VZWF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1876
•27 May 2021
VZWF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1876 (27 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1466
Re: VZWF
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:A G Melick AO SC, Deputy President
Date of decision: 27 May 2021
Date of Written Reasons:24 June 2021
Place:Hobart
The decision under review is affirmed.
.....................[sgd]...................................................
A G Melick AO SC, Deputy PresidentCatchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class VB Subclass 886 – (skilled) – sponsored visa – where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – domestic violence – alcohol and illicit drug use – decision under review is affirmed.
Legislation
Administrative Appeals Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Home Affairs[2020] FCFC 109
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326
MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CAREASONS FOR DECISION
A G Melick AO SC, Deputy President
24 June 2021
INTRODUCTION AND BACKGROUND
The Applicant is a 35-year-old citizen of India. The Applicant first arrived in Australia in September 2006 on a student visa.[1] He was granted a Class VB Subclass 886 – skilled – sponsored visa on 26 September 2013.[2]
[1] Applicant’s Statement of Facts and Contentions (SOFIC), ‘Brief Chronology’.
[2] G-Documents, G14, 117.
On 6 February 2020, a delegate of the Minister (the Respondent) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that the Applicant did not pass the character test and was serving a full time custodial sentence.[3] On 18 March 2019 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (revocation request).[4] On 3 March 2021 the Respondent decided not to revoke the cancellation (decision under review).[5] The Applicant was notified of the decision under review on 4 March 2021.[6]
[3] Ibid.
[4] G-Documents, G2, 79.
[5] G-Documents, G2, 23.
[6] G-Documents, G2, 7.
The Applicant subsequently lodged an application for review in this Tribunal on 11 March 2021.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[7] G-Documents, G1, 1.
The Tribunal heard this matter on 12, 13 and 18 May 2021. Counsel for the Applicant, Mr Cutler, and counsel for the Respondent, Mr Papalia, both appeared via videa on Microsoft Teams. The Tribunal received oral evidence from:
(a)the Applicant;
(b)a clinical psychologist, Mr Sam Borenstein;
(c)several lay witnesses including:
(i)The Applicant’s eldest brother, Mr SS;
(ii)The Applicant’s youngest brother, Mr HS
(iii)The Applicant’s former-wife, Ms CR;
(iv)The Applicant’s friend, Mr PS; and
(v)The Applicant’s friend, Mr AS.
In addition, the Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
The Applicant lodged an affidavit, along with statements authored by each of the witnesses who gave oral evidence before the Tribunal.
That evidence can be summarised as follows:
(a)Mr Borenstein initially interviewed and assessed the Applicant on 3 December 2019. He prepared a report, dated 4 December 2019, contained within the G-Documents lodged with the Tribunal and tendered as evidence.[8] He assessed the Applicant for a second time on 7 April 2021 and prepared a report dated 11 April 2021 which was also tendered.[9]
[8] G-Documents, G10, Report of Mr Sam Borenstein dated 4 December 2019, 97.
[9] Report of Mr Sam Borenstein, dated 11 April 2021.
(b)In the report dated 11 April 2021, Mr Borenstein summarised the behaviour for which the Applicant was charged and imprisoned as being aberrant, uncharacteristic and against his normal personality. He attributed the Applicant’s use of drugs and alcohol as a form of self-medication for his Major Depressive Illness, which was otherwise untreated at the time. Mr Borenstein noted that the Applicant has participated in a variety of courses to improve and maintain his psychological and mental health and intends to resume his plan for individual psychological treatment outside of prison. Mr Borenstein opines that the Applicant’s risk of reoffending is extremely low.[10]
[10] Report of Mr Sam Borenstein, dated 11 April 2021, 7-8
(c)During cross-examination, Mr Borenstein maintained this sentiment. He opined that given the Applicant was now free of alcohol and drugs, and exhibiting no ongoing symptoms of depression, the likelihood of him reoffending was low.[11]
[11] Transcript, 43.
(d)The Applicant lodged a statutory declaration dated 14 April 2021 in support of his application. The Applicant summarised the events leading to his criminal offending, beginning with his arrival in Australia in 2006 on a student visa.
(e)The Applicant stated that he met his former-wife, Ms CR on the internet in around 2011. They then met in-person in India in late 2011. He met Ms PP in 2014, a friend with whom he developed an intimate relationship. He went into business with his brother in 2014 and contributed his lifesavings, approximately $70,000-80,000. Later in 2015, he married Ms CR in India. In 2016, the Applicant visited India and left the bottle shop in the care of an employed manager. Large business debts accumulated, and the Applicant’s business began to fail. The Applicant stated that he responded by drinking heavily and arguments arose with his brother. He moved from his brother’s house into a rental property and started an intimate relationship with Ms PP.
