Vovk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1328
•19 May 2022
Vovk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1328 (19 May 2022)
Division:GENERAL DIVISION
File Number: 2022/1671
Re:Sergey Vovk
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:19 May 2022
Place:Melbourne
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision dated 7 December 2021 cancelling the Applicant’s Class BN Subclass 136 Skilled Independent (Migrant) visa.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – cancellation of a visa – Tribunal finds applicant is citizen of Russian Federation – applicant held class BN subclass 136 skilled independent (migrant) visa – visa cancelled by Minister’s delegate under s 501(2) of Migration Act – applicant sought review – ministerial Direction No. 90 – primary considerations – protection of the Australian community – whether conduct constitutes family violence – conduct almost exclusively in this category – expectations of the Australian community – other considerations – international non-refoulement obligations – claims about possible conscription if repatriated – extent of impediments if removed – impact on victims – length of time since last offending – links to the Australian community – decision under review to cancel visa set aside
PRACTICE AND PROCEDURE – expert witnesses – both have examined applicant at different times – no objection from parties for evidence to be given concurrently – Tribunal gives leave for them to give concurrent evidence
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 33A, 62A
Migration Act 1958 (Cth), ss 499, 500, 501
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Thornton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74Secondary Materials
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)Administrative Appeals Tribunal Guideline – Use of Concurrent Evidence in the AAT (Issued by the President, the Hon. Justice Kerr) – 30 June 2015
Law on Conscription Obligation and Military Service (March 28, 1998) (Russia), to be read with the Decision of the Government of the Russian Federation “On the Confirmation of the Regulation regarding Conscription for Military Service of Citizens of the Russian Federation” (June 1, 1999, No., 587).
REASONS FOR DECISION
Senior Member D. J. Morris
19 May 2022
BACKGROUND
Mr Vovk was born in 1993 in Kazakhstan. In late 2009, he arrived in Australia with his mother as the holder of a Class BN Subclass 136 Skilled Independent (Migrant) visa, and as the bearer of a Russian passport. Between 2011 and 2016 he was before the Courts on a range of domestic violence matters, and was convicted of offences, notably in May 2016 of Assault occasioning actual bodily harm (DV) and Stalk, intimidate intend fear physical harm (domestic). For the first of these offences Mr Vovk received a prison sentence of 12 months to be served by way of an Intensive Corrections Order (‘ICO’). For the second offence he received a concurrent prison sentence of four months, also to be served by way of an ICO.
In March 2017, the Minister’s Department sent Mr Vovk a notice of intention to consider cancelling his visa under section 501(2) of the Migration Act 1958 (‘the Act’). Mr Vovk was invited to make representations as to why his visa should not be cancelled, which he did on 9 May 2017.
Almost four years later, on 7 December 2021, Mr Vovk’s visa was cancelled. Two months later, on 25 February 2022, the Minister’s Department wrote to Mr Vovk to advise him that his visa had been cancelled the previous December. As a non-citizen in the migration zone without a valid visa, Mr Vovk was taken into immigration detention.
On 1 March 2022, Mr Vovk sought review of the cancellation decision by the Tribunal. This is his entitlement under section 500(1)(b) of the Act. Section 500(6L) of the Act provides that if an application is made for review of a decision under section 501 and the person is in the migration zone, the Tribunal must make a decision within 84 days of the day after which notice was given of the decision (i.e., in this case 26 February 2022). Otherwise, the Tribunal is taken to have affirmed the decision under review. The Tribunal finds that the eighty-fourth day in this matter is 20 May 2022.
HEARING
A hearing took place on 5 May 2022. The Applicant was represented by Mr Nicholas Poynder of counsel, instructed by Mr Michael Kah of Kah Lawyers. The Respondent Minister was represented by Mr Lino Kim of Clayton Utz. The Applicant gave evidence, as did his mother, Ms SV; his former partner Ms AS; and three friends: Ms KP, Mrs KB and Mr PB. The Tribunal also gave leave for two psychologists, Mr Bradley Jones, and Mr Tim Watson-Munro, both of whom had examined Mr Vovk and provided reports, to give evidence by videolink under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). By joint submission by the parties, the Tribunal also gave leave for Mr Jones and Mr Watson-Munro to give concurrent evidence, consistent generally with the Tribunal President’s Guideline.
The Tribunal took into evidence the documents listed in Annexe A to this decision.
MATTERS FOR DETERMINATION
Section 501(2) of the Act provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Because of the action taken by the Minister’s delegate, the Tribunal has two tasks before it. The first is whether Mr Vovk fails the character test or, in the alternative, whether he does not satisfy the Tribunal that he passes the character test. If the answer to either of those questions is ‘yes’, the second question to be decided is whether the discretionary power in section 501(2) to cancel the visa should be exercised.
Has the Applicant failed the character test?
Counsel for the Applicant did not dispute that Mr Vovk did not pass the character test based on his offending and that he has been sentenced to a term of imprisonment of 12 months.
The character test is found in section 501(6) of the Act and relevantly provides that if a person has a “substantial criminal record”, he or she does not pass the character test. A “substantial criminal record” is defined in section 501(7) of the Act as, relevantly to the Applicant, that the person has been sentenced to a term of imprisonment of 12 months or more. Section 501(12) defines “imprisonment” to include any form of punitive detention in a facility or institution. It is relevant in this case, as set out above, that the triggering sentence was handed down by the Magistrates’ Court in May 2016, where the sentencing Magistrate said (GD, p 54):
For the charge of Assault occasioning actual bodily harm you will receive a prison sentence of twelve months to be served by way of an Intensive Corrections Order. That is to commence today 19 May 2016 and expire on 18 May 2017.
Please understand this is a prison sentence. If you don’t comply with all the terms of your Intensive Corrections Order the Parole Board will revoke it and you will go into prison to serve the balance of it.
