Watson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2118
•28 May 2021
Watson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2118 (28 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1619
Re:Beau Watson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member J Rau SC
Date:28 May 2021
Place:Adelaide
The decision under review is affirmed.
...........................[Sgnd]................................
Senior Member J Rau SCCATCHWORDS
MIGRATION – mandatory cancellation of Special Category (subclass TY 444) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau
28 May 2021
INTRODUCTION AND BACKGROUND
Beau Watson (“the Applicant”) arrived in Australia as the holder of a Special Category (subclass TY 444) visa (“the visa”) on 5 December 2014.
On 21 January 2020 the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (“the Act”); on the grounds that he did not satisfy the character test because of the operation of s 501(6)(a), and on the basis that he was serving a sentence of imprisonment, of 12 months or more, pursuant to s 501(7)(c).
On 7 September 2020, the Applicant made written submissions to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) as to why the cancellation of his visa should be revoked.
The Applicant subsequently lodged an application for review in this Tribunal on 18 March 2021.[1] The Tribunal has jurisdiction to review the decision of the Respondent not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 500(1)(ba) of the Act.
[1] Exhibit 1, G1.
This matter was originally listed to be heard by the Tribunal on the 13 May 2021 and 14 May 2021. On Wednesday, 12 May the Tribunal was advised that the Applicant wished to submit a statement from his brother Corey Taana and to call him to give evidence. Having regard to the provision of ss 500 (6H) and (6J) of the Act it was not possible to comply with the two-day rule and accommodate the Applicant’s request. I adjourned the hearing to the to 20 May 2021 in order to enable a statement from Corey Taana to be filed.
On the morning of 13 May, the Applicant advised Tribunal personally that he was illiterate. This is significant because it is important that the Tribunal be satisfied that the Applicant had an understanding of the nature of the proceedings and the issues involved. I note that the Applicant has filed various documents in relation to these proceedings which have been handwritten. I also note that the handwriting in these documents appears to be from different people. The Applicant advised that he had been assisted in the completion of these documents by people who were available to him from time to time.
The suggestion of the Applicant being functionally illiterate had not been explicitly disclosed in any of the materials presented to the Tribunal, although his difficulties in this respect were mentioned by the Trial Judge in his sentencing remarks. In fact, a document presented to the Tribunal dated 18 December 2017 entitled “offender file Watson, Beau Rory, literacy and numeracy assessment”[2] states as follows in respect of Mr Watson’s literacy;
“Prisoner reads and understands a range of written texts, particularly texts and diagrams commonly used: satisfactory”
“Prisoner performs writing tasks that demonstrate the writing skills needed to perform day-to-day tasks: satisfactory”
“Prisoner demonstrates his/her knowledge of English and his/her use of spelling, punctuation and grammar: unsatisfactory”
[2] Exhibit 4, SM4, p 309.
I also note that Mr Watson completed schooling to year 12 level in New Zealand.[3]
[3] Ibid, p 215.
I also note that a document created by the Queensland Corrective Services entitled “Rehabilitation Needs Assessment” states “Watson claims that he is dyslexic and that this affects his literacy and numeracy skills acting as a barrier to further education.”[4]
[4] Ibid, p 214.
Whilst this information concerning the Applicant is somewhat confusing, there appears to be little doubt that he has some form of learning difficulty affecting his literacy. In order to minimise any disadvantage to the Applicant arising from such a disability I made an order that the representative for the Respondent arrange for the Applicant to be taken through the documentation in this matter personally before the resumption of the hearing on 20 May.
On 19 May the Tribunal was advised that the Respondent had not been able to secure compliance with this direction.
On 20 May at outset of the hearing, the Applicant was asked about his literacy skills. It seems clear that the Applicant has only very limited capacity to read and write. The Applicant advised the Tribunal that another inmate in Wolston Correctional Centre, the prison the Applicant resides in, had read much of the material to him on the night of 19 May. Mr Duldig, for the Respondent, also conducted his case by reading out all relevant materials to the Applicant before putting questions to him. I’m satisfied that whilst the situation was not ideal, the Applicant has not been put at any unfair disadvantage.
The hearing proceeded on the 20 May 2021 and 21 May 2021. The Applicant was self-represented, and the Respondent represented by Ingmar Duldig of Clayton UTZ. The Applicant appeared via video-link and the Respondent in person at the Tribunal. The Applicant’s witnesses, Terry Watson, Shannon Taana, and Corey Taana all appeared via phone. The Tribunal also received the evidence that is listed in the attached exhibit list, marked “Annexure A”.
