Waghorn and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3180
•26 September 2023
Waghorn and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3180 (26 September 2023)
Division:GENERAL DIVISION
File Number: 2023/4903
Re:Aron Waghorn
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Julian-Armitage
Date of Decision: 26 September 2023
Date of Written Reasons: 6 October 2023
Place:Brisbane
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 July 2023 to not revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa.
..................................[SGD]................................
Member Julian-Armitage
Catchwords
MIGRATION – Cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under section 501(2) of the Migration Act 1958 (Cth) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81Walker v Minister for Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member Julian-Armitage
26 September 2023
INTRODUCTION
Mr Aron Waghorn (‘the Applicant’) is a 36-year-old man, born in New Zealand in January 1987. He initially arrived in Australia in June 1997. He came to reside in Australia on a permanent basis in July 2010 and has not departed since. He was granted a Class TY Subclass 444 Special Category (Temporary) Visa (‘the Visa’) upon arrival which is the subject of this application.
On 26 August 2022, while the Applicant was serving a fulltime custodial term of imprisonment, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) as this full-time custodial sentence[1] caused his failure pass the character test. On 26 August 2022, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his Visa.[2]
[1] G1, p 107.
[2] G1, pp 68-70.
On 3 July 2023, a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation.[3] This decision was delivered to the Applicant by hand the following day.[4] On 7 July 2023, the Applicant lodged the instant application in this Tribunal seeking review of the non-revocation decision. I am satisfied that this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
[3] G1, p 13.
[4] G1, p 10.
The hearing of this application proceeded before me on 13 and 14 September 2023. Oral evidence was received from;
·the Applicant;
·Ms Janene Clemence; and
·Mrs Tammey Nichols (the Applicant’s mother).
The Tribunal also received written evidence and the totality of that material was consolidated into Exhibit List,[5] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
Due to the Applicant’s ‘substantial criminal record’ giving rise to him being sentenced to a term of imprisonment of three years in November 2021.[6] Accordingly, I find that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[6] Pursuant to ss 501(6) (a) and 501(7)(c) of the Act.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In the present case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) applies.[7]
[7] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
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 8.55(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 8 of the Direction sets out five Primary Considerations that the Tribunal must take into consideration which are as follows;
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account which are the following:
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels 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.
As best as I understood the material, there is no reference to offences committed by the Applicant outside of Australia. He has compiled a relatively lengthy history of criminal offending in this country. In terms of sentencing episodes, his criminal history runs from April 2005 to November 2021 and is summarised thus:
Court Date Offence Sentence Queensland District Court
November 2021
Assaults Occasioning Bodily Harm (x2)
Conviction recorded
Imprisonment: 3 years
Serious Assault–Assault/Resist/Obstruct Police Officer/Person Acting in Aid of Police Officer
Conviction recorded
Imprisonment: 12 months
Common Assault (3 charges)
Obstruct Police Officer
Conviction recorded
Imprisonment: 1 month
Possessing Dangerous Drugs
Conviction recorded
Imprisonment: 7 days
Queensland Magistrates Court
July 2019
Failure to Appear in Accordance with Undertaking
Conviction recorded
Imprisonment: 1 month
Suspended for: 12 months
Obstruct Police Officer
Conviction recorded
Fined: $800
Queensland Magistrates Court
February 2019
Possessing Dangerous Drugs
Conviction recorded
Fined: $500
Queensland Magistrates Court
April 2018
Trespass – entering or Remaining Yard or Place for Business
Conviction recorded:
Fined: $300
Queensland Magistrates Court
February 2018
Commit Public Nuisance
Conviction recorded
Fined: $700
Queensland Magistrates Court
February 2018
Being Intoxicated in a Public Place
No conviction recorded
Fined: $50
Queensland Magistrates Court
January 2018
Unauthorised Dealing with Shop Goods (Maximum $150)
Conviction recorded
Fined: $150
Queensland Magistrates Court
October 2017
Trespass – entering or Remaining Yard or Place for Business
Conviction recorded
Fined: $250
Possessing Dangerous Drugs
Conviction recorded
Fined: $800
Stealing
Conviction recorded
Fined: $350
Contravene Direction or Requirement (2 charges)
No conviction recorded
Not further punished
Queensland Magistrates Court
May 2017
Possess Utensils or Pipes Etc That Had Been Used
Conviction recorded
Fined: $300
Queensland Magistrates Court
March 2016
Assaults Occasioning Bodily Harm
Conviction recorded
Imprisonment: 15 Months
Commit Public Nuisance (2 charges)
Assault or Obstruct Police Officer
Breach of Bail Condition (5 charges)
Possess Utensils or Pipes Etc that Had Been Used
Possession of a Knife in a Public Place or School
Conviction recorded
Imprisonment: 14 days
Enter Dwelling With Intent By Break Damages Property
Conviction recorded
Imprisonment: 6 months
Breach of Bail Condition (2 charges)
