Wiki and Minister for Home Affairs (Migration)
[2019] AATA 197
•20 February 2019
Wiki and Minister for Home Affairs (Migration) [2019] AATA 197 (20 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7177
Re:Shaun Tobias Tipene Wiki
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:20 February 2019
Place:Sydney
The decision of the Respondent dated 28 November 2018 to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth), is affirmed.
...........................[SGD].........................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – frequency of reoffending – traffic offences – domestic violence – disregard for Australian law – unacceptable risk of re-offending – strength, nature and duration of ties to Australia – extent of impediment if removed – best interest of minor children – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Robertson and Minister for Home Affairs (Migration) [2019] AATA 164 (18 February 2019)
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, cl 6.3, 6.4, Part C
REASONS FOR DECISION
Senior Member M Griffin QC
20 February 2019
The Applicant seeks review of a decision of a delegate of the Respondent (the “Minister”) dated 28 November 2018 not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the “Act”), a decision under s 501(3A) of the Act to cancel the Applicant’s Class TY (Subclass 444) Special Category (Temporary) visa (the “visa”).
The application is made pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the “Tribunal”) for review of decisions of a delegate of the Minister under s 501CA of the Act.
BACKGROUND
The Applicant, a citizen of New Zealand, first arrived in Australia on 27 May 2007. He is now 31 years old and was the holder of a Class TY (Subclass 444) Special Category (Temporary) visa.
On 14 March 2018, the Department issued the Applicant a notice that his visa had been cancelled under s 501(3A) of the Act.
On 9 April 2018, the Applicant made representations seeking revocation of the cancellation decision.
On 28 November 2018, the delegate decided under s 501CA(4) of the Act not to revoke the mandatory cancellation.
Applicant’s criminal history
The Respondent has reproduced a table (as corrected by the Tribunal), summarising the Applicant’s National Police Certificate dated 1 December 2017, revealing numerous offences, which can be summarised as follows:
Court date Offence Sentence 27 Oct 2015
(Blacktown Local Court)
Drive motor vehicle while licence suspended – 1st off Fine: $800
Disqualification driver: 12 months
1 Dec 2016
(Penrith Local Court)
Drive motor vehicle during disqualification period – 2nd off Fine: $1,000
Disqualification driver: 2 years
26 Apr 2017
(Blacktown
Local Court)Destroy or damage property (dv) (x3)
Common assault (dv) – t2
Assault occasioning actual bodily harm (dv) – t2
Assault police officer in execution of duty cause abh – t1
Resist officer in execution of duty – t2
Assault officer in execution of duty – t2
Intensive correction order (aggregate): 17 months
Intensive correction order (aggregate): 17 months
Intensive correction order (aggregate): 17 months
Intensive correction order (aggregate): 17 months
Intensive correction order (aggregate): 17 months.
Intensive correction order (aggregate): 17 months
4 May 2017
(Waverley Local Court)
Driver motor vehicle during disqualification period – 2nd off Fine: $660
Community service order: 100 hours; Disqualification of driver: two years
10 Jan 2018
(Blacktown
Local Court)
Destroy or damage property (dv)
Contravene prohibition/restriction in AVO (domestic)
Stalk/intimidate intend fear physical etc harm (domestic – t2
Imprisonment (aggregate): 7 months (severity appeal lodged)
Imprisonment (aggregate): 7 months (severity appeal lodged)
Imprisonment (aggregate): 7 months (severity appeal lodged)
Orders confirmed 7 March 2018 (Parramatta District Court)
2 May 2018
(Waverley Local Court)
Drive motor vehicle during disqualification period – 2nd off Pending court appearance ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501CA of the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)That the Applicant passes the character test as defined by s 501 of the Act; or
(b)
There is another reason why the original decision should be revoked
(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (“Direction 65”), the relevant paragraphs of which are set out below, describes the framework within which the Tribunal’s discretion is to be exercised in this case.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
1The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation;
and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(2));
(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));
(d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa (cl 6.3(4));
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (cl 6.3(5)); and
(f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused (cl 6.3(7)).
Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction 65, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of Direction 65 provides:
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
2Decision-makers should also 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 two limbs of cl 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Clause 13.1.1 of Direction 65 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
(a)the principle that violent and/or sexual crimes are viewed very seriously (cl 13.1.1(1)(a));
(b)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious (cl 13.1.1(1)(b));
(c)the sentence imposed by the courts for a crime or crimes (cl 13.1.1.(1)(c));
(d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (cl 13.1.1.(1)(d));
(e)the cumulative effect of repeated offending (cl 13.1.1.(1)(e));
(f)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (cl 13.1.1.(1)(g)); and
(g)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious (cl 13.1.1.(1)(h)).