OFFENDING
The Applicant’s offending is set out as follows:
Applicant offending in New Zealand
Convicted on
Offence
Result
22 May 2009
Giving false details as to driver identity
Unlicensed driver failed to comply with prohibition
Fined $150 for each offence
29 November 2011
Unlicensed driver failed to comply with prohibition
Fined $450
Court costs of $132.89
6 June 2012
Drive with excess blood alcohol
Fined $600
Court costs of $132.89
Disqualified from driving for 6 months
12 November 2013
Unlicensed driver failed to comply with prohibition
Drive with excess blood alcohol
150 hours of community work
Disqualified from driving for 6 months
Placed on a zero-alcohol licence
14 August 2014
Breach of community work
Unknown
Applicant offending in Australia
22 November 2017
Rape, which Applicant committed on 6 September 2016
6 years 6 months imprisonment
15 August 2017
15 August 2017
24 October 2017
Breach of bail conditions
Fined $450
Fined $250
Fined $200
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he or she is satisfied the person does not pass the character test because he or she has a substantial criminal record, and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[5] A decision under s 501CA(4) of the Act involves an assessment and evaluation of facts for and against revoking the cancellation. If it is satisfied, following an assessment of those factors, that the cancellation should be revoked, the Tribunal is obliged to act on that view.[6]
[5] s 501CA(4) Migration Act 1958.
[6] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 22 November 2017, the Applicant was sentenced to a term of imprisonment of six years and six months.
The Tribunal therefore finds that pursuant to s 501(7)(c), the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason the visa cancellation should be revoked?
In considering whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[7]
[7] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the Primary and Other Considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[9]
[8] [2018] FCA 594.
[9] Ibid, [23].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
On the 22 November 2017, Mr Watson was convicted in the District Court of Queensland of rape and sentenced to six years and six months imprisonment.
The following are excerpts from sentencing remarks by Dearden J, the trial judge:
“Your [the Applicant’s] version of events… is that effectively that as a reward to you for feeding her baby you say that she offered sex even though she had been in a relationship for eight years, had two children in that relationship and the youngest of those was only 12 weeks old… The jury clearly rejected that as an explanation… the prosecutor described it, [as] ludicrous and juvenile.”[10]
“You [the Applicant] have twice approached the complainant… [and] it is quite clear that while you were on bail in a small town for an offence of rape, you should not have been anywhere near [redacted]. And the fact that you even had any contact with them, much less whether or not you or someone else said the unpleasant things that are contained in [redacted] statement is deeply concerning.”[11]
“…You’ve not demonstrated any remorse, you’ve given evidence and that was clearly rejected by the jury. On the jury’s verdict this was a brazen offence of rape, having sex with a woman who has got two children in her bed, clearly affected by alcohol and sufficiently affected that she didn’t wake up until afterwards. You’ve lied to police in your record of interview and you’ve had that contact since. So they’re the very serious aspects of it.”[12]
“…You’ve got a good work history despite what are obvious difficulties. You’ve worked in both New Zealand and Australia. You’ve obviously got a good, loving relationship with your family. You’ve been caring for your brother’s child who has problems as well. That’s, again, to your credit. These are very positive things that – although you’ve done this thing wrong, you’ve done a lot of things right n your life. And, again, as your barrister said, these are good signs that although you will be deported – that seems inevitable – that you’re hopeful, with your dad still living in New Zealand, even if you mightn’t be able to live with him – that you will have some family support over there to restart your life. You hope – you hope that you will be able to get back into work, perhaps, at the dairy and of course working is one of the most positive things that a bloke can do in his life to support himself and, if he has a family, to support them.”[13]
[10] Exhibit 1, G2, p 27.
[11] Ibid, p 27 & 28.
[12] Ibid, p 29.
[13] Ibid, p 29.