No conviction recorded
Not further punished
Queensland Magistrates Court
March 2015
Possession of a Knife in a Public Place or a School
Conviction recorded
Fined: $1000
Queensland Magistrates Court
June 2014
Breach of Bail Condition (2 charges)
Conviction Recorded
Fined: $200
Queensland Magistrates court
May 2014
Failure to Appear in Accordance with Undertaking
Conviction Recorded
Community Service time: 40 hours
Queensland Magistrates Court
November 2013
Failure to Appear in Accordance with Undertaking
Conviction recorded
Fined: $800
Queensland Magistrates Court
January 2013
Commit Public Nuisance
Conviction recorded
Fined: $500
Queensland Magistrates Court
October 2012
Commit Public Nuisance
No conviction recorded
Fined: $500
Queensland Magistrates Court
June 2012
Contravene Direction or Requirement
No conviction recorded
Fined: $800
Queensland Magistrates Court
February 2011
Wilful Damage of Police Property
No conviction recorded
Fined: $750
Wilful Damage
Trespass – Enter or Remain in Dwelling or Yard (2 charges)
Assault or Obstruct Police Officer
Commit Public Nuisance
Fail to Properly Dispose of Needle and Syringe
No conviction recorded
Fined: $1000
Queensland Magistrates Court
December 2009
Urinating in a Public Place
No conviction recorded
Fined: $150
Queensland Magistrates Court
March 2006
Enter Premises and Commit Indictable Offence (5 charges)
Enter Dwelling and Commit Indictable Offence (2 charges)
Enter Premises with Intent (2 charges)
No conviction recorded
Probation: 18 Months
The Applicant has also compiled a traffic history during his time in Australia. It runs from June 2008 until August 2022.[8] His traffic offences are, in the main, related to drink driving whilst unlicenced leading to disqualification/suspension of his licence.
[8] R2, pp 308-309
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
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 the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a): this sector of the Direction specifies that offences committed within the ambit of subparagraphs (i), (ii) and/or (iii) are viewed very seriously by both The Australian government and the community. The Applicant’s criminal history evidences convictions for the commission of crimes that fall squarely within this subparagraph.
The Applicant was convicted of two assaults occasioning bodily harm committed on 9 and 12 November 2019. The victim of the first of these convictions was the Applicant’s house mate who was celebrating his birthday with a party at home. The Applicant, who was in an intoxicated state, engaged in an argument with a person at the party. The victim attempted to stop the argument which further enraged the Applicant who then proceeded to physically attack the victim repeatedly punching him and shoving him into walls and a fence.[9] The victim suffered physical, emotional and financial harm as a result of the assault.[10]
[9] R2, pp 2-3.
[10] Ibid, pp 4-5.
On 16 November 2019, the Applicant assaulted a person with whom he had previously shared accommodation with and had know for a lengthy period. The Applicant had aggressively insisted that the victim go to the Applicant’s residence in order to repair his stereo. The victim, at first was disinclined to attend and advised that he could not assist. At the Applicant’s residence, the victim was “encouraged” to drink alcohol with the Applicant and decided to stay the night. The victim’s next recollection was awaking in intense pain and covered in blood. He was found laying on the grass with his face black and blue and his clothing and skin ripped. Whilst waiting for the Police to arrive, the Applicant again approached the victim and kicked him.[11] The sentencing Judge commented that the Applicant had beaten the victim to “a pulp”.[12]
[11] R2, pp 6-9.
[12] Ibid, p 10.
The Applicant was convicted of assault occasioning bodily harm on 23 March 2016. The victim on this occasion was a female who claimed to be in a relationship with the Applicant. At the hearing before me, the Applicant denied having been in a relationship with the victim stating that he they were friends and that he had only been intimate with her once. Regardless of the nature of the relationship, the Applicant was convicted of the offence described by the sentencing Judge as involving “prolonged physical violence”. The offence took place after both the Applicant and the victim had consumed alcohol and were in a park waiting for a phone call to the Applicant from “his drug dealer”. The Applicant was shouting at the victim words to the effect that he loved her and leaned forward towards her making gesture that he was going to kiss her but instead punched her in the face and proceeded to slap and push her. The victim attempted to escape but was prevented by the Applicant who pulled her back to him and dragged her whilst hitting her into the bushes of a carpark.[13]
[13] Ibid, p 188.
The Applicant’s unsigned statement and undated statement mentions a Domestic Violence Order placed against him in July 2019. The aggrieved, for which the Police were called, was the Applicant’s stepfather. The Applicant gave evidence of a long and acrimonious relationship with his stepfather which had a long history dating back to when he was just a boy. He stated that his stepfather had become aggressive verbally abusing his mother and that the Applicant retaliated. Shortly after this incident, the aggrieved stepfather left the household and returned to New Zealand.
In light of the nature of the Applicant’s above-mentioned convictions, it is clear that the offending falls well within the parameters of subparagraphs (i), (ii) and (iii) and is, therefore, comfortably to be considered offending that is very serious reflected in the duration of the sentences the Applicant received.
