VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 685
•7 April 2022
VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 685 (7 April 2022)
Division:GENERAL DIVISION
File Number: 2021/0651
Re:VGJG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:7 April 2022
Place:Perth
The decision of the delegate of the Minister dated 4 February 2021 not to revoke the cancellation of the applicant's Skilled (Class SI) (Subclass 189) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act) is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act s 501CA(4) – decision of delegate of Minister not to revoke mandatory cancellation of visa – applicant fails character test – whether there is “another reason” to revoke the mandatory cancellation – Direction 90 applied – stalking and intimidation offences – common assault – alcohol-related offending – applicant diagnosed with numerous mental health conditions – mental health conditions raised in relation to non-refoulment obligation – applicant is a bisexual man – extent of impediments if the applicant is removed to Kenya – instances of family violence where victim supports the applicant remaining in Australia – there is another reason to revoke the cancellation of the applicant’s visa – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 5H, 5J, 5L, 36(2)(aa), 48A, 499, 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501(7A), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E
CASES
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pokrywka and Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5th ed, 2013)
Home Office, Country Policy and Information Note Kenya: Sexual orientation and gender identity and expression (Report, April 2020)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 4.1, 5.1, 5.1(3), 5.2, 5.2(4), 5.2(5), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2(3)(c), 8.3, 8.3(4)(e), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9(1)(c), 9.1, 9.1(2), 9.1(6), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(2)(a), 9.4.2
United States of America Department of State, 2020 Country Reports on Human Rights Practices: Kenya (Report, 30 March 2021) section 6
REASONS FOR DECISION
Deputy President Boyle
7 April 2022
THE APPLICATION
The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 4 February 2021[1] not to revoke the cancellation of the applicant's Skilled Independent (Class SI) (Subclass 189) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] R1/19.
The applicant’s visa was cancelled under s 501(3A) of the Act on 29 June 2021 on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
The application was made on 5 February 2021 pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
ADMINISTRATIVE/JUDICIAL HISTORY
The application was originally heard by a differently constituted Tribunal which, on 29 April 2021, affirmed the delegate’s decision.
By orders dated 3 August 2021, the Federal Court of Australia, by consent, quashed that decision, and directed the Tribunal to determine the applicant’s application according to law.[2]
[2] R1/894.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 9 and 10 December 2021. The applicant was represented by Mr L Ehimudiamen and the Minister was represented by Mr T Liu of counsel. The following witnesses gave evidence at the hearing:
(a)The applicant;
(b)Ms Charlotte Ritchie;
(c)Kristy Delmas, clinical psychologist;
(d)RJG; and
(e)Brenda Mitchell.
The following documents were admitted into evidence:
(a)Statement of the Applicant dated 5 November 2021 (A1);
(b)Statutory declaration of the Applicant dated 5 May 2021 (A2);
(c)Report by Kristy Delmas dated 14 November 2021 (A3);
(d)Statement of RJG dated 2 December 2021 (A4);
(e)Statement of Charlotte Ritchie dated 9 November 2021 (A5);
(f)Statement of Brenda Mitchell dated 3 November 2021 (A6);
(g)Statement of AN dated 4 November 2021 (A7);
(h)Remittal bundle filed in the Tribunal 8 December 2021 (R1); and
(i)The Australian Psychological Society information sheet on offender risk assessment handed up at hearing on 10 December 2021 (R2).
BACKGROUND
The applicant is a 42-year-old citizen of Kenya. He first arrived in Australia on 20 May 2015, aged 36, with his wife and two children. The applicant and his family lived in suburban Sydney. The children enrolled in local schools.[3]
[3] R1/399.
On 10 September 2015, the police were called to the applicant’s residence in response to an altercation between the applicant and his wife. The applicant’s evidence was that the altercation arose as a result of the applicant’s consumption of alcohol. An Apprehended Violence Order (AVO) was issued against the applicant.[4]
[4] R1/493; transcript at 17.
On 10 July 2017 the applicant, while intoxicated, was involved in an argument with his wife. When she threatened to call the police, he is reported to have said “You wouldn’t do that, I will kill you”.[5] As a result, on 12 July 2017, another AVO was taken out against the applicant, a term of which was that he must not approach or be in the company of his wife for at least 12 hours after drinking alcohol or taking illicit drugs.
[5] Police record, R1/492.
On 17 July 2017, the applicant breached the AVO by returning to his residence intoxicated.[6] Police attended and arrested the applicant who was charged with breaching the AVO.
[6] R1/489.
On 27 August 2017, the applicant crashed his car into a parked car while he was in an intoxicated state: he had a concentration level of 0.186 grams of alcohol in 210 litres of breath.[7]
[7] R1/488.
As a result of the above incidents, on 12 March 2018, the applicant was convicted of:
(a)“Stalk/intimidate intend fear physical etc harm (domestic)”;
(b)“Contravene prohibition/restriction in AVO (domestic)”;
(c)“Drive with high range PCA – 1st off”.[8]
[8] applicant's criminal record, R1/38; R1/42.
On the above convictions the applicant was sentenced to two 18-month good behaviour bonds. On appeal, the District Court confirmed those convictions and the imposition of the good behaviour bonds.[9]
[9] R1/47.
Between September 2017 and August 2019, the applicant:
(a)was found to be heavily intoxicated in public (contrary to bail conditions) by the police on a significant number of occasions;[10]
(b)indecently exposed himself in public, including at the Parramatta CBD, the Blacktown Train Station, the Seven Hills Train Station and the Blacktown Local Court;[11]
(c)caused fear to members of the public;[12] and
(d)breached an AVO.[13]
[10] R1/454–87.
[11] R1/448; R1/449; R1/477; R1/480; R1/481; R1/485.
[12] R1/448; R1/455; R1/461; R1/466–7.
[13] R1/451–2; R1/456.
On 1 October 2019, the applicant was convicted in the Blacktown Local Court of a further three counts of “contravene prohibition/restriction in AVO” and one count of “stalk/intimidate intend fear physical etc harm”. He was also resentenced for his previous convictions. The applicant was sentenced to a term of imprisonment of seven months with a non-parole period of three months, backdated from the time that he was taken into custody.
The applicant was released from custody on 1 October 2019 and on that evening, while intoxicated, he assaulted a 13-year-old girl and a 19-year-old women at the Blacktown train station. The applicant held the hand of the 19-year-old women for about one minute and placed his arm on the back of the 13-year-old girl just below her shoulder.[14]
[14] Sentencing remarks of Judge Norton, R1/88–9.
On 26 March 2020, the applicant was convicted of two counts of common assault for his offences on 1 October 2019 and sentenced to two terms of imprisonment of nine months. He was also resentenced in relation to his previous “stalk/intimidate intend fear physical etc harm” offences, to two terms of imprisonment of 12 months. In total, he was sentenced to an aggregate term of imprisonment of 42 months.[15]
[15] R1/40.
On appeal to the New South Wales District Court, the applicant’s convictions were confirmed, but the sentences were reduced to an aggregate of 30 months imprisonment.
On 14 May 2020, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. On 19 May 2020, the applicant made representations about revocation of the cancellation decision.[16] The applicant provided extensive material in support of his revocation request.[17] On 4 February 2021, the delegate refused to revoke the mandatory cancellation of the applicant’s visa.
[16] R1/93–110.
[17] R1/113–212.
