Tyndall and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2226
•21 June 2021
Tyndall and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2226 (21 June 2021)
Division:GENERAL DIVISION
File Number: 2021/2034
Re:Shane David Tyndall
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:21 June 2021
Date of written reasons: 8 July 2021
Place:Sydney
The Reviewable Decision dated 26 March 2021 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
.......................SGD.................................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – Direction 90 – primary considerations - protection of Australian community – family violence – best interests of minor children – expectations of Australian community – other considerations – impediments if removed from Australia – impact on victims – links to Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Minister for Home Affairs v Buadromo
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
8 July 2021
Shane David Tyndall (‘the Applicant’) is a 44 year old citizen of New Zealand who last arrived in Australia on 6 August 1993.[1] Prior to its cancellation the Applicant held a Special Category (Class TY) (subclass 444) visa (‘the visa’).[2]
[1] Exhibit R1, G2, 232.
[2] Exhibit R1, G20, 93.
On 7 September 1998, the Department issued the Applicant a letter which warned that if he committed any further criminal offences this would result in reconsideration of his deportation.[3] On 11 October 2013, the Applicant was issued with a notice of intention to consider cancellation of his visa under section 501 of the Migration Act 1958 (Cth) (‘the Act’).[4]
[3] Exhibit R1, G23, 111.
[4] Exhibit R1, G20, 93 – 98.
On 20 July 2020 the Applicant’s visa was cancelled under s 501(3A) of the Act (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in s 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.[5] At the time the Applicant was serving a sentence of full-time imprisonment at the Clarence Correctional Centre in South Australia.[6]
[5] Exhibit R1, G33, 234–235.
[6] Exhibit R1, G5, 19.
On 4 August 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[7]
[7] Exhibit R1, G12, 56-60.
On 26 March 2021, a delegate of the Respondent decided, pursuant to s 501(CA)(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[8]
[8] Exhibit R1, G5, 19-33.
On 7 April 2021, the Applicant applied to the Tribunal (‘the first Tribunal’) for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[9]
[9] Exhibit R1, G2, 3-8.
The matter was heard by the Tribunal on 1 June 2021. The Applicant attended the hearing by video-conference from Villawood Immigration Detention Centre and was self-represented. The following persons gave oral evidence by phone and were cross-examined at the hearing:
·the Applicant;
·SD – the Applicant’s former partner; and
·LM – the Applicant’s mother.
The material before the Tribunal consists of:
·Section 37 G-Documents filed 15 April 2021 (G1-G36, Pages 1- 297) (‘Exhibit R1’);
·Supplementary G-Documents filed 20 May 2021 (SG1- SG9, pages 1- 179) (‘Exhibit R2’)
·Respondent’s Statement of Facts, Issues and Contentions dated 20 May 2021 (‘Respondent’s SFIC’); (‘Exhibit R3)
·Applicant’s Evidence filed on 2, 3, 5 and 25 May 2021 (‘Exhibit A1’)
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) 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
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[10]
[10] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[11]
[11] Direction, para 2-3.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘…information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[12]
[12] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
ISSUES FOR DETERMINATION
Before the power in sub-section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[13] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background and employment
The Applicant was born in New Zealand and first entered Australia with his mother, step-father, sister and brother[15] on 5 December 1987[16] when he was aged 10 years. He attended Homebush Boys High School and Lewisham Christian Brothers High School where he completed his School Certificate.[17]
[15] Exhibit R1, G15, 80.
[16] Exhibit R1, G32, 233.
[17] Exhibit R1, G17, 85.
The Applicant left school when he was aged 16 years and was employed in the fashion industry. He then worked in the hospitality industry and in a number of different roles in hotels, including in the laundry department, as a houseman, a porter, and in the reception area helping the concierge.[18] After he left the hospitality industry he trained as an arborist and was employed by ten to twelve different companies as a groundsman.[19]
[18] Transcript of proceedings dated 1 June 2021, 30.
[19] Transcript of proceedings dated 1 June 2021, 31.
Criminal history in Australia
The Applicant’s criminal history in Australia are set out his National Criminal History Check dated 9 June 2020.[20]
[20] Exhibit R1, G6, 34-37.
Early offending – 1996 to 1998
The Applicant's criminal history began with a series of non-violent crimes which he claimed were for the purposes of funding ‘a small drug habit’.[21] He was charged with and later convicted of the following offences in the Newtown Local Court:
·18 July 1996, possessing car breaking implements and attempting to steal a vehicle;[22]
·14 September 1996, Steal motor vehicle; and[23]
·4 January 1997, Break, enter and steal.[24]
[21] Exhibit R1, G17, 85.
[22] Exhibit R2, S3.1, 42–45.
[23] Exhibit R2, S3.2, 46–51.
[24] Exhibit R2, S3.3, 52-54.
On 13 January 1997, the Applicant assaulted and threatened to kill a former friend accusing him of having informed on him to police. The victim was examined at hospital for bruising and swelling. The Applicant initially denied the assault and claimed it was a false accusation by the victim. He however later admitted to, amongst other things, wearing clothes which matched the victim's description. The Applicant was convicted of Assault occasioning actual bodily harm in the Newtown Local Court.[25]
[25] Exhibit R2, S3.4, 55–61.
On 10 February 1997, the Applicant was sentenced by the Newtown Local Court to six months periodic detention for Steal motor vehicle,[26] and 12 months periodic detention for the Break, enter and steal,[27] and Assault occasioning actual bodily harm offences.[28] The Applicant often did not comply with the periodic detention order, and on 29 October 2017 it was cancelled and a warrant was issued.[29]
[26] Exhibit R2, S3.2(c), 50.
[27] Exhibit R2, S3.3(b), 53.
[28] Exhibit R2, S3.4(c), 60.
[29] Exhibit R1, G17, 85; G25, 123; Exhibit R2, S4(f), 72, 74.
