Wilde and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 75
•21 January 2022
Wilde and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 75 (21 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8291
Re:Tristan Dale Wilde
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:21 January 2022
Place:Canberra
The decision under review is affirmed.
……………..[sgd]……………
Senior Member O'Donovan
Catchwords
MIGRATION - Non-revocation of mandatory cancellation of a Special Category (Class TY) (Subclass 444) visa - where Applicant does not pass the character test - whether “another reason” to revoke visa cancellation – Best interests of minor children – Family violence – Criminal record - Ministerial Direction No 90 – Decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 501(3A), 501CA, 499(1)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Secondary Materials
Ministerial Direction No 90
REASONS FOR DECISION
Senior Member O'Donovan
The applicant was born in New Zealand on 6 May 1977. He visited Australia a number of times in his youth but always returned to New Zealand. In 2002 he moved to Australia permanently. On 17 August 2002 he was granted a class TY subclass 444 special category (temporary) visa. He has not left Australia since. He has a long history of offending and is known by two names – Tristan Dale Wilde and Christian McPherson.
On 15 September 2020 the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958. It was cancelled following his conviction and incarceration for trafficking in dangerous drugs including methamphetamine.
On 1 October 2020 the applicant applied for revocation of that decision. On 28 October 2021 a reviewable decision was made not to revoke the cancellation of the applicant’s visa. On 5 November 2021 the applicant applied to the Tribunal for review of the reviewable decision. In these proceedings I must consider whether the decision to cancel the applicant’s visa should be revoked.
The applicant’s visa was cancelled because, as a result of the length of the sentence imposed on him in relation to the drug trafficking charges, he did not pass the character test specified in section 501. In those circumstances the Minister was obliged to cancel his visa under section 501(3A). Pursuant to subsection 501CA, I can revoke the cancellation if I am satisfied that there is another reason why the original decision should be revoked.
In considering whether to revoke the visa cancellation and whether there is another reason why the original decision should be revoked, I approach the matter consistently with the observations made in Gaspar v Minister for Immigration and Border Protection:[1]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...[2]
[1] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38].
[2] cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
In the present case it is accepted that the applicant has made representations in accordance with s 501CA(4)(a) and does not pass the character test. Accordingly, the only question is whether there is another reason why the original decision should be revoked. The exercise of this power is regulated by Ministerial Direction No 90.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, including the Minister’s delegates and the Tribunal, but does not apply to the Minister himself.[3]
[3] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked Direction 79, the previous direction which dealt with section 501CA, on the same date.[4]
[4] Direction, cl 2-3.
The Direction provides that:
A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
The factors that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2 of the Direction. The following principles in paragraph 5.2 of the Direction provide a framework for decision makers:
(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 noncitizens 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 noncitizens 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 Part 2 of the Direction provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community;
(b)Family violence committed by the non-citizen;
(c)The best interests of minor children in Australia affected by the decision; and
(d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(c)Extent of impediments if removed;
(d)Impact on victims; and
(e)Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia; and
(ii) Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘…information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ This does not however preclude the Tribunal giving an ‘other’ consideration the equivalent or greater weight than a primary consideration.[5]
[5] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.[6]
[6] Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461, [57]
ISSUES FOR DETERMINATION
The only issue for determination is whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE
The following material was taken into evidence in the course of the hearing:
(a)A bundle of section 501 ‘G’ Documents p 1-162 – Exhibit 1;
(b)Bundle of documents entitled ‘Further Evidence To Be Relied On’ (excluding the report of Professor James Freeman’ – Exhibit 2 – this bundle included witness statements from Tristan Wilde and Hayley Hughes;
(c)Psychologists Report of Professor Freeman dated 27 December 2021 – Exhibit 3;
(d)Bundle of Material Produced Under Summons p 1-47 – Exhibit 4; and
(e)Supplementary Bundle of Material Produced Under Summons p 47-62 – Exhibit 5;
The following witnesses gave evidence:
(a)Tristan Wilde;
(b)Hayley Hughes;
(c)Professor Freeman.
FACTS
Fact finding principles
Set out below are my findings of fact. To the extent that any of the findings are controversial the evidence on which the finding is based is cited.
Fact finding has not been easy in this case. The applicant was involved in an extremely dysfunctional and damaging relationship with the mother of his children off and on for more than 11 years. The relationship was characterised by domestic disturbances where the police were often called and each party gave different accounts of what had taken place. I have available to me police reports of those disturbances. They are often inconsistent with the applicant’s sworn evidence about what took place. The applicant has urged me not to place much reliance on the material obtained from the police and submitted that it would be unsafe to make adverse findings on the applicant’s credibility based on police records. They contain unsworn statements which have not been tested by cross-examination.
Given the risks associated with accepting accounts given to police by persons whose evidence cannot be tested in the usual way, I have generally been prepared to accept the applicant’s account of events. For the most part, the evidence he gave was broadly consistent with the content of police reports.