The applicant’s full criminal record is annexed to these reasons for decision.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
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.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(1) the person has a substantial criminal record (as defined by subsection (7)); …
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
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;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that, “[a] person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[18] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[19]
[18] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[19] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are stated to be as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[20] The character test is defined in s 501(6) of the Act (see [24] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [25] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) of the Act provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. The applicant has been sentenced to terms of imprisonment totalling more than 12 months and he therefore has a substantial criminal record. Accordingly, he does not pass the character test.
[20] [2009] AATA 47; (2009) 106 ALD 66.
As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [27] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Minister made the following submissions[21] in relation to the seriousness of the applicant’s offending:
(a)The applicant’s offences are serious. The common assault offence committed by the applicant on 1 October 2019 was against a 13-year-old girl, a very vulnerable member of the community, and must be viewed very seriously.[22]
(b)The threat to kill made by the applicant against his ex-wife in the presence of his children constitutes family violence and therefore must also be viewed as very serious.[23]
(c)The other offences committed by the applicant are equally serious. The drink driving offence has the potential to cause physical and economic harm to other members of the Australian community. The indecent exposure in public offence had the potential to cause mental harm to other members of the Australian community, including children. The other common assault offence committed was against a young adult woman, which is equally serious. Contravention of AVOs, which are in place to protect vulnerable members of the Australian community must also be viewed as a serious offence, irrespective of whether there was actual physical violence.
(d)The seriousness of the applicant’s offences is reflected by the sentence imposed by the Court.[24] As Rares J observed in Brown v Minister for Immigration and Citizenship,[25] a suspended sentence of more than 12 months is a “very serious penalty”. His Honour’s observation is pertinent in the present matter where the applicant is serving a lengthy custodial sentence of 30 months.
(e)In view of these factors, the applicant’s criminal conduct should be viewed as very serious.
[21] Minister’s statement of facts, issues and contentions filed in the Tribunal 7 April 2021 (Minister’s SFIC); R1/404–17.
[22] Citing Direction 90 paras 8.1.1(1)(a)(ii), 8.1.1(1)(b)(ii).
[23] Citing Direction 90 paras 4.1, 8.1.1(1)(a)(iii).
[24] Noting, see Direction 90 para 8.1.1(c).
[25] [2010] FCAFC 33; (2010) 183 FCR 113 at [7].
Neither the applicant’s statement of facts, issues and contentions dated 15 March 2021 (applicant’s SFIC) nor the applicant’s further submissions on remittal dated 19 November 2021 (applicant’s further submissions) specifically addressed the consideration of the seriousness of the applicant’s offending per se, but rather both sets of submissions purported to address the more general consideration of the protection of the Australian community.
The applicant’s SFIC under the heading “Protection of the Australian community from criminal or other serious conduct” conceded that:
There is no dispute that the offences for which the applicant was convicted and sentenced to imprisonment were very serious offences.
I assume that the above concession is made in relation to the two common assault and two “stalk/intimidate intend fear physical etc harm” offences of which the applicant was convicted in the Blacktown Local Court on 26 March 2020 for which he was sentenced to 42 months’ imprisonment reduced by the Paramatta District Court to 30 months’ imprisonment.
In reviewing the sentences imposed for those offences, Judge Norton described the circumstances of the relevant offences as follows:
The magistrate who imposed that sentence, which amounts to three years and six months, imposed an aggregate sentence with respect to two call-ups and two fresh offences. The two matters which were called up were a stalk or intimidate, intending to cause fear, physical or mental harm domestic violence offence, which occurred on 10 July 2017 at Toongabbie.
This offence occurred in the home of the appellant where he was at that time living with his children and his wife. It occurred because he was affected by alcohol and it occurred because his wife did not wish him to drink and be affected by alcohol in the house. It occurred in the presence of his two children.
…
The second stalk and intimidate offence …, occurred at Blacktown on 7 August 2019. It involved an interaction with someone at a hotel where he was staying.
…
The two fresh matters … involved a young person, JT, and the offence occurred on 1 October 2019.
…
The second offence …, was committed whilst the appellant was on two s 9 bonds. Offences 3 and 4 …, were committed whilst the appellant was serving a Community Corrections Order for offence 1 and 2 and on parole.
…
On 1 October 2019, he was released from custody but failed to report to Community Corrections.
On 1 October 2019, he committed the offences which are offences 3 and 4... Ms [E] was aged 19 and JT was 13 and they were at Blacktown Railway Station. They went to leave the platform to get something to eat and were approached by the appellant. JT at his request, shook his hand so as not to be rude. Ms [E] refused to shake his hand and the appellant grabbed her hand and held it for about a minute. This is the facts of the assault against Ms [E].
The appellant briefly touched JT's arm and then whilst the victims were attempting to get through the ticket barrier, the appellant stood very close behind JT and as she was stepping over the barrier, placed his right arm on JT's back, just below her right shoulder. JT felt really scared. The police arrived and noticed JT was visibly upset and the appellant was lying on the ground.
On 1 October, that is shortly before those offences, he was placed on a Community Corrections Order for two years, following pleas of guilty. On 2 October, he was admitted into custody.
…
It was submitted on behalf of the appellant that the first two matters, the stalk and intimidate, that they were below midrange and that the period of imprisonment, indicative period of 12 months was excessive. It was submitted the appellant should be best dealt with imprisonment by way of an Intensive Corrections Order for those two offences. As I have indicated, I do not accept those submissions and I confirm the indicative sentences. I find they are both serious offences.
With respect to the two common assaults, it was submitted that they were very minor assaults, even taking into account the past history of the appellant. It was pointed out that although there have been a significant number of entries, the criminal record itself does not commence until 2017 and is not as extensive as it looks at first sight.[26]
[26] R1/83–90.
In relation to the applicant’s breaches of AVOs, the convictions for common assault and the convictions for “stalk/intimidate intend fear physical etc harm”, the applicant’s SFIC submitted that:
There is no suggestion that the applicant had inflicted actual violence or caused any actual bodily harm on the victims of his offending including the 2017 stalk intimidate offence, the June, July, and August 2019 contravene apprehended violence order, stalk intimated offence and the October 2019 two (2) count of common assault offences.
The applicant breaches the AVOs have resulted from his conduct of actually consuming alcohol or being in the presence of his ex-partner under the influence.
In closing the applicant’s counsel, Mr Ehimudiamen, commented that:
The assault which occurred on 1 October has been described by her Honour, Judge Norton and it was nonetheless an assault and the seriousness of which can be seen in the sentences imposed.
But the breaching of the court orders have occurred in circumstances where VGJG was drunk, some of which involved having the mere presence of alcohol in his system and this is not to take away from the seriousness of the offending, but it does guide this tribunal in considering the type of offending that might occur if a positive decision was made in favour of VGJG. It doesn’t involve any actual violent offending with weapons, it doesn’t involve the breach of AVOs, it does not involve the violent assaults on his wife or anyone else. They have occurred in the circumstances to even the offence of wilful exposure occurred in circumstances where he has literally urinated in public at Parramatta train station.[27]
[27] transcript at 139–40.
In closing the Minister’s counsel, Mr Liu, submitted that:
… insofar as clause 8.1(2)(a) requires the tribunal to consider the nature and seriousness of the non-citizen’s conduct to date, I think it’s fair to say that there is no dispute that it was very serious. So, then, the critical factor relevant to how much weight for or against revocation the tribunal should give to this primary consideration, will hinge on the risk of reoffending…[28]
[28] transcript at 147.