Sub-paragraph 8.1.1(1)(b): this area of the Direction contemplates the nature of crimes that may be considered as serious by the Australian government and the community. The Applicant’s criminal history does not contain offences of the nature contemplated by subparagraph (i). Further, there does not appear to be any conduct by the Applicant which could form the basis of a finding that he does not pass the character test dependant on this decision maker’s opinion.[14]
[14] Paragraph 8.1.1(1)(b)(iii) of the Direction.
There are a number of relevant offences against government representatives or official in the performance of their duties. He has conviction in breach of subparagraph (ii) in 2011 for assault or obstruct police officer, 2019 for obstruct a police officer and 2021 for serious assault-assault/resist/obstruct police officer/person acting in aid of police officer and 3 charges of common assault, obstruct a police officer. This conduct was the subject of terms of imprisonment of 12 months for the most recent conviction and 1 month imprisonment and $800 fine respectively for the other conviction in this genre. This is conduct which undeniably falls within the ambit of this subparagraph and can only give rise to a finding that his offending has been serious.
Sub-paragraph 8.1.1(1)(c): the considerations required in applying this subparagraph precludes me from taking into account the sentences that were imposed on the Applicant for the following;
(a)Any violent offending committed against women;
(b)Acts of family violence; and
(c)Any sentence received relating to conduct causing a person to enter into or become a party to a forced marriage.[15]
[15] Paragraphs 8.1.1(1)(a)(ii) & 8.1.1(1)(b)(i) of the Direction.
The Applicant’s criminal history does not include any offending which may fall within the ambit of (c). Offending related to (a) and (b) have been appropriately considered elsewhere in these Reasons. Therefore, the remainder of the offending on some 50 occasions for a variety of offences involving:
·12 convictions for failure to appear (3) and breach of bail conditions (9) (variety of sentences from 1 month suspended to $800 fine, 40 hours community service, $200 fine and sentences that were combined with sentencing for other offences dealt with concurrently).
·3 convictions for possession of a dangerous drug (sentenced to 7 days imprisonment, $500 fine with conviction recorded and $800 fine with conviction recorded)
·2 convictions for possess utensil or po\pipe that had been used ($300 fine and conviction recorded and concurrent sentence of 14 days imprisonment with other convictions)
·1 conviction for failure to properly dispose of a needle and syringe ($1000 fine in combination with other charges)
·2 convictions for possession of a knife in a public place or school (sentenced to 14 days in combination with other convictions and $1000 fine and conviction recorded)
·4 convictions for trespass- entering or remaining in yard or business (fined $300, $250 and $1000 with convictions recorded)
·10 convictions for enter dwelling with intent (sentenced to 6 months imprisonment and 18 months’ probation)
·1 conviction for stealing (fined $350 conviction recorded) and 1 conviction for receiving (reprimanded no conviction recorded)
·A number of public nuisance convictions, (fined various amounts on each count no convictions recorded on some)
The sheer frequency of the applicant’s non-precluded offending coupled with the nature of the offending leads me to form the view that this Applicant has demonstrated a blatant disregard for lawful authority. The sentences imposed for the Applicant’s non-precluded offending may be split into two categories. The imposition of custodial sentences of 6 months, 14 days and 7 days should be viewed with a degree of seriousness, as the imposition of a custodial sentence is the last resort in the sentencing hierarchy.
The Applicant’s remaining sentencing regimes may be viewed in milder terms. With a range of fines, probations, and community service orders imposed throughout his history.
The imposition of a 6-month custodial sentence for his 10 convictions for entering dwelling with intent should be viewed as serious.
The nature of a large number of the offending relevant to this subparagraph reflect a tone a conduct that is open to a finding that it is serious in nature.
Sub-paragraph 8.1.1(1)(d): it is without question that the Applicant’s offending has involved a pattern of frequency over a period of 17 years. He has amassed some 59 convictions over that period which leads me to a finding that the Applicant’s offending has been frequent in nature.
The second limb of this subparagraph requires consideration of whether there has been a crescendo in the seriousness of the Applicant’s offending. The increase in the seriousness of the offending is clearly evident across the Applicant’s lengthy history of offending, there has been a progressive increase in seriousness. His early offending in Australia (with exception of the enter premises charges) can be characterised as a petulant disregard for public order and an ongoing habit of recklessly consuming illicit substances. There is a notable graduation in his offending in 2016 where he crosses the threshold into violent offending, which continues until his most recent convictions for Assaults Occasioning Bodily Harm. These violent crimes leading to the imposition of a term of 3-year custodial sentence in November 2021 is clear evidence that there has been a steady increase in the seriousness of his crimes.
Therefore, the frequency and undeniable increase in seriousness of the Applicant’s offending support a finding that his offending has been very serious in nature.