Where the applicant has given an account of his life and his lifestyle and corroboration is limited, unreliable or non-existent, I have approached his evidence with caution. I am satisfied that he made at least one statement in the course of these proceedings which was deliberately untrue. In the statement he filed with the Tribunal and adopted as part of his evidence, he claimed that in relation to a 2015 drugs possession charge ‘I had been given 21 grams of cannabis leaf as I wished to try using it for medicinal purposes.’[7] It became clear from police documentation and subsequent admissions during the course of cross examination that the applicant was not ‘given’ cannabis leaf in 2015 but deliberately purchased it in significant quantities from a major drug distributor. This leads me to think that when opportunities present themselves to present matters in the best possible light, the applicant tailors his evidence accordingly.
[7] Statement of Christian McPherson (aka Tristan Wilde) dated 30 December 2021.
It is notable that when giving any account of a domestic disturbance the applicant blamed the other party and minimised his own culpability for violent conduct which he ultimately admitted occurred.
In addition, it is fair to say that the applicant had a tendency to only reveal relevant but adverse matters if information was obtained about it from a third-party source. For example, the original submission put in the applicant’s statement of facts issues and contentions was that the family violence consideration was ‘not relevant as there is no evidence that the Applicant has engaged in conduct constituting family violence’.[8]
[8] Applicant’s Statement of Facts, Issues and Contentions, [59].
This submission was made (presumably on instructions) despite the fact that the applicant was at the time the subject of a domestic violence order (of which there was evidence in the G Documents)[9] and the applicant knew that he had engaged in family violence over many years.
[9] Exhibit 1, G2, 56; contains admissions about the existence of the DVO followed by denials as to its veracity.
While the applicant sought to give the impression of a man trying to give a full account of his behaviour during his time in Australia, I don’t have any doubt that the applicant gave an edited account designed to paint him as a victim of circumstances who made one terrible mistake.
The only other lay witness in this matter was the applicant’s current partner Ms Hayley Hughes. Ms Hughes was pleasant witness but I do not put much weight on her evidence. In statements to the Department and the Tribunal she sought to corroborate the applicant’s descriptions of himself as a devoted father. However, it became clear in the course of her evidence that despite the fact that she had known the applicant for many years she had only seen the applicant with his son. Once in 2017 and once in 2019 [10]
[10] Transcript of proceedings, 5 January 2022, 75.
Ms Hughes also denied knowing that the applicant was a drug dealer prior to the police raid on their house in 2019. This evidence is difficult to accept. When police raided the applicant’s home large quantities of methamphetamine were found in the bedroom. Clip-seal bags, scales and a taser were found in the house. Drug paraphernalia was found in both the bedroom and the living room. Ms Hughes gave an unresponsive answer when asked when she first knew that the applicant was involved in dealing with methamphetamine stating only that she ‘knew the applicant was having some struggles’.[11]
[11] Transcript of proceedings, 5 January 2022, 74.
In my assessment, Ms Hughes, gave evidence tailored as far as possible to assist the applicant. I have approached her evidence with caution and do not consider her to provide reliable corroboration of the applicant’s behaviour.
Professor Freeman gave expert evidence as a forensic and clinical psychologist. He was a pleasant and co-operative witness who made appropriate concessions when his views were queried. He explained clearly the basis for his views and the qualifications on his assessment. The reliability of his report is however affected by the reliability of the information he was provided with by the applicant. Also, there were some aspects of his professional judgments which were based on a particular view about the extent to which the applicant would in the future engage with his ex-partner Jenna which I do not accept. Professor Freeman in my assessment underestimated the likelihood of the applicant continuing to engage with and be involved with Jenna and the risk of the applicant lapsing into a further relationship with her.
My specific findings are as follows.
The applicant’s background – work, social and criminal history
The applicant settled permanently in Australia in August 2002. His early years in Australia were littered with encounters with the police.
In 2003 the applicant was identified by police as using cannabis in company in a public place. Later that year, he was involved in an incident at the Panthers Leagues Club in Penrith following the Panthers NRL Grand Final win. The applicant admits that an incident did occur at the club but says he was too drunk to remember any of it. The police records show that the incident began with the applicant being intoxicated and argumentative. When security attempted to remove him from the club he became violent, biting the thumb of one of the security guards (drawing blood) and biting the shoulder of another. He spat in the face of another security guard as police placed him in a paddy wagon. The applicant was charged with assault and pleaded guilty to the charges.
In 2004 he was involved in a melee in a carpark and injured police officers who attempted to arrest him. On 10 June 2004 the applicant appeared in the Penrith Local Court facing charges of assault occasioning actual bodily harm, common assault, use of offensive language and assaulting an officer in the execution of his duty. He was sentenced to six months imprisonment in relation to each of the assaults and fined $300 in relation to the offensive language charge. On appeal, the sentences were suspended.
