Walters and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 20
•15 January 2025
Walters and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 20 (15 January 2025)
Applicant:Kyle Walters
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7139
Tribunal:General Member Cosgrave (second review)
Place:Brisbane
Date:15 January 2025
Decision:The Tribunal affirms the decision under review.
...........................[SGD]................................
General Member Cosgrave
Catchwords
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa cancellation –failure to pass good character test – whether there is another reason to set aside the mandatory visa cancellation – family violence – contraventions of orders – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024)
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dharma and Minister for Home Affairs [2018] AATA 2757
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
AATA 3246
Holloway V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QKVH and Minister for Home Affairs [2020] AATA 4431
Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888
Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION
Mr Walters seeks review of the Minister’s (the Minister or the Respondent) delegate’s 17 September 2024 decision (the reviewable decision) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]
The hearing was held in Brisbane on 3 and 4 December 2024. Mr Walters represented himself. Mr Fyfe of Minter Ellison represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 10 December 2024. On 10 December 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Walters is a 49-year-old[4] New Zealand citizen who has resided in Australia since March 2015.[5]
On 27 July 2023 Mr Walters was sentenced to an 18-month sentence of imprisonment after his conviction for Assaults Occasioning Bodily Harm.[6]
On 18 December 2023 his Visa was cancelled under s 501(3A) of the Act on the basis that he had a substantial criminal record as he had been sentenced and was serving that sentence of imprisonment on a full-time basis in a custodial institution.[7]
On 20 December 2023 he made representations seeking revocation of the cancellation of his visa.[8]
On 17 September 2024 a delegate of the Respondent decided, under s 501CA(4), not to revoke the cancellation decision (the reviewable decision).[9]
On 18 September 2024 he lodged an application with the Tribunal for review of the delegate’s decision.[10]
LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA(4) of the Act, the Respondent may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[11] and
(b)the Respondent is satisfied that:
(i)the person passes the character test;[12] or
(ii)there is another reason why the original decision should be revoked.[13]
The Tribunal is satisfied that Mr Walters made the representations required by s 501CA(4)(a).[14]
THE TRIBUNAL’S TASK
Mr Walters’ Visa was cancelled on the basis that he had failed the character test once the delegate considered the character test, defined in s 501, as required under s 501CA(4)(b)(i). The Tribunal is satisfied, based on his criminal record, that he does not pass the character test set out in s 501(6).[15]
Section 501CA(4) sets out the Tribunal’s task.[16] When the Tribunal assesses and considers the factors weighing for and against whether there is another reason to set aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[17]
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[18]
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making.
The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.[19]
Paragraph 8 of the Direction specifies the following primary considerations:
(1) the 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.
(5) the expectations of the Australian community.
Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:
(a)the legal consequences of the decision.
(b)the extent of impediments if removed.
(c)the impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[20] The weighing process is substantively left to the individual decision‑maker exercising the relevant power under section 501 of the Act.[21]
EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The Tribunal also heard testimony from Mr Walters. The Tribunal identified several documents as statements by Mr Walters which he agreed were true and correct.[22]
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering this Primary Consideration 1, the Tribunal must bear in mind that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. The Tribunal has considered the nature and seriousness of Mr Walters’ conduct to date.
The Tribunal must also have regard to the Direction’s stated principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with 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.[23]
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider two limbs of inquiry:
(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.
Paragraph 8.1.1: The Nature and Seriousness of Mr Walters’ Conduct to Date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess in considering the nature and seriousness of Mr Walters’ criminal offending or other conduct to date.
Summarising Mr Fyfe’s contentions on this point:[24]
(a)The offending behaviour under consideration can be categorised into two distinct areas: domestic violence offences and other criminal conduct, with domestic violence forming the predominant and most serious component of Mr Walters’ criminal history.
(b)The most serious domestic violence incident occurred in December 2022, when Mr Walters committed an Assault Occasioning Bodily Harm against his then female partner. This incident involved choking and repeated punches, characterised as "considerable violence" by the court. The assault continued until the victim managed to escape and arm herself with a knife, implying that Mr Walters did not voluntarily cease the attack. This offence resulted in the eighteen-month imprisonment sentence, with a concurrent six-month term for breaching a domestic violence order. His Honour Magistrate Quinn observed:
‘The violence was not just one blow, it was a number of blows. And not only that, you grabbed the aggrieved around the throat the complainant around the throat. You lined her up. She was not lined up properly enough. But you had then lined her up and continued with your assault. It did not stop voluntarily. You did not stop voluntarily. You stopped only when she escaped your clutches and she started to fight back by arming herself with a knife. You then stopped and only then stopped. They are a serious set of circumstances, serious violence and a significant and significant violence.’[25]
(c)The December 2022 incident is the culmination of an extensive history of domestic violence offending, encompassing 12 separate breaches of domestic violence orders. These previous incidents varied in severity, ranging from property damage and clothing destruction to unauthorised residence at a victim's home. One notable incident involved Mr Walters’ presence at a victim's residence where four children were present, despite being prohibited from the residence by order. The gravity of these offences is reflected in his sentencing history, including a two-month imprisonment term in June 2018 for breaching an order, and another two-month term in July 2020 for an aggravated breach. The court noted that two different women were victims of these offences, and the Magistrate characterised Mr Walters as “plainly a recidivist domestic violence offender.”[26]
(d)The Minister contends that this offending is plainly very serious, not least because it involved considerable violence against a woman, amounting to family violence.[27]
(e)Beyond the domestic violence offending, Mr Walters’ criminal history extends to New Zealand, where he accumulated convictions for various offences including driving infractions, property crimes, and breaches of conditions. However, the available documentation provides limited detail regarding these non-domestic violence matters.