Sub-paragraph 8.1.1(1)(e): there are a number of cumulative effects that are evident from the Applicant’s criminal history. The violent nature of his most recent offending, which, on all accounts appeared to be unprovoked, is testimony of the cumulative nature of the offending. Whilst there has been violent offending in the Applicant’s history including an assault on a female who claimed to be in a relationship with the Applicant (convicted in March 2016)[16]. In addition, there have been a number of domestic violence orders dating back to 2014 with the Applicant’s stepfather as the aggrieved that remains in force till 22 July 2024[17].
[16] R2, p 188.
[17] R2, p 51
I am of the view that the identified cumulative effects of the Applicant’s offending favour a view, and I find, that the nature of his unlawful conduct in Australia has been very serious.
Sub-paragraph 8.1.1(1)(f): there is nothing before me to indicate that any such false or misleading information has been provided to the Minister.
Sub-paragraph 8.1.1(1)(g): there is nothing in the material before me to show that there has been any written formal warning in relation to the consequences, on his visa status and ability to not remain in Australia, should the Applicant continue to offend.
Sub-paragraph 8.1.1(1)(h): there is no material or evidence that the Applicant has any convictions in another country. Therefore, this subparagraph is not relevant.
Conclusion about the nature and seriousness of the Applicant’s conduct
In applying the evidence before me to the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction, I am satisfied, and find, that the Applicant’s conduct in this country has been very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(i)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(j)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 the most recent offence; and
(k)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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
It is undeniable that, based on the Applicant’s criminal history, there are convictions for extremely violent crimes. There can be no doubt that should he re-offend in the vein of these past offences, the nature of harm to his victim/s would be significant serious and conceivable potentially lethal. A similar result could arise should he again drink and drive.
If the Applicant were to commit any of the other non-violent offences, whilst the nature of the immediate harm could be viewed as less significant, it would, nevertheless, lead to the use of law enforcement and administration of justice resources in order to protect the community and ensure that the property of members of the community is secured.
In the circumstance, I am led to the conclusion that the nature and seriousness of harm that would be caused, should the Applicant reoffend, would be so serious that it would be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Assessment of recidivist risk
Throughout the hearing of this matter, the Applicant professed that he was a changed person and that he has put his offending behind him. He claims to have availed himself of mental health services and opioid replacement therapy as well as done a number of rehabilitation course and has furnished this Tribunal with completion certificates, relevant to his rehabilitation, for the following courses and material:
·Ongoing engagement in Lives Lived Well
·Introduction to Drug and Alcohol Awareness, DrugArm and Drug Replacement Therapy and involvement in IHMS counselling
·Fundamentals of Trauma Processing
·Anger Management and Conflict Resolution
·Fundamentals of Domestic Violence and Conflict Resolution
I note the Respondent view that the Applicant’s attempts at rehabilitation have been largely undertaken of late and are in the nature of “token remorse, not full commitment with clinical professionals.” I tend to agree with this view in light of the Applicant professing to change his life around in the past with no evidence that anything was done to do so.[18]
[18] G1, pp 51, lines 20-46; p 52, lines 1-16.
Ms Janene Clemence, from DrugARMS, provided a statement and gave evidence at the hearing. Ms Clemence holds impressive qualifications and gave a summary of her dealings with the Applicant which consisted of weekly sessions where they discuss a series of different issues. Ms Clemence testified that she had been involved with the Applicant’s treatment since November 2022. Despite her impressive qualification, Ms Clemence does not hold any clinical qualifications in relation to the issue of recidivism, Ms Clemence was only able to provide a vague overall re-offending percentage of those engaged in treatment through DrugARMS without any hard evidence of its accuracy or the risks in relation to the Applicant. Suffice to say that there was little to no well-founded and unequivocable evidence from anyone qualified to furnish such evidence that provides me with any comfort that the Applicant is unlikely to reoffend. This Applicant has a long history of offending coupled with drug and alcohol dependency without any treatment for these concerning issues being tested in the community. In addition, there have been previous occasions when he has professed to have gotten some insight into his offending. As referred to above, the Applicant appeared in the Beenleigh Magistrates Court on 24 July 2019 and when asked by the Bench when he was going to wake up to himself, he responded “Today”. Despite this declaration, the Applicant continued offending through to November 2019 including the offences for which he was sentenced by the District Court to 3 years imprisonment with Bryne DCJ commenting that there was a need for community protection.[19]
[19] G1, p 46, [19].
Given that the Applicant has professed to being a changed person in the past yet continuing to offend, I am not convinced, nor do I have any confidence, that what he is currently saying in relation to his recidivism risk is realistic. I come to this view due to both his past utterances in this respect and to the fact that the risk is untested in the community where undoubtedly, he will have to face the vicissitudes of life including those that have led him to offend in the past. The rehabilitation undertaken is still it its very early days (DrugArm only since November 2022 and once weekly) and not in an environment of being at large in the community.