On the same day, the Magistrate further sentenced Mr Vovk for two counts of the offence of Stalk/Intimidate, the first in relation to Ms AS; for which he received a term of imprisonment of four months fixed, also to be served by way of an ICO, to be served concurrently. The second count was in relation to the Applicant’s mother, for which a bond was revoked, and he received a prison sentence of four months, to be served by way of an ICO, concurrently. In relation to the revocation of the bond, the Magistrate imposed a fixed term of imprisonment of one month, concurrent.
Section 501(7A) of the Act provides that, where there are concurrent sentences, the whole of each sentence is to be counted in working out the total of the terms for the purposes of the character test. Therefore, the Tribunal finds that the Applicant was that day sentenced to 21 months imprisonment in total, in working out whether he has a “substantial criminal record.”
It is important to note that where a sentence is expressed as a gaol term but is then by order of the Court to be suspended or, as in this case, served by way of an ICO, it is not necessary for the person to be in physical custody for the provisions of section 501(7)(c) to be satisfied.
Finding
The Tribunal finds that the Applicant does not pass the character test.
Should the discretion be exercised to cancel the visa?
Section 499 of the Act provides that the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act, provided any such direction is not inconsistent with the Act or regulations made under the Act (section 499(2). Where such a direction is made, the Tribunal must comply with it (section 499(2A)).
On 8 March 2021, the Minister made a direction under section 499, Direction No. 90 (‘the Direction’) which commenced on 15 April 2021. The Direction provides, in paragraph 5.1(2):
…Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
And at paragraph 5.1(4):
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Therefore, the Tribunal must take into consideration the provisions of the Direction, as relevant to Mr Vovk’s case, in deciding whether the discretion should be exercised to cancel his visa. The Direction requires that particular considerations must be taken into account, where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
CONSIDERATION
The Tribunal considered the primary and other considerations in the Direction, as relevant to the Applicant’s personal circumstances, his nationality, and his offending history. The primary considerations are listed by number in paragraph 8 of Part 2 of the Direction, and the other considerations are listed seriatim in paragraph 9, and these reasons will follow that order. The order in which they appear does not confer any precedence on any of the considerations. However, paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. Equally, the Full Court of the Federal Court has held that any of the considerations can be determinative (see Minister for Home Affairs v HSKJ [2018] FCAFC 217, at [35]). It depends upon the circumstances of the case.
First primary consideration: Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
Before the Tribunal (GD, pp 438-439) was an Australian Criminal Intelligence Commission criminal history check dated September 2021 and a National Police Certificate dated November 2019 (GD, p 40) recording disclosable court outcomes against the name of Mr Vovk. These documents reveal the following:
(a)In May 2011, the Applicant appeared before the New South Wales Children’s Court. The matters were dismissed with caution. Consistent with the decision in Thornton v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23, the Tribunal has decided the safer course is not to have regard for matters before the Court where the offender is a child and no conviction resulted.
(b)In August 2012, the Applicant was before the Local Court of New South Wales charged with the offence of Damage property by fire/explosive (less than $2000) (DV). He was placed on a good behaviour bond for 12 months.
(c)In March 2014, he was before the Local Court charged with Common assault (DV), and he was fined $1,000.
(d)In January 2015, again before the Local Court, Mr Vovk was charged with Fail to appear in accordance with bail granted, for which he was convicted with no other penalty. He was also charged with Common assault (DV) for which he was fined $800 and placed on a 12-month bond. Finally, he was charged with Destroy or damage property (less than $2000), for which he was fined $300.
(e)In May 2015, before the Local Court, the Applicant appeared charged with Contravening a prohibition or restriction in AVO (domestic), for which he was placed on a two-year bond under the supervision of the NSW Parole Service to attend for counselling as directed. He also received an identical Court order for the offence of Stalk/intimidate intend physical etc harm (domestic).
(f)Later in May 2015, he appeared at another Local Court in New South Wales and was found guilty of Special category driver with special range PCA – first offence. He was fined $400 and his driver licence was disqualified for three months. He was also charged with Drive – licence suspended – first offence. For the latter offence he was fined $500 and his licence disqualified for three months.
(g)In May 2016, before another Local Court, Mr Vovk was convicted of the following offences: Common assault (DV); Contravene prohibition/restriction in AVO (domestic); Stalk/intimidate intend fear physical etc harm (domestic); Assault occasioning actual bodily harm (DV) and Stalk/intimidate intend fear physical etc harm (domestic). As set out earlier in these reasons, he was sentenced to 12 months’ imprisonment, to be served by way of an ICO; and to other terms of imprisonment to be served concurrently and by way of an ICO.
Paragraph 8.1.1(1)(a) of the Direction sets out that the following crimes are be viewed very seriously by the Australian Government and the Australian community: violent and/or sexual crimes; crimes of a violent nature against women or children, regardless of the sentence imposed; acts of family violence, regardless of whether there is a conviction for an offence, or a sentence imposed.
The Applicant has been convicted of no sexual crimes. Putting to one side two driving offences, Mr Vovk’s offending exclusively is domestic violence offending, principally against his mother, but also against his erstwhile partner, Ms AS.
None of the types of conduct set out in paragraph 8.1.1(1)(b) of the Direction is relevant to Mr Vovk’s offending history.
The Tribunal must also look at the frequency of offending and whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending. Examination of the criminal history record reveals he has been before the Courts on eight occasions and there have been judicial dispositions of fourteen matters either related to domestic violence or non-compliance with Court orders (paragraph 8.1.1(1)(a)(d) and (e)).
Paragraph 8.1.1(1)(f) of the Direction refers to whether the non-citizen has provided false or misleading evidence to the Minister’s Department. There is no evidence to this effect before the Tribunal.
Paragraph 8.1.1(1)(g) refers to whether the Applicant has re-offended since being warned, or otherwise made aware in writing, about the consequences of further offending on his migration status. If the Tribunal interprets the written notice Mr Vovk was given in March 2017 that the Department was contemplating cancelling his visa as falling within this clause, there is no evidence that he has re-offended since December 2015 (Exhibit R3, p 177).