Dealing firstly with the applicant’s submissions, I agree with concession by the applicant that the offences for which he was sentenced to terms of imprisonment were “very serious offences” (see [45] above). I do not accept, however, the applicant’s downplaying of the seriousness of his offending by blaming it on his alcohol abuse and mental health conditions. This consideration goes to the seriousness of the offences, not whether there might be reasons why the applicant committed them.
While the applicant’s contention that his breaches of the AVOs “resulted from his conduct of actually consuming alcohol” (see [46] above) may be technically correct, that statement does not tell the full story. Although the specific behaviour which caused the breach of the AVO in each case is not clear on the material before me, one of the AVOs was taken out as a result of the applicant threatening to kill his wife (see [11] above).[29]
[29] per Judge Norton, R1/76.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)(Paragraph 8.1.1(1)(a)) – the assaults committed on 1 October 2019 were against women, in one case against a minor. They are to be viewed very seriously by operation of para 8.1.1(1)(a)(ii) of Direction 90. In reviewing the sentences imposed on the applicant for the two stalk/intimidate convictions and the two common assault convictions, Judge Norton commented that:
I find that they were also serious offences. One, they were both young ladies. One was 19, one 13. They are entitled to be present on a railway platform waiting for train, without men of senior years who should know better, coming up and touching them, particularly when they are trying to walk away.[30]
[30] R1/90.
Further, the applicant has engaged in family violence. In his statutory declaration made 12 March 2021, the applicant conceded that:
By engaging in domestic violence offending, I caused fear from [the applicant’s wife] and the children and made damage when it was not my place to do so.[31]
The applicant’s threat to kill his then wife, notwithstanding that it was made when he was intoxicated, and his repeated “stalking/intimidate intend fear physical etc harm” involving his wife constituted family violence as that term is defined in para 4.1 of Direction 90.[32] These must also be viewed as very serious by operation of para 8.1.1(1)(a)(iii) of Direction 90. As Acting Judge Delaney noted in April 2018 in relation to the two counts of stalk and intimidate and the contravention of the AVO, “[t]hese were domestic violence matters, of some severity”.[33]
(b)(Paragraph 8.1.1(1)(b)) – the applicant’s conduct was not of the type described in this sub-paragraph.
(c)(Paragraph 8.1.1(1)(c)) – the offences for which the applicant received the sentences of imprisonment came within sub-paras 8.1.1.(1)(a)(ii) and (iii) and are therefore excluded from this consideration.
(d)(Paragraph 8.1.1(1)(d)) – the applicant has been convicted of 20 offences between March 2018 and April 2020. While the applicant’s criminal record reproduced in the tender bundle[34] does not disclose the dates upon which the offences were committed, it would be fair to assume that the frequency of the applicant’s convictions reflects the frequency of the applicant’s offending. As the most serious offences were the two stalking/intimidating and two common assault offences of which the applicant was convicted in March 2020, there is a trend of increasing seriousness.
(e)(Paragraph 8.1.1(1)(e)) – the applicant has committed 20 offences over a two-year period. The cumulative effect of the applicant’s repeated convictions for stalking/intimidating and breaching a AVO indicate that the applicant has little regard for the law or the rights of other community members. He repeats behaviour which he clearly understands to be illegal and/or antisocial.
(f)(Paragraph 8.1.1(1)(f)) – not relevant.
(g)(Paragraph 8.1.1(1)(g)) – not relevant.
[31] R1/401.
[32] Causes a family member to be fearful; sub-paras (c) and (e).
[33] R1/47.
[34] R1/38–42.
Based on the considerations in para 8.1.1 of Direction 90, I am satisfied that the applicant’s offending has been very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some 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.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[35] at [56] summarised the task for the decision-maker as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[35] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[36] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[36] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or serious conduct of the type that he has in the past is obvious. Much of the applicant’s offending and previous serious behaviour has had the character of public nuisance or offensive behaviour rather than violent or other serious offending causing injury or property damage/loss. That, however, is not to say that this type of behaviour does not cause, or at least has the potential to cause, psychological fear and potentially serious injury and property loss. Certainly, the applicant’s high end drink driving offences, if repeated, have that potential.
As Judge Norton noted, the assaults on 1 October 2019 for which the applicant was sentenced to terms of imprisonment, had caused the younger of the applicant’s victims, a 13-year-old girl, to feel “really scared” and for her to still be “visibly upset” when police arrived (see [45] above). The same would most likely be the case for someone who the applicant threatened to kill.
I do accept, however, that while serious, the direct consequences of the applicant’s offending if it were to be repeated, is at the lower end of seriousness of harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The applicant contends that his offences have occurred in similar facts and circumstances, namely, when he has been intoxicated. He says that his offending was “brief and momentary behaviour” with no pre-meditation or planning.[37]
[37] applicant's SFIC.
He says that he has not provided any misleading information to the department, his offences are not of a sexual nature and since he has been in prison and immigration detention, he has undertaken a number of courses and programs. I accept that there is no evidence of the applicant providing misleading information to the department and that is not a claim that has been raised by the Minister. I also accept that none of the offences of which the applicant has been convicted was of a sexual nature and, again, that is not a claim made by the Minister.
The applicant also submits that as the AVO issued for the protection of his now former wife has expired, the chances of a further breach of the AVO are eliminated. While that is self-evidently the case in respect of that AVO, it misses the point. The issue is whether, given the applicant’s history and particular circumstances, he is likely to commit a breach of an AVO or a similar offence in the future. That, in my assessment, for the reasons set out below, will depend significantly on whether the applicant has successfully addressed his alcohol/substance abuse and mental health.
In that regard the applicant points to the courses that he has undertaken both before his last arrest and since he has been in prison and immigration detention. Amongst the documents produced by the applicant were certificates of attendance in a health survival program attended on 2 September 2019,[38] a certificate of demonstration of positive attitude with a willingness to participate issued by the John Marony Correctional Centre on 6 September 2019,[39] a remand domestic abuse letter of attendance (confirming the applicant attended two sessions each on 12, 17 and 25 September 2019,[40] a certificate of course completion for anger management 101 issued 1 October 2020,[41] a certificate in mental health studies – suicide, violent behaviour and substance abuse issued 5 September 2020,[42] a certificate of course completion for drug and alcohol abuse 101 issued on 6 October 2020,[43] a certificate of course completion for domestic violence 101 issued on 15 October 2020,[44] a certificate of course completion for understanding addictions issued on 20 October 2020,[45] a Beyond Blue certificate of completion of professional education to aged care (PAEC) online program (undated),[46] a certificate of course completion for anxiety therapy 101 issued on 20 November 2020,[47] a certificate of completion for mentor facilitation workshop undertaken on 9, 10 and 11 October 2020,[48] a certificate of course completion for depression management issued on 3 November 2020,[49] statement of completion of 6 hour suicide prevention workshop on 14 November 2020[50] and an attendance and participation form from Smart Australia confirming that the applicant had attended meetings in September, October and November 2020.[51]
[38] R1/136.
[39] R1/137.
[40] R1/138.
[41] R1/139.
[42] R1/140.
[43] R1/141.
[44] R1/142.
[45] R1/143.
[46] R1/144.
[47] R1/145.
[48] R1/146.
[49] R1/147.