In 2006 the applicant was involved in an incident at a real estate agent’s office where he broke the office phone and smashed a glass wall by kicking it following a minor dispute about an amount of rent owing. He was charged and fined in relation to this conduct.
In 2007 he commenced a relationship with his long-term partner Jenna and in July of 2008 his son C was born.
For the following three years the relationship between the applicant and Jenna did not attract police attention. However, in 2011 they moved from Sydney to Jindabyne and the relationship deteriorated. There were domestic arguments which were serious enough for the police to be called. At this point Jenna obtained her first apprehended violence order against the applicant. He found the process by which it was granted unfair but in his evidence to the Tribunal he accepted that, given his size relative to Jenna, she could have been intimidated by him during the argument which took place.[12]
[12] Transcript of proceedings, 5 January 2022, 47.
At some point after this, Jenna moved out. On the applicant’s account she moved out to live with a drug dealer in Jindabyne. The applicant continued to care for C. However, in late 2011 Jenna took C and moved to Townsville. Based on the police records it is possible that the applicant is mistaken about the sequence of moves between Jindabyne, Brisbane and Townsville, but nothing turns on it.
The applicant claims that around this time, Jenna began to work as a prostitute. Police files corroborate that by 2012 Jenna was involved in prostitution so I am prepared to accept this claim.
The applicant followed Jenna and C to Townsville (on his account) out of concern for C rather than to maintain the relationship with Jenna.
In Townsville the applicant claims that there was a serious incident during which Jenna attacked C after smoking synthetic cannabis. The applicant alerted police who intervened to stop the attack. The applicant refused to make a statement and in doing so protected Jenna from further police action.[13]
[13] Transcript of proceedings, 5 January 2022, 48.
Soon after this incident the applicant, Jenna and C moved to Brisbane. The relationship with Jenna was clearly unstable. The applicant describes his occupation at the time as a babysitter for C while Jenna worked as a prostitute.
In January 2012 the applicant was involved in two domestic disturbances. The applicant only gave evidence about the second of these. It appears from the Summary of Domestic Violence Orders and Conditions that the first incident occurred on or around 4 January 2012 and resulted in an order that the applicant vacate the premises where he was living with Jenna and C and an order that he not approach within 100 meters.[14] The applicant moved to a homeless shelter. A second domestic dispute followed.
[14] Exhibit 4, 5.
The genesis of this second domestic dispute was, according to the applicant, his concern for C’s welfare living in an environment where his mother was engaging in prostitution. Given that he had lived with and facilitated Jenna’s prostitution to that point in time I am sceptical about this evidence being an accurate description of his motives, but nothing turns on it. On 9 January 2012, in breach of the domestic violence orders, the applicant approached the place where Jenna and C were living. It was his intention to remove C. The applicant gained entry to the premises and some sort of altercation ensued. The applicant claims that he never assaulted Jenna during the incident inside the apartment and I am prepared to accept that version of events. However, the result was that the applicant took C and left the apartment. The altercation continued on in the street with the applicant carrying C. Jenna was at the very least trying to wrestle C from the applicant and may have been behaving more violently. Ultimately the applicant pushed Jenna in the face causing her to fall down on the pavement. This was witnessed by passers-by.
On 28 January 2012 the applicant pleaded guilty to a charge of breaching the domestic violence order. No conviction was recorded and he was ordered to pay a fine.
In October 2012 a further incident of domestic violence occurred. Police documentation indicates that Jenna and the applicant had resumed living together but got into an argument and were ready to terminate the relationship. While the applicant’s account and the police report vary in some details it is clear that the applicant and Jenna ended up outside the apartment. The applicant accepts that the altercation became violent although he blames Jenna for the escalation.[15] The police report includes an account of the applicant striking Jenna which was observed by independent witnesses.[16] I am satisfied that during the course of the argument the applicant assaulted Jenna. The police report also includes an account of the applicant spitting on Jenna. In light of his propensity to engage in such behaviour I am satisfied that it occurred on this occasion. The applicant subsequently gained access to the apartment with C’s assistance. The police arrived shortly after and the applicant climbed over the apartment balcony. A lengthy standoff ensued. On the account contained in police documentation, the applicant engaged in a verbally aggressive way with the police. The applicant in the account that he gave to the Tribunal provided a different perspective on what occurred that evening but the broad facts were consistent with the information contained in the police reports. It is not in dispute that the applicant threw a lighter at a policeman, although the applicant disputes how aggressively he did that. He also accepts that he spat in the face of a policeman, but claimed it was in response to a particular verbal provocation by the policeman. The applicant acknowledged that his was a disgusting act and that police should not have to deal with conduct of that nature.[17]
[15] Transcript of proceedings, 5 January 2022, 51.
[16] Exhibit 4, 8.
[17] Transcript of proceedings, 5 January 2022, 52.