On 5 December 1997, the Applicant had been out drinking until the morning and when he returned home, he argued with his then girlfriend, AD. He struck her in the face and proceeded to kick her on the ground. AD’s father and sister intervened and the Applicant also struck them. The Applicant admitted to his actions and was remorseful. AD and her father were treated for injuries but later provided statements in support of him.[30] The parole officer reported the Applicant had taken up residence with his girlfriend after his mother would no longer accommodate him due to his ‘threatening and aggressive behaviour[31]’. His parents reported that they had had difficulty with the Applicant’s ‘dishonest and untrustworthy behaviour’.[32]
[30] Exhibit R2, S4(a), 62–68.
[31] Exhibit R2, S4(e), 69.
[32] Exhibit R2, S4(e), 70.
On 6 January 1998 the Applicant was convicted in the Local Court of New South Wales of two counts of assault occasioning actual bodily harm and common assault. Magistrate Horler noted the victims appeared to have forgiven the Applicant. However he considered that although it was important to ensure the incident would not be repeated, it was not in anybody’s interest to record a conviction.[33] An appeal of the Local Court’s original sentence of 12 months recognisance on inadequacy grounds was upheld in the District Court of New South Wales on 13 May 1998. The Applicant was convicted of two counts of Assault occasioning actual bodily harm and one count of Common assault. He was required to enter into a two year good behaviour bond and place himself under the supervision and guidance of the NSW probation service and obey all directions.[34]
[33] Exhibit R2, S4(f), 77.
[34] Exhibit R2, S4(g), 79.
Family violence offending – 2011 to 2012
On 22 October 2011, the Applicant and his partner of two years (CT) shared a couple bottles of wine when they began a heated verbal argument.[35] The Applicant walked up to his partner and slapped her on top of her head with ‘an open hand which caused the victim to feel immediate pain and discomfort.’[36] The partner left the unit with their baby, however returned thirty minutes later. They soon ‘engaged in another verbal argument’, during which the Applicant snatched both of his partner’s mobile phones and smashed them against the wall. He then slapped her in the face with an open hand, causing her to feel ‘immediate pain and discomfort and further cause immediate bruising, swelling and red marks.’[37] She then took the baby into the bathroom and locked the door as she was afraid. The Applicant ‘punched the locked door once’, causing it damage.[38] He was recorded as making admissions to police at the unit, before subsequently declining a record of interview.[39]
[35] Exhibit R2, ST5(b), 85.
[36] Exhibit R2, ST5(b), 85.
[37] Exhibit R2, ST5(b), 85.
[38] Exhibit R2, ST5(b), 85.
[39] Exhibit R2, ST5(b), 86.
In a letter received by the Department on 14 January 2021 the Applicant wrote about the circumstances leading to this assault on CT, stating the assaults occurred after he and his former partner ‘had a few drinks and started to get in a heated discussion about finances and work’[40] and was a consequence of his ‘trouble dealing with my own emotions and feelings’.[41] He stated neither of them were ‘in the right circumstances of financially able to look after a child let alone look after our own well beings … Due to the circumstances of things happening so fast I guess I had a chip on my shoulder of not being independent enough to support a new born as well as nurturing a relationship which was new also.’[42] He admitted to striking CT and breaking her phones in ‘frustration and anger’, as well as damaging the bathroom door while she and the baby were locked inside. He stated that when things ‘cooled down, the damage was done, my relationship was fractured and I was in absolute remorse for what I had done’ and put them through.[43]
[40] Exhibit R1, G15, 80.
[41] Exhibit R1, G15, 81.
[42] Exhibit R1, G15, 80.
[43] Exhibit R1, G15, 81.
On 25 October 2011, the Liverpool Local Court made an apprehend domestic violence order (ADVO) against the Applicant in respect of CT and their child for 12 months.[44] Further, the Magistrate convicted the Applicant of destroying or damaging property and two counts of common assault. For one of the assault convictions the Applicant a section 9 good behaviour bond was imposed for two years.[45]
[44] Exhibit R2, S5(c), 91–93.
[45] Exhibit R1, G6, 36; Exhibit R2, S5(d), 94–95.
On 31 December 2011, the Applicant became involved in an argument with CT. He repeatedly kicked her in the legs and scratched and slapped her causing her bruises and red marks. She ‘felt immediate pain and discomfort, and feared for her safety, and feared for the safety of her child’.[46] CT did not report this incident at the time out of fear of the Applicant.[47] On 26 January 2012, the Applicant was again engaged in an argument with CT when he threatened to kill her, stating, ‘I'll snap your fucking neck! I'll Kill you! You stupid fat whore!’[48] She retreated to the bedroom where their child was sleeping and called the police. The Applicant ‘bashed’ on the bedroom door and she attempted to hold the door shut but was overpowered. CT left the home with their child and police arrived shortly after to arrest the Applicant.[49]
[46] Exhibit R2, S6(a), 97.
[47] Exhibit R2, S6(a), 97.
[48] Exhibit R2, S6(a), 97.
[49] Exhibit R2, S6(a), 97-98.
The Applicant was convicted in the Campbelltown Local Court on 31 January 2012 of two counts of Common assault (DV), Stalk/intimidate intend fear physical etc harm (domestic) and Contravene prohibition/restriction in AVO (domestic), and sentenced to nine months imprisonment, which was suspended upon entering a section 12 bond for nine months.[50] On 5 March 2013 the Applicant’s previous convictions for Common assault (DV) from 25 October 2011 were called up and the Intensive Corrections Order was revoked in the Local Court of New South Wales, as the Applicant failed to attend his scheduled assessment interviews. He was sentenced to 12 months imprisonment, with a non-parole period of nine months and was placed on a two year section 9 supervised bond and fined $1,400.[51]
[50] Exhibit R1, G6, 36.
[51] Exhibit R1, G10, 50–51.