The Tribunal considers that the Applicant’s conduct in the period from 2012 to 2015, in committing several offences or other acts of misconduct in a domestic setting, as serious. The Tribunal also considers that drink driving and driving when a driver licence is suspended is also serious. However, the two offences in the latter cases were first offences of that nature and there is no evidence of any other driving offences.
Given that when the Direction was issued by the Minister in 2021 it included a new primary consideration relating to whether the non-citizen has committed acts of family violence, the Tribunal will discuss further the gravity of the offending that should be considered under that primary consideration.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The second part of the ‘Protection of the Australian community’ primary consideration relates to risk of re-offending. The Direction declares that ‘Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable’.
The Tribunal must have regard to the nature of harm and the likelihood of the Applicant engaging in further criminal or other serious conduct. The Tribunal must take into account information and evidence on the risk of re-offending and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.
Mr Bradley Jones, clinical and forensic psychologist, gave evidence to the Tribunal. He has written reports on Mr Vovk dated 28 June 2017, 28 March 2019, and 22 March 2022. He last spoke to Mr Vovk by telephone in March 2022. Mr Jones also interviewed Ms SV.
Mr Jones summarised that the Applicant moved to Melbourne at the beginning of 2020 to support his mother after her marriage ended. He supported her through divorce proceedings and has been renovating her house, restoring his car, and secured casual employment as a truck driver, working sixty hours a week. Ms SV was in a car accident at the end of 2020 and Mr Vovk had to care for her, cook meals, obtain her medication, and provide emotional support.
Mr Vovk reported engaging with his priest at the Russian Orthodox Church, which he said had helped him. His romantic relationship with Ms AS ceased when he moved to Melbourne; but they have maintained a friendship. Mr Jones wrote that he spoke separately to Ms SV, who confirmed that her son has matured in outlook, and that he has become involved with the local church, and after she was hit by a car and subsequent surgery, he helped her with household chores and cooking. Ms SV said her only family in Australia is Mr Vovk.
Mr Jones believed the Applicant is not suffering from any psychological or psychiatric disorder. In respect of risk assessment, Mr Jones wrote in his most recent report:
Risk Assessment
I note my assessment of June, 2017 indicated Mr Vovk’s risk of reoffending as low/moderate and in March 2019 I modified that to a low risk of reoffending. In [the] light of Mr Vovk’s stable and loving relationship with his mother, his efforts in caring for her, his stable employment, his engagement in religion and his continuing prosocial lifestyle I am of the view that Mr Vovk’s reoffending remains as low.
A footnote to the last sentence of the above paragraph reads: “Risk assessment estimates cannot state an individual does not present any risk of offending. The lowest level of risk assessment is ‘low’.”
Mr Watson-Munro wrote in his 31 March 2022 report that he had examined Mr Vovk and had spoken separately to his mother. Mr Watson-Munro records that the Applicant undertook a Catholic Care “Defuse” Anger Management Program in 2016 and an EQUIPS Aggression Program, as well as ‘20/20’ sessions conducted by the NSW Department of Corrective Services. Mr Watson-Munro wrote: “His involvement with these programs came to an end in April 2017. The progress that he has made is well reflected in an absence of offending behaviour since May 2016.”
Mr Watson-Munro recorded Mr Vovk’s relatively consistent employment history and his studies for a Diploma in Construction Management, and his desire to work in the construction industry. Mr Watson-Munro recorded:
…continuous emotional and physical trauma at the hands of his maternal step-grandfather, with his maternal grandmother apparently doing little to intervene…This background history established the platform for his continuing symptoms throughout his adolescence and early adult life of depression, anxiety, low self-esteem and anger.
Mr Watson-Munro then referred to the Applicant’s consumption of alcohol and some use of illicit drugs and then wrote:
He has now matured. This has occurred as a consequence of the effluxion of time, in addition to him undertaking rehabilitation programs referable to anger management, 20/20 sessions conducted by the New South Wales Department of Corrective Services, and the New South Wales EQUIPS Aggression Program, which in turn has led to a significant improvement in terms of his relationship with his mother. His maturation is well reflected in the fact that there [has] been no further offending behaviour since 2016.
Mr Vovk relocated to Victoria in February 2020 with a view to assisting his mother following the breakdown of her second marriage and the additional burden she experienced as a consequence of being struck as a pedestrian by a motor vehicle. By all accounts, he endeavoured to put his past behind him and in addition to his employment, he has also in the past undertaken voluntary work with the Macedonian community, as described in the reference of his former step-father [name redacted]. He has also ceased illicit drug use and alcohol abuse.
In terms of risk of re-offending, Mr Watson-Munro wrote:
He has expressed appropriate remorse for his past behaviour, which has been confirmed through discussions with his mother and indeed noted in the documents I have read. I note that he was previously assessed by Mr Bradley Jones in 2017 and 2019 and in the practitioner’s opinion, Mr Vovk’s risk of reoffending shifted from moderate in 2017 to low in 2019. He has continued on this trajectory and taking all factors into account, including his expressions of remorse, the support of his mother, his desire to secure employment in the community and his willingness as expressed to me to have supportive and motivational psychotherapy in the community, there are clearly significant and strong protective factors now surrounding him. Arising from this, I believe that his risk of reoffending and any possible risk to the community is now low.
In his oral evidence, Mr Jones said that his risk assessment of Mr Vovk’s likelihood of reoffending is “low” and that it was not possible to be lower. He agreed with the Tribunal that “low” is the lowest risk assessment assignable to a person who has previously offended.
Mr Jones said: “When dealing with real or appreciable risk, I am of the view that the Applicant is not at a real or appreciable risk of re-offending or engaging with harm to another person or himself.”