The risk to the Australian community
Clause 13.1.2 of Direction 65 states that decision makers should have regard to the following:
(a)the principle 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 repeated, is so serious that any risk that it may be repeated is unacceptable (cl 13.1.2(1));
(b)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct (cl 13.1.2(2)(a)); and
(c)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (cl 13.1.2(2)(b)).
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
The considerations at cl 13.2 of Direction 65 include:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact) (cl 13.2(4)(a));
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (cl 13.2(4)(b));
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (cl 13.2(4)(c));
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways (cl 13.2(4)(d));
(e)Whether there are other persons who already fulfil a parental role in relation to the child (cl 13.2(4)(e));
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (cl 13.2(4)(f));
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect (cl 13.2(4)(g)); and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct (cl 13.2(4)(h)).
Primary Consideration 3 – Expectations of the Australian community
Clause 13.3 of Direction 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in cl 6.3 of Direction 65, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes (cl 6.3(2) of Direction 65).
Other Considerations
International non-refoulement obligations
The considerations at cl 14.1 of Direction 65 include (but are not limited to):
(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations (cl 14.1(1));
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa (cl 14.1(2));
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled) (cl 14.1(3));
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked (cl 14.1(4));
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated (cl 14.1(6)).
Strength, nature and duration of ties
The considerations at cl 14.2 include:
(a)how long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community (cl 14.2(1)(a));
(b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family (cl 14.2(1)(b)).
Impact on Australian business interests
Direction 65 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (cl 14.3(1)).
Impact on victims
Clause 14.4 of Direction 65 provides:
'Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.'
Extent of impediments if removed
The extent of impediments if removed requires consideration of 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: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character test
It is clear according to the Act that because the Applicant has a “substantial criminal record” (s 501(6)(a)) he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
Protection of the Australian community (past conduct and future risk)
The first primary consideration consists of two matters: (i) the nature and seriousness of the Applicant’s conduct; and (ii), the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
Paragraph 13.1.1 of Direction 65 sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the Applicant’s criminal offending or other serious conduct. Taking into consideration the factors relevant to the present application, the Applicant’s offences, while not numerous, are nonetheless particularly serious.
The Applicant commenced offending against Australian laws within six months of moving to Australia. Prior to moving to Australia, he had been convicted of two assault (family violence) charges in New Zealand. His first offence in Australia was a driving offence. Since that time, he has been convicted of destruction of property, common assault, assault occasioning actual bodily harm, assaulting a police officer, resisting an officer, stalking/intimidating and contravention of an apprehended violence order (“AVO”). The Applicant also committed an offence while in custody. Overall in a period of 9 years, the Applicant has been convicted of ten domestic violence related offences. Further, he has broken Australian traffic laws on 21 occasions between 2012 and 2017, and is a disqualified driver until 2025.
Domestic violence is rightly regarded by Australian society as a serious offence. Furthermore, there are numerous instances throughout the Applicant’s period of residing in Australia where he has committed a number of “traffic offences”, including driving whilst disqualified, which discloses a worrying disrespect for Australian laws and a disregard for constraints placed upon him. Not only has he been convicted of offences in relation to domestic violence but he has also been found to have breached domestic violence orders. This again supports a conclusion that he has in the past disregarded court orders.
The Applicant’s offending in April 2017 involved not only domestic violence but assaults on a police officer and destruction of property. By November 2017, the domestic violence order had been varied to allow the Applicant to reside with his family. The Applicant, on 21 November 2017, contravened the domestic violence order earlier imposed together with stalk/intimidate intend fear, physical etc harm (in the domestic setting) as well as the destruction or damage of property. This occurred in his parent’s home where he had come to reside with his partner and children. It is relevant to take into account, as the Tribunal does, that on two occasions in 2008 only one month apart in November and December, the Applicant was convicted in Manukau District Court in New Zealand of assault on a female (family violence). The cumulative effect of the offending including the traffic offences makes the Applicant’s conduct all the more serious.
The Tribunal finds that the Applicant deliberately failed to disclose his convictions in his passenger arrival cards, providing false information to the Department (Direction 65, para 13.1.1(1)(f)). This stands as another facet of behaviour that increases, overall, the seriousness of the Applicant’s conduct.
Risk to the Australian community
The nature of the harm to victims if the Applicant were to reoffend in the future is serious, and could involve at least physical harm to members of the Australian community.