Family violence offending - 2017
On 19 September 2017, the Applicant accused his step-daughter, CW, of having stolen money and asked her to leave the house. She went upstairs to collect her belongings and when she came back down the Applicant threatened her by stating ‘You’re asking for a kicking’.[52] He struck CW on the hip with his knee, and then raised his left hand and struck the right side her face with an open hand. She attended hospital where she presented with a bruised hip.[53] The Applicant denied the allegations and claimed he had grabbed CW by the arm and pushed her outside.[54] On 27 September 2017, the Applicant was issued with an ADVO in respect of CW and he was charged with Assault occasioning actual bodily harm. He failed to attend his court hearing on 27 November 2017 and on 10 January 2018, police found the Applicant hiding in the home subject to the ADVO. He claimed he did not attend the hearing because he had lost his legal representation and was scared of the outcome of the hearing, and that CW had left following the incident and he had nowhere else to live.[55]
[52] Exhibit R2, S8.1(d), 139.
[53] Exhibit R2, S8.1(d), 140.
[54] Exhibit R2, S8.1(d), 140.
[55] Exhibit R2, S8.1(e), 143.
In the pre-sentence report dated 16 March 2018,[56] the Applicant was assessed as a low to medium risk of reoffending and considered to have ‘poor skills in managing his emotions’.[57] On 20 March 2018 the Applicant was convicted in the Local Court of New South Wales of assault occasioning actual bodily harm (DV), common assault (DV), contravene prohibition/restriction in AVO (domestic) and fail to appear in accordance with bail acknowledgement, and ordered to a total of 200 hours community service, a 12 month section 9 bond to be of good behaviour and a $500 fine. The transcript of proceedings records the Applicant’s explanation regarding the offending against CW, who had resided with him and CT for almost 12 months at the request of her grandmother, ‘to take care of the victim in relation to her attitude [which] was significantly out of control’, and efforts to engage her with school or employment had been unsuccessful.[58]
[56] Exhibit R2, S8.1(f), 144-146.
[57] Exhibit R2, S8.1(f), 145.
[58] Exhibit R1, G9, 47.
In her remarks, Magistrate Robinson noted this offence was serious because it involved a 17 year old girl under the Applicant’s authority. Further, the Magistrate noted regardless of what was happening with CW, the way the Applicant dealt with the matter was deplorable.[59] Her Honour considered that the fact the incident occurred in the home and in front of at least one young child were aggravating factors. She recognised the breach of the apprehended violence order was ‘at the lower end of the scale given the technical nature of it’, and the order had since been varied and the Applicant had pleaded guilty.[60] However, the Applicant entered no pleas for the other offences and so was not offered any discount. The Applicant was convicted of Assault occasioning actual bodily harm and Common assault for which he received a community service order.[61]
[59] Exhibit R1, G9, 48.
[60] Exhibit R1, G9, 48.
[61] Exhibit R1, G9, 46–49.
In a letter received by the Department on 14 January 2021 the Applicant addressed his 2018 convictions against CW, stating that after his sister’s suicide he ‘was in a fragile state and dealing with the emotions built up with no support around me’, while also transitioning to self-employment.[62] The Applicant maintained he ‘was charged with assault for things I didn’t commit when it comes to hurting her in any circumstances’,[63] explaining that after he and his partner decided to remove the teenager from the house due to her negative behaviour, ‘she eventually had her bags packed and was ready to leave, she then started to get heated with her mother and then I stepped in and told her to get out. She at the time did not want to leave so I pushed her to the door with my hand on her right shoulder’.[64] He submitted additional information in a subsequent letter received on 9 March 2021, stating he tried to ‘fight the allegations’ until he ran out of funds, ‘which effected not just myself but my partner due to the mistrust in her daughter and the stresses behind what I was going through.’[65]
[62] Exhibit R1, G15, 81.
[63] Exhibit R1, G15, 81.
[64] Exhibit R1, G15, 81.
[65] Exhibit R1, G17, 86.
Family violence offending – 2019 to 2020
On 9 and 15 December 2019, the Applicant and his partner, SD, had an argument over their son not giving his phone. He then disciplined their son by slapping him on the buttocks which caused a further argument.[66] The Applicant pushed his partner and pressed his hand against her face. On 16 December they had an argument about finances. The Applicant threatened SD stating ‘[y]ou dumb fucking slut, I should slit your fucking throat, you're a dumb fucking bitch I don't think it's getting though your dumb fucking skull.’[67] SD feared she would be assaulted and left the house and contacted police. She informed police ‘of a long domestic violence history.’[68] The Applicant later admitted to both incidents.[69] An ADVO was issued on the Applicant in respect of SD for two years.
[66] Exhibit R2, S7(a), 127.
[67] Exhibit R2, S7(a), 127.
[68] Exhibit R2 S7(a), 128.
[69] Exhibit R2, S7(a), 128.
During his sentencing assessment on 22 January 2020, the Applicant reported he ‘struggled with his anger’ since his early 20s.[70] He ‘acknowledged that he requires intervention to address this to ensure his family and the community are not exposed to his offending behaviour again in future [and] indicated a willingness to undertake any intervention as directed.’[71]
[70] Exhibit R2, S7(c), 130–131.
[71] Exhibit R2, S7(c), 131.
The Applicant was convicted in the Local Court of New South Wales on 22 January 2020 of Common assault (DV) and Stalk/intimidate intend fear physical etc harm (domestic) and sentenced to an aggregate of 10 months imprisonment, to be served by way of an Intensive Corrections Order, and 75 hours community service work.[72] Magistrate Tsavdaridis noted this was the fifth occasion the Applicant had appeared before the courts because of a domestic violence incident, and that the present incident was aggravated by the fact it was in the presence of two young children, and in the home where his partner was ‘entitled to feel safe’.[73]
[72] Exhibit R2, S7(d), 132–134.
[73] Exhibit R1, G8, 44.
On 26 April 2020, the Applicant was residing with his partner, SD, and had been there for several months due to the COVID-19 pandemic. He was upset with SD as she had walked ahead of him when they were leaving a shopping centre.[74] At home, SD gave the Applicant milk to put away which slipped out of his hands. He became angry and argued with her before grabbing her by the hair and swinging one of the milk containers which hit her on the arm causing a large lump and covering her in milk. As SD went to the lounge, the Applicant continued to stand over her and yell causing her to attempt to kick him away. The Applicant then walked to the kitchen where SD saw him grab a knife and so she ran outside and contacted police.[75] The Applicant was living with SD at the time, in breach of an Apprehended Domestic Violence Order preventing contact, and was also serving an Intensive Corrections Order for a previous assault on SD. His legal counsel acknowledged the assault ‘took place in front of the children’, which his client was ‘ashamed and embarrassed about’.[76]
[74] Exhibit R2, S8.2(a), 159.