[50] R1/148.
[51] R1/151–6.
The applicant also provided a letter dated 16 November 2020 from Tomaree Neighbourhood Centre confirming that he had attended an online course SMART Recovery self-management and recovery training group support sessions.[52] This letter referred to the applicant having demonstrated a positive attitude towards his future and that he has made positive changes in his life. Mr Pearton, the author of that letter, stated that he was happy to provide the “necessary counselling support” to the applicant upon his release into the community.
[52] R1/149.
Mr Pearton provided a further letter dated 5 March 2021[53] stating that the applicant had “attended an [sic] online SMART Recovery self-management and recovery training group sessions”. The letter advised that as well as the weekly 90-minute sessions held on Mondays, the applicant, during the “Covid period”, attended extra supplementary sessions and a 30 minute “check-in” on Wednesdays and Fridays. The letter says that the applicant had completed his work development orders through weekly counselling sessions over the telephone since September 2020 to “help him address previous alcohol addiction that may have contributed to his offending behaviour” and that the applicant “has also demonstrated a positive attitude towards his future and gained new skills to make a fresh start”.
[53] R1/389.
A letter dated 6 November 2020 was provided by ADRA Community Centre[54] confirming that the applicant was a client in Blacktown and had been attending weekly Zoom meetings since 15 October 2020. At that time, the applicant had attended four sessions and was booked to attend more.
[54] R1/150.
The applicant also referred to a report dated 26 February 2021 of clinical psychologist Sava Tsolis.[55] Mr Tsolis reported that he assessed the applicant via videoconference on 24 and 26 February 2021 for a period of 90 minutes on each occasion. Mr Tsolis advised that he was aware of the applicant’s convictions for high range drink driving, breach of AVOs, stalk/intimidate and assault resulting in a prison sentence. He disclosed that he had reviewed the sentencing remarks of the magistrates and judges who had sentenced the applicant as well as the Australian Criminal Intelligence Commission criminal record of the applicant. He also disclosed having reviewed various medical reports and previous psychological assessments of the applicant. Mr Tsolis reported that the applicant identified as bisexual and that he felt ostracised from his family as they ceased contact with him when they discovered his sexuality. The applicant advised Mr Tsolis that he had been sexually abused by his nanny as a child and had been raped by a stranger as a ten-year-old when he was walking home from school.
[55] R1/379–85.
Mr Tsolis found that the applicant met the DSM-5[56] diagnostic criteria for post-traumatic stress disorder (PTSD). The applicant reported a longstanding history of fluctuating anxiety symptoms that manifests primarily as shortness of breath, dizziness, trembling or shaking in the hands, unsteadiness when on his feet, muscle tension, sweating, heart palpitations, cold and clammy hands, fast breathing, dry mouth, hot flushes and nausea. He reported that on two occasions he had bad panic attacks that the applicant described as heart attacks which were severe enough for him to call the ambulance. He also reported experiencing a number of symptoms associated with depression including low mood, anhedonia, fatigue, loss of energy, poor self-esteem, excessive levels of guilt about past actions, diminished ability to think or concentrate, indecisiveness and anxiety.
[56] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5th ed, 2013).
Mr Tsolis opined that the applicant may have been utilising alcohol in an effort to self-medicate the distressing flashbacks and nightmares that he was experiencing as a consequence of his sexual assault history. Mr Tsolis further opined that it was highly probable that the applicant deliberately drank to the point of black out as a means of suppressing the auditory hallucinations that he was experiencing as a result of his untreated diagnosis of schizophrenia. Mr Tsolis noted that the applicant displayed sufficient insight into his drinking to identify that it is a primary factor in his violent offending but that he had been abstinent from alcohol for the last two years and was planning to continue in his sobriety upon release. He reported that the applicant had stated that he is keen to pursue psychological intervention in order to solidify his current gains in regard to his continued abstinence from alcohol.
Mr Tsolis’ assessment was that the applicant met the criteria for a primary diagnosis of schizophrenia and a secondary diagnosis of PTSD under the DSM-5. He noted that psychiatrist, Dr David Lienert, had supported these diagnoses.
Mr Tsolis’ recommended treatment was that the applicant commence an individual psychotherapeutic program specifically addressing the issues of PTSD, schizophrenia and depression.
On the issue of the likelihood of the applicant reoffending, Mr Tsolis’ view was as follows:
[The applicant] has undertaken and completed 15 courses whilst in custody. These courses relate to a range of important areas such as substance abuse, domestic abuse, mental health related issues and mentoring certificates.
The resultant insight that [the applicant] has gained into his own behaviours as well as the social and familial support that he is being offered; coupled with his commitment to seek treatment make it unlikely that he will continue offending.
I do not believe that [the applicant] exhibits an entrenched criminal proclivity or propensity to engage in offending behaviours. His alcohol abuse and largely untreated schizophrenia were definitely the attributing factors of his offending behaviour. He is intelligent, resourceful and is keen to regain the role of father and provider for his children. Indeed, he has already obtained a job offer to work in IT security, his area of expertise from [omitted].
[The applicant’s] response patterns indicated an acknowledgment of important problems in psychological function and a perception of need for assistance in addressing these problem areas. His motivation for treatment appears very high. He acknowledged the presence of difficulties and need for help in addressing these. This would be considered a positive prognostics factor for rehabilitation.
The applicant provided a report by Kristy Delmas, clinical psychologist, dated 14 November 2021.[57] Ms Delmas reported that she had reviewed the material that Mr Tsolis had reviewed before making his report of 26 February 2021 and that she had also reviewed Mr Tsolis’ report of 26 February 2021. Ms Delmas reported that the applicant told her that his mental health had significantly declined since he was assessed by Mr Tsolis. The applicant stated that his depressive symptoms became worse following the decline in his appeal to have his visa reinstated. He reported that he was distressed about potentially not being able to see his two children on a regular basis, as well as the prospect of going back to a country that has ostracised him for identifying as bisexual.
[57] A3.
Ms Delmas recorded that the applicant had advised her that he had been attacked several times since being in immigration detention, reporting that he had been stabbed and had been targeted because of his sexual orientation. She also noted the applicant advised her that he had been diagnosed with schizophrenia by his psychiatrist, Dr David Leinert, and was taking olanzapine to treat the disorder. He stated that he was aware of the full importance of continuing to take his medication in order to remain stable. She finally noted that the applicant had a significant history of substance abuse issues, particularly pertaining to alcohol and that his offending behaviours had been directly linked to his substance abuse. The applicant reported remaining abstinent from all substances for over two years. He stated that he had minimal cravings and urges to use alcohol or other substances.
In relation to rehabilitation, Ms Delmas referred to the applicant having completed 15 courses on a number of areas regarding management of depression, anxiety, anger, addiction, alcohol abuse, domestic violence and suicide prevention noting that he was also an active participant in the SMART recovery program for addictive behaviours and was a regular attendee at an Alcoholics Anonymous support group. He had also advised Ms Delmas that he had completed regular therapy sessions with a clinical psychologist and learned valuable insights into his offending behaviour, as well as evidence-based skills to cope with his emotions. These sessions taught strategies including mindfulness, breathing and relaxation, thought challenging with a focus on positive thinking and healthy lifestyle strategies such as diet and exercise to enhance overall mental health. The applicant reported to Ms Delmas that he used these strategies on a regular basis to manage his emotions and thoughts and that they were beneficial for him.