(f)The Minister's position emphasises the escalating nature of Mr Walters’ domestic violence offending, evidenced both by the increasingly violent conduct and the progressive severity of the sentences imposed on him. This pattern of behavior is considered particularly concerning due to its repetitive nature and the broader impact on not just the immediate victims, but also the wider community.
(g)The Minister contends that this persistent pattern of domestic violence offending demonstrates either an inability or an unwillingness on Mr Walters’ part to conform to legal and social norms, presenting a significant risk of serious consequences.
Mr Walters does not dispute the serious nature of his actions. He has expressed his responsibility, sorrow and shame in his testimony and his statements.[28]
Tribunal’s consideration: The nature and seriousness of Mr Walters’ conduct
When assessing the nature and seriousness of Mr Walters’ criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·the nature and seriousness of his criminal offending or other conduct to date;[29]
·the sentences imposed for his criminal offending;[30]
·the frequency of his offending and the trend of increasing seriousness;[31] and
·the cumulative effect of his repeated offending.[32]
The Tribunal agrees with Mr Fyfe’s contention that Mr Walters’ domestic violence offending involves crimes of a violent nature against women. The Tribunal, having regard to the Direction, also considers that this offending constitutes family violence. Applying paragraph 8.1.1(1)(a), the Tribunal finds that Mr Walters’ domestic violence offending should be viewed as very serious.
Mr Walters’ offending history is long and extensive. His New Zealand offending history commences in 2003 and concludes in 2014. His Australian offending history commences in April 2016, thirteen months after his arrival in Australia.[33]
The Tribunal acknowledges Mr Walters’ multiple terms of custodial imprisonment summarised above in Mr Fyfe’s contentions. The Tribunal views these terms as an objective measure of the seriousness of the offences involved.[34]
Having assessed Mr Walters’ Australian offending record, the Tribunal considers and characterises it as frequent between 2021 and 2023. The Tribunal further characterises his offending as increasing in seriousness.[35]
The cumulative impact of Mr Walters’ repeated offending over this substantial period can be reasonably considered to be serious and substantive, especially for the family violence victims.
Tribunal’s finding: The nature and seriousness of Mr Walters’ conduct.
The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred to above and after a holistic consideration of Mr Walters’ offending, the Tribunal finds that it should be characterised as very serious.
Paragraph 8.1.2: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Summarising the relevant portion of paragraph 8.1.2 of the Direction:
(a)In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b)When deciding whether a non-citizen poses a risk to the community, decision‑makers should consider:
i.How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.How likely it is that the non-citizen will commit another crime, looking at:
·Evidence of how likely they are to re-offend.
·Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)The objective is to carefully weigh the seriousness of possible harm, the likelihood of re-offending, and any evidence of change when making decisions about a non‑citizen’s risk to the community.
Mr Walters’ contentions on this consideration are:
(a)He is not a risk in terms of domestic violence offending as he wants nothing to do with his immediate former partner.[36]
(b)He contends: “Since my incarceration in Jail [sic] and the time I have spent in the Brisbane detention center [sic] it has accumulated to over 2 and half years. In that time I have not One [sic] single incident. I choose to change for my Family over Gambling Drugs and Family Violence.” [37]
(c)He is: “… Deeply [sic] remorseful every single day to my victims. There is not a day that goes by where I wish I made the right decisions in life for my Family, AS Well as my ex Partners [sic].” [38]
(d)He states: “I wish I had the tools that I have now that would have definitely helped me in the past. I look at my life back then until now I can honestly say I am a whole different man. I do respect women. I do have remorse every day.”[39]
Summarising Mr Fyfe’s contentions on this limb of Primary Consideration 1:[40]
(a)Mr Walters’ history of domestic violence offences poses a serious risk of harm to both individuals and the Australian community should he reoffend. This harm encompasses both physical and psychological injury to his potential victims, as well as the demand on police, court, and government resources that would be required to address such offending.
(b)The Minister contends that there is a substantial ongoing risk of Mr Walters reoffending based on several key factors. He has an extensive twenty-year history of domestic violence offences in both Australia and New Zealand, establishing him as a recidivist offender in terms of family violence. Despite numerous court orders mandating his participation in domestic violence programs and counselling, he has failed to adequately engage with these interventions and has shown in aggregate an unsatisfactory response to supervision. While he claims to have reformed, similar assertions in the past have been followed by continued offending, as evidenced by his breach of a domestic violence order in September 2023, shortly after expressing remorse to the court in July 2023.
(c)A particular concern is his persistent pattern of blaming victims while minimising his own culpability. Given this background, the Minister argues that the Tribunal should be sceptical of his relatively recent engagement with rehabilitative courses and their potential impact on his risk profile. There is significant concern that these rehabilitative efforts will cease once Mr Walters re-enters the Australian community, particularly given his poor history of continuing engagement with therapy.
(d)The risk to the Australian community remains significant should Mr Walters continue to reoffend. The Minister advocates for giving Mr Walters a very low risk tolerance in view of the seriousness of his offending history.
(e)Consequently, the Minister contends that this factor should weigh extremely heavily against revocation and should be given greater weight than other relevant primary considerations.