There is no recorded conviction on the applicant’s National Criminal History in relation to this incident. The applicant’s recollection is that he was arrested and charged and was given probation. It was in this context that the applicant first sought psychological help.
Following the incident the applicant ended up living at Ozcare, a homeless shelter in Brisbane.
From early 2013 Jenna and C resumed living with the applicant until probably October 2013. The police reports indicate that the applicant and Jenna remained in a relationship at this time.
At some point in late 2013, C and the applicant moved in with a friend of the applicant and then ultimately ended up in a house with just the two of them.
There was a hiatus in the applicant’s relationship with Jenna from around late 2013 and they lived separately for over 2 years. In this time C lived with the applicant and domestic violence orders were taken out against Jenna. She breached those orders during 2015.
In February 2015 there was an incident between the applicant and Jenna at the applicant’s house. The applicant was at home and on crutches following foot surgery. Jenna came to visit. The two got into a fight which ended in a wrestle over Jenna’s mobile phone which the applicant claimed was his. In police reports each offers a different account as to what occurred but the precise facts are unimportant. It is clear that the applicant was in contact with Jenna during this period and the relationship remained volatile.
The applicant gives an account that in this period he was a model father who devoted himself primarily to his son’s welfare including teaching him to read and write and cook and ride a bicycle, and, somewhat oddly, to drive a car and ride a motorbike[18] – neither of which seem appropriate for a boy who was under 10 years old at the time. On the applicant’s account, it was only when he allowed Jenna to move in with him again in 2018 that a downward spiral began.
[18] Exhibit 1, 52.
I accept that the applicant had sole custody of his son during the period from 2014 to 2018 but I am not prepared to accept that he was the model father which he claims to have been. The corroborating evidence of that fact is slight, and as discussed further below, I am satisfied that there was at least one period within that time frame where the applicant was a heavy cannabis user. I am not prepared to accept the applicant’s narrative that it was Jenna’s return to his life in 2018 which was responsible for his downward spiral.
The applicant sought in his written statement and in his oral evidence to minimise his cannabis use. As noted at paragraph 24 above, I am satisfied that the applicant has included a false statement in his written statement where he claims he was ‘given’ the cannabis he was found with when police executed a search warrant. In his oral evidence to the Tribunal the applicant repeated the claim that his only involvement with cannabis was the product of a foot injury which required surgery and he only used cannabis as a medicinal alternative to the pain reliever OxyContin.
I do not accept that evidence.
The applicant admitted to the Tribunal that he was purchasing cannabis in 2015 from a Mr Ken Latter – although he says that he only knew him as Ken at the time.[19]
[19] Transcript of proceedings, 5 January 2022, 55.
Ken Latter was the subject of a police investigation into cannabis distribution in Brisbane. Communications from March 2015 to May 2015 between the applicant and Mr Latter were intercepted by police and confirm that the applicant was purchasing cannabis which Mr Latter was delivering to his house.
On 5 May the applicant asked Mr Latter to bring ‘three boxes’ to his house. The applicant has not suggested that he had any other kind of relationship with Mr Latter outside of acquiring drugs.[20]
[20] Transcript of proceedings, 5 January 2022, 56.
When the applicant’s house was searched on 20 May 2015 police found small quantities of cannabis which the applicant said at the time were for recreational use. A text message was found on his phone which raised the possibility that the applicant was supplying cannabis to others. The evidence is, however, insufficient to make a definite finding in that regard.
Given these facts I am not prepared to accept the applicant’s evidence that his drug use at that time was essentially medicinal, used to temporarily address pain issues arising from foot surgery.
I am satisfied that the evidence supports the conclusion that the applicant was engaged in the heavy, recreational use of cannabis supported by a regular communication with a supplier. This occurred in a period where the applicant was not closely involved with Jenna. This finding is significant because it casts doubt on the applicant’s claims that his behaviour in acquiring and distributing drugs in 2018 was the product of a unique set of circumstances where he was led to criminality by despair arising from Jenna’s manipulation of events and the loss of the care of his son and his home.
I am satisfied that in 2015 the applicant was already operating on the periphery of serious crime and did not have far to go before becoming involved in drug distribution.
On the applicant’s account, between 2015 and 2018 he started a delivery business.
He continued to allow Jenna access to C even though Jenna assaulted C and was convicted of the assault in 2015. He says that he did this because he continued to believe that Jenna should be in C’s life despite this.
It is worth recording that at the start of 2018, if the applicant’s evidence is accepted, he knew that Jenna was an unfit mother who had been violent towards C, violent towards the applicant and who was willing to conduct a prostitution business with a young child in the house. Any parent, with the interests of their child at the forefront of their mind, would have kept such a person away and limited their involvement with them to the greatest extent possible. That is not what the applicant did.