(f)In April 2016 he fought with Ms PP at the bottle shop, leading to the first charge. He continued to see Ms PP and this led to a subsequent charge. Ms CR arrived from India and the Applicant moved with her into a home in Doonside. The Applicant stated that he began to use alcohol and drugs a few times a week, he describes using drugs for the first time while he was “drunk and mentally depressed due to financial hardship.” The Applicant stated that his use of drugs and alcohol made his situation worse and he became abusive to both Ms PP and Ms CR. In 2017, the Applicant suffered from heart failure. In 2018, Ms CR moved out. The Applicant also saw Ms PP again in January 2018 after several years and committed the offences for which he served a term of imprisonment. The Applicant indicated in his statement that he has no intention of ever seeing Ms PP again, and notes there is still a restraining order in place. In 2020, Ms CR and the Applicant divorced. The Applicant stated that he has a strong social network in Australia and the offer of a job and accommodation. He stated that he is deeply sorry for failing to meet the expectations of the Australian community and has awareness of the stress that he caused people in his life. He is taking medication for his depression and no longer drinks or takes drugs.[12]
(g)Mr SS is the Applicant’s older brother. Mr SS and the Applicant owned the bottle shop business together. In a statutory declaration dated 14 April 2021, Mr SS explained that he resided with the Applicant at the same address until their relationship deteriorated and the Applicant’s alcohol use increased. Mr SS attributed the Applicant’s mistakes to his use of drugs and alcohol and stated that he is confident in the Applicant’s ability to re-establish his life. Mr SS states that prior to his offending, the Applicant had a good relationship with his son. He stated that he believes it would be beneficial for both the Applicant and his son to have the opportunity to rebuild this relationship if the Applicant were to stay in Australia. He has offered the Applicant financial support in this event.[13]
(h)Mr SS gave further evidence on relationship between the Applicant and his children during cross examination. He stated that now he had no concerns for his children with respect to the Applicant, despite having some knowledge of the Applicant’s harassment of Ms PP.[14]
(i)Mr HS is the Applicant’s younger brother and lives in Australia on a student visa with his wife and son. In a statutory declaration dated 14 April 2021, Mr HS explained that he lived overseas at the time of the Applicant’s offending but had awareness of his offending through family ties. He describes the Applicant as good natured, and the Applicant’s use of drugs and alcohol, and treatment of his victims, as out of character. During cross examination, Mr HS expanded on this evidence, describing the Applicant as a “family man,” referring to a period where they didn’t talk much, but describing the Applicant now as back to normal.[15] Mr HS notes the Applicant has demonstrated a change of attitude since being imprisoned. Mr HS stated that he has financially supported the Applicant for the past couple of years by making a weekly contribution of $40-$50 to his bank account. He indicated that he would continue to provide the Applicant with this support if he could remain in Australia.[16]
(j)Ms CR is the Applicant’s former wife and a victim of the Applicant’s offending. In a statutory declaration dated 12 April 2021, Ms CR stated that she met the Applicant prior to his failed busines venture. She stated that the Applicant began using drugs and alcohol as a means of coping with the stress of the failure of his business. She stated that he became violent towards her, and that this behaviour was the cause of the breakdown in their marriage and his visa cancellation. They divorced on 8 July 2020. Ms CR solely attributes the Applicant’s offending to the failure of his business. She stated that she believes it is unlikely that the Applicant will hurt anyone, or revert to his previous bad behaviour, if he can stay in Australia.[17]
(k)Mr RS met the Applicant in around 2013, while he was running the bottle shop with his brother. Mr RS stated in a statutory declaring dated 13 April 2021 that the Applicant’s use of drugs and alcohol was a bad reaction to the failure of his business. After the failure of the Applicant’s business, he stayed with Mr RS sporadically for a period of six to seven months. Mr RS stated that he is aware of the Applicant’s convictions and imprisonment, he does not describe this behaviour as “normal” for the Applicant. Mr RS indicated that if the Applicant was to stay in Australia, that he would be able to live with Mr RS in his current accommodation.[18]
(l)Mr AS first met the Applicant while they were employed as taxi drivers in 2009. In a statutory declaration dated 13 April 2021, Mr AS stated that he is aware of the Applicant’s convictions and term of imprisonment. He described the Applicant’s violent behaviour and use of drugs and alcohol as “out of character”. Mr AS indicated that if the Applicant was to remain in Australia, then he would be willing to financially support the Applicant while he re-establishes his life. He has a spare bedroom in a home he shares with his wife, daughter and mother, and the Applicant would be welcome to stay with them.[19]
(m)Mr PS signed a statutory declaration on 13 April 2021 in support of the Applicant. Mr PS stated that he has known the Applicant for most of the time that he has lived in Australia, approximately 14-15 years. He describes the Applicant has hardworking and honest. He observed the Applicant’s “life go out of control” with the use of drugs and alcohol. He also attributed this to the Applicant’s stress of his failed business. He is aware of the Applicant’s offending towards his former wife and girlfriend. He stated that he believes the Applicant is a good man, and that his offending is not representative of his true character. Mr PS indicated that he is willing to offer the Applicant a job managing his bottle shop if he could stay in Australia.
[12] Statutory declaration of Mr MS dated 14 April 2021.
[13] Statutory declaration of Mr SS dated 14 April 2021.
[14] Transcript, 53.
[15] Transcript, 57.
[16] Statutory declaration of Mr HS dated 14 April 2021.
[17] Statutory declaration of Ms CR dated 12 April 2021.
[18] Statutory declaration of Mr RS dated 13 April 2021.
[19] Statutory declaration of Mr AS dated 13 April 2021.
Procedural History
The Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Act 1975 (Cth) on the 84th day relevant to this matter, 27 May 2021. In doing so, the Tribunal met the requirements of s 500(6)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of this Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs (2019) 271 FCR 326 (Khalil), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
LEGISLATIVE FRAMEWORK (s 501CA(4))
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
1The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[20]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[21]
[20] [2018] FCAFC 151.
[21] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which 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”.
During the proceedings, counsel for the Applicant accepted the factual accuracy of the history of the Applicant’s convictions as set out in the Delegate’s reasoning. I adopt the Delegate’s summary as follows:
A National Criminal History Check dated 21 February 2020 indicates that on 31 January 2020, in the District Court of New South Wales, [VZWF] was convicted of Stalk/intimidate intend fear physical etc. harm (domestic); Take/detain person w/i to obtain advantage (DV); and two counts of Assault with act of indecency (DV), for which he was sentenced to an aggregate term of imprisonment of three years and six months, with Form 1 matters of Use etc. offensive weapon w/i to commit indictable offence and Attempt to stalk or intimidate intend fear of harm also taken into consideration.[22]
[22] G-Documetns, G2, 11.
The Applicant’s statement of facts, issues and contentions (SOFIC) concedes the Applicant’s criminal records “speaks for itself” and therefore the Applicant does not dispute that the he fails the character test.[23]
[23] Applicant’s SOFIC, 2.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[24]
[24] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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 measurable 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 non- citizens 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 non- citizens 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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(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; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[25]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[26]
[25] [2018] FCA 594.