Mr Jones noted the courses undertaken by Mr Vovk and was asked whether the courses need to be specifically tailored to domestic violence offending. He responded: “We place more emphasis on non-offending…What carries greater weight is a history of non-offending or engaging in violent or antisocial or domestic violence behaviour.”
Mr Watson-Munro agreed with Mr Jones that the current risk of re-offending is “low”. When asked to comment on any real or appreciable risk of re-offending, he said:
He has expressed remorse and has a vastly improved relationship with his mother. He has undertaken programmes. He has positive aspirations for the future and has undertaken vocational training for the future beyond his current work as a truck driver. I am encouraged by his maturation. No offending for six years is the best measure. He appears to have grown up in a prosocial way. Six years is a long way, and significant in terms of his age.
The Tribunal is satisfied from the evidence and reports of the two professional witnesses that they have assessed Mr Vovk’s likelihood of re-offending as “low”. This assessment is bolstered by the evidence of Ms AS, and especially by Ms SV. The Tribunal notes that evidence of completion of the EQUIPS Aggression Program was in the Tribunal documents (GD, p 175), as was proof of enrolment in a Bridges course (GD, pp 176-177).
Mr Vovk has undertaken TAFE training in carpentry (GD, p 129), and has completed a Certificate II in Security Pathways (GD, pp 132-133), and part of a Certificate III in the same vocational area (GD, p 134). He has completed a Responsible Service of Alcohol course (GD, p 135) and a Responsible Conduct of Gambling course (GD, p 136). He has undertaken part of a Certificate II in Construction Pathways (GD, p 131) and has attained a heavy vehicle driver licence (GD, p 136), and VicRoads record no driving penalties. In 2020 he enrolled in a Diploma of Building and Construction (GD, p 146). A positive reference from a former employer was at GD, p 148.
Several former workmates and friends provided written statements supportive of the Applicant to the Minister’s Department (for example, at GD, pp 222, 233, 237, 248, 250, 252). The sister of Ms AS also provided a written statement showing she was aware of the incident between her sister and the Applicant but that they had reconciled and she (the sister) was in support of Mr Vovk’s visa being restored (GD, pp 241- 242).
The Applicant’s work history, his studies to improve his job prospects, his financial support to his mother in buying a house, and helping her renovate it, are all preventative factors against recidivism. So are his cordial relationship with Ms AS, and a mutual desire to perhaps resume a more romantic bond. Additionally, the oral evidence of three character witnesses was all supportive of Mr Vovk as a friendly and reliable person, whose interactions with them were conventional and convivial.
Overall, the Tribunal finds that this primary consideration supports the cancellation of the visa, but only marginally. The major factor in the Applicant’s favour is that he has not offended since 2015, which is the best proof to the Tribunal that he has dealt with the drivers of his formerly, to use the Magistrate’s adjective, “disgraceful” behaviour towards his mother and Ms AS.
Second primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(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…
(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.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct.
The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise 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 person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence. There was no evidence before me of formal warnings of this nature to Mr Vovk by the Minister’s Department.
The first adult offence recorded against the Applicant relates to him damaging a park bench in 2012. The summonsed material from Parramatta Local Court does not indicate why the offence has the suffix “DV” and the Tribunal has insufficient information about this offending except that there was a finding of guilt and without proceeding to conviction the Court placed Mr Vovk on a good behaviour bond for 12 months.
There is evidence of the Applicant committing several domestic violence offences where his mother, Ms SV, was the victim, and one where his sometime girlfriend, Ms AS was the victim. In one instance dealt with by the Local Court in January 2015, the Magistrate referred to the Applicant arguing with his mother, spitting at her, and swearing at her. He pushed her towards a window, causing the curtains to fall on her and, in anger, punched a hole in a door of the premises. He pleaded guilty to common assault and damaging property.
In May 2016, he was before the Local Court for sentencing in relation to Assault occasioning actual bodily harm and the offence of Stalk/intimidate. In relation to the Stalking offence, the facts were that he and Ms AS met in a park. His Honour said (GD, pp 53-55):
You were seated near a lake in a park at [redacted]. An argument started. You wanted her to go with you back to Parramatta. You then said to her ‘You’re lucky I don’t have acid with me. No guy is ever going to be with you’.
At this time the victim began walking away from you. She reached a small lake whereby you tackled and pushed her to the ground. She fell on her back. You then picked her up and put her into the lake’s water. This has resulted in her body being submerged in water. She was in immediate fear for her life, as she cannot swim. The victim continued to scream for help…It should be noted that the victim has indicated you knew she was unable to swim. She is 16 years old, you threw her into a lake, all because she wouldn’t do what you demanded, after threatening her.
Mr Vovk was arrested after this incident, and the arrest put him in breach of two bonds, one for an earlier instance where he intimidated Ms AS’s sister. He was also on another bond for the assault of his mother. The Magistrate went on (GD, p 54):
You were helping your mother with some renovations. She found an empty drink bottle with a pipe attached to it. She spoke to you about your drug issues. You said to her, “You don’t touch my stuff”, you said this to your mother, “You f------g c---“. You spat in her face. You then spat a second time in her face landing on her nose, calling her a f------ prostitute and a f------g c----. Is that the way you treat all women? You[r] mother, your 16 year old girlfriend? You are [.] disgraceful, you have committed some disgraceful behaviour against people, females at that too.
The Magistrate noted the bonds for domestic violence but also Mr Vovk’s age and limited criminal record and said that the Court was persuaded to adjourn the matter for an ICO assessment. For threatening Ms AS with acid, the Applicant was sentenced to four months imprisonment, to be served by way of an ICO. For the dropping of Ms AS into the water of the lake, he was sentenced to 12 months in prison, to be served by way of an ICO. For threatening Ms SV, his bond was revoked, and he received a sentence of four months in prison to be served by way of an ICO.
During his oral evidence, Mr Vovk was asked about threatening Ms AS about what he might do if he had acid. He responded: “I do remember that. I did say that with no intention to hurt her. I’d heard it on tv.”