Instead, in 2018 Jenna arrived at the house where the applicant and C were living and the applicant allowed her to move in. A sexual relationship resumed between the applicant and Jenna and they may have conceived a child. This is unconfirmed. Jenna was working as a prostitute at the time, while also sleeping with the applicant. The applicant is not certain that he is the father but accepts that it is a possibility. At some point a DNA test may settle this question.
Notwithstanding his clear responsibility for re-exposing his son to a violent and unstable relationship, the applicant blames a plot by Jenna for the events which unfolded – all of which were entirely consistent with the pattern of the relationship between him and Jenna prior to 2018.
The applicant claims that Jenna was violent towards him when she returned to the house. Despite the applicant claiming to have a close and loving relationship with C and with full knowledge of the kind of person he was leaving C with, the applicant chose to leave the house to get away from her leaving C in her care.[21] He then tried to pay her to leave the house but then discovered that she was spending the money he was giving her and had no intention of leaving the house. An argument followed about some of the unspent money which the applicant had given to Jenna. This ended with the applicant taking what was left of the money and leaving the property. Jenna then got a domestic violence order against him by, on the applicant’s account, making false claims about him.
[21] Transcript of proceedings, 5 January 2022, 9.
The temporary order was served on 1 August 2018. A permanent order was granted on 22 November 2018 which runs until November 2023. The evidence indicates that at this point the applicant had fallen into using methamphetamine and was soon to commence dealing.
In December 2018 and despite being a user of methamphetamine, the applicant commenced a relationship with Hayley Hughes, a woman 20 years his junior who he had met on a few occasions prior. In late December 2018 he moved into her home.
Despite the relationship the applicant had formed with Ms Hughes, he visited Jenna in February 2019. Notwithstanding that at this point the applicant claims to have been very concerned for C and disturbed by Jenna’s conduct in advertising her services as a pregnant prostitute,[22] the applicant decided to have consensual sex with Jenna.
[22] Transcript of proceedings, 5 January 2022, 32.
On the applicant’s account the encounter ended in a dispute about the ownership of a harmonica and Jenna punching him in the face and chasing him down the street with a tyre iron.[23] Jenna subsequently alleged that she received threatening texts from the applicant but he denies it. I am not prepared to make any affirmative findings of fact about this incident except that the two engaged in consensual sex.
[23] Transcript of proceedings, 5 January 2022, 60.
On 22 March 2019 the applicant was pulled over by police and found to be in possession of 5.8 grams of methamphetamine, a small quantity of MDMA, 47 grams of cannabis and $5,450 in cash.
The applicant’s house was searched on 27 March 2019. The police found multiple clip-seal bags with a total amount of substance of 16.5 grams of pure methamphetamine. They also found 184 grams of cannabis, electric scales and a taser. The applicant was in bed with Ms Hughes when the raid took place. A bong was in the bedroom as was a significant amount of methamphetamine. A pipe for smoking methamphetamine was found under the coffee table in the living room.
The applicant was immediately taken into custody. He was initially granted bail on condition that he enter a rehabilitation facility – Victory House. Victory House was not to the applicant’s liking as it was religiously focussed and, on the applicant’s evidence, drugs were circulating freely there. He decided to leave Victory House and moved in with Ms Hughes again. His departure from Victory House was never regularised with the Court, but I am prepared to accept that this was the result of an error on the part of the applicant’s lawyer rather than deliberate defiance of the Court’s order by the applicant.
He remained drug free while living in the community for a total period of 13 months prior being convicted of possessing and trafficking dangerous drugs.
On 31 July 2020, the applicant appeared in the Brisbane Supreme Court charged with drug trafficking and possession. He was sentenced to 4 years imprisonment, to be suspended for four years after serving 12 months. The sentencing judge described the offence as follows:
On 22 March 2019, you were intercepted when you were driving a car. Various drugs were found in your possession. Next, on 27 March 2019, police executed a search warrant at your home and again found dangerous drugs in your possession. You were unemployed at the time and you made admissions to trafficking.
By way of short further detail, you were a street level trafficker and you descended into using methamphetamine and then selling it to support your habit when there was a breakup in the relationship that you had had with your son. His mother came back into your lives. There was a break-up in the household. You had to leave what had been your own home. You became very depressed. You were introduced to ice. You used that to self-medicate and your addiction spun out of control. You were unemployed at the time and so selling street level quantities of drugs was necessary to support yourself and to support your own habit, and you made a profit of between $1,000 and $1,200 per week.
When police searched your car on 22 March 2019 they found various quantities of drugs, 7.8 grams of a substance containing 5.868 grams of methamphetamine, less than one gram of pure MDMA, 47 grams of cannabis and $5,450 in currency. If you had been thinking straight – which clearly you were not – you would have brought matters to an end and got treatment, at that point. But your addiction, obviously, was too much. If you had been thinking more clearly you would have appreciated that it would be unsurprising that the police would get a search warrant to search your home.