[75] Exhibit R2, S8.2(a), 160.
[76] Exhibit R1, G7, 39.
In the pre-sentencing report dated 18 May 2020 the Applicant was assessed a medium risk of reoffending.[77] The Applicant claimed that the incident probably would not have occurred if his friend had not ‘abandoned him’ and the COVID-19 pandemic which inhibited his ability to work.[78]
[77] Exhibit R2, S8.2(d), 165.
[78] Exhibit R2, S8.2(d), 164.
On 22 May 2020 the Applicant was convicted in the Blacktown Local Court of Assault occasioning actual bodily harm (DV) and Contravene prohibition/restriction in AVO (domestic). He was sentenced to a total aggregate term of nine months, with a six month non-parole period.[79] Magistrate Robinson noted the Applicant was the subject of an ADVO which only provided for contact with his partner for the purposes of the children. Further, the Magistrate considered relevant was that it was a domestic matter which involved the victim of the Applicant's previous offending. Her Honour further considered ‘a factor of significant aggravation’ was that the Applicant had in January 2020 been given the benefit of an intensive corrections order for his previous offending.[80]
[79] Exhibit R1, G19, 89.
[80] Exhibit R1, G7, 40.
Remorse and responsibility for offending
In the letter received by the Department on 9 March 2021, the Applicant wrote:
I have struggled with my emotions and my feelings for a long time yet thought I could manage and didn't resort to counseling or help in the area's that needed attention. I see the impotence (sic) of self-help and guidance now yet maybe have left it a little late. My partner and my kid's are very supportive of me, just disappointed that it has come to this for me to understand the importance of family and what they mean to me.[81]
[81] Exhibit R1, G17, 86.
The Applicant told the Tribunal:
I know I’ve made a lot of mistakes in my life, especially growing up and being very much alone. I have looked for help but, unfortunately, cut myself and my ties very short at times. I’ve looked for help only recently to just look more independently into myself and my family affairs and, most - most importantly, my children. So, hopefully, when I do leave this place I have something to look forward to and help myself. I need a little bit of self-help and I never really searched that before until only recently knowing how far I’ve condemned myself to a place like Villawood. I never understood the severity of my actions until I looked more into myself. I suppose looked more to God too to just understand what I’m doing to people. I know it’s a violation against humanity and women in general and I know I’ve done a lot wrong. I just need to help myself and just given the right opportunity I want to prove that, Member, to, not just myself, but Australia too and I am not a monster. I just need to do the right thing.[82]
[82] Transcript of proceedings dated 1 June 2021, 4.
Rehabilitation
The New South Wales Corrective Services Probation and Parole Immigration report dated 25 June 2013, advised the Applicant had stated ‘alcohol consumption was closely related to his offending behaviour’. As a result, he claimed that he has ‘made an effort to reduce his consumption and only drinks on special occasions.’[83]
[83] Exhibit R1, G22, 109.
The Applicant told the Tribunal that he has not consumed alcohol for eight years and does not take drugs.[84]His criminal lawyer asked the Local Court of New South Wales on 22 January 2020 court to find her client ‘is a person that does require some ongoing rehabilitation and assistance in the community’. It was further submitted that although the Applicant had ‘no drugs or alcohol issues … there’s real issues with anger management’.[85]
[84] Transcript of proceedings dated 1 June 2021, 6, 9.
[85] Exhibit R1, G7, 39.
The Applicant submitted evidence that he has completed the following offending-related programs in Villawood Immigration Detention Centre:[86]
·Anger Management 101 (five contact hours), dated 20 November 2020
·Domestic Violence 101 (eight contact hours), dated 6 December 2020
·Stress Management (four contact hours), dated 14 December 2020
·Depression Management (five contact hours), dated 30 December 2020
·Positive Parenting Techniques (five contact hours), dated 28 February 2021
·Drug and Alcohol Abuse 101 (seven contact hours), dated 14 March 2021.
[86] Exhibit R1, G14(a), 76; G14(b), 77; G14(c), 78; G15(a), 83; G17(a), 87; G18, 88.
The Applicant said that completing these courses made him ‘understand a little bit more correctly of how serious domestic violence really is, and the damage it can do to not just the community, but myself and others.’[87] He did them not because he had to but because he needed to do them for himself.[88]
[87] Transcript of proceedings dated 1 June 2021, 14.
[88] Transcript of proceedings dated 1 June 2021, 15.
Risk of re-offending
The Applicant was asked why the Tribunal should accept that he is not at risk of re-offending when he has repeatedly done so in the past. He stated:
I wasn’t in a good space for myself. I didn’t understand the severity and the consequences of really what I done and where I was at in my life. And only now that I know, it’s my family, my kids come first. I need to do it for them, and to prove to them and Australia as a whole that I’m better than this and I can do this. And most importantly I love Australia. I love this country and I’ve - and I wanted nothing more than to hurt it. That’s what I’ve done, and I just - I know I regret all my actions of what I done and the severity of it all, but I know in myself I will follow through with whatever the system has in place for me, just to make it right.[89]
[89] Transcript of proceedings dated 1 June 2021, 15.
Relationship with partner, SD
The Applicant told the Tribunal that it is ‘most definitely’ his intention that he and his partner will live together again once the ADVO expires and they will have a long-term relationship.[90] In his letter to the Department received on 14 January 2021, the Applicant wrote that he and SD have always communicated with each other and with their kids and ‘maintained a rather healthy relationship.’ They ‘have had [their] fair share of ups and downs yet always managed to get by.’[91]
[90] Transcript of proceedings dated 1 June 2021, 23.
[91] Exhibit R1, G15, 81.
Applicant’s children
The Applicant submits that his three minor aged biological children will be negatively impacted if his visa cancellation is not revoked: a son, CLT, aged eight years, a son, SPD, aged eight years, and a daughter, ASD, aged five years.