Mr Kim took Mr Vovk through the Magistrate’s remarks relating to the incident at the lake. The Applicant said: “That is slightly different to what happened. It wasn’t a lake. I did not jump on her or throw punches.”
When asked whether he knew Ms AS did not swim, he responded: “I had no intention to drown her.”
Mr Poynder asked the Applicant about this offending, and he said he recalled it. Counsel then noted that all the offences were against females, and asked whether he accepted that. Mr Vovk said: “Unplanned, but yes. Unintentionally”. Pressed about what he meant by “unintentionally”, Mr Vovk said:
I was raised in a brutal environment and bullied by my step grandfather. I didn’t know how to handle anger. I used to have flashbacks to my childhood in Russia with my grandmother and my step grandfather. I knew it was wrong but was reacting because my childhood was quite tough.
Mr Poynder asked if Mr Vovk therefore developed “anger issues” which he directed towards his mother and Ms AS. He replied:
They were the people I was caring for the most and spending time with. I had seen my grandfather treating women that way and worse. It came as a self-reflection. I deal with these situations completely differently now. I was probably still in the process of building myself up and changing. The event [at the lake] is not as savage as it appears on paper. The witness will explain…
Counsel asked Mr Vovk what he had done to address his anger management. He responded: “I have done a course with Anglicare and had private sessions as well with Anglicare. There was another one I was directed to go to by parole, Bridge, or something. We covered all the main topics.”
Mr Vovk said he had never hit his mother, and when asked if he remembered pushing her, said he could not clearly remember because it was ten years ago.
The Tribunal asked Mr Vovk what he would do if he was allowed to remain in Australia and had a future argument with Ms AS. He responded:
We’ve both matured. We had aggression. We had miscommunication between each other. We’ve learnt our lessons. Got more knowledge. Maybe we would get psychologist if needed. There would be no domestic violence.
The Tribunal noted that Mr Vovk has no offending such as assaults in public places and then asked him if he thought domestic violence is cowardly. He responded:
I’ve had a long time to think about it, over and over. Yes. Everyone has their own demons. I have fixed 99 per cent within myself. I can handle my anger and my communication level and my environment.
Ms SV’s evidence was that when she was a young mother she had to travel away from her home for work, as she lost her job. She travelled to England and placed her son in the care of her mother and stepfather in Omsk. Her father had died when she was young, and her mother remarried. She told the Tribunal that “many things were hidden from me”. She said it was many years later that she realized what had gone on while Mr Vovk was in the care of her mother and stepfather. Ms SV said she telephoned her mother, and:
I questioned my Mum. She was crying and told me a couple of things. They didn’t feed him or take care of medical conditions. It gets very cold and they didn’t want to buy clothes for him or food. My stepfather kicked his [the Applicant’s] dog. Because I was far away, I couldn’t control…They broke my trust. I didn’t know any of this until I brought him here [to Australia]. We had a big argument over the phone. I’ve had no contact with them since then. This is the environment he saw for so many years, unfortunately.
Mr Poynder said to Ms SV that the Applicant did some terrible things to her. She responded:
He was very disrespectful to me personally. I am now proud of him. He has changed 360 degrees. He is now a beautiful person. He helps me every single day. He does everything that needs to be done.
When asked if she had ever been afraid of him, Ms SV responded: “No. Never afraid of my son. He’s supposed to respect people around him.”
When asked if she was aware of the incidents in the park between Mr Vovk and Ms AS, Ms SV said she was aware of the matters but thought it would be better to ask Ms AS about them.
Ms AS gave evidence that she was formerly in a romantic relationship with Mr Vovk but while they are not currently, they remain good friends and talk frequently. When asked if she remembered the argument in the park where Mr Vovk referred to acid, Ms AS responded: “We were having a heated argument. I think acid was mentioned. I wasn’t scared because I knew he didn’t have it and knew he wouldn’t do it.”
The Tribunal was concerned that Ms AS, perhaps in an endeavour to help the Applicant, was giving evidence that was less than frank, so gave her a formal warning and read to her section 62A of the AAT Act about false and misleading evidence and the possible maximum sentence of a prison sentence of 12 months.
When the Court extract was read to Ms AS about the lake incident, Ms AS said: “He didn’t tackle me, I might have slipped…in the heat of the moment. I had to tell my parents because they didn’t know I was seeing him.”
When asked how she felt about Mr Vovk now, Ms AS said: “I feel fine. We used to argue a lot. He’s a changed man. He handles things pretty well.”
In response to direct questions from the Tribunal, Ms AS said it was her father who contacted the police to report the lake incident, because he was “fuming” about her coming back having been in the lake and about her seeing Mr Vovk. When asked directly whether, if the Applicant was able to stay in Australia, she would rekindle the relationship, Ms AS responded: “Yes”, and indicated that a permanent relationship was their “end goal”. When asked directly if she would have any concerns physically or mentally if she resumed a relationship with Mr Vovk, Ms AS said: “Not at all.”
The Tribunal also heard from three witnesses called by Mr Vovk. Ms KP, Mrs KB and Mr PB.
Ms KP said she met Mr Vovk through a car enthusiasts forum because they had the same model car. She said she was aware of the offending of the Applicant against Ms SV and Ms AS, but this behaviour was “not the person I observed”. She said she had no reservations about contact with Mr Vovk.
Mrs KB gave evidence. She knows both Ms SV and the Applicant. Mrs KB said she was aware of Mr Vovk’s criminal record as he had discussed it with her. She said: “I am against violence against women. I know a different Serge to the one here. He is honest and remorseful about it.”
Mr PB gave evidence. He was aware of the lake incident but not the incident between Mr Vovk and his mother, set out above. Mr KB was taken by Mr Kim through the Court transcript (GD, pp 54-55), and asked whether it changed his view on the Applicant as set out in his written statement. Mr KB responded: “Since I have known him, he has been true and honest. I don’t know that side. My kids love him and I have no concerns about him being with them.”
