the Applicant may experience a prolonged period of detention if the cancellation of his visa is not revoked. This is a relevant consideration and weighs in favour of revocation, although the Tribunal gives it only limited weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[45] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[45] (2016) 153 ALD 337 at [38].
Factors against revocation
The Tribunal is satisfied that the Applicant’s past criminal offending was serious and there is a moderate risk that the Applicant will commit further offences of a serious nature or engage in other serious conduct if released into the Australian community. This represents a risk to the welfare of the Australian community. The welfare of the Australian community is a primary consideration under Paragraph 13.1 of the Direction and the risk of re-offending weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.
Similarly, the expectations of the Australian community are a primary consideration. The Applicant has acted contrary to the expectations of the Australian community by failing repeatedly to obey Australian laws while in Australia and this consideration weighs substantially in favour of not revoking the Applicant’s visa cancellation.
However, in assessing the overall question of whether there is another reason to revoke the cancellation of the Applicant’s visa, the Tribunal is not necessarily bound by the expectations of the Australian community. The Court noted in FYBR v Minister for Home Affairs[46] that the paragraph:
…recognises that the government’s assessment of the expectations of the Australian community is that a non-citizen who has committed a serious offence should not be granted a visa. Strictly speaking, it is not correct to say that the expectation is one to which the Tribunal “must give effect”. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do.
[46] [2019] FCAFC 185 at [79].
In weighing this primary consideration, the Tribunal is mindful that the Applicant’s offending was affected by possible undiagnosed mental health issues resulting from a violent and strict upbringing resulting in his abuse of alcohol and drugs, and that his propensity to violence was affected by the violence inherent in his cultural background. These matters do not change the nature of the expectation of the Australian community, which is that persons who commit serious offences should not be given a visa, but they do tend to mitigate the weight which ought to be given to that expectation. In the Tribunal’s assessment, the expectation of the Australian community in this case should be given significant weight but less than might be given in cases where the criminal offending is not affected by such psychological, social or cultural influences.
Factors in favour of revocation
The best interests of the Applicant’s ten minor children stand out as the predominant factor in favour of revocation. The general thrust of the evidence is that the Applicant is a good father who would provide a positive influence on his children. In addition, the children’s wellbeing would be greatly enhanced by having the Applicant at home to share the parenting responsibilities with his partner and to contribute financially to the family. This factor has a qualitative aspect as well as a quantitative aspect. The nature of the Applicant’s contribution to his children’s welfare is important, especially to his older sons who are in need of support and guidance from him as a positive role model. In a quantitative sense, it is important that the Tribunal take into account the number of children likely to be affected by the decision. This is, of course, primarily the ten children in the Applicant’s immediate family, but it also includes the 16 minor children in his extended family.
The interests of minor children is a primary consideration under the Direction.
To this can be added the interests of the Applicant’s partner as the principal victim of his most recent crimes and the interests of his extended family and the fact that the Applicant has developed significant ties to Australia, each of which carry some weight. Of lesser weight is consideration of the possibility that the Applicant may have to spend a prolonged period in detention if his visa remains cancelled due to COVID-19 restrictions.
Subparagraphs 8(3) to (5) of the Direction provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Colvin J stated at [23]:
...Direction 65 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.
Justice Colvin’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
Weighing up each of these factors and taking account of the fact that there are factors which are primary considerations weighing for and against revocation, the Tribunal is satisfied, on balance, that the cancellation of the Applicant’s visa should be revoked. The Tribunal’s assessment, while respecting the expectations of the Australian community, is that the moderate risk of harm to members of that community is outweighed by the interests of the Applicant’s ten children and of his extended family, especially his partner T.
DECISION
The Tribunal sets aside the decision under review and revokes the mandatory cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa, which was cancelled on 20 December 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth).
I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Member R West
[sgd].....................................................................
Associate
Dated: 9 October 2020
Date of hearing:
5 October 2020
Advocate for the Applicant:
Samantha Smith
Solicitors for the Applicant:
WLW Migration Lawyers
Advocate for the Respondent:
Anthony Gardner
Solicitors for the Respondent:
Minter Ellison
ATTACHMENT A – EXHIBIT LIST
·Exhibit A1: Statement of TVTM
·Exhibit A2: Statement of T
·Exhibit A3: Statement of ML
·Exhibit A4: Statement of D
·Exhibit A5: Statement of J
·Exhibit A6: Statement of the Applicant’s father
·Exhibit A7: Statement of the Applicant’s mother
·Exhibit A8: Statement of the M
·Exhibit A9: Statement of the Applicant’s sister
·Exhibit A10: Statement of the Applicant’s niece
·Exhibit A11: Statement of the Applicant’s niece
·Exhibit A12: Statement of the Applicant’s sister
·Exhibit A13: Statement of the Applicant’s nephew
·Exhibit A14: Statement of AT
·Exhibit A15: Statement of the Applicant’s brother-in-law
·Exhibit A16: Report of Carla Ferrari
·Exhibit A17: Managing Ice Addiction certificate of completion & Release Related Harm Reduction program certificate
·Exhibit A18: Urinalysis Report
·Exhibit A19: Applicant’s Marriage Certificate
·Exhibit A20: Evidence of T’s Centrelink payments
·Exhibit A21: Bundle of birth certificates of the applicant's children
·Exhibit A22: Offer of employment
·Exhibit A23: Parent’s medical certificates
·Exhibit A24: Photographs of extended family
·Exhibit A25: Applicant’s family tree
·Exhibit A26: Timeline of Applicant’s life
·Exhibit A27: Book Chapter - Pacific Social Work
1
6
0