With reference to the Applicant’s history of domestic violence, it has been perpetrated against his long-standing partner, Ruby King. In fact, she gave evidence on his behalf that was supportive of him during the hearing. It appeared to the Tribunal that she had little or no insight or was deliberately blind to the fact that the Applicant’s offending against her was deeply ingrained. On the evidence before the Tribunal, it is clear that a large component of the Applicant’s offending is situational; that is, in this case, on account of the Applicant’s enduring relationship with Ms King. It appeared to the Tribunal that she has no intention of relinquishing that relationship. She believes he has changed as a result of imprisonment and detention. This matter will be discussed below.
Specifically as to the likelihood of re-offending, the Applicant’s conduct to date gives the Tribunal no confidence that he will refrain from further violence in the future. An AVO was put in place on 26 April 2017 following the Applicant’s assault of his partner. The terms of the AVO were varied allowing the Applicant to live with his partner and children on 15 November 2017. Within six days of the variation, the Applicant contravened the more lenient terms of the AVO and committed offences of destruction of property and intimidate/intend fear of physical harm. The Applicant previously failed to comply with the community service work component of his intensive correction order, indicating a disregard for Australian laws.
The risk to the Australian community is to be judged not by speculation or guesswork but by the objective and dispassionate assessment of all the evidence.
The Applicant’s case, including his evidence, is to the effect that he has served his time in custody and immigration detention and has completely changed. Impliedly, the effect of his incarceration has caused him to reconsider his behaviour which in the past has been affected by alcohol and drugs. Many family members and friends attest to his general good standing and good qualities.
The Applicant, it may be accepted, has been in no trouble either in prison or immigration detention. The Tribunal draws the inference, in the Applicant’s favour, that this is some objective evidence of a change in behaviour.
The Applicant also submitted a substantial loss of weight of 50 kilograms is objective evidence of an ability to change his behaviour and exercise control. The Tribunal considers that although there may be other reasons for the weight loss, it is a submission that should be accepted.
The Applicant has undertaken courses and attended counselling whilst in custody in anger management and domestic violence behaviour management.
His partner and family gave evidence that the Applicant was relevantly a changed person.
The psychologist, Mr Wolfers, provided a report supportive of the Applicant’s changed attitudes and offered the opinion that the Applicant would not likely offend again.
In the Tribunal’s opinion, Mr Wolfers’ report is most unsatisfactory. It is attended by significant failures and problems.
The report fails to mention at all the actual domestic violence offences, or analyse them in relation to the relationship between the Applicant and his partner. The Tribunal considers this matter alone, which the Tribunal considers is central to the question of the likelihood of re-offending, is sufficient to diminish the authority of the report to a valueless opinion. Apart from this, the Tribunal’s view is that the writer inappropriately entered into the forum by proffering an opinion as to whether the Applicant should be deported.
Furthermore, the writer’s opinion was inextricably mixed with his opinion expressed concerning the Applicant’s partner, making the opinion, in the Tribunal’s view, confused and therefore diminished in value.
Overall, as to Mr Wolfers’ evidence and his report, they are of no evidential value in the assessment of future offending and future risk to the Australian community in the Tribunal’s opinion.
An assessment of the Applicant’s past history of domestic violence offences, demonstrates that there is a common factor to the offending. This is his partner. The Tribunal does not mean to suggest that she is in any way to blame for the past conduct.
The past offending is a function of the relationship between the parties. In Mr Wolfers’ report at 8.1 is the following: “Ms King reported that she is very much reliant for mental, emotional and social support on her relationship with Mr Wiki. She loves him deeply and is totally committed to their relationship. Her plans for her future have always been tied up with his”.
The Tribunal recognises this determined continuation of the relationship, on the part of both parties, as setting up a situation where the Applicant is highly likely to re-offend in the future. This is discussed, in further detail, below.
The so-called change of behaviour, although there is some evidence of it, is quite untested, the Applicant having been in custody or detention effectively since the last period of offending. The circumstances of that offending, in November 2017, when the domestic violence order was varied to allow contact with the Applicant’s partner and children, were that six days after that occurred, he committed a series of violence-related offences.
Added to that are the offences committed in New Zealand in 2008, and the deliberate attempt to hide that from immigration officials on three occasions. The Tribunal finds that the Applicant’s behaviour was deliberate, as were his brazen lies to the Tribunal, concerning his filling in of the incoming passenger forms.
Another dimension of concern is the Applicant’s “traffic” history. This displays serious disregard, not only for the safety of road users and citizens but also a worrying lack of regard for rules, regulations and court orders.
His stated in evidence that on an occasion where he had been drinking which then led to domestic violence offences where the Applicant acknowledged that he realised that alcohol played a role in this type of offending, he nevertheless offered as an excuse that it had been a very hot day and after work he admitted to having about six beers. This demonstrated to the Tribunal a worrying lack of insight into his behaviour. He appeared not to be contrite about his drinking influencing the later behaviour rather, simply describing it as what he wanted to do. This demonstrated also a lack of self-control.