It is significant that at the trial the Applicant asserted that his interaction with the victim had been consensual. This was not accepted by the jury. The Applicant did not accept that he was guilty at the time of his conviction. Although some recent material produced by the Applicant suggests that he does except his guilt, there is reason to doubt whether this is the case as, for example, in a statement lodged with the Tribunal on 13 May 2021, dated 10 May 2021, the Applicant states, amongst other things, in speaking of the circumstances of the offence:
“Once we arrived at their place we continued to drink and socialise and have fun, everything was going fine, then the woman’s partner fell asleep, so she suggested we go upstairs and drink didn’t wake him, we got upstairs, got flirty, she got undressed and we had sex, not once did she object or change her mind, we even talked during and afterwards…….. After, she insisted that I sleep in the spare room for the night, to which I did.”[14]
[14] Exhibit 7.
In my view, this very recent statement is quite inconsistent with his acceptance of guilt.
I also note the records produced in a document entitled “sexual offending pre-program interview check list dated 22 May 2020”.[15]
[15] Exhibit 4, SM4, p 311.
I note, in particular, the comments at p 382[16] where, again, the Applicant appears to deny responsibility for the crime.
[16] Ibid, p 382.
In his evidence before the Tribunal, the Applicant indicated that his opinion still went “to and fro” about whether he was guilty.
The Applicant’s criminal history is set out at paragraph 14 of this decision.
Having regard to the Applicant’s criminal history, and in particular his conviction for rape, I regard his offending as extremely serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
With respect to sub-paragraph (b), there is no additional consideration.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
With respect to sub-paragraph (c), the Applicant’s offending is extremely serious. The maximum penalty for this offence is life imprisonment. The trial judge imposed a sentence of six years and six months for this offence. In fixing this period of imprisonment his honour said the following:
“I’m ultimately of the view that the appropriate sentence, reflecting the serious aspects but balancing them against, in particular, your person struggles with reading, writing, literacy and the difficulties you’ve had at school, persuade me that a lesser sentence than seven years is appropriate and the sentence that I impose is a sentence of six and a half years imprisonment… because you’ve proceeded to trial there’s no discount”.[17]
[17] Exhibit 1, G2, p 29.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Taking into account the whole of the Applicant’s history, he has offended on multiple occasions and the gravity is offending significantly increased with his conviction for rape. That said, the record indicates that since arriving in Australia in December 2014, the rape conviction, and associated bail breaches, are his only criminal offences. In these circumstances it is difficult to identify a trend in offending other than to say that his most recent offence is extremely serious compared with his earlier offending.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
In as much as we are concerned with the Applicant’s offending in Australia, there is only one extremely serious offence. In these circumstances there is no cumulative effect of repeated offending.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant did make a false declaration on his incoming passenger card when entering Australia on 5 December 2014. In response to the question “do you have any criminal convictions” he answered “no”, which was not true.
The Applicant was cross-examined by the Respondent about this card and he indicated that his incapacity to read meant that he did not understand the questions and simply wrote “no” to all of them. Whilst he did manage to answer “yes” correctly to a question about his intentions to remain in Australia for the next 12 months, I am satisfied with the Applicant’s explanation, and I do not place any weight on this false declaration.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
This is not a relevant consideration in this matter.
In all the circumstances, in particular having regard to the sub-paragraphs of 8.1.1(1) of the Direction and the extremely serious nature of the Applicant’s offending and the lengthy term of his imprisonment, this consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Given the extremely serious nature of the Applicant’s offending, any repetition of this conduct would be extremely serious for the Australian community.
Likelihood of engaging in further criminal or other serious conduct
After the Applicant’s arrival in Australia on 5 December 2014 he committed the offence of rape on 6 September 2016 for which he was ultimately convicted on 22 November 2017. Prior to his conviction on 22 November 2017 he was on bail, during which time he breached his bail conditions on three separate occasions. In relation to sentencing the Applicant, the trial judge’s comments are set out at paragraphs 32 and 43.
I note the decision in Minister for Immigration and Multicultural Affairs v SRT[18] which considers that:
“It is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.”[19]
[18] (1999) 91 FCR 234.
[19] Ibid, at 40.
The fact of the Applicant’s non-offending prior to the rape conviction in Australia, and his excellent work history, as noted by the trial judge, would point in a positive direction from the Applicant’s perspective, suggesting that he would not be likely to reoffend. He has also undertaken multiple courses during his incarceration and the prison records suggest that there has been an improvement in his insights, tending toward a lesser likelihood of re-offending.