[26] Ibid, [23].
BACKGROUND and offending
The Applicant's history of convictions was set out in detail as follows by the Respondent in its SOFIC. The Applicant accepted this history as correct:
Date of conviction Offence Outcome References 31.01.2020 Assault with act of indecency (DV) – 2 counts
Take/detain person with intention to obtain advantage (DV)
Stalk/intimidate intend fear physical etc harm (domestic)
Contravene prohibition/restriction in AVO (domestic)
Attempt to stalk or intimidate intend fear of harm
Use etc offensive weapon with intention to commit indictable offence
3 years and 6 months imprisonment (aggregate) – 2 year non-parole period
2 year Community correction order
Taken into account on Form 1
Taken into account on Form 1
G- Documents, 25-29. G- Documents, 31-54
14.05.2018
Drive motor vehicle during disqualification period – 2nd+ offence
Fined $500
Disqualification driver 12 months
G- Documents, 29
15.08.2017
Drive with low range PCA – 1st offence
Drive motor vehicle not carry licence
Fined $700
Disqualification driver 3 months
Fined $100
G- Documents, 29
21.07.2017
Common Assault (DV)
Contravene prohibition/ restriction in AVO (Domestic)
Use carriage service to menace/ harass/ offend
12 Months imprisonment – suspended on entering into 12 month bond – later called up to serve 12 months.
Fined $500
19.08.2016
Stalk/intimidate intend fear physical etc harm (domestic)
Contravene prohibition/
restriction in AVO (Domestic)Destroy or damage property (DV)
18 month s9 bond
Fined $500
18 month s9 bond
Fined $500
18 month s9 bond
Fined $500
05.08.2016
Common Assault (DV)
Possess or use a prohibited weapon without permit
Destroy of damage property(DV)
Possess prohibited drug
6 month s10 bond
Later called up and 18 month s9 bond imposed and fined $500
Found guilty
Found guilty
Found guilty
G- Documents, 29-30
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I note that the Applicant is been convicted of a number of crimes involving offences against women and family violence.
On 31 January 2020, the Applicant was sentenced to serve a term of imprisonment of three years and six months when convicted of:
(n)Two counts of assault with acts of indecency involving domestic violence;
(o)One count of take/ detain a person with intention to obtain advantage involving domestic violence; and
(p)One count of stalk /intimidate intend fear physical etc harm in a domestic setting.
Concurrently he was also convicted of contravening prohibition/restriction of an AVO (domestic) and Use etc offensive weapon with intent to commit indictable offence’ and ‘Stalk/intimidate intend fear physical etc harm. He was placed on a community corrections order for these offences and a number of ‘called up’ offences for which he had been previously convicted.
At the time of the offending the Applicant was still married but separated from his wife and the victim of the offending was a woman with whom the Applicant had, from time to time, been in a relationship.
According to the facts presented to and accepted by the Court on 17 December 2017, the Applicant was seen leaving the home of the victim in the early hours the morning prior to which she had heard the smashing of glass.
When she checked her phone the next morning, she noted number of missed calls from an unknown number and then later received a call from an unknown number which she answered, recognising the voice of the Applicant. The Applicant asked her “who are you with and where are you?” to which she replied “none of your business” and terminated the call.
Later that day the victim received another call asking the same questions and when advised he didn't need to know, the Applicant said “you bitch cunt fuck off. I'm on the M4 I'll be at your home soon, I'm going to destroy you, your family, your parents and your children”. The Applicant followed the victim in his car later that evening. Both events were reported to police. The Court noted this offending was committed whilst the Applicant was on conditional liberty in respect of similar offences against the same victim.
As a result of this offending, the Judge considered the Applicant’s behaviour was intended to cause the victim fear and as a consequence of this offending, a provisional Apprehended Domestic Violence order was imposed with the victim listed as a person in need of protection.
In the week prior to 23 January 2018, whilst the Apprehended Domestic Violence Order was still in place, the Applicant sent hundreds of text messages to the victim including a message that indicated if the victim did not agree to see him he would end his life. As a result of this, the victim responded and started talking to the Applicant, and recommencing an intimate relationship with him.
On 23 January 2018 whilst the victim was in the bedroom of the Applicant's home changing her clothes, the Applicant approached her from behind, picked her up and threw her face down upon the bed. He laid down on the bed but she got up and he attempted to convince her to lie down with him. When she refused to so do, he pushed her face down onto the bed. Despite her crying, telling the Applicant that she didn't want to have sexual intercourse with him and that she had been hurt from being pushed onto the bed, the Applicant began to kiss her on the face, neck and chest. He then forcibly removed her bra and underwear, pinned her wrists to the bed, climbed on top of her and began to thrust his flaccid penis between her buttocks. There was no penetration.
After the Applicant released the victim's wrists, she got off the bed and attempted to contact the police, but the Applicant took her phone along with her belongings and clothes and continued to try to generate conversation, becoming increasingly frustrated. He picked up the bed and pushed it towards her before taking an axe-like metal object from the wall, swung at her face and said “I'm going to kill myself and finish you as well. If you don't look at me and talk to me, I'm going to hit you”. When she responded with ‘please do so’ he put the weapon down and apologised.
The victim then attempted run from the house, but the Applicant grabbed her by the upper arm and pulled her back into the house. He then put his hand around her neck and forced her back into the bedroom, locking the door and then started beating her belongings with a stick approximately 30cm long.
He then dropped the stick and took hold of the victim and threw her onto the bed again facedown and again got on top of her, thrusting his flaccid penis between her buttocks. The victim then bit the Applicant on the arm and he stood up and again apologised, asking her to give him one more chance. He asked twice if she loved him, when she answered no, he said “I'm going to ask you a third time, and if your answer is no I will finish you”.
The victim then convinced the Applicant to let her leave and she went straight to the Blacktown police station where she made a report. An examination of the victim showed bruising to her right eye, tenderness to her neck and small bruises on her right arm and inner left thigh.