The Tribunal finds that this primary consideration weighs in favour of cancelling the visa, because all the index offending is related to domestic violence. However, the weight the Tribunal assigns is not significant. Mr Vovk has been compliant and engaged in programmes set by the Courts, as well as some of his own volition. He has rebuilt his relationship with his mother and Ms AS. He has engaged with his Church. He has also taken several steps that are prosocial and militate against criminal conduct: employment, vocational education, building a circle of supportive friends, and avoiding abuse of alcohol or any use of illicit drugs.
Third primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
While there was peripheral mention of a niece of Ms AS, there was little detail. The Tribunal considers that there is no evidence of the Applicant having any children or an association with any minor children in Australia. Mr KB mentioned the Applicant knows his and Mrs KB’s children, but there was little further detail about their interactions with Mr Vovk which would agitate this consideration. It therefore carries neutral weight in this assessment.
Fourth primary consideration – Expectations of the Australian community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The expectation of the Australian community is taken to be a “norm”. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the “expectations” of the Australian community may be. The expectations articulated in the Direction are “deemed”; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some evaluative process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a “norm”, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are “deemed” to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
Mr Vovk’s offending or other misconduct which led to attention by the Courts is in the period from 2012 to 2016. My view is that most Australians would be deeply unimpressed with his conduct towards his mother – particularly – and towards Ms AS. In the ordinary course, the weight of the expectation would be against the Applicant. However, I consider that the fact he has not offended in any way since 2015 heavily reduces the weight of this primary consideration, in his favour.
The Tribunal finds that this consideration weighs against revoking the cancellation of the visa, but only marginally so, given the years of good conduct of the Applicant since 2015.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction requires the Tribunal to take into account the following matters, where they are relevant, noting this is a non-exhaustive list:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including;
(i)the strength nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
First other consideration – International non-refoulement obligations (paragraph 9.1)
International non-refoulement obligations relate to a case where a person is in prospect of being returned to a country where they may be at risk of a specific type of harm. Mr Poynder submitted that the Applicant is owed non-refoulement obligations as a young male who, if repatriated to Russia, might face conscription and – potentially – being sent to fight in one of the Armed Forces of the Russian Federation in the current conflict in Ukraine.
Mr Vovk said, first, in his evidence, that he did not support the Russian invasion of Ukraine. He then amended his evidence to say that he “had no opinion”; but he went on to lament the loss of life and said that every human would be affected by that. Mr Vovk in his oral evidence said that he had never served in the Army and had no relevant training or experience, and he was worried that if repatriated he would be conscripted to fight in that war.
Mr Poynder asked the Applicant whether he feared being returned to Russia because of the current war with Ukraine. He responded: “Yes. I could possibly be sent to war. I don’t want to be there”. He said he was concerned he might be conscripted.
Counsel asked him whether he had an opinion on the war. Mr Vovk replied:
I don’t have an opinion but as a male I would have to obey orders as a citizen and would have to obey commands of the army. If I declined, I would face some sort of legislation. I cannot predict, I haven’t made research. The country is strict if [you are] ordered. I could be prosecuted.
Mr Vovk was asked about some photographs on his social media page (Exhibits R4 and R5). He said that some of the people who had lost their lives in the war were close friends with whom he went to primary school. In answer to a direct question from the Tribunal, he confirmed they were friends who were serving in the Russian military when they were killed.
In answer to direct questions from the Tribunal, Mr Vovk said:
I don’t have any experience in war. I do not support the war because so many wars in our history. We should live peacefully. It should be dealt with diplomatically. I would support Australia. I believe this is my true home.
The Respondent said that the Applicant has not made out a case that he has a conscientious objection to fighting, which might agitate complementary protection claims. The Tribunal accepts this submission from the Minister. Mr Vovk said he did not want to be conscripted if he was returned to his country of citizenship. But he made no case in his oral evidence or in written submissions of a conscientious objection to the war in Ukraine or, if he was repatriated, to the possibility of being conscripted.
The Tribunal made clear in direct questions to the Applicant that his views on the invasion of Ukraine by Russia are not relevant to the matter before it, save that if he made submissions that might engage the international conventions, that would be something the Tribunal must consider. Mr Vovk made no such submissions.
The Tribunal does not accept that any claim has been made that would be relevant to any of the international treaties to which Australia is a signatory. If the Applicant felt that he was at real risk of persecution or some individualised harm if repatriated, that would be something he could raise in this application or, if his visa cancellation was affirmed, in a future application for a protection visa. But no clearly articulated claims were put before the Tribunal.
The Tribunal has made its own inquiries, as it can do under section 33 of the AAT Act. The relevant law relating to conscription in Russia is the Law on Conscription Obligation and Military Service (March 28, 1998), (‘the Law’), to be read with the Decision of the Government of the Russian Federation “On the Confirmation of the Regulation regarding Conscription for Military Service of Citizens of the Russian Federation” (June 1, 1999, No., 587). The law provides for a 12-month draft for male citizens aged 18 to 27, with permitted exemptions set out in the Law. As Mr Vovk has already attained the age of 28, the Tribunal finds that he would not be conscripted into the Russian armed forces if returned to that country.
The Tribunal does not consider that the claims made by Mr Vovk rise to the level of agitating the provisions of the three treaties referred to in the Direction (the 1951 Refugees Convention, the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment or the International Covenant on Civil and Political Rights, and the protocols attached to the first and third of these. Or that they found a complementary protection claim. There is insufficient information in the submissions made by Mr Vovk or on his behalf.
The Tribunal finds that this consideration weighs neutrally.
Second other consideration – Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of impediments the Applicant may face if removed from Australia to Russia in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of the country. The Tribunal must take into account the Applicant’s age and health, any substantial language or cultural barriers and social, medical, or economic support available to him if repatriated.