In assessing the likelihood of the applicant reoffending, Ms Delmas noted that:
·the applicant had been abstinent for two years, had attended courses and therapy groups;
·the applicant had received regular clinical psychology therapy as well as focused trauma counselling;
·the applicant’s schizophrenia was well-managed through medication and that he was cognisant of the benefits of the medication;
·the applicant had a good record of behaviour in prison and immigration detention;
·the applicant had demonstrated sound insight into factors that caused his offending behaviour as well as work that still needed to be done;
·all of the applicant’s offences were committed while he was under the influence of a substance and he was committed to ongoing treatment and support;
·the applicant was remorseful for his actions; and
·the applicant expressed a strong desire to remain in his children's lives and be a strong, positive role model for them.
Ms Delmas then concluded that:
Given the aforementioned, whilst it cannot be absolutely guaranteed or predicted that [the applicant] will not reoffend in the future, as long as he remains committed to the process of working on his general mental health and recovery from substance abuse, and he follows through with that commitment, his risk of engaging in serious misconduct in the future appears to be low. Furthermore, his risk to the community in general appears to be low.
The applicant was asked by his counsel at the hearing to say why, given his criminal history, he would not reoffend. His answer was to the effect that:[58]
·all his offences were committed when he was under the influence of alcohol or a substance and while his mental health conditions remained untreated;
·he has now been alcohol and substance free for over two years;
·he has completed 15 courses during his incarceration and completed at least five comprehensive counselling sessions;
·he is now fully medicated and comfortable with his medication;
·his depression, anxiety, schizophrenia and PTSD are all handled;
·he is a positive person who wants to work;
·he does not want to be separated for his children, since being imprisoned and separated from them he has lost half his body-weight; and
·he would face discrimination in Kenya because he is gay and has mental conditions, will not be supported by his family and will find it difficult to work in Kenya.
[58] transcript at 24.
The applicant was cross-examined on his claim to being a “zero risk of reoffending” in his submission to the National Character Consideration Centre dated 17 November 2020.[59] In particular, he was asked about his claim that he had now had drug and alcohol counselling and had undertaken therapy and that this has addressed the factors that contributed to his offending. His evidence was:
Drug and alcohol counselling and therapy are just bits and parts of the holistic effects of the therapy that I've received in total. Apart from counselling and therapy, I've received medication. I've received the deterrent, a very strong deterrent of going to gaol, being in immigration detention and facing the risk of being deported and separated from my family and children (indistinct). So (indistinct) if you look at all this, many things that are controlled since my time of reoffending, coupled with that therapy and the courses, in totality, that's where the zero effect comes in. We can't say that just by counselling and the courses that that assures a zero effect on reoffending. There's many other factors that comes with that.[60]
[59] R1/114–29.
[60] transcript at 37.
The applicant was then cross-examined on his claim that prior to his most recent incarceration he had not received counselling and therapy. His answer was that prior to his most recent incarceration he, “had received no, zero training or counselling.[He] had not received any training or counselling or therapy. Targeted specifically to [his] problem areas.”[61]
[61] transcript at 37.
The applicant was then taken to the programs that he had been ordered to undertake when convicted of previous offences, particularly a sentence imposed on the applicant in 2018 which required the applicant to undertake an alcohol interlock program for two years under the supervision of the New South Wales Probation Service. The applicant confirmed that he had undertaken that program.[62] It was put to the applicant that his claim that he had not received any therapy and counselling to address his alcohol issues prior to his most recent incarceration was therefore not correct. The applicant’s evidence was that the programs that he had undertaken pursuant to the prior order were “short term detox programs”, not rehabilitation programs.
[62] transcript at 44.
The applicant’s evidence on this point was somewhat evasive. His evidence under cross-examination did disclose that he had received counselling as part of the program that he was ordered to undertake in 2018, calling into question his claim that he had not received rehabilitation counselling and therapy prior to his most recent incarceration. The applicant seemed to be pedantic in seeking to distinguish between various types of alcohol and drug programs and therapies in making the assertion that he had not previously received rehabilitation therapy and counselling. In the end he conceded under cross-examination that as part of the program undertaken pursuant to the orders made in 2018, he had received counselling. The programs that he had undertaken were clearly much more than merely a detox program as claimed by the applicant.
I do accept, however, the applicant’s evidence that the level and type of substance abuse counselling, therapy and treatment that he received for his psychiatric conditions during his most recent incarceration were at a much higher level, and more focused on rehabilitation and equipping the applicant, than the treatment that he received in the previous programs that he undertook.
Ms Delmas was cross-examined on her qualification to diagnose the applicant and assess his risk of reoffending. Her evidence was that she had conducted her assessment of the applicant through a one-hour telehealth appointment.[63] She agreed that she had not conducted any psychometric assessment, nor had she used any formal structured instrument of assessment in diagnosing the applicant under the DSM-5. She described the process that she undertook in diagnosing the applicant as “going through a checklist of… symptoms”.
[63] transcript at 100.
In relation to her assessment of the applicant’s risk of reoffending, Ms Delmas agreed that she had not used any “formal structured risk assessment” but rather had undertaken a “clinical assessment based on an interview”.[64] Ms Delmas agreed that the applicant successfully dealing with his alcohol misuse and staying on top of his psychiatric conditions were critical in the applicant not reoffending. She accepted that the applicant, “following through with his commitment, is a critical step to [the Tribunal] ultimately being satisfied in [its] opinion, that his risk of re-offending is low.”[65]
[64] transcript at 101.
[65] transcript at 106.
Ms Delmas was taken to an information sheet issued by the Australian Psychological Society[66] which stated that there was “a broad consensus within the scientific community that purely clinical approaches to risk assessment are not only likely to be less accurate then actuarial or structured assessments but also that they are considerably less reliable” and that “most experts and professional bodies advocate the use of actuarial or structured approaches to risk assessment”. Ms Delmas did not disagree with those statements.[67] Ms Delmas also agreed that, as a clinical psychologist, she did not have specialist training in assessing risk of reoffending, that being the specialty of forensic psychologists.[68]
[66] R2.
[67] transcript at 109.
[68] transcript at 112–3.
The Minister’s SFIC argued that the applicant was a moderate risk of reoffending for the following reasons:
(a)The applicant’s claims of insight and remorse are not genuine as he has previously expressed remorse and insight and reoffended, for example immediately after his release on 1 October 2019. The offences committed on that day were committed in circumstances where the applicant had been held in custody for a period of three months and had previously undergone rehabilitation at a rehabilitation centre in November 2018.
(b)The Tribunal should be slow to accept that the further rehabilitation programs completed by the applicant, and his time in gaol and immigration detention, would deter him from resorting to alcohol and committing further crimes.
(c)The applicant continues to downplay his alcohol dependency. He did not “self-medicate” with alcohol following his marriage breakdown, he had alcohol issue before has marriage breakdown.
(d)The applicant’s criminal history shows a blatant disregard for judicial orders and law enforcement mechanisms.