The Applicant was interviewed in relation to these matters at the Merrylands police station. In that interview, he claimed that he was in a relationship with the victim and denied making any intimidating threats or any phone calls to her and stated he only spoken to her once. He denied following the victim and said that he loved her children and would never abuse or make a threat against them. In view of the plea and the findings of fact by her Honour, I find these accounts given to the police were entirely false.
The Judge noted that the victim impact statement indicated that the victim had experienced trauma, stress anxiety, helplessness, fear and sadness, along with financial consequences.
Her Honour also noted that the impacts experienced by the victim are usually associated with this type of offending, and because of such, courts regard these offences as very serious.
Her Honour also noted the following in relation to the breach of the apprehended violence order (AVO) that occurred shortly before the offences referred to above:
So far as the s 166 certificate is concerned, as I say about a week prior to the offences on 23 January and in breach of an order he sent those text messages to her, some threating suicide if she did not see him and so the two recommenced their relationship on that footing. It was in that context that the breach of the order occurred. This was not a spontaneous breach of the order; the parties having arranged to meet in order to attend an appointment the following day. I accept that it was a breach although initially instigated by the offender without the victim’s consent, one to which Ms P agreed to and willingly attended upon his home.[27]
[27] G-Documents, G4, 41-42.
In relation to the offences generally Her Honour noted the following:
So often the coming together of those in problematic and violent relationships end with violence and it is for that reason that breach of such orders is regarded as so serious by the courts.
Count 1 is the first indecent assault in time. It took place in the offender’s home when they were both alone. There was a degree of force involved and it occurred in the context of the offender attempting non-consensual sexual intercourse. Ms P’s clothes were removed and there was in my view prolonged forceful physical contact and where she resisted vigorously.
Regarding Count 3 and the matters on the Form 1 attached, I find the offender used a weapon in order to invoke fear on the victim, threatening to kill both of them with it. He was swinging the weapon as he did so. Ms P believed that he was doing so in order to intimidate her. Clearly this did not work and the offender eventually apologised.
As I have said, Ms P attempted to leave but was detained for a not insignificant period of time whilst further offences were committed. By the time she attempted to leave she was wrapped only in a sheet and was therefore particularly vulnerable. Her returning to the room was achieved by him pulling her by the arms and placing his hand around her neck forcing her back into the room and then locking the door.
The Crown contends that having forcibly brought her back into the bedroom following the first indecent assault, such intention should be seen as a continuing course of conduct. I have received that submission though am mindful not to double-count for the offending.
I have also taken into account the fact that the offender seemed to be under the illusion, albeit irrationally so, that a discussion Ms P where he attempted to calm her down would lead to a rekindling of consensual relationship. In those circumstances and where that was not challenged, I am prepared to find that the offender detained her for the purpose of further assaulting her.
Count 2 arises where having become extremely angry that Ms P wished to leave with her belongings, the offender committed a further forceful indecent assault upon her. Again it was attempted sexual intercourse without consent as described in the facts, however in both counts 1 and 2 I am mindful of the charge he faces.
Ms P was forced to bite the offender in order to get him to desist. She was crying and therefore clearly distressed. The offender appeared to have no insight into what was occurring, and indeed even when he spoke to police further blaming her for his inability to penetrate her. He then however immediately apologised, consistent with his fragile emotional state at the time. However given the acts that occurred and her clear distress, I regard this as a serious form of the offence. [28]
[28] G-Documents, G4, 42.
The Applicant conceded that some of his offences were of a very serious nature, as have the various sentencing judges. Even if the offences were not considered very serious under Direction 90, which they in fact are, I would find that the Applicant’s offences are very serious and, in relation to domestic violence, are offences to which the Direction specifically refers.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
As noted above I consider the Applicant’s offending as very serious, as have the courts, leading to substantial custodial sentences.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
An examination of the Applicant's record of convictions shows a disturbing trend of a continuing of the same sort of offence, namely threats and/or intimidation and/or violence towards women in a domestic setting, and also an escalation in the seriousness of such offences. He has been given many chances and several bonds including being sentenced to a suspended 12-month term of imprisonment on 21 July 2017 for, inter-alia, a common assault constituting domestic violence.
Despite these chances, he again reoffended and on 31 January 2020 the Applicant was convicted of the offences referred to in some detail above. These factors add weight to the findings I have already made in relation to the very serious nature of the Applicant’s offending.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
I am also concerned by the cumulative effect of the Applicant’s repeated violent offending in domestic situations involving both his wife and a woman with whom he was in an intimate relationship. Even taking into account that at the time of the offending the Applicant was heavily influenced by illicit drugs and/or alcohol, there is consistent violent behaviour towards women with whom he is in a relationship.
I do not consider factors sub-paragraphs b, f, g of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(d)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(e)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(f)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Taking into account the Applicant’s criminal history, including his disregard of AVOs, I find that if the Applicant commits further serious offences, they would likely involve domestic violence and would cause both physical and mental trauma.
Likelihood of engaging in further criminal or other serious conduct
Information and evidence on the risk of the non-citizen re-offending
Based upon the following factors I consider there is an ongoing risk of the Applicant reoffending:
(a)He has, on numerous occasions, breached judicial and/or court orders including contraventions of AVOs, suspended sentences in 2016, 2017 and 2020 and good behaviour bonds.
(b)Significant offending in 2017 and 2020 was allegedly contributed to by his consumption of illicit drugs and alcohol and the stresses associated with his failing business.
(c)Mr Borenstein opined that the Applicant needs psychological counselling to address his propensity towards recurrent depression and resorting to alcohol and substance abuse. I also note that Mr Borenstein expressed the view that the applicant had a low risk of reoffending because of the cessation of his drug and alcohol use and his treatment for his major depressive illness.
(d)Courts have noted that he would need long-term treatment and in 2017 the presiding Magistrate noted that the Applicant had taken steps at that time to seek assistance through counselling, communication skills in managing interpersonal conflict.[29]
[29] G-Documentss, G2.