In assessing the risk to the Australian community and the nature of the harm to individuals or the Australian community were Mr Walters to engage in further criminal or other serious conduct, the Tribunal has considered the evidence, testimony and the parties’ submissions in relation to paragraph 8.1.2. The Tribunal in particular has considered Mr Walters’ extensive offending and conviction history.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Walters to engage in further criminal or other serious conduct
If Mr Walters is allowed to remain in Australia and then engages in further criminal or other serious conduct, the Tribunal finds that any future repetitions of criminal or serious conduct of the type that Mr Walters has previously engaged in, as evidenced in his offending history, could result in very serious physical and psychological harm to the potential individual victims and cause serious harm and detriment to the Australian community at large.
Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct
In assessing the likelihood or risk of Mr Walters engaging in further criminal or serious conduct, the Tribunal has holistically considered the totality of the relevant testimony and evidence.
The legislative intention regarding the likelihood’s threshold is whether there is ‘a’ risk.[41] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d), leaving it as ‘a’ risk.[42] On this occasion, the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
The Tribunal and superior courts have extensively considered the issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn.[43]
The Tribunal’s task is to ascertain the realistic level of risk posed by Mr Walters at the time of its decision,[44] with the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be “tolerated”’[45], such that it would be considered an unacceptable risk.[46]
As the Tribunal assesses this consideration, it acknowledges that the Australian community may necessarily be expected to accept a degree of risk associated with the holding of visas by non-citizens. However, as Senior Member Taylor observed in Dharma and Minister for Home Affairs [2018] AATA 2757,[47] the degree of risk that may be acceptable is “inversely related” to both the likelihood of reoffending and the apprehended significance of the harm that may be caused by such further offending.
Paragraph 8.1.2(1) introduces the notion of an “unacceptable risk”; that is, a risk that the community should not be required to tolerate or accept, regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424,[48] Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, to determine what an “unacceptable risk” is, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
Relevantly, in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187,[49] it was stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’ (Emphasis added.)
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (‘Guo’), Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court clarified the extent to which past events are a guide to possible future events:[50]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’ (Emphasis added.)
Her Honour Justice Mortimer (as she then was) explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (‘Murphy’) at [37], where Her Honour noted:[51]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
Applying the reasoning in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 to this matter, the Tribunal’s task is to assess whether there is “a risk” or a likelihood of Mr Walters engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo and guided by Murphy and another consideration being what Mr Walters’ past criminal conduct and subsequent actions reveal about his character.
When considering whether Mr Walters poses ‘more than a minimal or trivial likelihood of risk,’ all ‘available information and evidence’ pertaining to his risk of re-offending, and the ‘rehabilitation achieved’ by him must be considered. [52]
As observed in GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246,[53] the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence.’[54] Additionally, the more time that passes without Mr Walters re‑offending, irrespective of formal rehabilitation, is evidence that the recidivism risk of Mr Walters has reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that the Applicant will commit further … offences.’[55]
Placing these authorities in a framework, the Tribunal’s consideration of the risk or likelihood of Mr Walters engaging in further criminal or serious conduct should encompass the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’.
Factors that facilitate the risk
Mr Walters statements, testimony and offending history[56] lead the Tribunal to infer that his gambling addiction is a significant and enduring risk factor in his offending. Additionally, his gambling behaviour is linked to his poor decision-making. The extent to which it may drive his family violence and domestic violence offending is unknown but the financial stresses this addiction creates is more likely than not a factor in Mr Walters’ state of mind. Mr Walters testified that en route to a planned and agreed visit to his estranged family, he decided to interrupt his train journey in an attempt to generate funds. This delayed his arrival and led to police being called as he slept outside his family’s residence.
Mr Walters has a very extensive criminal history involving frequent domestic violence offending in both Australia and New Zealand over a twenty-year period. [57]
It is relevant to observe that Mr Walters’ sustained period of offending between October 2021 and September 2023 occurred when he was between the ages of forty-six and forty-eight. His offending has not diminished with age.
Factors that hinder or retard the risk – Rehabilitation and remorse
Mr Walters has expressed his remorse in his testimony and in his written statements. These expressions are tempered in two ways.
First, in his Revocation Request Form he does not describe any insight or ownership of his family violence offending.[58] He also tends to blame his victims for his offending.[59]
Second, his history has instances where he has made claims of insight and reform[60] and then offended again.[61] Accentuating this pattern are his contraventions of domestic violence orders which evidence a level of disregard for the law.
Mr Walters has completed several rehabilitation programs including the Circuit Breaker ten week group course, the Drug.Arm Community and Family Support Service Program and the Smart Recovery course while in detention. The effectiveness of these courses and programs remains to be tested in the community. Mr Walters also enrolled in and completed these programs after his Visa was cancelled in December 2023.
In aggregate, the extent to which these factors may hinder or retard his risk of offending is untested.
Risk Analysis and Consideration
The Tribunal has considered the evidence above, especially the patterns of Mr Walters’ offending, his history of remorse and his rehabilitation efforts.
In doing so, it has applied Guo in terms of the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. It has then considered what the combination of his offending and his displays of remorse say about his character, as well as assessing whether the consequences of his offending in future are likely to be unacceptable to the Australian community.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that the risk to the Australian community should Mr Walters commit further offences or engage in other serious conduct exists. It is sufficient to be a material risk, even after his remorse and rehabilitation efforts are considered.
Primary Consideration 1 Conclusion: Protection of the Australian community
The Tribunal finds that Mr Walters’ offending is very serious, that the consequences of any such future offending are likely to be very serious and that this likelihood is material.
The Tribunal further finds that this consideration weighs very strongly and substantially in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2 of the Direction states that the Australian Government has serious concerns about conferring the privilege of entering or remaining in Australia for non-citizens who engage in family violence.