That is what they did and on 27 March 2019 they found multiple clipseal bags with a total amount of substance of 16.514 grams pure methamphetamine in a total weight of 24.344 grams. They also found 184 grams of cannabis, electric scales and a taser.[24]
[24] Exhibit 1, 36.
The applicant has remained drug free since his arrest.
The applicant gave evidence that he has undertaken numerous rehabilitation courses and engaged the services of a psychologist prior to being sentenced and whilst in Immigration Detention. The applicant outlined his participation in the ‘Do It’ program, a drug and alcohol support program, as well as three stress management programs, a resilience program and meditation programs. These were all completed in Immigration Detention. The applicant also provided evidence of having done a 10-week ‘Circuit Breaker’ course.[25] The applicant also engaged with a corrections psychologist whilst incarcerated. [26]The applicant provided further evidence that he began seeing a psychologist and general practitioner to develop plans around managing his mental health upon his release from incarceration,[27] though for practical reasons he no longer engages these services.[28]
Contact with his children
[25] Transcript of proceedings, 5 January 2022, 13.
[26] Ibid, 12.
[27] Ibid, 11-12.
[28] Ibid, 71.
Since leaving C with Jenna in the middle of 2018 the applicant has seen C only once - on Christmas Eve 2019.[29]
[29] Transcript of proceedings, 5 January 2022, 75.
He has never met J who is the child Jenna gave birth to in late-2018 who may be the applicant’s biological son.
At present the applicant’s only contact with C is on the telephone ‘every other week’[30] which is controlled and monitored by C’s mother Jenna. There is no evidence that the applicant took any steps to gain greater access to his son while he was living in the community between approximately June 2019 and July 2020. The applicant now claims that he will seek to have greater access to C using the mediation services of the Family Court. It is his intention to seek full custody of C.
Contact with family and friends in Australia and in New Zealand
[30] Ibid, 8.
The applicant has a partner in Australia, Hayley Hughes. His father lives in NSW with the applicant’s step-mother but contact has been limited between them.
The applicant was able to name two friends in Australia, but did say he did not have a lot of close friends his entire time in Brisbane.[31] The G Documents include references from associates provided for submission to the Court on the question of sentencing.
[31] Transcript of proceedings, 5 January 2022, 9.
Each of these statements painted the applicant in a favourable light. One in particular stressed that the applicant’s descent into drug use was out of character and that it was important for C that the applicant remain in Australia to get custody. As should be clear from the findings above I do not accept that the applicant’s descent into drug use was out of character for the applicant. None of the people who gave references were called to give evidence at the hearing
The applicant has an older sister in New Zealand who is an anaesthesiologist who he has had some contact with recently. He also has a brother and a younger sister who he knows live in New Zealand but he has had no recent contact with them. He has no other contacts in New Zealand.
Work history
The applicant describes his work history in the following terms. From around the age of 16 he worked in various kitchens and, briefly, at a gold mine, presumably in New Zealand. In the twenty years following his arrival in Australia, the applicant worked in various hospitality and construction related jobs, comprising both employed and self-employed work.[32]
[32] Applicant’s Tender Bundle TW1, 1.
On questioning of him it appears that there are gaps in that history which are not apparent from the applicant’s statement. The applicant was not working when arrested in 2015. He was not working when he and Jenna moved to Brisbane in 2012. It appears that he was not working in 2011 for at least some of the time when they were living in Jindabyne.
I have no reason to doubt that his work history prior to 2011 was quite good.
Rehabilitation plan and other mental health support systems in place
The applicant, in his Personal Circumstances Form, outlines his relationship with Ms Hughes and the impact on his children should he be deported. The applicant contends that his relationship with Ms Hughes, coupled with a desire to be in C and J’s lives along with a determination to avoid Jenna, put him in a position where he does not believe that he is at risk of offending again.[33]
[33] Exhibit 1, 55.
I have seen evidence from the applicant’s GP that from September 2019 she assisted the applicant with managing his anxiety and depression and assisted him with developing a mental health care plan.[34] Included in the material before me is evidence of the applicant’s acceptance in Victory House, the drug and alcohol rehabilitation centre discussed above.[35] The applicant in his oral evidence however stated that treatment there was not useful to him. The applicant also attended counselling sessions at the Counselling and Wellbeing Centre with psychologist Dianne Clohessy. The applicant did express a desire to re-engage with a psychologist upon his release, though he is not at present using such a service.[36] While in immigration detention the applicant has been diligent in pursuing courses that will assist him in managing his drug and psychological issues in the future.
[34] Exhibit 1, 71-75.
[35] Exhibit 1, 66-67.
[36] Transcript of proceedings, 5 January 2022, 71.
PRIMARY CONSIDERATIONS
The applicant contends: (a) that I should find that he is a low risk of reoffending, (b) that the best interests of his son C and the child who might be his son, J, are served by revoking the cancellation, (c) that he would experience hardship if removed, particularly on account of his mental health, and (d) others would suffer if he were removed including his partner Hayley and people close to her, and his father and step-mother.