In my view the applicant has learnt a lot during his most recent incarceration, not only as a result of the extensive and more focused programs that he has undertaken, but also because of his realisation that the consequences of his reoffending are going to be very significant, particularly in relation to any chance of his having an ongoing relationship with his children.[69] His most recent time in prison and immigration detention has also been the longest period that he has been abstinent from alcohol and drugs. This is probably the most extended period of sobriety and focused mental health treatment since the applicant’s arrival in Australia. The applicant is an intelligent, educated person who, now that he is sober, undergoing treatment, and appreciates the consequences of his offending in the future, is better equipped to avoid the factors which have caused his offending in the past. I agree with Ms Delmas’ assessment of the applicant being a low risk of reoffending, or as Mr Tsolis expressed it, “it [is] unlikely that he will continue offending” (see [72] above).
[69] applicant's evidence, transcript at 37.
On the basis of my assessment of the type of harm which would likely be caused if the applicant were to offend as he has in the past as being at the lower end of seriousness (see [59] above), and my assessment that the applicant is a low risk of reoffending, I find that the risk that the applicant poses to the Australian community is an acceptable one. This first primary consideration does not weigh against revocation of the cancellation of the applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 relevantly provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 90 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
...
(Original emphasis.)
The Minister contends that this consideration does arise because the applicant has been convicted of “stalk/intimidate intend fear physical etc harm” against his wife and that he has breached AVOs. The Minister contends that while no physical violence was inflicted on the applicant’s wife, the offence was committed in the presence of the applicant’s children.[70]
[70] Minister’s SFIC para 41.
As noted at [41(b)] above, the threat to kill made by the applicant against his wife in the presence of his children constitutes family violence and therefore must be viewed as very serious under paras 4.1 and 8.1.1(1)(a)(iii) of Direction 90. It is also a primary consideration which must weigh against the applicant under this second primary consideration.
The applicant claims that he has at all times accepted responsibility for his family violence related conduct, but that it has not escalated in seriousness to include actual violence. Rather, according to the applicant,[71] the breaches arise merely from the consumption of alcohol. That is not quite correct. While I appreciate the exchange between Acting Magistrate Spence and counsel on 12 March 2018 referred to there being no violence,[72] the applicant did threaten to kill his wife. That was the incident giving rise to the intimidate charge and also clearly constitutes family violence as that term is defined in para 4(1) of Direction 90 (causing a family member fear), as were the stalking charges[73] (see [51(a)] above).
[71] applicant’s SFIC.
[72] R1/41.
[73] Direction 90 para 4(1)(c).
While there is no evidence that any family member has been caused physical or psychological harm by the applicant’s family violence, there are, by reason of his several convictions for breaching AVOs and stalking and intimidating, multiple incidents of family violence, albeit at the lower end of the scale of family violence.
Considering the factors identified in para 8.2(3) of Direction 90, while there are numerous convictions for breach of VROs, it is not possible on the evidence before me to make an accurate assessment of the frequency of the applicant’s conduct which would constitute family violence, whether there was a trend of increasing seriousness or the cumulative effect of such conduct. However, I am satisfied that the applicant engaged in behaviour which would be family violence as that term is defined in Direction 90 on multiple occasions.
In relation to the factors identified in para 8.2(3)(c), the applicant says that he has accepted responsibility for his behaviour towards his family. However, in my view, he diminishes that acceptance by claiming that the breaches of the AVOs were nothing more than him breaching the condition that he was not to be intoxicated when in the presence of his wife (see [94] above). His offending behaviour was more than him being intoxicated, particularly the incident in which he threatened to kill his wife. He did, however, admit to that incident and said that he immediately apologised. I also accept that in most, if not all, of the occasions on which these breaches took place the applicant was intoxicated and that his judgment and control was severely compromised. I accept that the applicant has now undertaken significant rehabilitation in relation to his alcohol abuse and understands the impact that such behaviour has on his wife and his children.
While it could not be said that the applicant had received any formal warning that his family violence could impact his visa status, he was repeatedly warned by sentencing magistrates and judges about the consequences of continuing to offend, including breaching AVOs. In that sense it could be said that he continued to offend after he was given a warning.
This consideration weighs against revocation of the cancellation of the applicant’s visa. Given the relatively minor nature of the incidents of family violence and my acceptance of the applicant now having taken serious steps to address his offending and engage with rehabilitation, only minor weight should be given to this consideration.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant identifies two children relevant to this consideration, a now 12-year-old son and a now 10-year-old daughter. He says that prior to his incarceration he supported his family emotionally and financially. The applicant says that he and the children’s mother equally shared parental responsibility and that he has developed a substantial and meaningful relationship with his children.
The applicant’s evidence was that he separated from the children’s mother, his wife, in July 2017, but even after that, up until his arrest and imprisonment, he spent substantial time with the children. In his representations to the Department regarding revocation of the cancellation of his visa, the applicant stated that he and his children were very close and that they would be devastated emotionally and financially if he were to be deported.[74] In those representations the applicant said that, even following his separation from his wife in 2017, the children would stay at his house at least two or three times a week. He said that he took them to school, took then shopping and that he could not imagine life without their close presence. He described his children as his greatest blessing.
[74] R1/120.
The applicant’s wife provided a letter of support[75] dated 7 September 2020 in which she described the applicant as a “loving and caring father”. She said that the children would be devastated if his visa remained cancelled. Her letter confirmed that the children stayed with the applicant two or three days a week and that he dropped them off at school and picked them up, that he had maintained contact with them and called to check on their welfare. She said that the applicant and her were the only relatives that the children have in Australia. In her letter she said that:
Cancelling [the applicant’s] Permanent Residency visa would cause severe practical and emotional hardship to the kids. In the future the kids need their father here to contribute to their personal needs and emotional support as [the applicant] and I are the only relatives the kids have in Australia.
[75] R1/181.
Statements were provided by a number of people in which reference is made to the applicant’s children. Ms Charlotte Ritchie provided two statements, one dated 9 November 2021[76] which referred to an earlier letter of support dated 9 March 2021.[77] That earlier letter had been provided by Ms Ritchie in her capacity as “Centre Counsellor” at the ADRA Community Centre Blacktown. She also gave evidence at the hearing.
[76] A5.
[77] R1/395.
In her letter dated 9 March 2021, Ms Ritchie advised that she had “been seeing [the applicant] via zoom as his counsellor since October 2019”. In that letter she said:
Although I have not had the chance to observe [the applicant] in direct contact with his children, it does seem clear that he values his family and children above anything else. In talking to him about his kids, I have learnt that he is a strong, loving and devoted parent with solid boundaries.
There was no mention of the children in Ms Ritchie’s statement of 9 November 2021. Her evidence at the hearing was that:
VGJG is a soft and loving father, committed, devoted father, and I've never seen someone so disciplined when he wants something, which is also reminding me what I must have written - what I would have written, he has two master's degrees, he's incredibly hardworking, he needs to be with his children. It's not only torture for him but it's torture for them where he is at the moment.[78]
[78] transcript at 30.
Only limited weight can be given to the evidence of Ms Ritchie in relation to the consideration of the best interests of the children. As Ms Ritchie acknowledged in her first letter of support, she has had no contact with the children and has not observed the applicant with the children. She is totally reliant in her assessments on what the applicant has told her. Further, her assessments, not surprisingly, look at the issue of separation from the children from the perspective of the applicant, not the children. The relevant consideration is the best interests of the children.
Ms Brenda Mitchell gave three statements, the first dated 22 September 2020,[79] the second dated 8 March 2021[80] and the third dated 3 November 2011, which I assume should have been 3 November 2021.[81] In her first statement, Ms Mitchell advised that she had met the applicant “often in the company of his two young children who he is extremely fond of”.