Paragraph 8.2(2) of the Direction provides that this consideration is relevant 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 indicting 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 justice.
Paragraph 4.1 of the Direction defines ‘family violence’ as:
“family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends, or culture; or
(j) unlawfully depriving the family member, or any member of the family.”
This consideration is enlivened by Mr Walters’ convictions for domestic violence.
Paragraph 8.2(3) of the Direction sets out the factors to be considered in assessing the seriousness of Mr Walters’ family violence offending.
Summarising Mr Fyfe’s contentions:[62]
(a)The Minister asserts that Mr Walters’ pattern of sustained and repeated family violence offences carries substantial weight, as previously outlined under Primary Consideration 1 above. While he has provided documentation showing recent participation in various rehabilitation programs, including gambling intervention, anger management, and substance abuse counselling, the Minister maintains that these measures alone are insufficient to address his established behavioural patterns in terms of his family violence offending. Additionally, the extent of his rehabilitation remains uncertain and untested.
(b)The Minister further notes that Mr Walters has historically failed to accept full accountability for his criminal conduct. This lack of acknowledgment or ownership raises doubts about the sincerity of his claimed remorse, as expressed in his Statement of Facts, Issues and Contentions. Of particular concern is his continued pattern of reoffending despite explicit judicial warnings about the consequences of further criminal behaviour.
(c)A specific example highlights this pattern: following a December 2022 offence, the presiding Magistrate granted Mr Walters parole with an express warning that any subsequent offence would result in immediate reincarceration. Despite this clear admonition, Mr Walters committed another domestic violence order breach within the next two months.
(d)Given these circumstances, the Minister argues that this pattern of behaviour should be considered a compelling factor against overturning the cancellation decision
Mr Walters acknowledges his family violence offending in his statements.
From the evidence, the Tribunal infers that Mr Walters’ family violence offending was relatively frequent between 2016 and 2023, that this repeated offending’s cumulative impact on its victims was likely significant, that Mr Walters has only offered or evinced limited acceptance of his responsibility for his conduct and has only recently made efforts to address what has contributed to his offending.
Primary Consideration 2 Conclusion: Family Violence committed by the non-citizen
From these inferences, the Tribunal finds that Mr Walters has committed frequent acts of family violence and been convicted of these and that the impact of his offending under this Primary Consideration is serious.
This consideration carries substantial weight in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction disposes the Tribunal to consider any impact of its decision in relation to the Visa on Mr Walters’ immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The Tribunal should also consider the strength, nature and duration of any other ties that Mr Walters has to the Australian community, having regard to:[63]
(a)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where the Applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to time the Applicant has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Summarising Mr Fyfe’s contentions on this consideration:[64]
(a)Mr Walters, who arrived in Australia at thirty-nine, has resided here for approximately nine years. He has significant immediate family connections in Australia, including his mother, stepfather, three daughters, stepson, and grandson. He reportedly has some cousins. While the Minister acknowledges these familial ties, there is no direct evidence to demonstrate how these family members would be impacted by a decision to affirm the reviewable decision.
(b)Mr Walters has submitted two character references from friends supporting his good character. However, the Minister questions the weight of these testimonials, as it is unclear whether the authors are aware of the extent of Mr Walters’ criminal history.
(c)Furthermore, the Minister emphasises that Mr Walters’ period of residence in Australia has been characterised by consistent criminal behaviour that began shortly after his arrival.
(d)Given that much of his nine-year residence has been marked by involvement with the judicial system, particularly for family violence offences, the Minister contends that he has had limited opportunity to make any positive contributions to Australian society.
(e)Consequently, while acknowledging that Mr Walters has established some connections within the Australian community, the Minister argues that this factor should carry minimal weight in considerations regarding the revocation of the cancellation decision.
Summarising Mr Walters’ contentions on this consideration:
(a)His immediate family need his financial support given his former partner’s breast cancer diagnosis.[65] He fears that in his absence they could become homeless.[66]
(b)He has looked after the minor children he had with his former partner by way of respite for her.[67]
(c)He has held employment in construction and retail food industries between 2015 and 2022.[68]
(d)He played social Rugby League in the 2022 season.[69]
The Tribunal also had the benefit of statements and testimony from Mr Walters’ friends, Mr Rau and Mr Edwardson.[70]
The Tribunal now considers these contentions and evidence through the lens of each subparagraph in paragraph 8.3.
Paragraph 8.3(1)
Mr Walters’ immediate family are in Australia. The Tribunal considers that Mr Walters’ mother, stepfather, three daughters, stepson, and grandson are all Australian citizens, permanent residents or have the right to remain in Australia indefinitely.
Based on the evidence and Mr Walters’ testimony, a decision to affirm the reviewable decision will likely have adverse emotional, psychological and financial impacts on each of these members of Mr Walters’ immediate family. The Tribunal finds it difficult to assess the magnitude of the impact in the absence of evidence from Mr Walters’ immediate family.
Mr Walters emphasised his anxiety that he would not be able to financially support his family if he is returned to New Zealand. The Tribunal reasons to the contrary that if it affirms the reviewable decision and Mr Walters is returned to New Zealand and he finds employment, there is nothing preventing him providing financial support to his family in Australia.
Paragraph 8.3(2)(a)
Mr Walters arrived in Australia at the age of thirty-nine and has resided here since then. His first conviction occurred some thirteen months after his arrival.[71] The Tribunal considers and finds that Mr Walters began offending soon after arriving in Australia.