The Tribunal notes that there was no evidence Mr Vovk was not in good physical or mental health. The Tribunal concludes that as a Russian citizen, he would be able to avail himself of the social services available to other citizens of that country. There was no evidence about the Applicant’s language skills, but as he attended school in Russia until 2009, the Tribunal presumes he is able to speak Russian, even if it may be rusty after 14 or so years in Australia. The Tribunal accepts that Mr Vovk has no sibling and that his father abandoned the family when he was very young. His mother became an Australian citizen in 2014 (GD, p 227), and she and the Applicant have had no contact for many years with Mr Vovk’s maternal grandmother and step grandfather, the estrangement being, on Ms SV’s evidence, caused by their lack of care for the Applicant as a young child.
Mr Watson-Munro was asked in his letter of instruction to include in his 31 March 2022 report the impact on Mr Vovk and on his family if he is, in the words of the instructing solicitor “forced to leave Australia”. Mr Watson-Munro spoke to Ms SV by telephone to corroborate some of the information given to him when he examined the Applicant. He wrote:
Mr Vovk’s mother is in a fragile state of mind concerning this issue. During my discussions with her she was tearful on occasions, expressing a strong apprehension as to how Mr Vovk will cope if he is forced to return to Russia. Mr Vovk in turn is very concerned about his mother, in addition to his realistic apprehension about his capacity to cope in Russia, if he is returned there. In Australia, he has the support of his mother, employment prospects and access [to] treatment programs, whereas in Russia he has no familial support and the likelihood of him securing work by his account is less optimistic. Equally so, it is unlikely that he would be able to receive the type of treatment which is available to him in Australia through Mental Health Treatment Plans and Medicare, in Russia. It is apparent that both he and his mother will suffer significant Psychological Harm if he is forced to leave Australia. In the alternative, if he is allowed to remain in Australia, I believe that with ongoing treatment and other protective factors I have described, his prognosis from a forensic perspective is positive.
The Tribunal accepts only parts of the conclusions in this paragraph. It is evident that the Applicant is concerned about his mother and apprehensive about being returned to Russia. It is not clear on what objective evidence Mr Watson-Munro has based his remarks on the Russian health system, because there is no cross-reference in the report. Although Mr Watson-Munro spoke to Ms SV, it was largely to corroborate what the Applicant had told him, particularly in regard to domestic violence offences against her. Mr Watson-Munro did not examine Ms SV. Apart from a very general impression that she would be emotionally upset if Mr Vovk was repatriated, the Tribunal does not accept a foundation that Ms SV would suffer “significant Psychological Harm” can be sustained when there is no evidence of a psychological assessment of the Applicant’s mother before it. While it may be the case, it is an assertion.
It may indeed be the case that mental health services are of a lesser level than are available to Mr Vovk in Australia but (a) that is not the measuring stick in the Direction and (b) this is just a statement, albeit by an experienced psychologist. There is an absence of objective material to make this out.
The Tribunal finds that this consideration weighs very slightly against cancelling the visa, because of the time Mr Vovk would take to establish himself if returned to Russia.
Third other consideration – Impact on victims (paragraph 9.3)
This part of the Direction requires the Tribunal to consider the impact of the decision on members of the Australian community, including victims and family members of victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. There are two people in this category: namely, the Applicant’s mother, Ms SV and his sometime domestic partner, Ms AS.
Mr Poynder submitted that this consideration weighs in favour of restoring Mr Vovk’s visa because both Ms SV and Ms AS have provided written and oral statements supportive of the Applicant.
In Bale and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 (‘Bale’), the Federal Court considered an argument that the Tribunal had erred in a decision where a wife, who had been the victim of domestic violence offences by her husband, was supportive of his visa being restored. In Mr Bale’s case, the Tribunal had considered that the “impact on victims” consideration was not relevant and the argument put before the Court challenging that was that it is also relevant to know that, when wearing her hat as one of his victims, she was also content for him to remain. The Minister’s direction in force under section 499 of the Act at the time of Bale was Direction No. 79, but the text of this consideration in Direction No. 90 is similar.
In Bale, Perram J said, at [26]-[27]:
I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously: see Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] per Tracey J; RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] ff per Anderson J. And, as [54] of the Tribunal’s reasons shows, the Tribunal was well-aware that she was one of his victims.
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example in her evidence Mr Bale’s wife could have addressed the fact Mr Bale had been convicted of common assault following an attempt to throttle her early on the morning of [date]. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl. 14.4(1) independently of cl. 14.2(1)(b).
The Full Court of the Federal Court recently endorsed the approach in Bale that double-weighting is not required and that an applicant, in a case where a victim might want his or her visa given back, is not entitled thereby to another “score on the board” (see Bromberg, Stewart and Goodman JJ in XXBN v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74).
I am satisfied that, in response to direct questioning from the Tribunal, Ms SV said she both forgave Mr Vovk for the domestic violence offending against her and that she was not concerned for her safety. In fact, she said she had never been concerned for her safety, even during past incidents. I am not entirely satisfied this is the case, because when I read to her the police account of one instance involving her son which stated she had run to a neighbour for help, she claimed not to remember those details. However, putting that to one side, I am satisfied that her evidence about the significant effect on her as a victim if her son was deported was heart-felt. The impact on Ms AS is less because, at present she lives in another State and it is not clear whether she will rekindle her relationship with the Applicant, although she said that was her and his wish.
Overall, the Tribunal is satisfied that this consideration weighs in favour of the Applicant. But the weight is tempered because to accord it great weight would not only involve some ‘double-counting’, but also create an internal inconsistency when the Direction was amended in 2021 to include a primary consideration explicitly directing decision-makers on the seriousness with which to view family violence offending or conduct.
Fourth other consideration – Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal 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 the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
Mr Vovk is an only child. His father abandoned the family when he was very young, and he and Ms SV said they do not know his whereabouts. Ms SV is an Australian citizen. She gave affecting evidence about the impact upon her if her son was returned to Russia. The evidence is that the Applicant is estranged from his maternal grandmother and step grandfather.