The Applicant does not have contact with CLT due to the wishes of his mother, CT. The Applicant told the Tribunal that he has not had any relationship with CLT. He would definitely like to see him in the future but at this time ‘it’s very inappropriate’.[92]
[92] Transcript of proceedings dated 1 June 2021, 18.
The Applicant’s other children, SPD and ASD reside with their mother, SD. He described his relationship with his son and daughter as ‘very close’. He has been with them since ‘day one’ and has ‘nurtured them all the way through and gave them the support that they needed.’ He has done a lot for them and loves them. He does not allow them to visit him in immigration detention and stays in contact with them via letters and the occasional phone call.[93] Due to the ADVO in place until January 2022 he is careful not to breach the restrictions in relation to contacting the children’s mother.[94] He also accepts that if he is released he will have to wait six months before he will be able to see his children.[95]
[93] Transcript of proceedings dated 1 June 2021, 19.
[94] Transcript of proceedings dated 1 June 2021, 20.
[95] Transcript of proceedings dated 1 June 2021, 20.
The Applicant was asked whether SD may relocate to New Zealand with the children to which he replied, ‘definitely not’. He thinks she would support the children making an occasional visit to New Zealand if they could afford it.[96] He agreed that he could continue his relationship with his children by phone, but said that the lack of physical contact is ‘going to be devastating to all of them and myself.’[97]
[96] Transcript of proceedings dated 1 June 2021, 28.
[97] Transcript of proceedings dated 1 June 2021, 29.
In his Personal Circumstances Form dated 4 August 2020, the Applicant wrote that his children are his life and they both need their mother and father in their lives. He does not want his children to suffer any long-term damage from the instability of them not having their father present.[98]
[98] Exhibit R1, G13, 66.
Family in Australia
The Applicant’s mother and step-father returned to Australia in mid-2020 after having lived in New Zealand for the previous 18 years. His step-father passed away in October 2020.[99] He had a good relationship with his mother and step-father when he was growing up but as an adult he was independent and they would only come together for family gatherings. Since the death of his step-father he has become very close to his mother again.[100] He has not had a meaningful relationship with his brother for many years however they have recently attempted to take steps to mend their relationship.[101]
[99] Transcript of proceedings dated 1 June 2021, 25.
[100] Transcript of proceedings dated 1 June 2021, 26.
[101] Transcript of proceedings dated 1 June 2021, 22.
The Applicant has a niece, SLT and nephew, JM, both of whom are adults. The Applicant stated although he has not ‘had much contact with either’, he is in regular communication with SLT, and supported her and JM after their mother’s death.[102] The Applicant speaks to his niece about once a week through social media but does not speak to his nephew as much since he became a father himself. The Applicant considers they would be devastated if he was removed as they understand not having a father.[103]
[102] Transcript of proceedings dated 1 June 2021, 22.
[103] Exhibit R1, G13, 69.
Family in New Zealand
In his Personal Circumstances Form dated 4 August 2020, the Applicant wrote that he has not had any contact with members of his family in New Zealand, being his aunts, uncles and cousins since he left there at the age of 10 years.[104]
[104] G13, 70.
Future plans
The Applicant told the Tribunal that if he is released back into the community he will live with his mother. He believes they can ‘help each other through this time of need and suffering and pain that [they’ve] both incurred’[105]. He has his mother’s support and he can depend on ‘her wisdom of just life itself to just guide [him] and to give [him] something to look forward to.’[106] He sees ‘a future that is very bright at this stage’.[107]
[105] Transcript of proceedings dated 1 June 2021, 11.
[106] Transcript of proceedings dated 1 June 2021, 11.
[107] Transcript of proceedings dated 1 June 2021, 11.
The Applicant said he would like to ‘get more self-help’ in the form of counselling. He has contacted ADRA Community Centre to set up 15 counselling sessions, and also to look at courses through them as well.[108] He also will be finding employment. He wants to ‘do something very different’ in his life now. There were a ‘lot of dead ends’ in his past, and he just needs ‘to get the right credentials to forward [his] career.’[109] He would like get back into the hospitality trade or even back into the fashion industry.[110]
[108] Transcript of proceedings dated 1 June 2021, 15.
[109] Transcript of proceedings dated 1 June 2021, 10.
[110] Transcript of proceedings dated 1 June 2021, 11.
Impediments on return
In his Personal Circumstances Form dated 4 August 2020, the Applicant wrote that he has no ties to New Zealand and all his family reside in Australia.[111] He told the Tribunal:
I have no ties to New Zealand whatsoever. I wouldn't know where to stand. No dependants there. Yes, I wouldn't be in a nice place. Put it that way. I wouldn't know where to stand.[112]
[111] Exhibit R1, G13, 74.
[112] Transcript of proceedings dated 1 June 2021, 27.
He agreed that his mother is in contact with their relatives in New Zealand. As to whether he would contact them on his return he stated:
I'm not sure if I would want to reach out. Being fairly stubborn and fairly independent, I don't know how they would respond to some things. I'm not too sure.[113]
[113] Transcript of proceedings dated 1 June 2021, 28.
Applicant’s former partner - SD
SD told the Tribunal she had been in a relationship with the Applicant for eight years but they are currently not in a relationship.[114] She confirmed that there is an ADVO order in place for her protection until January 2022.[115] She is prepared to have contact with the Applicant because they have two children together.[116] As for whether she would be willing to have a romantic relationship with the Applicant in the future she said she does not know, as he has hurt her in the past and she does not know if that will happen again.[117]
[114] Transcript of proceedings dated 1 June 2021, 34.
[115] Transcript of proceedings dated 1 June 2021, 35.
[116] Transcript of proceedings dated 1 June 2021, 35.
[117] Transcript of proceedings dated 1 June 2021, 35.
SD confirmed that the Applicant has a ‘wonderful relationship’ with his children and they both love and miss their Dad.[118] Both children phone their father multiple times a day and always ask when they can see him.[119] She would be supportive of the children continuing to have a relationship with the Applicant and of them going to New Zealand to visit him.[120]
[118] Transcript of proceedings dated 1 June 2021, 37.