The Applicant has stated that he would be living with his mother and working in her painting business should his cancellation of his visa be revoked. However, this situation, based on his mother’s evidence, cannot occur as she is in the process of closing down the business and in fact now works full time elsewhere as an employee. I also harbour concerns with respect to his mother being of any assistance with the Applicant’s rehabilitation as, on her own evidence, she has not history of having any influence over the Applicant’s past offending or drug and alcohol issues.
For these reasons, coupled with the paucity of clinical evidence to assist with a well-founded finding in relation to the Applicant’s risk of recidivism, I can but speculate, which I am able to do.[20]
[20] Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81
Accordingly, I am of the view that the Applicant harbours a number of unresolved issues which lead me to find that there is a real likelihood of re-offending which could be triggered by the daily vicissitudes of life.
Conclusion: Primary Consideration 1
With respect to the weight attributable to Primary Consideration 1, I have found that the nature and seriousness of the totality of the Applicant’s conduct in Australia has been very serious. I have also found that should he re-commit any of the violent offending including domestically, there would be very serious physical, psychological and potentially tragic outcomes which would be suffered by his victims. This type of offending and the harm that it has caused, particularly so in respect to women, were it to be repeated, would be considered at a level of such seriousness that the Australian community would have no appetite for such a risk. The actual likelihood of re-offending has been untested in light of the Applicant’s unresolved issues and the stressors he would face, like any other person, in the community.
In the circumstances of this matter and given the evidence, I find this Primary Consideration 1 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The 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).
2This 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.
3In 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.
The Applicant admits that he has engaged in acts of domestic violence which have given rise to 2 domestic violence orders having been issued. The most recent of such orders is still active till July 2024 where the victim was his stepfather. On an earlier occasion in 2015, the aggrieved was his then partner. There was also an incident which gave rise to a conviction of assault occasioning bodily harm which was dealt with in the Southport Magistrates Court where the Applicant was sentenced on 23 March 2016. The Magistrate described the offence as a “serious assault” and went on to say that “to a certain extent there was prolonged physical violence…it is a very, very serious offence”.[21] In relation to this offence, the Applicant denies being in a domestic relationship with the victim. However, he did admit to having had some intimacy with the victim which could be viewed as falling within the definition of family violence.[22]
[21] G1, p 54, lines 12-21.
[22] Para 4(1) of the Direction
In relation to the most recent domestic Violence Order following the violent attack on the Applicant’s stepfather, the Police report describes the attack in the nature of being characterised as a high level of physical violence due to the stepfather leaving to return to New Zealand. The Applicant denied this as being the reason for the attack which continued even after the victim was on the ground and unconscious. His version of events was that he was defending his mother as his stepfather was making disparaging comments about her. The Police report states that the Applicant and the victim, together with others at the gathering had been drinking. In light of the Applicant’s own admission in relation to his drug and alcohol issues, I am inclined to give more weight to the version of events contained in the Police report.
Whilst the Respondent admits that the evidence does not support a finding that the Applicant’s conduct in relation to domestic violence has been frequent, I it is clear that it has escalated in seriousness from verbal abuse to actual violence and prolonged violence as in the case of his stepfather. Furthermore, I am satisfied and find that there is a clearly discernible increase in seriousness to be gleaned in the domestically violent conduct of the Applicant.
As mentioned above, the evidence is that the Applicant completed a Fundamentals of Domestic Violence and Abuse, the certification of completion dated 16 July 2023. This appears to be the only rehabilitation course that he undertook which specifically deals with this type of offending. There has been no evidence led as to the duration of the course and why the Applicant did not seek to undertake this or a similar course soon after the offending occurred or throughout the time that he was serving his sentence.
I have taken all of the evidence in relation to this Primary Consideration 2 into consideration and find that the relevant offending weighs heavily against the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
The Applicant has been in Australia since he was 10 years old. Save for a couple of trips he made back to New Zealand, he has spent the better part of his life here. His immediate family consists of his mother and brother, Ryan who lives here in Brisbane. On the evidence, he claims to be close to his mother and that he is her primary caregiver (due to her sustained injuries. This claim was not corroborated by the mother who stated that she works full-time for a foodchain (7/11) and did not state that she was in need of a caregiver. The mother also stated that her contact with the Applicant whilst he has been incarcerated and of late in detention, has been by phone only. The Applicant stated that she has been too busy to visit him in detention when he was question in this regard. In relation to his brother Ryan, little information has been led in respect to the relationship he has with his half-brother. Of note is that there Ryan provided a statement which did not deal with whether or not he and the Applicant were close and enjoyed a strong bond. It merely spoke to the issues the Applicant has faced over the years and his desires for his brother to seek “correct mental services”.