Mr Walters’ testimony and the statements of Mr Edwardson and Mr Rau demonstrate that Mr Walters has made some positive contributions to the Australian community over the past nine years in terms of employment and sport.
Paragraph 8.3(2)(b)
Subject to Mr Edwardson and Mr Rau being Australian citizens, permanent residents or having the right to remain in Australia indefinitely, then the strength and duration of Mr Walters’ ties to Australia are made out, as well as the apparent positive regard that they have for him as a friend.
Tribunal’s Consideration
The Tribunal considers that a decision leading to Mr Walters’ removal will have an adverse emotional and psychological impact on his immediate family.
The same impact, moderated by less propinquity than his immediate family, applies to Mr Edwardson and Mr Rau and any other social links Mr Walters may have.
Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside. However, given the paucity of evidence and the finding that Mr Walters began offending soon after arriving, this Primary Consideration attracts only a modest weight towards setting the reviewable decision aside.
Primary Consideration 3 Conclusion: The Strength, Nature and Duration of Ties to Australia.
The Tribunal gives this consideration a modest weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Paragraph 8.4(1) of the Direction necessitates an assessment to determine if the non-revocation of Mr Walters’ Visa under s 501CA aligns with the best interest of any minor children in Australia who would be impacted by the decision.
Under this consideration, the Tribunal must assess whether affirming or setting aside the reviewable decision is in the best interests of a child affected by such a decision. This only applies if the child is under eighteen years old when the decision to set aside or affirm is made.
This paragraph is enlivened by Mr Walters’ three minor children, Child A (born in 2009), Child B (born in 2010) and Child C (born in 2011).[72] Mr Walters also has a minor grandson who he has not met.[73]
When deciding what is in the child’s best interests, the Tribunal must consider how close the child is to the non-citizen, the non-citizen’s role as a parent, the impact of the non‑citizen’s past and future behaviour on the child, how separation would affect the child and whether the child has been hurt or abused by the non-citizen. The Tribunal should also consider the child's own views, depending on their age and maturity, if available.
Mr Walters contends:
(a)He has looked after the minor children he had with his former partner by way of respite for her.[74]
(b)The impact of a negative s 501 decision would severely impact his minor children. It would traumatise their lives and affect them severely financially and impact them emotionally, spiritually and psychologically.
(c)The impact of a negative s 501 decision means that he will not be able to support his children as he has in the past. He is a dad that wants to be there for his children, and it hurts them that he cannot be there for them now.[75]
(d)He is the main breadwinner for the family and life will be harder for them financially, emotionally and spiritually if he is not there.[76]
Summarising Mr Fyfe’s contentions:[77]
(a)Mr Walters has three minor children (Child A, Child B, and Child C), whom he claims to see on alternate weekends and maintains close relationships with. He argues that the non-revocation of his visa cancellation would cause severe emotional and spiritual trauma to both his children and himself. However, the Minister highlights several significant concerns regarding these relationships and the Applicant's parental role.
(b)The Minister notes that Mr Walters’ incarceration has resulted in substantial absences from his children's lives relative to their ages. Furthermore, all three minor children have been named in domestic violence orders that Mr Walters has repeatedly violated. The absence of documentation regarding formal custody arrangements or legal parental responsibilities raises questions about his potential to fulfill a positive parental role in the future.
(c)Of particular concern is Mr Walters’ history of domestic violence, which has directly impacted the children. The children have been exposed to multiple incidents of violence by him against their mother, including one notable incident where a thrown object meant for their mother struck one of the children, causing injury. The Queensland Department of Child Safety, Seniors and Disability Services has documented concerns about the cumulative emotional harm to the children from repeated exposure to domestic violence, noting specific instances of fear-based responses from at least one child.
(d)Regarding Mr Walters’ grandchildren in Australia, while he claims a non-revocation decision would adversely affect them, he has never met them, and there is minimal evidence to support the claimed impact. Given these circumstances, particularly the documented history of domestic violence and its effects on the children, the Minister argues that while this consideration should weigh in favour of revocation, it should be given only minimal favourable weight in the overall assessment.
There is no direct evidence from any of the minor children as to their views.
Tribunal’s consideration
In considering this paragraph, the Tribunal should give individual consideration to the best interests of each child to the extent that their interests may differ.
Acknowledging the evidence and testimony before it in addition to the Respondent’s contentions, the Tribunal makes the following points in its assessment of this consideration relative to paragraph 8.4(4) of the Direction.
The relationship between Mr Walters and the minor children is currently non-parental due to his legal circumstances and Mr Walters has been absent for periods of time due to incarceration, which tempers the weight attributable to this consideration.
Apart from Mr Walters’ evidence and testimony, there is no corroborating evidence as to the extent that Mr Walters is likely to play a parental role over the next five years before Child C turns eighteen.
There is evidence before the Tribunal indicating that Mr Walters’ prior conduct has had a negative effect on the minor children, that they have been exposed to Mr Walters committing acts of family violence and that one of the minor children has suffered physical trauma arising from Mr Walters’ conduct.[78]
It appears from the limited evidence before the Tribunal and by inference that Mr Walters’ former partner currently fulfils the parental role in regard to the minor children.
Based on the evidence and resulting claims the Tribunal considers that this Primary Consideration favours setting the reviewable decision aside but also attracts minimal weight.
Primary Consideration 4 Conclusion: Best interests of minor children in Australia affected by the decision
This consideration supports setting aside the reviewable decision. It carries a minimal weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
In addition to the above, paragraph 8.5(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 in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(2) also provides that 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 because of conduct, in Australia or elsewhere, of the following kinds:
(a) acts of family violence;
(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;
(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;
(f)worker exploitation.