[119] Transcript of proceedings dated 1 June 2021, 39.
[120] Transcript of proceedings dated 1 June 2021, 37.
Applicant’s mother - LM
The Applicant’s mother told the Tribunal that she and her husband departed Australia in June 2004 and returned in December 2019.[121] During this period they had limited contact with her son, although she did communicate with him by phone message and saw him once or twice in person.[122] The Applicant always felt they had ‘abandoned’ him, which she ‘didn’t mean to’ and feels ‘terrible’ about.[123]
[121] Transcript of proceedings dated 1 June 2021, 44.
[122] Transcript of proceedings dated 1 June 2021, 45.
[123] Transcript of proceedings dated 1 June 2021, 45.
JM told the Tribunal that she intends to remain in Australia long-term and does not have any plans to return to New Zealand other than for a yearly visit there.[124] She said she would be very happy for the Applicant to come and live with her.[125] She lives in a retirement village and is confident she can support her son emotionally and financially and they will live ‘comfortably’ and ‘harmoniously’.[126] She is not concerned about the Applicant’s domestic violence convictions because she is a ‘very placid person’ and he was a ‘loving child’ so it ‘could just be the situations he was in.’[127]
[124] Transcript of proceedings dated 1 June 2021, 47, 48.
[125] Transcript of proceedings dated 1 June 2021, 46.
[126] Transcript of proceedings dated 1 June 2021, 46.
[127] Transcript of proceedings dated 1 June 2021, 46.
LM told the Tribunal that she has six siblings who live in New Zealand, and she has two grown up grandchildren who have both had a child, so she is a grandmother.[128] Due to COVID-19 she has not been able to go back and visit her family in New Zealand, and she is ‘just waiting for the opportunity.’[129] She agreed she could ask her relatives if they could provide the Applicant with some support and they would probably give him some financial assistance and try to find him employment.[130]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[128] Transcript of proceedings dated 1 June 2021, 46, 48.
[129] Transcript of proceedings dated 1 June 2021, 47.
[130] Transcript of proceedings dated 1 June 2021, 47.
1) Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 9 June 2020 regarding his criminal convictions and sentences. This report records that on 5 March 2013, the Applicant was sentenced in the Local Court of New South Wales to 12 months’ imprisonment for a called-up earlier conviction for Common Assault (DV). The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 20 July 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
a)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; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) …
(ii) …
(iii) …
(iv) …
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)…
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that an absence of a warning should not be considered to be in the non-citizen’s favour).
Having regard to the factors in paragraph 8.1.1(1) of the Direction, the Tribunal finds, for the following reasons, that the Applicant’s offending is very serious. Other than the Applicant’s early convictions in relation to stealing a motor vehicle in 1996 and 1997, his offences have been violent crimes, which have been largely perpetrated against his partners and in a domestic setting. The Applicant was also convicted of assaulting his step-daughter who, at the time of the offence was aged 17 years, and therefore a minor. The Applicant disputed the factual circumstances surrounding this conviction, however the evidence before the Tribunal is that on 20 March 2018 he was convicted by a Magistrate of the Local Court of the offences Assault occasioning actual bodily harm (DV) and Common assault (DV). Adding to the seriousness of his offending, many of the assaults by the Applicant against his victims were Assault occasioning actual bodily harm causing them physical injuries, which included bruising and swelling that required treatment in hospital. Having regard to the factors in paragraphs 8.1.1(a)(i), (ii) and (iii) the Tribunal finds that the Applicant’s criminal offending is very serious.
The Tribunal finds that the seriousness of the Applicant’s offending is increased by the fact the Applicant continued to re-offend, ignoring numerous warnings from the courts, and despite being afforded an intensive correction order allowing him to serve his sentence in the community rather than in gaol. Further indicators of the seriousness of the Applicant's offending are that it occurred in the presence of his young children, and whilst he was subject to an ADVO for the protection of his partner and children.
Having regard to paragraph 8.1.1(c) of the Direction, the custodial sentences imposed on the Applicant by the courts noted above in paragraph82 are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
In relation to the factors in paragraph 8.1.1(1)(d) and (e), the Applicant’s violent offending, particularly against his domestic partners, has been frequent and re-occurring. The Applicant assaulted his long-term partner and mother of their two children, SD, on at least two occasions, and in December 2019 she reported to police a ‘long family violence history.’ The cumulative effect of the Applicant’s offending discloses a general disregard for the law. Over the past two decades, he has demonstrated an unwillingness to comply with the law and has failed on multiple occasions to comply with conditions attached to bonds, intensive correction orders and an ADVO.
The Tribunal has had regard to paragraph 8.1.1(1)(g) of the Direction and notes that the Applicant continued to offend after he had received a letter from the Department dated 2 September 1998 when he was in gaol, which warned that if he committed any further criminal offences this would result in reconsideration of his deportation from Australia.[131] On 11 October 2013, the Applicant was issued with a notice of intention to consider cancellation of his visa under section 501 of the Act.[132] The Applicant responded to this letter and his visa was not cancelled. Despite being on notice of the consequences of him reoffending, the Applicant offended again multiple times resulting him being convicted and sentenced to further terms of imprisonment.
[131] Exhibit R1, G23, 111.
[132] Exhibit R1, G20, 93 – 98.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs strongly against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states
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 harms increases. Some 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) of the Direction provides that in assessing the risk that may be posed 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:
(i) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any future reoffending by the Applicant may involve physical and/or psychological harm, including serious injury, to his victims. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence committed against three of his former partners. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (‘XFKR’), the Tribunal observed at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
The Applicant has demonstrated a propensity to act violently with disregard for the harm he causes his victims. If his previous criminal behavior were to be repeated, this would pose a significant risk to members of the community, including women and children. As noted above, and recognised in XFKR, domestic violence offences inflict substantial physical and psychological harm on individuals and diminish respect for women and equality between the sexes in society more generally. If the Applicant were to inflict actual bodily harm on another victim, this could result in permanent injury or disability. In addition to the potential harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant has expressed his remorse for the offences he has committed. The Applicant claims to understand the seriousness of his offences and says he regrets his actions and their severity. The Applicant's risk assessment in recent assessments for sentencing purposes has steadily increased. In the pre-sentence report dated 16 March 2018, the Applicant was assessed as a low to medium risk of reoffending, and most recently in the pre-sentence report dated 18 May 2020, the Applicant was assessed a medium risk of reoffending.