This is the Tribunal’s opinion of that evidence.
Although there is some evidence to the contrary, the Tribunal is entirely satisfied that on the whole of the evidence, and considering the Applicant’s past offending conduct, that the Applicant has a significant risk of re-offending. Should he be allowed to remain in Australia, the Applicant, in the Tribunal’s opinion, will pose an unacceptable risk to the Australian community of re-offending. This consideration weighs very strongly against revocation.
Best interests of minor children in Australia
It is an undoubted principle of widespread acceptance that children should have the benefit of knowing both parents. This is best achieved when the family is living together as a unit. Although there have been, on the evidence, some short periods of separation between the parents, the children have largely lived in a single family unit.
The Applicant has three children, S (eight years), B (seven years) and T (five years). The Tribunal accepts that the Applicant has a strong, positive relationship with his children. The Applicant has raised concern for the children’s welfare without his financial support. The evidence is that the Applicant’s partner is working and his mother assists in looking after the children. The Tribunal considers that, should the Applicant be removed, he would be able to provide some financial support, from New Zealand, to his family. This, however, the Tribunal considers, is far from ideal and therefore contrary to the best interests of minor children. The Applicant should be in a position to play a positive role in the children’s lives. This will be best achieved by his continuing to reside in Australia.
Ms King gave evidence that on the occasion of the incident in April 2017, the children were in the house but heard nothing. Whether this is correct or not, it is unsatisfactory from the children’s best interests, to have them witness such parental behaviour. As the Tribunal is of the view that the Applicant is at real risk of future offending, this may have an impact on his positive parental role in the future. This is referred to because of a submission made in para 31 of the Respondent’s contentions. Overall, this submission does little to outweigh the very powerful consideration of the best interests of minor children and this consideration weighs very strongly indeed in the Applicant’s favour.
As a matter of completeness, as a factor to be taken into account under this consideration, the Respondent argued that the partner and children would be able to relocate to New Zealand “if they so wished”. The Tribunal considers that it is inappropriate to take this submission into account when assessing the best interests of minor children.
Expectations of the Australian community
Once again, the scope, operation and meaning of this consideration has become an issue in this hearing. I am reminded of what was said in Robertson and Minister for Home Affairs (Migration) [2019] AATA 164 at [49]-[58]:
“The expectations of the Australian community are often framed by the Respondent in terms of the statements of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and in particular, on the basis of phraseology in para [76] suggestive that this consideration is fundamentally one which will always be taken into account against the Applicant’s interests and should be weighed against the Applicant. The judgement proceeds at para [76] “ … it is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief”.
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]- [66]).
It cannot, however, be supposed that the learned Justice meant anything so strict or absolute.
The meaning and consequently the operation of this consideration is to be understood by analysis of the language of Direction 65 itself. It is tolerably clear according to its language that it, like all other considerations under Direction 65, requires an evaluation of factors by the Tribunal. This view is supported by the language of paragraph 6.3 Principles (2) – (7); paragraph 7 – ‘How to exercise the discretion’ and paragraph 8 – ‘Taking the relevant considerations into account’.
In fact, contrary to the “deeming provision” analysis in YNQY (at para [76]) are statements of the application of the discretion referred to in paragraph 8(3) of the Direction “both primary and other considerations may weigh in favour of or against … whether or not to revoke a mandatory cancellation of a visa”. This is, together with the “expectation” language of paragraphs 6.3(2), (3), (5), (7), positive recognition that Consideration 3 will not necessarily be determined to weigh against an Applicant’s interests.
The use of the terminology “primary” and “other considerations” is in fact, an expression of the exercise of a process of evaluation which in its turn becomes, according to the regime dictated by Direction 65, an exercise in discretion as to whether there is “another reason” not to revoke the visa.
The notion of “considerations” in Direction 65, both “primary” and “other” logically have, according to their construction and intention, the requirement that an assessment is undertaken and an analysis made of all relevant factors; and upon that undertaking, by appropriate synthesis, a resulting conclusion as to the weight to be given to this consideration in the overall assessment of all considerations for the purpose of the proper exercise of discretion by the Tribunal.
It should be noted that in YNQY, the learned Justice’s ultimate disposition of the appeal did not depend upon the statements made regarding Consideration 3 and such statements were not germane to the reasoning.