I am unclear as to what, if any, treatment was taken at the time, but any such treatment clearly was not effective and did not prevent him from reoffending.
I note that the Applicant, on at least one occasion, failed a drug test whilst in prison and I found his explanation for consuming cannabis unsatisfactory. He maintained that he was denied access to a drug rehabilitation program whilst in prison because he was not currently experiencing problems with drugs and hence took cannabis to ensure he had dirty urine to enable him to undertake such a program. At the very least this behaviour suggests that the Applicant has difficulty in abstaining from the consumption of illicit drugs.
Even though I accept that the Applicant has not had an opportunity to undergo an appropriate drug rehabilitation program to see if it does have any effect, I am not satisfied, in view of his failure to accept previous opportunities for reform, that any treatment would prevent further offending.
I make the following finding conscious of the fact that the Applicant has completed the following courses:
(i)Crystal methylamphetamine anonymous course;
(ii)EQUIPS Domestic and Family Violence Program;
(iii)A Remand Addiction Program; and
(iv)Fellowship Journey Program.
I only place moderate weight upon these courses, bearing in mind the Applicant’s subsequent failures of urine tests.
Evidence of rehabilitation achieved by the time of the decision
Despite Mr Borenstein opining that the Applicant had shown insight into the drivers of his offending and recommending psychological counselling this is been no effort on the part of the Applicant to undergo such counselling.
An international health and medical services health (IHMS) summary dated 12 May 2021 (Ex 18) noted the following:
(a)As at both 16 December 2020 and 13 January 2021, the Applicant was non-compliant with his medication regime.
(b)In October 2020, the Applicant attended a drug screen and was positive for methadone which had not been prescribed for him.
(c)On the 27 October 2020 the Applicant attended for a further drug screen which was positive for cannabis.
Conclusion: Primary Consideration 1
Accordingly I consider that revocation would place the Australian community at substantial risk because of the serious nature of the offences committed by the Applicant including several involving domestic violence, the nature of the harm that would be suffered by any reoffending, the limited prospects of rehabilitation as evidenced by his failure to take advantage of previous opportunities in the ongoing risk of reoffending.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (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 non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
I have already commentated on the nature and seriousness of the Applicant’s behaviour at paragraphs [29]-[50] where he has been guilty of violent behaviour both towards his former wife and former partner. He has also used emotional blackmail in an attempt to have his former partner resume their relationship when he threatened to commit suicide and very significantly, he has committed serious offences whilst subject of both good behaviour bonds and AVOs.
When dealing with a breach of an AVO and a common assault involving domestic violence in 2017, the sentencing Magistrate stated:
I also make it perfectly clear, [VZWF], you come back before the Court again in relation to a domestic violence related offence and specifically a domestic violence related offence which involves any aspects of physical violence, intimidation or threats towards the complainant in relation to these particular matters the Court will actively consider a full-time gaol sentence. You understand that?
There comes a point, [VZWF], where you need to take responsibility for your particular actions. You need to embrace new systems that is prepared to be provided to you by community corrections in regard to counselling in relation to domestic violence issues. If you fail to do that, at the end of the day, [VZWF], there is only one person you can blame and that is you, yourself and the full weight of the law and expectation of the community will be applied if it is a domestic violence related offence. You understand that?[30]
[30] G-Documetns, G5, 60-61.
The most serious offence was committed against the background of the comments noted above, and the nature and extent of the violence perpetrated by the Applicant in domestic situations mitigates very significantly against the revocation sought.
Conclusion: Primary Consideration 2
Contributory factors in offending
I consider, and have taken into account, the following matters I consider relevant to factors contributing to potential of the Applicant reoffending:
(a)His good behaviour prior to the failure of his business venture which cause severe financial pressure and stress.
(b)His use of methylamphetamine and alcohol which appear to have been used at the time of all his serious offending.
(c)These mental health issues which included a Major Depressive Illness which he, in common with many other sufferers of such illnesses, self-medicated with alcohol and drugs.
(d)His significant health issues occurring in 2017 leading to a diagnosis of heart failure for which he was admitted into intensive care, and tuberculosis.
(e)The sentencing Judges comments upon his inappropriate attitude towards women:
….the offender clearly has some way to go in understanding the respect he needs to show his intimate partners.[31]
[31] G-Documents, G4, 48.
Remorse
I note the following factors to consider relevant to the Applicant’s insight into his offending and remorse.
(a)The evidence presented by his family which I found to be persuasive as to his remorse although it is difficult to ascertain how much is due to the situation in which he now finds himself.
(b)The following comments made by Her Honour when sentencing the Applicant:
So far as the offender’s attitude towards offending, his remorse and any prospects of rehabilitation are concerned, I note the offender’s initial reaction to his offending was denied to the police and provide a false account and to blame Ms P. The plea of guilty was entered late and circumstance were denied sexual interaction but where DNA evidence potentially established otherwise.[32]
(c)The confirmation of his remorse in the psychological report by Mr Borenstein dated 4 December 2019 and his report dated 11 April 2021.[33]
[32] Ibid 48 [56].
[33] Report of Mr Borenstein dated 11 April 2021, 5.
Rehabilitation
I have taken into account the following matters in relation to the potential rehabilitation of the Applicant:
(d)Her Honour’s comments upon sentencing that his mental health and drug issues are such that he needs long-term substantial treatment.
(e)Mr Borenstein opined that the Applicant had shown insight into the drivers of his use of illicit drugs and alcohol and found that he needed psychological counselling to address his propensity for recurrent depression and to avoid a lapse of his alcohol and substance use disorders. He also opined that the Applicant’s risk of reoffending would be significantly lowered with treatment.
(f)Although he completed several courses whilst in custody there was no evidence to suggest that he actually engaged in psychological treatment.
(g)The courses completed by the Applicant, outlined at paragraph [65].