The only risk assessment in evidence was undertaken by Queensland Corrective Services and is dated 9 May 2018. This assesses the Applicant’s risk level as “moderate – low”. There is no more recent assessment of this type in the materials produced to the Tribunal. I note that other records produced by Queensland Corrective Services suggest that the Applicant undertook courses relevant to reoffending and demonstrated some improvement between 2018 and the present time.
The Applicant completed the following offending-related programs or counselling: low substance abuse course, get started program, literacy and numeracy test, and inclusion sexual offending.[20]
[20] Exhibit 3.
On the other hand, the Applicant’s apparent inability to accept the fact that he committed a criminal offence is a matter of concern. The very basic question of whether or not the Applicant can understand and appreciate the concept of “consent” may still be an issue.
In all of the circumstances, having regard in particular to the materials produced by Queensland Corrective Services, I have come to the view that the Applicant is at a low to, at most, moderate risk of reoffending.
Conclusion: Primary Consideration 1
The Australian community’s tolerance for risk of future harm becomes lower as the seriousness of the potential harm increases. In this case the potential harm is extremely serious. The risk of re-offending is moderate to low. Weighing up all of the considerations in Primary Consideration 1, in particular the extreme seriousness of the Applicant’s offending, I am of the view that this consideration weighs heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
This is not a relevant consideration in this matter as there is no evidence before the Tribunal of the Applicant engaging in family violence.
Conclusion: Primary Consideration 2
In these circumstances this consideration is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has no children of his own in Australia, however, he has a number of nieces and nephews under the age of 18 residing in Australia. He has not had the primary-care role in relation to any of these children, nor has he been financially supporting them.
The relevant minor children are listed as follows:
(a)Child 1, male, nephew, approximately 11 years of age (sister’s son);
(b)Child 2, female, niece, approximately 13 years old (sister’s daughter);
(c)Child 3, male, nephew, approximately 12 years old (sister’s son);
(d)Child 4, male, nephew, approximately 16 years old (sister’s son);
(e)Child 5, female, niece, approximately 7 years old (sister’s daughter); and
(f)Child 6, female, niece, 17 years old (turns 18 in October 2021) (brother’s daughter)
The Tribunal heard evidence from the Applicant, his mother, his sister, and his brother regarding his connections with his family and in particular his nieces and nephews.
The Applicant’s strongest connection is with Child 6. Child 6 has a disability which has impaired her cognitive development. The evidence was to the effect that she had a mental age equivalent to a four or five-year-old. For this reason, she requires considerable care and supervision. The evidence demonstrates that the Applicant had a significant, though not primary, carer role for many years in relation to this child. His role as a carer enabled his brother to obtain employment. Since his imprisonment, his brother and his mother have been sharing the care role for this child. If the Applicant were to be released to the community, he would likely reside with his brother according to the evidence and would resume a caring role with his niece.
According to evidence given by the Applicant’s sister, he also has a particularly close relationship with Child 2 and Child 4.
The Applicant has maintained his relationship with all of the children during the period of his incarceration by means of telephone. When he has communicated with his sister from time to time (according to her, every couple of weeks), he takes the opportunity to speak to her children.
The evidence supports the Applicant’s contention that it is in the best interests of all of these children, but in particular Child 6 and to a lesser extent Child 2 and Child 4, that he remain in Australia.
I note that Child 6 will turn 18 in October 2021.
In as much as the Applicant performed a role as a carer, this has not been the case since his incarceration in 2017. Alternative arrangements have been made and there is no reason to suggest that they cannot continue. If the Applicant were to be removed to New Zealand, he would still be in a position to be able to communicate with his family and his nieces and nephews by telephone, as he has done since being incarcerated in 2017.
It is also relevant to note that there was a period of interruption in the Applicant’s earlier relationship with his nieces and nephews by reason of them moving to Australia some years before he did.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs in the Applicant’s favour, although not heavily so, having regard to the fact that he is not and has never been either a parent, or primary carer.
On the basis of all of the evidence, I find that it is in the best interests of the children listed above that the cancellation be revoked.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[21]
[21] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters.
I refer to the previously outlined history and circumstances of the Applicant’s offending. The Applicant has committed an extremely serious offence, namely rape. Notwithstanding the fact that he came to the Court as a first-time sexual offender, he was sentenced to a lengthy term of imprisonment of six years and six months. This underscores the gravity of his offending.
The Direction explicitly refers to crimes of a sexual nature as being particularly unacceptable.