He claims to be in a de facto relationship with a woman who also lives in Brisbane. All three of his immediate family are Australian citizens. From the evidence before me, it appears that he is closest to his mother and partner. The Applicant’s written material and oral evidence stated that he is his mother’s full-time carer as she suffered an accident some time ago that has left her with severe back issues and pain. The Respondent has taken issue with this part of the evidence on a number of fronts including that the mother has coped perfectly while the Applicant was incarcerated. Furthermore, the mother’s evidence did not raise any health issues requiring the Applicant’s to adopt the role of “care giver”. The mother, in fact, stated that she could travel to visit the Applicant in New Zealand should he be required to return there. I agree with the Respondent and, therefore, give no weight to this aspect of his evidence. In addition, the Applicant’s evidence was that he had had conversations with his partner in relation to the possibility of having to return to New Zealand with the partner advising that she would “do anything for him and was willing to relocate there”. On my understanding of the evidence, the Applicant has not had his birth father in his life and does not know him or where he lives.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
The Applicant’s partner’s 2 female children are adults in their twenties. There was no suggestion by the Applicant that he occupies a parental role with these women only that he has a good relationship with the younger one. No evidence was provided, either in written or oral form, to suggest that the Applicant enjoys a close relationship with these adult children of his de facto. Hence, I allocate no weight to this subparagraph.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
In addition to the above 3 members of the Applicant’s immediate family, he has 2 cousins and an uncle here in Australia. His cousin, Carla Jenkins has provided a statement attesting to the Applicant’s relationship with her 3 children. The Applicant also gave evidence that he was particularly close to one of these children, Child WJ, who is 7 years old. The evidence is that she calls him regularly. There is no indication that the Applicant occupies a parental role with respect to this child or his cousin’s other 2 adult children, Danika and Avery are 22 and 21 years old.
In addition to the abovementioned members of the Applicant’s immediate family, he has 2 cousins and an uncle in Australia. His Cousin, Ms Carla Jenkins has provided several statements that contain information attesting to her relationship with the Applicant and his connection to her three children. The Applicant has given evidence regarding his relationship with Ms Jenkins’ youngest child, Child WJ, who is seven-years old. The Applicant maintains close contact with Child WJ via telephone. When he was in the community, the Applicant with his partner, ‘babysat’ Child WJ on several occasions. Ms Jenkins has also stated the important role the Applicant has played in her life. There is little evidence regarding Ms Jenkins’ other children, Danika and Avery, both of whom are adults in their early 20s. There is nothing, in my view, to hamper the relationship with WJ as she can still maintain the level of contact she currently enjoys in the same manner as she has done to date and of late (by phone).
There are two statements of Mr Troy Jenkins in the material. In his evidence, the Applicant outlined that he has regular contact with Troy and they regularly went to each. This man is the Applicant’s cousin who has provided a statement in support of the Applicant remaining here in Australia. The statement speaks to the Applicant’s positive characteristics and the position he has within the family.
While mentioned in his Personal Circumstances Form, Mr Shane Jenkins has not provided a statement in this matter. The Applicant’s evidence outlines that Shane drives trucks and he is normally seen on holidays.[23] This cousin did not provide a statement nor did attend the hearing to give evidence or support. As mentioned above, the Applicant has family ties here in Australia. However, there was a paucity of evidence to show what, if any, social ties he has here. Hence, for that reason, I can only surmise that his main ties are those of the family, including his partner, mentioned above.
[23] Transcript, p 50, lines 1-5.
Whilst I give some weight to the Applicant’s ties to his family in Australia, the weight is moderate in the circumstances. Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires us to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years. There is no argument that the Applicant has spent a major part of his life in Australia, arriving when he was just 10 years old and that, at least part of that time, would be considered to have formed part of his formative years.
(b)whether the Applicant has positively contributed to the Australian community during his time here. He has received his education and has learnt his trade in Australia which presumably saw his make positive contributions to the Australian community through the payment of taxation.
(c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here? It is evident that that the Applicant has spent his formative years in Australia. He came to permanently reside in Australia in 1997 and began to offend in 2005. It cannot be found that he began offending soon after arriving here. Accordingly, the weight allocable to the strength of the Applicant’s length of time in Australia cannot be impugned.
Accordingly, I am of the view (and find) that based on my analysis of the evidence around paragraph 8.3(4)(a)(i) and (ii) of the Direction, some weight is allocable to this paragraph 8.3(4) in favour of the Applicant.
Conclusion: Primary Consideration 3
In the circumstance, the length of time the Applicant has spent in Australia including the throughout some of his formative years together with the various ties he has in Australia, warrants a finding that militates moderately in favour of a finding to revoke the mandatory visa cancellation.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(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 8.4(2) and 8.4(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.
Sub-paragraph 8.4(4) of 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:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of the relevant minor children
Child WJ, Avery and Danika are the children of Ms Carla Jenkins. On the evidence, Avery and Danika are aged 21 or 22 and fall beyond the scope of this paragraph. Child WJ is seven-years old and is relevant for the purposes of this Primary Consideration.
The Applicant’s partner’s 2 female children are adults in their twenties and fall beyond the scope of this part of the Direction.