(h)The Applicant commenced medication for the management of his ongoing depressive disorder but as previously noted he was always compliant with medication regimes.
(i)He appears to have been of good behaviour whilst in prison and detention although he has tested positive for drugs on at least two occasions.
Unfortunately, as in most such cases when Applicants are removed directly from prison into immigration detention, their rehabilitation cannot be tested in the community however, as previously noted, the Applicant has failed to take advantage of several previous opportunities to reform.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· 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);
· 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;
· 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;
· 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;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· 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;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has no children of his own but is close to the 10 and eight-year-old sons of his older brother, Mr SS. His younger brother, Mr HS, has a six-year-old son whom, because of his age and the time the Applicant has been in custody, does not have a meaningful relationship with the Applicant.
The Respondent has properly conceded that it may be in the best interest of each of the Applicant’s nephews that the cancellation decision be revoked but I note that the Applicant only appears to have a close relationship with the eldest of Mr SS’s sons, and has had very limited contact with the son of his brother, Mr HS.
Despite being aware of the threats to the Applicant’s former partner and her children, the Applicant’s brothers indicated that they had no fear for their childrens’ safety.
I note that the duration of the relationship with the eight and six-year-old nephews is relatively short, but the Applicant appears to have had some positive influence on the eldest nephew, who has autism, and has the potential to play a positive role in the lives of all his nephews until they turn 18. However, all of his nephews have parents of their own who appear to be caring for them in an appropriate and loving manner, and I received no persuasive evidence of any significant harm or trauma to any of the nephews should the Applicant not be allowed to remain in Australia.
His postive relationship with his nephews has continued through telephone and videocalls whilst in detention, and there is no reason why influence by such means could not continue if removed to India.
Conclusion: Primary Consideration 3
Although I accept that revocation will most likely be in the best interests of the children, for the reasons set out above, I only give this primary consideration moderate weight in favour of revocation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[34]
[34] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)I have had regard, when considering whether the person represents an unacceptable risk of harm, to the principal that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
(b)I have considered both the nature of the harm to individuals with Australian community should the Applicant engage in further criminal rather serious, and the likelihood of further criminal conduct, taking into account information evidence on the risk of the Applicant reoffending.
(c)To that end I have considered the most serious offending occurred after offences, including domestic violence, against his then wife and a series of offences against his former partner. This demonstrates a disturbing trend of the Applicant committing domestic violence offences against his partners often when subject to conditional discharge and AVOs which seem to have had no effect in preventing him from committing further instances of domestic violence against persons sought to be protected by the AVOs.
(d)Despite his former wife’s forgiveness and assertion that she no longer fears the Applicant, I consider there always remains potential for the Applicant to behave in a similar manner with any future partner if he succumbs to temptation of consuming illicit drugs or abusing alcohol. It is relevant that the Applicant failed on drug testing on at least two occasions whilst in custody or detention, and would suggest to me that he will always remain vulnerable to the temptation of illicit drugs.
(e)I also note there is no evidence from his former partner, the subject of the most serious of the charges against him, as to her apprehension or otherwise should the Applicant remain in Australia.
Conclusion: Primary Consideration 4
I find this consideration mitigates strongly against revocation in that the Australian community would expect that a non-citizen who commits several serious domestic violence offences against two partners and commits numerous breaches of AVOs should not be allowed to remain within the community.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d.
(a) International non-refoulement obligations
There was some aspects of this case which at one stage it was suggested may bring into play non-refoulement obligations but, although I have decided that such obligations are not relevant to this case, I set out in full the obligations and parts of the Respondent’s submissions in relation to same.
The major factors which initially caused me some concern were as follows:
(a)Failure to revoke the determination would mean that the Applicant will be removed to India as soon as practicable. This may mean that there would be considerable time before it is considered reasonable to remove the Applicant to India, which means he will spend a significant amount of time in detention.
(b)It is well known and conceded by the Respondent that the risk of contracting COVID-19 far greater in India than it is in Australia.
(c)Because of the Applicant’s history of heart disease, he may be even more vulnerable than average members of the population.
The term ‘non-refoulement’ is derived from Article 33 of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”).[35] It provides:
Article 33. - Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
[35] See Ali v Minister for Home Affairs [2020] FCFC 109.
Non-refoulement obligations are also found in other instruments. Paragraph 9.1 of the Direction relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section l97C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen’s visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non- refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non- citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.l2AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia’s international non- refoulement obligations
I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he/she will face if removed to India in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration.[36] The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a Protection visa application.
[36] See Minister for Home Affairs v Omar[2019] FCAFC 188.
I agree with the following submissions made by the Respondent and find no non-refoulement obligations arise on the evidence in this matter:
A “refugee” is a person who is outside of his or her country of nationality or former habitual residence, who fears persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and has a “well-founded” fear of persecution for a Convention reason.9
The applicant is an Indian citizen, who resided in that country prior to his arrival in Australia. His parents remain in India, and that country would be the receiving country for the purposes of sub-s 5(1) of the Migration Act.
61. The phrase “well-founded fear of persecution” is given meaning in s 5J of the Migration Act, which relevantly provides (subject to qualifications that are not relevant) that a person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
In Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 257 McHugh J observed that:
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.
The reality is that COVID-19 is an infectious disease outbreak that has spread on a global scale. Consequently, all persons face a risk of harm by infection with COVID-19. There is no Convention nexus. The applicant therefore does not have well-founded fear of persecution, and is therefore not a “refugee”.
As the applicant does not meet the “refugee criterion” in sub-s 36(2)(a) of the Migration Act, the question arises then whether he is a person in respect of whom Australia has protection obligations on complementary protection grounds (see sub-s 36(2)(aa)).
“Complementary protection” refers to the legal mechanism for providing protection to a person who does not fall within the definition of refugee in s 5H of the Act, but whose circumstances trigger Australia’s obligations not to return them to their receiving country where they would face farm under other human rights Conventions to which Australia is a party (“non-refoulement obligations”). This is additional, or “complementary”, to the protection given by Australia to refugees.