Paragraph 8.5(3) provides that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision‑makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.’
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[79]
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation of a visa, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision‑maker to determine’.[80]
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]– [303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[81]
Observing the norm contained in paragraph 8.5, the Tribunal has also considered the guidance informed by the principles set out in paragraphs 5.2(1) to (8) of the Direction. In summary these are:
(a)The Australian government’s highest priority is the Australian community’s safety.
(b)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(c)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.
(d)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.
(e)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.
(f)In relation to decisions to refuse, cancel and revoke cancellations of visas, 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.
(g)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.
(h)Certain conduct, like family violence, is inherently serious enough that even strong opposing factors may not be sufficient to prevent visa cancellation or mandatory cancellation revocation. This remains true even if the non‑citizen is assessed as posing no measurable risk of physical harm to the Australian community.
Subparagraph 5.2(5) uses the term ‘limited stay visa’, which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non‑permanent or ‘temporary’ visas.
Tribunal’s consideration
Mr Walters’ Visa was a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled. Although a temporary visa, his Visa allowed him to remain in Australia indefinitely if he remained a New Zealand citizen and cannot be classified as a limited stay visa.[82] This implies that subparagraph 5.2(5)’s low tolerance does not apply.
Arriving in Australia at thirty-nine, Mr Walters has resided here for approximately nine years. This does not enliven paragraph 5.2(6)’s higher tolerance.
The Tribunal has found Mr Walters’ offending conduct to be very serious. He committed acts of family violence.
The Tribunal is satisfied that Mr Walters has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the higher tolerance assessed above.
Mr Fyfe contends that this Primary Consideration weighs heavily against setting the reviewable decision aside. Mr Walters’ offending has put members of the Australian community at risk. These expectations apply regardless of whether Mr Walters poses a measurable risk of causing physical harm to the Australian community.[83]
Having regard to the evidence of the serious nature of Mr Walters’ convictions and his repeated and prolonged offending, the Tribunal concludes that the Australian community would expect that he should not hold a visa and that this consideration weighs significantly against affirming the reviewable decision.
Primary Consideration 5 Conclusion: Expectations of the Australian community
This consideration carries a significant weight in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in paragraph 9 of the Direction.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled under s 501 of the Act is barred from applying for any visa other than a Protection visa or a Bridging R visa while in the migration zone.[84]
Further, Criterion 5001 of sch 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.
Mr Walters has not contended that he engages Australia’s protection obligations, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to him.
It follows that the legal consequence of a decision to affirm the reviewable decision is that he will remain in detention until he is removed from Australia.
Mr Walters’ Visa was not a protection visa, and he is not barred from applying for a protection visa.
The Respondent contends that this consideration should be given neutral weight.
Tribunal’s consideration
The logical consequence of the Direction and the Act in regard to this consideration is that where the revocation of an applicant’s visa is affirmed, the applicant is liable to be removed from Australia as soon as reasonably practicable (ss 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act.[85]
There are no claims of protection or of non-refoulement in this matter.
When the Tribunal considers whether to affirm a decision to cancel a visa under section 501CA(4) of the Act, it must consider the legal consequences of that decision as stated in paragraph 9.1 of the Direction. In this matter, this includes assessing the implications of Mr Walters being removed from Australia as soon as reasonably practicable, such as the possibility of further detention and being precluded from returning to Australia.
In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1,[86] the Full Federal Court held that while the Respondent has broad discretion under the Act, the decision must still follow the legal framework set by the law. The Respondent – and the Tribunal – must consider the legal consequences referred to in the preceding paragraph when making their respective decisions.
The Tribunal must approach this consideration in a logical and rational way, based on a correct understanding of the law, as the High Court emphasised in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582.[87]
The Full Federal Court in Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146[88] stated that the Tribunal’s obligation is to take into account “the direct and immediate statutorily prescribed consequences of the decision in contemplation”.[89] In this matter, that description encompasses the statutory consequences of a decision to affirm the reviewable decision. These consequences are that Mr Walters will be liable to be removed from Australia as soon as reasonably practicable and precluded from returning to Australia, as well as possible further detention. However, the Tribunal has the discretion to decide how much weight these consequences should carry in its decision-making process.[90]
The Tribunal has considered the evidence and testimony before it in assessing the legal consequences arising from either affirming or setting aside the reviewable decision. There are no non-refoulement claims, Mr Walters can apply for a protection visa if he wants to and his removal from Australia is the statutorily prescribed outcome to a decision by the Tribunal to affirm the reviewable decision.
Other Consideration (a) Conclusion & Finding
This consideration carries neutral weight.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of the Direction provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Summarising Mr Fyfe’s contentions:[91]
(a)The Minister observes that Mr Walters, at age of forty-nine and in apparent good health, possesses the capacity to establish himself and maintain adequate living standards in New Zealand.
(b)Given that he spent most of his life in New Zealand, there are no significant language or cultural barriers to his reintegration. This position is supported by precedent which emphasises the substantial similarities between Australian and New Zealand societies, including their shared language, cultural characteristics, and comparable legal, political, medical, and social welfare systems.[92]
(c)While documentation indicates Mr Walters suffers from depression, as evidenced by a recent medical letter, there is no indication that he would be unable to access appropriate physical and mental health treatment in New Zealand, where such services are generally available to citizens. Although he claims to have severed all connections with New Zealand, the Minister contends this is improbable given that he spent the majority of his life there prior to moving to Australia.