[79] R1/130.
[80] R1/390.
[81] A6.
In her second statement Ms Mitchel advised that she had met the applicant and his children on 22 April 2019 and that her son and the applicant’s two children played together on that day. In that statement Ms Mitchell makes the somewhat hyperbolical statement that the applicant is “an amazing father and gives all he has to his children” and that the then present circumstances were having a “great effect on his children who adore him”.
In her third statement Ms Mitchell stated that:
I have met [the applicant] and his children and seen pictures of his previous wife [omitted]. [The applicant] is a caring father and has always wanted to be part of his children’s lives.”
Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the applicant’s removal (i.e. a decision not to revoke) is also considered below in the consideration of the applicant’s links to the Australian community under para 9.4 of Direction 90 and in considering the best interests of minor children under para 8.3. Insofar as the impact on those members of the Australian community is to be considered, I do so under those considerations.
In this case, however, we do also know the view of one of the victims on whether the cancellation of the applicant’s visa should be revoked. That victim is obviously the applicant’s former wife, the mother of the children, whose view is that the cancellation of the applicant’s visa should be revoked. The applicant’s submission on this consideration is misconceived in that the relevant impact, including the impact on victims, is not the impact of the applicant’s offending, but the impact of a decision either to revoke the cancellation of the applicant’s visa or not to revoke the cancellation.[114]
[114] CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842 at [24].
Accordingly, insofar as this consideration requires me to take into account the impact of victims as far as information in that regard is available, this consideration weighs in favour of revocation of the cancellation. While one could speculate as to the impact of a decision to revoke the cancellation on other victims of the applicant, their views and the potential impact of such a decision is not information which is available.
I am conscious of not double counting in taking the applicant’s former wife’s views into account under this consideration as well as under the considerations of the best interest of the children and the applicant’s links to the community, however, as the court held in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[115] if the applicant’s former wife’s view on the impact is a relevant factor to take into account under this consideration, it is appropriate to do so.[116]
[115] [2020] FCA 646.
[116] See also CGX20 at [11].
On that basis I find that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(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 noncitizen 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.
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.
The applicant arrived in Australia in May 2015, aged 36, with his wife and two children. In September that year, the police were called to the applicant’s residence due to an altercation between the applicant and his wife.[117] As a result, an AVO was issued (see [10] above).
[117] R1/493.
From the middle of 2017 up until the applicant’s arrest in October 2019 (see [11]–[18] above) the applicant continued to offend on a regular basis with increasing seriousness.
In his personal circumstances form,[118] the applicant identified his employment as being an information technology (IT) security administrator with the [omitted] City Council from 2016–2017, security team lead with [omitted] in 2018 and cyber security lead with [omitted] in 2019. His evidence at the hearing was slightly different:
Likewise in Australia, as soon as I landed from (indistinct) to 2017 where I was actually head of security operations at a bank in Sydney, [omitted]. That was a very fast rise through the ranks (indistinct) I'm a very career-oriented person. I enjoy work, and drinking was part of life, yes, but it only became out of control after the break-up with my wife which I - emotionally, I was too weak to handle…[119]
[118] R1/108.
[119] transcript at 17.
In relation to the considerations identified in para 9.4.1(2)(a), the applicant has not lived in Australia for a long period. He arrived as an adult and started offending relatively soon after his arrival. It is the case that for a period, on the applicant’s evidence around three years (see [180] above), he was gainfully employed in what appear to be quite high-level IT roles. Insofar as para 9.4.1(2)(a) requires consideration of how long the applicant has resided in Australia and whether he arrived as a young child, in the present case the directives contained in sub-paras (i) and (ii) in effect balance each other out. While the applicant did contribute to the Australian community through his employment, which would normally mean that more weight should be given to the time that he has spent in Australia, that is counterbalanced by the fact that he started offending relatively soon after arriving in Australia. I am therefore left with the consideration of how long the applicant has resided in Australia, which is not very long, and the fact that he arrived as an adult. These considerations do not weigh in favour of revocation of the cancellation of the applicant’s visa.
The most obvious link that the applicant has to the Australian community is his wife and his two children. I accept that the applicant being removed from Australia will have a significant impact, financially and emotionally, on his children and their mother. They have no other family support in Australia. It is clear from the numerous letters of support that were included in the remittal bundle,[120] statements of support[121] and the evidence given at the hearing by Ms Ritchie and Ms Mitchell, that the applicant is liked and respected by a significant number of people in the community. A former employer of the applicant provided a statement describing the applicant as being able to “work autonomously and as part of a dynamic team and provided contribution to both the on premises] and cloud infrastructure of the [omitted] environments. His extensive knowledge of the Microsoft security environment and Alien Vault technology provided particularly valuable…”[122]
[120] R1/130–5; R1/181; R1/387–96.
[121] A4; A5; A6; A7.
[122] R1/134.
In respect of this consideration, the Minister conceded that it would be in the applicant’s two children’s best interests if the applicant were allowed to stay in Australia, and that the applicant has formed friendships with Australian citizens.[123] The Minister points to the applicant starting to offend within two years of arriving in Australia and that, taking into account the time that the applicant has spent in prison and detention, while the applicant has contributed to the community through his employment, only limited weight in favour of revoking the mandatory visa cancellation should be given to this aspect of this consideration.
[123] Minister’s SFIC para 62.
Impact on Australian business interest
Paragraph 9.4.2 of Direction 90 provides:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The applicant submitted that by a letter dated 15 February 2021, a director of [omitted] Coffee Pty Ltd, stated that he was prepared to offer the applicant a job as a “part time IT consultant”.[124] Based on this offer of part-time employment, the applicant contends that the “… interest of this Australian business will be adversely affected if the visa cancellation is not revoked and weighs substantially in favour of [the applicant] as it shows the nature of [VGJG] as one who is genuinely liked in the community”. That claim is unsustainable for a number of reasons. Firstly, it conflates the issues of links to the Australian community and the impact on the interests of Australian business, or even a particular Australian business. Secondly, there is no evidence that this particular business will suffer if it is not able to employ the applicant as a part-time IT consultant. Thirdly, it overlooks the proviso in paragraph 9.4.2 that this consideration will generally only be given weight if a decision not to revoke the cancellation would significantly compromise the delivery of a major project or important service. That is clearly not so and, accordingly, para 9.4.2 has no application in the present case.
[124] R1/378.
I find that, notwithstanding that the applicant has only been in Australia a relatively short time, he has developed significant ties to the Australia community. I also find that his ties to his children are significant. It is the case, however, that while he did contribute for a relatively short period through his employment, the applicant did start offending shortly after arriving in Australia. Accordingly, as the Minister submitted, while this consideration does weigh in favour of revoking the cancellation of the applicant’s visa, only limited weight, which I would categorise as minor weight, should be given to it.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [34] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[125] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[126]
[125] [2018] FCA 594; (2018) 74 AAR 545.
[126] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[127] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, 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.
(Emphasis omitted.)
[127] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, for the reasons set out above (see [89]), does not weigh against revocation of the cancellation of the applicant’s visa.
The second primary consideration, family violence, for the reasons set out above (see [99]) weighs against revocation of the cancellation of his visa, however, only minor weight should be given to this consideration.
I find that the third primary consideration, the best interests of minor children, for the reasons set out at [115] above weighs heavily in favour of the revocation of the cancellation of the applicant’s visa.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa and I find that moderate weight should be given to this consideration.