Primary Consideration 1 – Protection of the Australian community
Paragraph 5.2 states that:
a)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; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the applicant’s conduct, the Tribunal must have regard to the following factors:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(i) crimes of a violent nature against women or children, regardless of the sentence imposed;
(ii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) …
(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 (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.
(b)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(c)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(d)the cumulative effect of repeated offending;
(e)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(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 (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Having regard to the factors in paragraph 8.1.1 of the Direction, the Tribunal finds, for the following reasons, that the Applicant’s offending is very serious.
The applicant has a long history of offending which has become more serious over time.
The applicant has a history of violent offences dating back to 2004. The applicant has engaged in violence against women, has engaged in acts of family violence and engaged in violence towards police when they have been performing their duty. Acts of family violence are regarded as very serious regardless of whether there is a conviction or a sentence imposed.
The applicant also has engaged in drug crimes of increasing seriousness. He has been an irregular cannabis user since 2004. His cannabis use increased significantly for a period in 2015 and he began using methamphetamine and then trafficking in methamphetamine, MDMA and cannabis in 2018. The trend is one of increasing seriousness.
The lengthy custodial sentence imposed on the applicant demonstrates the seriousness of the offence. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. A sentence of four years[37] for the drug trafficking offence reflects its seriousness.
[37] Exhibit 1, 32.
Having regard to the factors in paragraph 8.1.1(d) of the Direction, I have considered the frequency of the applicant’s offending. I would describe it as consistent offending over time.
I have given careful consideration to all of the submissions made on behalf of the applicant both at the hearing and in the Statement of Facts Issues and Contentions filed on his behalf. None persuade me that the applicant’s criminal offending should be classified as less than very serious. In particular I do not accept that leaving aside the drug conviction he could be described as having ‘otherwise been a positive, respectful and law-abiding member of the Australian Community’.[38]
[38] Applicant’s Statement of Facts, Issues and Contentions, 35.
I am satisfied that the applicant’s criminal offending is very serious in nature and this weighs against the exercise of the discretion to revoke the mandatory visa cancellation decision.
(a) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states
In considering the need to protect the 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 harms 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) of the Direction provides that in assessing the risk that may be posed 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; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
The nature of the harm
The applicant’s offending falls into three categories – drug offending, violent offending and family violence offending.
If the applicant were to resume his drug offending the nature of the harm to the Australian community would take the form of drug trafficking of dangerous and addictive drugs such as ice and MDMA. It is difficult to overstate the harm inflicted on the Australian community by the trafficking in such drugs. They are highly destructive of the lives of individuals and those who associate with them. The sentencing judge said it well when he addressed the applicant saying:
…you understand better than anyone else in this room the destruction that methamphetamines brings to peoples’ lives and their relationships. That is why anyone who trades in methamphetamine, including people with heavy addiction, as you had at the time, has to be punished. It is a poison in our community…[39]
[39] Exhibit 1, 37.
In relation to the applicant’s violent offending, this appears to be largely historical and (with the exception of family violence which I discuss further below) occurred in the context of excessive alcohol consumption. If it were to re-occur it would cause harm in the form of assaults, including on police officers.
In relation the applicant’s family violence offences, if they were repeated the person likely to be harmed is the mother of the applicant’s children, Jenna. It would take the form of intimidation and physical assaults.
Likelihood of engaging in further criminal conduct
In my assessment it appears very unlikely that the applicant will engage again in general violent conduct. He has not been convicted of violent offending outside of the family violence context and the offending of that nature all took place more than a decade ago.
The applicant’s expert, Professor Freeman, assessed the applicant’s likelihood of violent offending as low. I accept that assessment.
Professor Freeman rightly noted the applicant’s abstinence from drug use since his arrest was a cause for optimism in relation to his drug offending and the applicant’s efforts in that regarded are to be applauded.
Professor Freeman did however note the applicant’s two vulnerabilities insofar as lapsing into crime were concerned as, returning to substance abuse, and involvement with his former partner Jenna. The way Professor Freeman put it, if the applicant ‘doesn’t return to those risk factors then the risk [of further criminal conduct] is low.’[40]
[40] Transcript of proceedings, 6 January 2022, 83.
I would agree with that conclusion.
Professor Freeman was optimistic that the applicant would not return to either drugs or the relationship with Jenna, although was appropriately guarded in those conclusions. He noted in relation to methamphetamine use that ‘he will…need to be vigilant of relapse for an extended period of time as methamphetamine dependency is usually chronic and requires lasting aftercare…’. He also noted that the applicant had ‘shown a vulnerability to make poor decisions when emotionally distressed’.