(d)The Minister concludes that while Mr Walters may encounter initial challenges in returning permanently to New Zealand, these obstacles are not insurmountable. Consequently, the Minister argues that this factor should carry minimal, if any, weight in favour of revoking the cancellation decision.
Summarising Mr Walters contentions on this consideration:
(a)He is recovering from an injury to his Achilles tendon and is experiencing side effects from his medication.[93]
(b)He will suffer from depression if sent back to New Zealand.[94]
(c)He is scared of having to start afresh from absolutely nothing if sent back to New Zealand. [95]
The Tribunal has evidence and testimony before it that establishes that Mr Walters has received training in heavy truck driving and has worked in construction in Australia.[96]
Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Walters, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
The phrase “in the context of what is generally available to other citizens of that country” in paragraph 9.2(1) is of significance because it sets the measuring stick by which impediments may be measured for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Walters is forty-nine.
Apart from an Achilles tendon injury from which he is recovering, Mr Walters appears to be in good physical health.
In assessing Mr Walters’ mental health, the Tribunal has regard to the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126,[97] and particularly paragraphs [12] – [14]. The Tribunal considers, based in part on its analysis of his risk of reoffending assessed under Primary Consideration 1 above, that Mr Walters faces a similar risk of mental health issues and risks to his sobriety whether he is in New Zealand or Australia. He also has similar options in New Zealand compared to those in Australia for treatment for his mental health.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Walters, based on his oral testimony and the evidence before the Tribunal, would not face any linguistic difficulties if he returned to New Zealand.
The Tribunal also considers that Mr Walters is unlikely to face significant cultural issues for the same reason.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Mr Walters would have access to the same medical, social and economic support as that available to other New Zealand citizens.
Acknowledging Mr Fyfe’s contention, the Tribunal infers from Mr Walters’ testimony that there is a likelihood that he has no close personal social networks available to him in New Zealand. If this is correct, then it may create a short-term aggravation in Mr Walters establishing himself.
Other Consideration (b) Conclusion & Finding
The Tribunal has considered above the extent of any impediments that Mr Walters, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that Mr Walters would likely face emotional, practical and financial hardships if he was returned to New Zealand, as well as risks to his sobriety and his mental health.
These hardships and risks are tempered by his work history and qualifications.[98]
This consideration carries moderate weight in favour of setting aside the reviewable decision.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence before the Tribunal to enliven this consideration and neither party pressed this Other Consideration.
Other Consideration (b) Conclusion & Finding
It carries neutral weight.
FINDINGS
The Tribunal has two issues to address:
(a)character test: whether there is a reasonable suspicion that Mr Walters does not pass the character test in terms of s 501(6)(b), and whether Mr Walters satisfies the Tribunal that he passes the character test,[99] and, if not,
(b)exercise of discretion: whether the Tribunal should not exercise its discretion conferred by s 501(2) to cancel Mr Walters’ visa.
The Tribunal found above that it was satisfied that Mr Walters did not pass the character test.
In determining whether there is ‘another reason’ to set aside the reviewable decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
In considering whether there is another reason, the Tribunal has given the highest priority to the Australian community’s safety
The Tribunal found that Mr Walters’ offending is very serious, that the consequences of any such future offending are likely to be very serious and that this likelihood is material. The Tribunal further finds that Primary Consideration 1 weighs very strongly and substantially in favour of affirming the reviewable decision.
The Tribunal found that that Mr Walters has committed frequent acts of family violence and been convicted of these and that the impact of his offending under Primary Consideration 2 is serious. This consideration carries substantial weight in favour of affirming the reviewable decision.
The Tribunal found that Primary Consideration 3 carries a modest weight towards setting the reviewable decision aside.
The Tribunal found that Primary Consideration 4 supports setting aside the reviewable decision. It carries a minimal weight.
The Tribunal found that Primary Consideration 5 carries a significant weight in favour of affirming the reviewable decision.
The Tribunal found that the legal consequences of the decision regarding Mr Walters’ Visa and the impact of the decision on Australian business interests both carry a neutral weight.
The Tribunal found that the extent of impediments Mr Walters faces if he is removed to New Zealand carries a moderate weight in favour of setting the reviewable decision aside.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[100]
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed, considered and balanced all the findings it has made and the weights it has identified under the relevant considerations, adopting the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [21]:[101]
‘[21] The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision‑maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
In applying this process, the Tribunal has also had regard to the Direction and specifically paragraph 7(2):
‘The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.’(Emphasis added.)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision‑maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 [102] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[103]
Two further authorities offering guidance are the decision of His Honour Justice Dowsett in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 [104] at [10]–[13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and the decision of His Honour Justice Sackville in Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340[105] at [54].
Additionally, paragraph 5.1(2) of the Direction refers to the discretion:
‘Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.’ (Emphasis added.)
Taken together these points imply that the Tribunal retains a discretion to determine whether ‘greater weight’ should be given to Primary Consideration 1 in a specific matter. The Tribunal considers that in this matter, Primary Consideration 1 should be accorded this greater weight relative to the remaining Primary and Other Considerations.
Having conducted and considered a comprehensive, holistic and integrated view of its specific findings and the weights it has attributed to each of the relevant Primary Considerations and the Other Considerations, the specific circumstances of this matter leads this Tribunal to conclude that the Considerations favouring affirming the reviewable decision outweigh those favouring setting it aside. Consequently, the Tribunal is not satisfied that there is another reason to set aside the reviewable decision.
DECISION
Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent.