In relation to the evidence of the Applicant’s rehabilitation, he has recently completed a number of courses since being held in immigration detention following the cancellation of his visa. The Applicant has taken opportunities in the past to address his violent behaviour and anger management issues. The evidence before the Tribunal is that the Applicant completed a course in managing emotions in 2013,[133] and undertook a domestic violence program in 2018,[134] however neither of these caused him to change his ways and cease offending against his domestic partners.
[133] Exhibit R1, G14, 79.
[134] Exhibit R2, S8.1(f), 144.
While the Applicant has apologised for his criminal offending,[135] in respect of his assault of his step-daughter he continues to dispute the facts which were accepted by the Magistrate ,[136] and downplay the inappropriateness of the way he dealt with her behaviour.[137] Further, in relation to his most recent assault of his former partner, the Applicant did not take responsibility for his violent and threatening behaviour, and instead claimed that the offence would not have occurred if not for the COVID-19 pandemic and his friend abandoning him.[138] The Applicant’s lack of insight into his offending indicates that he does not realise the seriousness and impact of his criminal behaviour which undermines his claims he will not reoffend.
[135] Exhibit R1, G15, 80.
[136] Exhibit R1, G9, 48.
[137] Exhibit R1, G15, 81.
[138] Exhibit R1, S8.2(d), 164.
The evidence before the Tribunal is that in addition to his problems controlling his anger, the Applicant’s unstable employment and financial troubles have contributed to his criminal offending. The Applicant evidence is that he that he struggled to find work because of his criminal convictions, and he has had periods of unemployment.[139] He is currently uncertain what work he could obtain if he returned to the community. He has sold the equipment he previously used for his arborist trade,[140] and he hopes to resume his career in either the hospitality or fashion industry. This evidence suggests that it will be some time before the Applicant will be in a secure financial and employment situation, and the insecurity he will face in the interim increases the likelihood, based on his past behaviour, that he will re-offend.
[139] Transcript of proceedings dated 1 June 2021, 10.
[140] Transcript of proceedings dated 1 June 2021, 10.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate. In the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, specifically family violence offending, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs on balance against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is relevant in the Applicant’s circumstances as he has been convicted of multiple offences that involve family violence. The victims of these offences were the Applicant’s former partners, CT and SD, and his step-daughter, CW.
In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effective of repeated acts of family violence;
(c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct;
(d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement of other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
Having regard to the frequency of the Applicant’s family violence offending in accordance with paragraph 8.2(3)(a) and (b) of the Direction, the Tribunal notes that the evidence is that the Applicant has been a serial offender, having been convicted of a dozen offences involving or related to family violence. As noted above, the Applicant’s former partner reported to police in December 2019 a ‘long family violence history’, the cumulative effect of which has been to diminish her confidence and self-worth.
In relation to the factors in paragraph 8.2(3)(c) of the Direction, the Applicant’s evidence to the Tribunal is that he now ‘understand(s) a little bit more correctly … how serious domestic violence really is, and the damage it can do to not just the community, but [himself] and others.’[141] However, as outlined above, the Applicant continues to downplay his violent behaviour and minimise his personal culpability by blaming external factors for his offending, indicating that he has not fully accepted responsibility for his own actions. Furthermore, although the Applicant has undertaken a family violence course as recently as December 2020, he completed a similar course in 2013 and then subsequently committed multiple further offences against his partner. In light of this evidence, the Tribunal cannot be satisfied that the Applicant’s recent completion of a family violence course will contribute in any significant way towards his rehabilitation.
[141] Transcript of proceedings dated 1 June 2021, 14.
Having regard to the factors in paragraphs 8.2(3)(d), the evidence is that the Applicant continued to commit acts of family violence after receiving multiple warnings from the courts and the Department in relation to the consequences of his criminal offending on both his liberty and his immigration status, including the likelihood of the cancellation of his visa and removal from Australia. The Tribunal cannot be satisfied that the threat of serious consequences will prevent the Applicant from committing further acts of family violence.
On the basis of the evidence before it and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that the Applicant’s offences involving family violence are very serious. Accordingly, Primary Consideration 2 weighs strongly against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a) The nature and the 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 the non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
(h) …
The relevant minor children are the Applicant’s children who have not yet turned 18 years of age, namely his two sons, CLT and SPD, both aged eight years, and his daughter, ASD, aged five years.
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has had no relationship with his eldest son, CLT, since he was a baby due to the wishes of his mother, CT, who was the victim of the Applicant’s family violence offending in 2011. This offending occurred when CLT was a baby and was asleep in the house. The Applicant’s evidence is that he is unlikely to have contact with CLT in the foreseeable future as it would be ‘very inappropriate’, although he would like to build a relationship with his son at some stage.
In respect of the Applicant’s two younger children, SPD and ASD, he has generally been in their lives since their birth, although this has been disrupted by periods during which they have been physically separated due to him being subject to an ADVO or incarcerated in gaol or immigration detention. The Tribunal notes that there is currently an ADVO in place for the protection of SD and the children which does not cease until January 2022. Accordingly, the Applicant will not be able to see his two younger children until this ADVO either expires or is set aside.
In relation to the factors in paragraph 8.3(4)(b) and (c) the evidence is that the Applicant and his children have a very close relationship and there is potential for him to play a positive role in their lives. However, he is very unlikely to reside with the children as SD’s evidence is that she and the Applicant are no longer in a romantic relationship, and therefore the children will only see their father if and when access visits are arranged. Based on the Tribunal’s finding that there is a medium risk of the Applicant re-offending, there is a not insignificant risk that if the Applicant returns to the community and continues a relationship with SD for the purposes of seeing their children, that he will reoffend against her in the presence of the children. Relevant to paragraph 8.3(4)(g) is the evidence that some of the Applicant’s family violence offences against SD occurred at a time when SPD and ASD were in the home. If this were to occur the Applicant would certainly not play a positive role in his children’s lives, as there is a real likelihood they would be detrimentally impacted by the Applicant’s behaviour.