Application of factors at 8.4(4) of the Direction to the relevant minor children
The Applicant gave evidence that he was particularly close to one of Ms Jenkins’ children, Child WJ. The evidence is that she calls him regularly. On the evidence, the Applicant does not appear to have had any contact with this child other than by telephone which I am assuming has only been since he completed his sentence and has lived in the detention centre where he has been able to receive call. It is worth mentioning that the Applicant voiced no objection to the Respondent’s suggestion that this relationship could well be maintained if he were to return to New Zealand. There has been no suggestion that the relationship is anything other than a non-parental one which could easily be maintained if the Applicant were to be living in New Zealand.
Conclusion of Primary Consideration 4
Given these findings, I give a moderate level of weight to this Primary Consideration 4.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[24] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[25]
[24] Paragraph 8.5(3) of the Direction.
[25] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a 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:[26]
(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.
[26] Paragraph 8.5(2) of the Direction.
As discussed above, I have found that the Applicant has committed offences that invoke the operation of (a) with respect to family violence, (c) in relation to the assault against a woman and (d) by virtue of his convictions for ‘contravene direction or requirement’ and ‘serious assault -assault/resist/obstruct Police Officer/person acting in Aid of Police’. These convictions mean that the Australian community expect that the Australian government can and should refuse to set aside the mandatory cancellation of the Applicant’s visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[27]
(c)Australia will generally 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;[28]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[29] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Consideration of Primary Consideration 5
[27] Paragraph 5.2(4) of the Direction.
[28] Ibid.
[29] Paragraph 5.2(5) of the Direction.
The terms ‘limited stay visa’ is not defined in the Act. The Applicant held a TY subclass 444 Special Category visa until the operation of the mandatory cancellation the subject to these proceeding. This visa allows New Zealanders to remain in Australia indefinitely. Hence it cannot be classified as a limited Stay visa.[30] This subparagraph is irrelevant to the Applicant.
[30] Walker v Minister for Home Affairs [2020] FCA 909.
In respect to subparagraph (b), the Applicant has, in the main, lived in Australia since he was 10 years of age and is now 36 years old. He has worked in this country and would have made contributions to the Australian community during his time here which, on any accounts, cannot be view and as a ‘short period’. Therefore, the Australian community ‘s tolerance is not lowered by this part of the principles contained in the Act.[31]
[31] Section 5.2(4) of the Act
In respect to subparagraph (c), the Applicant has lived in Australia for over two thirds of his life which translated to the Australian community having a higher than usual tolerance of the criminal or other serious conduct by the Applicant.
In respect to subparagraph (d), as mentioned prior, the Applicant has spent a great deal of time which could be interpreted to be parts of his formative years in Australia. Therefore, the Australian community’s tolerance is higher than usual of his criminal or other serious conduct.
In respect to subparagraph (e), I am of the view that the Applicant’s violent offending has been such that the magnitude of the resulting harm, particularly in relation to a woman and Police, dispels any applicable countervailing consideration which may have otherwise applied to him pursuant to this subparagraph.
In respect to subparagraph (f), I find that the Applicant’s offending has been such that even the strong countervailing consideration which could favour his case do not assist him.
Conclusion: Primary Consideration 5
Considering the above subparagraphs (a) to (f) of these reasons, I am of the view that the Australian community’s expectations are not modified to the extent that the community does not hold a higher tolerance than usual of the Applicant’s criminal and other conduct. Due to the serious nature of the Applicant’s offending, I find that Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal not exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequence of the decision
It is undeniable that there will be legal consequences arising from a decision to not revoke the cancellation of the Applicant’s visa. The most notable being the Applicant’s inability to apply for any other visa while here in Australia (with very limited exceptions). The Respondent contends that this should not carry any weight either for or against revocation with which I agree.
In addition, and for the sake of completion, the Applicant has voiced concerns for his safety should his mandatory visa cancellation not be revoked and he be required to return to New Zealand. His principal concern is that his stepfather and family will discover that he is there and cause him some form of harm. I have considered this allegation and given it no weight as there is nothing before me to verify this. Furthermore, there is nothing to state that the Applicant could not move to another area of the country far from where his stepfather lives and resume his life there without any concerns for his safety.
Other Consideration (b): Extent of impediments if removed
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.
The Applicant is 36 years old who, on all accounts, is physically fit and healthy. He has struggles with longstanding mental Health issues, on his account, for a considerably large part of his life, which include an atypical PTSD, a mixed anxiety and depression, a mixed personality (disorder with borderline and antisocial traits) and polysubstance (stimulants, cannabis, alcohol) dependence disorder. The Applicant’s treating has provided a list of medications which have resulted in some positive results.[32] The Applicant has not provided any more recent medical evidence in relation to these mental health conditions.
[32] G1, p 89.
There is no evidence to state that there are any substantial language or cultural barriers that could impede the Applicant’s incorporation in New Zealand.
Furthermore, it is without question that the Applicant would be able to access any required medical treatment for his mental health issues and on a public basis similarly to those available her in Australia and at the same level as any other New Zealand citizen. In relation to financial assistance in New Zealand, the Applicant has extensive experience in painting, horticulture and sales which no doubt will assist him in find suitable employment. This may take some time to source given that he would have to establish contacts and networks.