Date(s) of hearing: 3 & 4 December 2024 Solicitors for the Applicant: Mr Walters represented himself Solicitors for the Respondent: Mr Fyfe of MinterEllison Annexure A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE RECEIVED
R1
G – Documents
R
27/09/2024
R2
Statement of Facts and Issues in contention
R
15/11/2024
R3
Supplementary T – Documents
R
15/11/2024
A1
Statement of Facts, Issues and Contentions
A
05/11/2024
A2
Drug Arm Prevention
A
05/11/2024
A3
Greg Hutcheon Report
A
29/10/2024
A4
Relationships Australia
A
09/10/2024
A5
Character reference (Zack Edwardson)
A
28/11/2024
A6
Character Reference (Joseph Rau)
A
27/11/2024
A7
Certificate of Completion (Community and Family Support Services program)
A
05/11/2024
[1] Exhibit R1: G4, 29.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
[4] Exhibit R1: G6, 43.
[5] Exhibit R1: G21, 229.
[6] Exhibit R1: G6, 44.
[7] Exhibit R1: G22, 230.
[8] Exhibit R1: G15, 88.
[9] Exhibit R1: G4-G5, 24–42.
[10] Exhibit R1: G2, 9.
[11] Pursuant to s 501CA(4)(a) of the Act.
[12] Pursuant to s 501CA(4)(b)(i) of the Act.
[13] Pursuant to s 501CA(4)(b)(ii) of the Act.
[14] Exhibit R1: G2, 4-11.
[15] Exhibit R1: G6.
[16] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[17] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 [38].
[18] Direction: [5.2].
[19] Direction: [7(2)].
[20] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[21] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
[22] Exhibit G: G15, G16 and G17.
[23] Direction: [5.2(1)]
[24] Exhibit R2: Respondent’s SFIC, [21] – [30].
[25] Exhibit R1: G8, 50
[26] Exhibit R1: G8, 50.
[27] Direction: [8.1.1(1)(a)-(c)].
[28] Exhibit R1: G15, G16 and G17.
[29] Direction: [8.1.1(1)(a)].
[30] Direction: [8.1.1(1)(c)].
[31] Direction: [8.1.1(1)(e)].
[32] Direction: [8.1.1(1)(f)].
[33] Exhibit R1: G6.
[34] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]; paragraph 8.1.1(1)(c) of the Direction.
[35] Direction: [8.1.1(1)(e)].
[36] Exhibit R1: G16, 101.
[37] Exhibit A2: 2.
[38] Exhibit A2: 2.
[39] Exhibit A2: 2.
[40] Exhibit R2: Respondent’s SFIC, [32]–[35].
[41] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (‘Sabharwal’), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] – [52].
[42] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
[43] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (‘QKVH 2020’); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
[44] Direction; paragraph 8.1.2(2)(b)(ii).
[45] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) [37].
[46] Direction: [8.1.2(1)].
[47] Dharma and Minister for Home Affairs [2018] AATA 2757, [26].
[48] [2014] FCA 673, [89] – [104].
[49] Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194.
[50] MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS V GUO WEI RONG (1997) 191 CLR 559 AT S 574-575; QKVH V MINISTER FOR HOME AFFAIRS (‘QKVH 2020’) [2020] AATA 4431 (2 NOVEMBER 2020) [5].
[51] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
[52]GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]–[52]; Roberts, (n 53) [27].
AATA 3246, [67] (Senior Member Bellamy) (‘GTPT’).
[54] Ibid [67] citing the then current Direction.
[55] Ibid [94].
[56] Exhibit R1: G11, 69.
[57] Exhibit R1: G6, G7.
[58] Exhibit R1: G16, 101.
[59] Exhibit R3: S24, 201; S28, 213.
[60] Exhibit R3: S55, 430 - 432.
[61] Exhibit R1: G6; Exhibit R3: S30, 22; S32, 316 – 319.
[62] Exhibit R2: [38] – [41].
[63] Direction; [8.3(2)].
[64] Exhibit R2: [44] – [46].
[65] Exhibit R1: G18, 112; G16, 99, 100.
[66] Exhibit A2: 2.
[67] Exhibit R1: G16, 97.
[68] Exhibit R1: G16, 102.
[69] Exhibit R1: G16, 103
[70] Exhibit R1: G19.
[71] Exhibit R1: G6.
[72] Exhibit R1: G16, 96.
[73] Exhibit R1: G16, 99.
[74] Exhibit R1: G16, 97.
[75] Exhibit R1: G16, 99.
[76] Exhibit R1: G16, 100.
[77] Exhibit R2: [49] - [54].
[78] Exhibit R1: S13, 129; S32, 251; S40, 387; S61, 458.
[79] FYBR (2019) 272 FCR 454 (“FYBR”), 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
[80] Ibid at 473 [75]– [76] (Charlesworth J).
[81] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
[82] Clause 444.411, Migration Regulations 1994.
[83] Direction: [8.5(3)], [5.2(4)].
[84] Section 501E of the Act.
[85] See also Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327, [209].
[86] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (‘NBMZ’) at [8], [9] and [153].
[87] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’) at [25].
[88] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146.
[89] Op.cit, [84].
[90] See Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 [33], [38].
[91] Exhibit R2: Respondent’s SFIC, [63]– [66].
[92] VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649 [428].
[93] Exhibit R1: G17, 109 – 110.
[94] Exhibit R1: G16, 104.
[95] Exhibit R1: G16, 104.
[96] Exhibit R1: G16, 102.
[97] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
[98] Exhibit R1: G16, 102.
[99] Section 501(2) of the Act.
[100] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
[101] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
[102] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[103] Ibid at [37]– [39].
[104] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[105] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
0
18
0