Having regard to the factors in paragraph 8.3(4)(d), (e) and (f), the Applicant’s ongoing physical separation from his children will have an impact on them as the evidence is that they love and miss their father and are always asking when they can see him. They have however for some time now been in the primary care of their mother who is assisted by their grandmother, the Applicant’s mother, when she can.[142] The impact on the children of their separation from their father could be mitigated by regular phone calls and communication by electronic means, which is how they have stayed in contact during his incarceration in gaol and immigration detention. SD’s evidence is that it is highly unlikely that she would consider relocating with the children to New Zealand, however she would be supportive of the children visiting New Zealand to see their father when they are of an age to do so.
[142] Transcript of proceedings dated 1 June 202138.
Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that this primary consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s three minor children (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
1) 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.
2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)…;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)…
(e)…
(f)…
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) 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.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[143] 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.[144]
·However, 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.[145] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[146]
[143] Charlesworth J at [66]; Stewart J at [91].
[144] Charlesworth J at [67]; Stewart J at [104].
[145] Charlesworth J at [76].
[146] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[147] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[147] Charlesworth J at [77]
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached numerous Australian laws and has been convicted of multiple offences in Australia. The Applicant’s offences include family violence and an offence against a minor which, as recognised by paragraphs 8.4(2)(a) and (c) of the Direction, should generally result in the cancellation of the non-citizen’s visa.
The Applicant arrived in Australia at the age of 10 years and is now aged 44 years. Having regard to the factors in paragraph 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour as he has lived in Australia for more than three decades. The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)Decision-makers must consider 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.
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 44 years of age and is generally in good health. He claims to have suffered from depression, however there is no evidence of a current diagnosis or that the Applicant is taking prescribed medication for a mental health condition. If the Applicant were to require mental health treatment in the future, he would be able to readily acquire it as a New Zealand citizen.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in New Zealand until the age of 10 years and has some familiarity with life in his home country. It will however take time for him to readjust to life in a country in which he has not lived since he was a young boy. The Applicant’s evidence is that he has some family members in New Zealand but that he has no relationship with them. His mother’s evidence is that her relatives may be willing to support him financially if he were removed to New Zealand.
Having regard to paragraph 9.2(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. The economic and employment opportunities in New Zealand are similar to those in Australia. The Applicant has worked in the hospitality and retail industries in Australia and is an experienced arborist, and therefore should not have difficulties finding similar employment in New Zealand.
Having regard to the evidence before it, the Tribunal finds the Applicant will face hardship if he is required to establish himself in New Zealand, having not lived there since he was a young boy. He has no friends and only a few family members in New Zealand and he will struggle to find stable accommodation and employment and re-establish his life. This hardship will be exacerbated by his separation from his mother and three children who will remain in Australia. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
1)Decision-makers must consider 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
The Respondent submits that in circumstances where the victim is the Applicant’s partner, that any impact on the partner as a result of the Applicant’s removal should be considered under other aspects of Direction 90; namely, the strength, nature and duration of the applicant's ties to Australia: CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842 at [20] per Colvin J.[148]
[148] Exhibit R3, Respondent’s SFIC, 43.
The evidence before the Tribunal is that SD, who is the most recent victim of the Applicant’s family violence offending, no longer wishes to be in a romantic relationship with him, largely due to the ‘hurt’ he has caused her in the past. However, she recognises that the interests of their two children are best served by the Applicant remaining in Australia and having the opportunity to be part of their lives. There is no evidence before the Tribunal of the views of the three other victims of the Applicant’s family violence offences. On the basis of this evidence, the Tribunal finds that this consideration is of neutral impact in assessing the impact on the Applicant’s victims of his family violence offending of a decision to revoke the Mandatory Visa Cancellation Decision.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
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)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, 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.
(a) 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.
Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since 1987, having arrived in Australia at the age of 10 years. The Applicant completed his schooling in Australia and engaged in periods of paid employment in the retail and hospitality industries and as an arborist. The Applicant commenced offending in 1996 when he was an adult aged 19 years. The Tribunal finds that the Applicant has spent more than three decades in Australia and has made a not insignificant contribution to the Australian community through his work in a range of positions. However, the Applicant has also spent considerable time in criminal custody, and has been the subject of the time and resources of police and the courts, at the expense of the Australian community.
In relation to the factors in paragraph 9.4.1(1) and 9.4(2)(b) of the Direction, the Applicant has strong family ties in Australia, specifically his mother, three children, brother, and niece and nephew. Having regard to paragraph 9.4.1(1) and 9.4(2)(b) of the Direction, the evidence of the Applicant, his mother and SD is that the Applicant’s children would suffer emotional distress if he were returned to New Zealand. The Applicant has recently become close again to his mother, and although he currently has a limited relationship with his brother, they are intending to re-establish their bond with each other. The Applicant’s evidence is that he does not have social networks outside of his family in respect of friends or engagement in the community. On the basis of the evidence before it, the Tribunal is satisfied that Applicant’s family members, who are Australian citizens or have a permanent right to remain in Australia, would be adversely impacted if the Applicant’s visa is not reinstated.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family and social ties in Australia, the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh strongly against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly as it has largely involved family violence offences against his former partners and his minor aged step-daughter. The moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s three minor children for him to remain in Australia. Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious family violence offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by his thirty year residence in Australia and his employment contributions to the community.
In regard to the relevant Other Considerations, only the impediments he will face on return to New Zealand and his links to the Australian community weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision must be affirmed.
I certify that the preceding 138 (one hundred and thirty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
............................SGD............................................
Associate
Dated: 8 July 2021
Date of hearing: 1 June 2021 Applicant: Mr S Tyndall Solicitors for the Respondent: Mr S Valliappan
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Jurisdiction
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