…
As the Federal Court noted in MZAAJ, s 36(2B) of the Migration Act specifically provides that the risk of significant harm in a country is not taken to include a real risk that the Minister is satisfied “is one faced by the population of the country generally and not faced by the non-citizen personally”: MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478 at [6].
Deprivation of life arising from the COVID-19 pandemic would be due to natural causes and would therefore not be arbitrary.
…
Moreover, the absence or inadequacy of medical treatment in the country of return will generally not amount to a violation of Art 7 of the ICCPR, and therefore not generally meet the definitions of either cruel or inhuman treatment or punishment or degrading treatment: see SZSMQ v Minister for Immigration [2013] FCCA 1768 at [114].
The right to health is recognised under Art 12 of the International Covenant on Economic, Social and Cultural Rights, but it is not considered to give rise to a non-refoulement obligation: see Re 1510755 (Refugee) [2019] AATA 3420 at [18].
The European Court of Human Rights (ECHR) has generally made clear that medical claims will give rise to a violation of Art 7 of the ICCPR (Art 3 of the European Convention) only in “exceptional circumstances”. Relevantly, in D v United Kingdom (1997) 24 EHRR 423, the ECHR found that the removal of D, who was HIV-positive and in the final stages of illness, to his home country of St Kitts would violate Art 3 of the European Convention. At the time of the hearing, D was in the “advanced stages of a terminal and incurable disease” and had been hospitalised: [51]. The ECHR emphasised the “exceptional circumstances” of the case [53], and relied upon a combination of factors to determine that D’s removal would violate Art 3. These factor’s included that:
73.2.1. His removal would hasten his death, and subject him to acute mental and physical suffering;
73.2.2. He would have no prospect of adequate medical or palliative care in St Kitts; and
73.2.3. He would be homeless and have no family ties or other moral support upon return, other than cousin (about whom there was no evidence whether he would be willing or in a positon to attend to the D’s needs): [52].
73.3. However, the ECHR relevantly noted at [54]:
Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3 (art. 3).12
The medical evidence establishes that the applicant is 35 years old male with substance abuse issues, chronic back pain (caused by right-side sciatica), gastro-oesophageal reflux disease (GORD) and insomnia. It also establishes that the applicant has a past history of cardiomyopathy/cardiac arrest and tuberculosis, which have resolved: see IHMS Health Summary Dated 12 May 2021; Insite Radiology Final Report dated 12 October 2020; MRI Lumbar Sour report dated 21 December 2020; see also NSW Justice Release Summary & Transfer of Care dated 9 October 2020; Emergency Department, Discharge Referral eMeds, Final Report dated 29 January 2018; and Letter from Dr Katrina Chau, Renal Physician dated 7 July 2017.
The applicant has provided the Tribunal with 2 webpage print-outs, from the US Centers for Disease Control and Prevention (CDC) and the Australian Heart Foundation (Heart Foundation) respectively.
75.1. The CDC printout relevantly indicates that persons with “heart conditions such as heart failure, coronary artery disease, cardiomyopathies and possibly high blood pressure (hypertension) can make you more likely to get severely ill from COVID-19” (original emphasis).
75.2. The Heart Foundation printout relevantly indicates that “people living with heart disease are more vulnerable to severe complications from the novel coronavirus (also called COVID-19).”
75.3. Neither print-out relevantly indicates whether someone who has previously suffered from cardiomyopathy and/or tuberculosis, which was induced by methylampethamine use, but now appears to have resolved with treatment, would be at greater risk of severe complications from COVID-19.
…
The evidence also establishes that all flights to India, save for those relating to relief, repatriation (of foreign nationals) and humanitarian flights are suspended until the end of the month. All passengers must also have a negative COVID-10 test result prior to their departure to India.
Further, and in any event, given the travel restrictions imposed by the Australian government on travel to India it is doubtful whether it would currently be reasonably practicable to remove the applicant from Australia to India. This may result in prolonged and indeterminate detention (in the sense of detention without a currently known end date), until the risk presented by the virus in India subsides.[37]
[37] Respondent’s closing submissions, 17 May 2021, [59]-[80].
Accordingly there are no non refoulement obligations to be considered.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Although the Applicant’s parents live in India, his mother visits him regularly and has visited him in custody, confirming a close and supportive relationship. His father is a retired vet and there was no evidence to suggest that his parents could not support the Applicant upon his return to India.
I accept that the Applicant will face some emotional hardship upon his return to India due to separation from close family in Australia.
I accept that he will be at greater risk of contracting COVID-19 than if he remained in Australia but have no greater risk than that of the general population. In reaching this conclusion I have considered carefully the medical evidence which one stage seem to suggest that the applicant had an ongoing heart condition which would have rendered him more vulnerable to diseases such as COVID-19 or any variant thereof.
In 2017 a report from Dr Changsiri, which was included in Exhibit 19, notably Applicant had a history of non-ischemic cardiomyopathy.
In one stage his ejection fraction was 20% and as at the date of the report, 27 July 2017, and improved to 31% which was reassuring.”
An undated Final Report but printed on 29 January 2018, also contained in Exhibit 19, noted that the applicant’s “clinical examination is normal (cardiac, respiratory, abdominal).”
The IHMS health summary (Ex 18) dated 12 May 2021, previously referred to, noted:
“Cardiomyopathy cardiac arrest: on arrival to Hill detention, [VZWF] mentioned that he had a past history of cardiomyopathy and cardiac arrest. He stated that he had previously been prescribed medication for this condition, which was ceased as a condition had resolved. IHMS receives a discharge summary from corrections, which confirmed [VZWF]’s history of cardiomyopathy in a previous history of cardiac arrest, which occurred while he was under the influence of methyl amphetamine. No treatment is current indicated for this condition.”