The Applicant has been in Australia since 2009. He has a relatively good employment history, which is corroborated by pay records before the Tribunal. He has undertaken vocational education. The three witnesses who gave oral evidence all attested to their impressions of him as a good friend. Although the witnesses knew of Mr Vovk’s offending, to a greater or lesser extent, none expressed a view that he had exhibited any behaviour before them which would indicate any slide into antisocial conduct, let alone potential for reoffending.
The Tribunal finds that this sub-consideration weighs in favour of restoring the visa, and relatively strongly so.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision to cancel the visa would significantly compromise the delivery of a major project or important service in Australia.
Although there is evidence of a good job record by Mr Vovk, the Tribunal does not consider his employment in Australia rises to the level contemplated by this part of the Direction, in compromising a major project or important service in this country. This sub-consideration weighs neutrally.
However, overall, this consideration weighs heavily in favour of restoring Mr Vovk’s visa.
Additional matter – the Applicant’s citizenship
During her oral evidence, Ms SV was taken to a translation of the Applicant’s birth certificate, (GD, pp 158-159) which notes that he was born in Petropavlovsk in Kazakhstan in 1993. The query was raised by the Tribunal as to how she and Mr Vovk have Russian citizenship and travelled to Australia on Russian passports (GD, p 154).
Ms SV said that when she was born, her place of birth was in the Union of Soviet Socialist Republics. She was born around 300 kilometres from what in 1991 became the border between Russia and Kazakhstan. She said they were forced to leave by radical local groups and moved into Russia, and Ms SV stated: “For a few months we didn’t have citizenship, then we were offered Russian citizenship.”
Both parties referred in their Statements of Facts, Issues and Contentions to the country of citizenship of the Applicant being the Russian Federation. The Tribunal notes that the evidence is that Mr Vovk was moved to live with his grandmother and step grandfather in Omsk in Russia in 2000, when he was aged seven.
Finding
Given that the Applicant’s own contention is that he is a citizen of Russia, and that he and his mother both migrated to Australia in December 2009, travelling on Russian passports, and that the Respondent does not dispute that the country of reference is Russia, the Tribunal concludes that the evidence supports a finding that Mr Vovk is a citizen of the Russian Federation. If his visa is not restored, that is the country to which he would be returned. Whether he might also have an entitlement to citizenship of the Republic of Kazakhstan is not a question for determination by the Tribunal.
CONCLUSION
The Tribunal has weighed all the considerations in the Direction as it is obliged to. The primary consideration relating to protection of the Australian community supports the cancellation of the visa, but only marginally. The primary consideration relating to whether the Applicant has committed conduct which constitutes family violence weighs against him, but although the nature of his offending was almost exclusively in that category, his efforts to rehabilitate and change his behaviour and his lack of offending for some seven years radically reduces the weight that would otherwise be assigned.
The primary consideration relating to the impact on minor children is not relevant and weighs neutrally. The primary consideration relating to the expectations of the Australian community weighs against Mr Vovk, but only marginally.
In respect of the other considerations, the Tribunal has found that international non-refoulement obligations weigh in neither direction. The consideration relating to the extent of impediments if the Applicant is returned to the Russian Federation weighs marginally in favour of restoring his visa. The consideration relating to the impact on victims weighs slightly in favour of restoring the visa. The consideration in the Direction relating to links to the Australian community weighs heavily in favour of the Applicant having his visa restored.
Mr Poynder, in his closing submissions, contended that this is a case where the Corrections system of the State has worked, and Mr Vovk has been “corrected”. The Tribunal has come to that conclusion. Both Mr Jones and Mr Watson-Munro said, in their concurrent evidence, the best measure is that the Applicant has not offended in any manner since 2015. The Tribunal considers this is also the most objective proof that the Applicant has changed his ways. Added to that, he has initiated, of his own volition, a range of strategies which incline the Tribunal to the view that he is a very low risk of reoffending: he has studied, gained employment, and become involved in his church and the community. Above all, he has repaired his relationship with his mother. He is now supportive of her and playing a proper role as a dutiful son, in emotional support after her marriage breakup, caring for her after her injury in a pedestrian accident, providing financial support in helping her buy a house, and practical support in helping her renovate it.
The Tribunal therefore finds that the correct and preferable decision is that the discretion available in section 501(1) of the Act should not be exercised to cancel the Applicant’s visa.
DECISION
Pursuant to section 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the decision dated 7 December 2021 cancelling the Applicant’s Class BN Subclass 136 Skilled Independent (Migrant) visa.
I certify that the preceding 131 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[SGD]................................................
Associate
Dated: 19 May 2022
Date of hearing:
5 May 2022
Counsel for the Applicant:
Mr Nicholas Poynder
Solicitors for the Applicant:
Kah Lawyers
Advocate for the Respondent:
Mr Lino Kim
Solicitors for the Respondent:
Clayton Utz
Annexe A – Schedule of Exhibits
R1 ‘GD’ documents lodged on 16 March 2022
R2 Supplementary ‘SGD’ documents lodged on 26 April 2022
R3 Summons bundle lodged on 27 April 2022
R4 Photograph showing the Applicant from his Facebook site
R5 Photograph of a graphic image from the Applicant’s Facebook site
A1 Psychological report of Mr Tim Watson-Munro dated 31 March 2022
A2 Letter of instruction to Mr Watson-Munro dated 14 March 2022 with three attachments
A3 Psychological report of Mr Bradley Jones dated 28 March 2022
A4 Letter of instruction to Mr Jones dated 28 March 2022 with seven attachments
A5 Statement of Ms SV dated 8 April 2022
A5A Eight documents relating to Applicant’s qualifications and pay record
A6 Statement of Ms KP dated 6 March 2022
A7 Statement of Mrs KB dated 3 March 2022
A8 Statement of Mr PB dated 3 March 2022
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