Having regard to the above-discussed factors of paragraph 9.2(1)(a)-(c) (inclusive) of the Direction, I find that the extent of impediments the Applicant would face if removed to New Zealand weigh moderately but not determinatively in favour of this Tribunal revoking the mandatory cancellation of his Visa.
Other Consideration (c): Impact on victims
Neither the Applicant nor Respondent have addressed this Other Consideration. Therefore, I allocate this Other Consideration as irrelevant and neutral.
Other Consideration (d): Impact Australian business interests
Neither party has raised an issue with this Other Consideration (d). Furthermore, there is nothing contained in the material to suggest a relevance in relation this consideration and will treat it neutrally.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequences of the decision: is of neutral weight.
(b)extent of impediments if removed: is of moderate weight in favour of revocation.
(c)impact on victims: is of neutral weight.
(d)Impact on Australian business interests: is of neutral weight.
Therefore, the totality of the Other Considerations weigh moderately in favour of revoking the mandatory cancellation decision.
CONCLUSION
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether I am satisfied if there is another reason to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 2: carries a heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 3: carries a moderate level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: carries a moderate level of weight in favour of setting aside the decision under review;
·Primary Consideration 5: carries a heavy level of weight in favour of affirming the decision under review.
·Other Considerations: carries a moderate level of weight in favour of setting aside the decision under review;
I have found that the combined weights I have allocated to Primary Considerations 1, 2 and 5 respectively, are sufficient to outweigh the combined weights I have allocated to Primary Considerations 3, 4 and the Other Considerations.
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirming the Respondent’s decision under review made on 3 July 2023.
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 July 2023 to not revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member Julian-Armitage
.................................[SGD].............................
Associate
Dated: 6 October 2023
Dates of hearing: 13 and 14 September 2023 Applicant: Self-represented Solicitors for the Respondent: Ms Cody Allen Sparke Helmore Lawyers ANNEXURE A
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED G1 Section 501 G-Documents
(G1-G37, paged 1-149)Various 18 Jul 2023 R1 Respondent’s Statement of Facts, Issues and Contentions
(paged 1-18)28 Aug 2023 28 Aug 2023 R2 Tender Bundle
(TB1-TB4, paged 1-313)Various 28 Aug 2023 A1 Applicant’s Statement
(2 pages)31 Jul 2023 31 Jul 2023 A2 Certificate from Alison for Introduction to Drug and Alcohol Awareness
(1 page)15 Jul 2023 31 Jul 2023 A3 Certificate from Alison for Anger Management and Conflict Resolution
(1 page)14 Jul 2023 31 Jul 2023 A4 Certificate from Alison for Fundamentals of Trauma Processing
(1 page)15 Jul 2023 1 Aug 2023 A5 Certificate from Alison for Fundamental of Domestic Violence and Abuse
(1 page)16 Jul 2023 1 Aug 2023 A6 Letter of Attendance from Janene Clemence
(paged 1-4)4 Aug 2023 7 Aug 2023 A7 Further Letter of Attendance from Janene Clemence
(paged 1-2)3 Mar 2023 8 Aug 2023 A8 Affidavit of Janene Clemence
(4 pages)8 Aug 2023 8 Aug 2023 A9 IHMS Clinical Records
(21 pages)Various 10 Aug 2023 A10 Affidavit of Tammey Nicol
(1 page)10 Aug 2023 10 Aug 2023 A11 Affidavit of Sally Henningsen
(1 page)10 Aug 2023 11 Aug 2023 A12 Statement of Tammey Nicol
(1 page)Undated 18 Aug 2023 A13 Statutory Declaration of Tammey Nicol
(2 pages)18 Aug 2023 18 Aug 2023 A14 Further Statement of Tammey Nicol
(1 page)Undated 19 Aug 2023 A15 Correspondence from Lives Lived Well regarding Confirmation of enrolment in course
(1 page)30 Aug 2023 30 Aug 2023 A16 Correspondence from Lives Lived Well regarding application to rehabilitation
(1 page)30 Aug 2023 30 Aug 2023 A17 Letter of Support from Sally Henningsen
(1 page)30 Aug 2023 31 Aug 2023 A18 Correspondence with IHMS regarding attendance of meeting
(1 page)29 Aug 2023 31 Aug 2023 A19 IHMS Drug and Alcohol Recovery Plan
(3 pages)1 Sep 2023 1 Sep 2023 A20 IHMS Records
(18 pages)Various 6 Sep 2023 A21 Correspondence regarding Lives Lived Well Check-in
(1 page)6 Sep 2023 7 Sep 2023 A22 Lives Lived Well Request for Information Letter
(1 page)8 Sep 2023 9 Sep 2023 A23 Applicant’s submissions in reply
(8 pages)Undated 9 Sep 2023
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