In relation to the relevant “other considerations” identified in Direction 90, for the reasons set out at [153] and above, I find that the consideration of international non-refoulement should be given neutral weight.
The consideration of the extent of impediments, for the reasons set out at [167] and above, weighs in favour of the revocation of the cancellation of the applicant’s visa but only minor weight should be given to it.
I find that the consideration of impact on victims, in this case the applicant’s former wife, who supports the revocation of the cancellation, weighs in favour of revocation of the cancellation that moderate weight should be given to it (see [175] and above).
The consideration of links to the Australian community weighs in favour of revocation of the cancellation of the applicant’s visa but only minor weight should be given to it (see [186]).
Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the considerations in favour of revocation, particularly the best interests of the children and the links to the Australian community, outweigh those against revocation. Accordingly, I find that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 4 February 2021 not to revoke the cancellation of the applicant's Skilled (Class SI) (Subclass 189) visa pursuant to s 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 202 (two hundred and two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 7 April 2022
Dates of hearing: 9 and 10 December 2021 Counsel for the Applicant: Mr L Ehimudiamen Solicitors for the Applicant: Lucky Iyare & Associates Counsel for the Respondent: Mr T Liu Solicitors for the Respondent: Australian Government Solicitor ANNEXURE
Court Result date Offence Result Parramatta District Court 21 April 2020 Stalk/intimidate intend fear physical etc harm (domestic) Order varied: imprisonment (aggregate): 30 months commencing 2 October 2019, concluding 1 April 2022; non-parole period: 10 months commencing 2 October 2019 concluding 1 August 2020 Parramatta District Court 21 April 2020 Common assault Order varied: imprisonment (aggregate): 30 months commencing 2 October 2019, concluding 1 April 2022; non-parole period: 10 months commencing 2 October 2019 concluding 1 August 2020 Parramatta District Court 21 April 2020 Common assault Order varied: imprisonment (aggregate): 30 months commencing 2 October 2019, concluding 1 April 2022; non-parole period: 10 months commencing 2 October 2019, concluding 1 August 2020 Parramatta District Court 21 April 2020 Stalk/intimidate intend fear physical etc harm (personal) Order varied: imprisonment (aggregate): 30 months commencing 2 October 2019 concluding 1 April 2022; non-parole period: 10 months commencing 2 October 2019, concluding 1 August 2020 Blacktown Local Court 26 March 2020 Stalk/intimidate intend fear physical etc harm (domestic) (Call up – breach) imprisonment (aggregate): 42 months commencing 2 October 2019, concluding 1 April 2023; non-parole period: 29 months commencing 2 October 2019, concluding 1 March 2022; severity appeal lodged Blacktown Local Court 26 March 2020 Common assault Imprisonment (aggregate): 42 months commencing 2 October 2019, concluding 1 April 2023; non-parole period: 29 months commencing 2 October 2019, concluding 1 March 2022; severity appeal lodged Blacktown Local Court 26 March 2020 Common assault Imprisonment (aggregate): 42 months commencing 2 October 2019, concluding 1 April 2023; non-parole period: 29 months commencing 2 October 2019, concluding 1 March 2022; severity appeal lodged Blacktown Local Court 26 March 2020 Stalk/intimidate intend fear physical etc harm (personal) Call up – breach; imprisonment (aggregate): 42 months commencing 2 October 2019 concluding 1 April 2023; severity appeal lodged Blacktown Local Court 27 November 2019 Common assault Community corrections order: 12 months commencing 27 November 2019, concluding 26 November 2020; supervision: 12 months commencing 27 November 2019, concluding 26 November 2020; supervised by community corrections service treatment programs: 12 months commencing 27 November 2019, concluding 26 November 2020 rehabilitation/ treatment Blacktown Local Court 27 November 2019 Contravene prohibition/ restriction in AVO (domestic) Community correction order: 12 months commencing 27 November 2019, concluding 26 November 2020; supervision: 12 month commencing 27 November 2019, concluding 26 November 2020; supervised by community corrections service treatment programs: 12 months commencing 27 November 2019, concluding 26 November 2020 rehabilitation/ treatment Blacktown Local Court 1 October 2019 Stalk/intimidate intend fear physical etc harm (domestic) (Call up) community correction order: two years commencing 1 October 2019 concluding 30 September 2021; supervision: two years commencing 1 October 2019, concluding 30 September 2021; supervised by community corrections service treatment programs: two years commencing 1 October 2019, concluding 30 September 2021; alcohol rehabilitation Blacktown Local Court 1 October 2019 Contravene prohibition/ restriction in AVO (domestic) (Call up) imprisonment: one month commencing 2 July 2019; concluding 1 August 2019 Blacktown Local Court 1 October 2019 Contravene prohibition/ restriction in AVO (domestic) Community correction order: two years commencing 1 October 2019, concluding 30 September 2021; alcohol rehabilitation required, supervision: two years commencing 1 October 2019, concluding 30 September 2021; supervised by community corrections service Blacktown Local Court 1 October 2019 Contravene prohibition/ restriction in AVO (domestic) Imprisonment: seven months commencing 2 July 2019, concluding 1 February 2020; non-parole period with conditions: three months commencing 2 July 2019, concluding 1 October 2019; must address alcohol rehabilitation Blacktown Local Court 1 October 2019 Stalk/intimidate intend fear physical etc harm (personal) Community correction order: two years commencing 1 October 2019, concluding 30 September 2021; alcohol rehabilitation; supervision: two years commencing 1 October 2019, concluding 30 September 2021; supervised by community corrections service Blacktown Local Court 13 September 2018 Stalk/intimidate intend fear physical etc harm (domestic) (Call up) bond S9: two years, report on 27 September 2018; supervision Blacktown Local Court 13 September 2018 Contravene prohibition/ restriction in AVO (domestic) (Call up) bond S9: two years, report on 27 September 2018; supervision Blacktown Local Court 13 September 2018 Wilful and obscene exposure in/near public place/ school $660 fine Parramatta District Court 17 April 2018 Stalk/intimidate intend fear physical etc harm (domestic) Order varied: bond S9: 18 months commencing 12 March 2018 to attend for counselling, educational development, drug or alcohol rehabilitation; supervision Parramatta District Court 17 April 2018 Contravene prohibition/ restriction in AVO (domestic) Order varied: bond S9: 18 months commencing 12 March 2018 to attend for counselling, educational development, drug or alcohol rehabilitation; supervision Parramatta District Court 17 April 2018 Drive with high range PCA – first offence Order varied: $500 fine, driver’s licence disqualified for six months; participation in alcohol interlock program: two years habitual offender quashed Fairfield Local Court 12 March 2018 Stalk/intimidate intend fear physical etc harm (domestic) Bond S9: 18 months to attend for counselling, educational development, drug or alcohol rehab; supervision; severity appeal lodged Fairfield Local Court 12 March 2018 Contravene prohibition/ restriction in AVO (domestic) Bond S9: 18 months to attend for counselling, educational development, drug or alcohol rehabilitation; supervision; severity appeal lodged Fairfield Local Court 12 March 2018 Drive with high range PCA – first offence $1,200 fine; driver’s licence disqualification for six months; participation in alcohol interlock program: two years; habitual offender quashed; severity appeal lodged
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Remedies
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Standing
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