An adjournment was granted to allow the Applicant’s counsel to find any relevant updated medical report to suggest that the Applicant still suffered from a cardiac disease or issues, but none was provided. Accordingly, I am not satisfied that the Applicant still suffers from a cardiac condition that renders him more vulnerable than general members of population to contracting any COVID-19 related conditions.
As well as accepting the Applicant will face emotional hardship upon his return to India due to separation from close family in Australia, I also accept that he will suffer emotional hardship because of the current state of the COVID-19 pandemic in India. He will suffer no language or cultural barriers, and as previously noted there was no evidence to suggest that he would not be economically supported by his parents. Accordingly, I find that there would be significant impediments should there be no revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In the absence of any evidence from one of the victims of the Applicant’s offending and the support shown by his wife who was the other victim, I make no finding of any significant impact on such victims should the decision be revoked.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has resided in Australia for 14 years since arriving at the age of 20. During this time he has demonstrated a willingness to contribute to the Australian community and economy through his business venture, although I note this has not been successful for the Applicant. I find that the Applicant has family and social ties in Australia including:
(a)Two brothers age 37 and 33 and a 37-year-old sister-in-law, of whom the Applicant’s older brother appears to be an Australian citizen.
(b)The three nephews already referred to aged 10, seven and six.
(c)A network of friends who are willing to support the Applicant in Australia, although it is unclear if any of his friends are citizens, permanent residents or people who have a right to remain in Australia indefinitely.
(d)His ex-wife was supportive but also indicated that she doesn’t expect to have any further contact with the Applicant.
I find that non-revocation will result in emotional hardship to the Applicant’s eldest brother and two older nephews.
I find the Applicant has spent a moderate amount of time in Australia and has made some positive contribution to the Australian community. In view of the fact that the Applicant has no wife, current partner or children and, despite a close relationship with his brother and oldest nephew, I only place a moderate weight on this consideration.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
(a)Primary Consideration 1: protection of the Australian community
For the reasons outlined above at paragraph [69] I place considerable weight upon this consideration mitigating against revocation.
(b)Primary consideration 2: family violence
I also place considerable weight upon this consideration weighing against revocation because of the serious nature of the domestic violence offences committed against both his former wife and a partner including breaching the conditions of a conditional discharge and AVOs.
(c)Primary consideration 3: best interests of minor children in Australia
Although I have found that revocation would be in the best interest of the Applicant's nephews, as previously indicated I only place moderate weight upon this consideration.
(d)Primary consideration 4: expectations of the Australian community
For the reasons outlined in paragraph [93] above I find this consideration weighs strongly against revocation especially bearing in mind the community's attitude towards those who commit offences involving domestic violence.
(e)Other Considerations
(i)International non-refoulment obligations
I've already found that no international non-refoulement obligations are relevant in this matter.
(ii)Extent of impediments if removed
As noted at paragraph [111] above I found that the Applicant would suffer significant impediments if removed from the jurisdiction and, because of the COVID-19 pandemic situation in India I placed considerable weight upon this consideration.
(iii)Impact on victims
Having previously found that there was no considerable impact on the victims of the Applicant’s offending upon revocation, I place little weight upon this consideration.
(iv)Links to the Australian community
Although I have found that non revocation will result in emotional hardship to the Applicant’s eldest brother, together with his eldest nephew, for the reasons set out in paragraph [117] I only apply moderate weight to this consideration.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
.........................[sgd]...............................................
Associate
Date of hearing: 12-13 and 18 May 2021 Counsel for the Applicant:
Mr Paul Cutler
Edmund Barton ChambersCounsel for the Respondent Mr Jon Papalia
Australian Government SolicitorsDated: 24 June 2021
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
1 G-documents Respondent Various 24 March 2021 2 Tender bundle of summonsed material Applicant Various 5 May 2021 3 Statement of VZWF Applicant 14 April 2021 14 April 2021 4 Applicant’s bundle of documents Applicant Various 7 May 2021 5 Report of Mr Sam Borenstein Applicant 11 April 2021 14 April 2021 6 Statement of Mr SS Applicant 14 April 2021 14 April 2021 7 Statement of Mr HS Applicant 14 April 2021 14 April 2021 8 Statement of Mr RS Applicant 13 April 2021 14 April 2021 9
Statement of Mr PS
Applicant
13 April 2021
14 April 2021
10
Statement of Mr AS
Applicant
13 April 2021
14 April 2021
11
Statement of Ms CR
Applicant
12 April 2021
14 April 2021
12 Centre for disease control and prevention – people with certain medical conditions Applicant 29 April 2021 13 May 2021 13 Covid-19 and Heart disease: all you need to know Applicant 12 May 2021 13 May 2021 14 Blacktown Hospital discharge summary Applicant 29 January 2018 13 May 2021 15 Blacktown Hospital discharge summary Applicant 29 May 2017 13 May 2021 16 Western Sydney local health document Applicant 29 June 2017 13 May 2021 17 Email chain regarding impediments to removal to India Respondent Various 13 May 2021 18 IHMS Health Summary Respondent 12 May 2021 13 May 2021 19 Assorted Cardiology reports 2017-18 Respondent Various 13 May 2021 20 NSW Justice Release Summary & Transfer of Care Respondent 9 October 2020 13 May 2021 21 IHMS Drug & Alcohol Induction Screening Respondent 12 October 2020 13 May 2021 22 Insite Radiology – Final Report Respondent 12 October 2020 13 May 2021 23 NSW Health MRI Lumbar Spine report Respondent 11 November 2020 13 May 2021 24 Rayscan Imaging MRI Lumbar Spine report Respondent 21 December 2020 13 May 2021 25 Douglas Handley Moir Pathology Urine Drug Analysis Respondent 26 October 2020 13 May 2021 Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2021/1466
General Division )
Re: VZWF
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: A G Melick AO SC, Deputy President
DATE: 27 May 2021
PLACE: Hobart
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 3 March 2021 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
.......................[sgd]...................................
A G Melick AO SC, Deputy President
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
-
Remedies
0