In these circumstances given the extremely serious nature of his offending, I’m of the view that the Australian community would expect that the Applicant should not hold a visa.
Conclusion: Primary Consideration 4
Primary consideration number four weighs heavily against the Applicant
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant and thus the weight attributed to it is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 32 years old and enjoys good health. He does have some learning difficulties, however, these do not prevent him from being gainfully employed in appropriate work. There is no reason to believe that the Applicant would have any particular difficulty in finding work in New Zealand and indeed he lived in that country until he was 25 years of age.
It was notable that throughout the hearing the Applicant referred to New Zealand as “home”.
The Applicant also gave evidence that his intention in coming to Australia was to work here for eight years or so, accumulate some money, and then return to New Zealand to purchase a dairy farm. The idea of owning a dairy farm continues to be his goal. He indicated that the sort of work that he would like to do, would ideally be on a dairy farm. He indicated that the opportunities to work in the dairy industry in Australia were significantly less than in New Zealand.
Having regard to this evidence, it would appear that the Applicant always intended his stay in Australia to be temporary. His employment prospects, in his desired work field, are, if anything, greater in New Zealand.
There are no significant language or cultural barriers preventing the Applicant returning successfully to New Zealand.
The majority of the Applicant’s family reside in Australia and therefore his removal to New Zealand would present some problems for him. Leaving his family in Australia would cause him distress. He gave evidence that he does not have any immediate family in New Zealand, but he does have extended family such as uncles, cousins, and so on. Returning to New Zealand would undoubtedly cause the Applicant at least temporary hardship.
The health and other social services available to citizens in New Zealand are broadly comparable to that available to citizens in Australia and would present the Applicant with no disadvantage
If the Applicant were to be returned to New Zealand, he would undoubtedly suffer some initial disadvantages and have to re-establish social and community networks. I have no reason however to believe that this would represent more than a temporary problem for the Applicant and that, overall, he would be not significantly disadvantaged by being returned to New Zealand. In these circumstances this consideration weighs moderately in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the ss 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has all of his immediate and close family in Australia including his mother, brother, sister, nieces, and nephews.
The Applicant has contributed to the Australian community by maintaining employment during the period between his arrival in Australia and his incarceration.
The Applicant also has friends and associates in Australia.
On the other hand, the Applicant was 25 years of age when he arrived in Australia and was only in the community as such between December 2014 and November 2017.
Although the Applicant has strong connections particularly with his family in Australia, regard must be had to how long he resided in Australia and the fact that he arrived in the country as an adult. Less weight must be given where the noncitizen offended soon after arriving in Australia, which he did.
In all of the circumstances, this consideration weighs only moderately in favour of revocation of the cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction and thus this consideration is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: moderately in favour of revocation;
(c)impact on victims: neutral; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: moderately in favour of revocation; and the impact on Australian business interests: neutral.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
Primary Consideration 1 weighs heavily against revocation.
Primary Consideration 2 is neutral.
Primary Consideration 3 weighs moderately in favour of revocation.
Primary Consideration 4 weighs heavily against revocation.
Having regard to all of the Primary and Other Considerations I am of the view that Primary Considerations 1 and 4 weigh so heavily against revocation that they outweigh the moderate weight that I have attached to Primary Consideration 3 and Other Considerations 2 and 4.
Consequently, I determine that the visa cancellation should not be revoked.
DECISION
The mandatory cancellation of the Applicant’s visa is not revoked and the decision under review is affirmed.
I certify that the preceding one-hundred and twenty-two (122) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
.............................[Sgnd]....................................
Associate
Dated: 28 May 2021
Date of hearing: 13 May 2021, 20 May 2021 & 21 May 2021 Applicant:
Self-Represented Solicitor for the Respondent Ingmar Duldig
Clayton UTZ
Annexure A – List of Exhibits
| Exhibit no. | Lodged By | Document |
| 1 | Respondent |
|
| 2 | Applicant | Witness Statement – Terry Watson |
| 3 | Applicant | Bundle of certificates: 1. Options: recovery from substance abuse |
| 4 | Respondent | Materials Produced Under Summons |
| 5 | Respondent |
|
| 6 | Applicant | Handwritten note to Administrative Appeals Tribunal |
| 7 | Applicant | Statement dated 10 May 2021 |
| 8 | Applicant | Witness Statement – Corey Taana |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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Remedies
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