Having regard to the structure of the Direction, apart from the fact that it appears to operate as a “consideration” rather than a deeming provision, it is in reality, a prima-facie expectation which may be displaced by the assessment of factors including those considerations pertinent to Primary Consideration 1. So much is evident from a reading of the Direction itself. An assessment of those multiple factors will inform and may displace this prima-facie aspect of Primary Consideration 3.
Whether those “community expectations” referred to by the learned Justice are an articulation of the views of the executive government expressed through the prism of the community or not, there is absolutely no warrant for a refusal by the Tribunal on that basis to perform its mandated function, that is to say, an assessment of all relevant factors under this consideration.
Were Consideration 3 not to operate in this way, then Consideration 3 itself would have no logical place within the collection of considerations which together comprise Direction 65.”
Despite what the Respondent says about the Applicant’s offences “that cancellation may be appropriate simply because of the nature of the offences” the Applicant’s cumulative offending should not be regarded at that level of seriousness. Nor is it correct to submit that “Noting the case law that ‘this criteria ipso facto counts against the Applicant regardless of the circumstances of the case’ (at [126]) and given the serious and repeated nature of the Applicant’s offences, the Australian community would expect that the Applicant should not hold a visa”. The statement of Mortimer J referred to in Robertson above was obiter, that is, not germane to Her Honour’s reasoning in that case and, therefore, not binding on this Tribunal.
This consideration requires the factors pertinent to Consideration 1 to be assessed as well as all other relevant factors. In this case, even though there are powerful considerations for revocation including but not limited to, the best interests of the children overall, because of the risk of re-offending assessed by the Tribunal as unacceptable, this consideration weighs against the Applicant and favours non-revocation.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
This consideration does not appear to be relevant to the present case.
Strength, nature and duration of ties
This factor weighs in favour of revocation. The Applicant’s partner and children live in Australia, as do his parents and sister with whom he has contact and who supports him. There is also a brother and other family members who are part of the Applicant’s circle. In attending a local church, the Applicant has enlarged his circle of friends, contacts and support group. Many of these provided positive evidence on behalf of the Applicant, referring to the fact that he had changed. The Applicant has the prospect of work through a former employer. It is noted, however, that the Applicant moved to Australia as an adult, having lived here for six years, and his offending commenced three years after his arrival (Direction 65, cl 14.2(1)(a)(i)).
The Tribunal notes that the Applicant’s partner and children are citizens of New Zealand.
Overall, this factor weighs in favour of revocation.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
The victim of the Applicant’s domestic violence offences, Ms King, has indicated that the decision not to revoke would adversely affect her. It would also clearly affect their children. The Tribunal places weight naturally on the Applicant’s victim’s attitude. In this case, however, the Applicant’s victim is also his partner and the Tribunal recognises that there may be a complicated mixture of factors including companionship, financial factors and the interests of the children which may have led Ms King to this position. Furthermore, the “victims” of domestic violence will not necessarily be only the physical victims of the violence itself but may also include those who witness and hear the perpetration of such violence.
Nonetheless, in the unusual circumstances of this case, whatever objective impact might be supposed in Ms King’s case, her subjective attitude is that the Applicant’s removal from Australia would adversely affect her. On this limited basis, the Tribunal accepts this is a consideration for revocation of the decision
Extent of impediments if removed
The Tribunal accepts that there will be significant impediments if the Applicant is removed. His family is largely in Australia, the most important being his partner and children. The Applicant’s age and health would not be a particular impediment for his removal although in evidence the Applicant referred to physical difficulties working as a scaffolder. The Tribunal finds that apart from the obvious difficulties surrounding relocation itself, nonetheless, the Applicant should be able to find employment in New Zealand. There will be no cultural difficulties should the Applicant be returned. There will of course be difficulties in the sense of arranging suitable contact with his children, were the Applicant removed. It is the Tribunal’s view that the Applicant would not face great difficulties in re-establishing himself in New Zealand.
CONCLUSION
The best interests of the minor children are a powerful reason in favour of revoking the decision. The other factors which reinforce that view have been referred to above and include the strength, nature and duration of ties to Australia, the attitude of his partner as a victim, and impediments referred to should he be removed. The Tribunal, however, is absolutely satisfied that the risk of the Applicant re-offending is an unacceptable risk and that, together with the expectations of the Australian community, so strongly outweigh all other considerations, that the decision should not be revoked.
The decision under review is affirmed.
I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
..........................[SGD]..........................................
Associate
Dated: 20 February 2019
Date of hearing: 11 February 2019 Counsel for the Applicant: Mr D Godwin Solicitors for the Applicant: Mrs M Lewis, Teleo Immigration Lawyers Solicitors for the Respondent: Ms M Donald, Sparke Helmore
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0
3
0