Given the complexity of his life, his relationship with Jenna, and her two children, in my assessment it is not possible to say with confidence that the applicant won’t end up emotionally distressed and making poor choices. This means that there is an appreciable risk that he will return to use of methamphetamine. The applicant clearly has the necessary contacts to begin distributing drugs again if he needs to so as to support any habit he acquires. I do not regard the applicant as being a high risk of relapse in this way – the lengthy period he was in the community and not using is an appropriate cause for optimism – but the risk is material and ever present for the foreseeable future.
In relation to the risk of committing further family violence, Professor Freeman has rightly identified that risk as being linked to the applicant’s relationship with Jenna. In his oral evidence Professor Freeman expressed the view that it was unlikely that the applicant and Jenna would reconcile.
I am not satisfied that that opinion is soundly based. On the applicant’s own account, between 2011 and 2015 Jenna was violent towards him, abusive towards his son, dishonest, manipulative and working as a prostitute in such a way that he feared for the safety and welfare of his son. Despite this knowledge, the applicant reconciled with Jenna in 2018 to the point where they had consensual sex and may have conceived another child together. Jenna then, on the applicant’s account, manipulated him out of his home, lied to police to obtain domestic violence orders and behaved in ways while pregnant which put her child at extreme risk. Notwithstanding all of these matters, and notwithstanding that he was in a relationship with Ms Hughes at the time, the applicant had consensual sex with Jenna again in February 2019.
The relationship the applicant has with Jenna is one which is difficult to understand and, in my assessment, difficult to predict. Professor Freeman put significant emphasis on the applicant’s relationship with Ms Hughes as a protective factor. I do not accept that assessment. The relationship with Ms Hughes coincided with the applicant’s descent into drug trafficking. It had no effect on the applicant’s drug use and no effect on applicant’s ability to stay away from Jenna. The principal driver of the applicant’s good behaviour since March 2019 appears to be the risk of sentencing and deportation. I did not regard Professor Freeman’s assessment of the effect of the relationship with Ms Hughes as congruent with the known facts, and in my assessment, his optimistic predictions about the likely course of the applicant’s relationship with Jenna was inconsistent with the known facts.
If the applicant remains in Australia and pursues custody of or access to C and/or J (which he has indicated is his current plan), I consider it very likely that hostile interactions will occur between him and Jenna. These alone will create a risk of further violence. Nor can I rule out the possibility of an intimate relationship between the applicant and Jenna resuming at some point in the future. If it does, the relationship will provide further opportunities for violence and abuse between the pair.
In these circumstances I am satisfied that there is a reasonable risk that the applicant will commit family violence offences in the future. This is likely to take the form of assaulting Jenna.
I have considered closely the applicant’s oral submissions and submissions included in his Statement of Facts and Contentions. The submissions in the Statement of Facts Issues and Contentions are focussed on the applicant’s remorse for his drug use and distribution activities and the protective factors which will prevent a repeat of that offending. They do not engage with likelihood of the applicant committing further family violence and, in my assessment, present an unrealistic picture of how isolated the applicant’s criminal offending was in relation to drug use. In closing submissions it was contended that the applicant’s risk of re-offending is low and this factor should not weigh against him. For the reasons stated above, I do not accept that submission.
Applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration one weighs against the revocation of the visa cancellation decision in that there is a material risk of the applicant re-offending, either by trafficking in dangerous drugs or by committing acts of family violence. There is a risk that the applicant will cause harm to Australians and the Australian community and this risk is ongoing. The interest in protecting the Australian community from harm weighs against revoking the cancellation.
Primary Consideration 2 – Family violence committed by the non-citizen
The applicant has a significant history of family violence.
I accept that the history is restricted to a particular relationship with the mother of his children. Without attempting to untangle the rights and wrongs of those encounters in the past, it is clear that interactions between the applicant and Jenna are prone to degenerating into violence and on occasions the applicant has assaulted Jenna. So much is accepted by the applicant. The applicant also accepts that there is one, but only one, recorded incident of a breach of a domestic violence order and the applicant is currently the subject of an ongoing domestic violence order. The applicant argues in mitigation that that the relationship between the applicant and Jenna is over and the applicant is now with a new partner and that this favours giving this factor less weight.
I accept that the relationship between the applicant and Jenna is not the same as it was in the past and that the two parties have reduced the friction in the relationship by avoiding each other. But the fact remains that Jenna is the mother of C and the applicant is potentially the father of J. The applicant, if he remains in Australia, is determined to have a relationship with his children. As a consequence, it is inevitable that Jenna and the applicant will remain connected even if they are not in an intimate relationship. This means that ongoing interactions with Jenna will be required. I am satisfied that there is a risk that the required interactions will degenerate into family violence.
This factor weighs against revoking the cancellation.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of any minor children affected by the decision. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made as per paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a) The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are two relevant minor children – J and C.
Dealing first with C. I am satisfied that it would be in C’s best interests for the applicant to remain in Australia but only because it keeps open the possibility of some in-person contact between C and his biological father. This factor does not weigh heavily in favour of revocation and leaving the applicant in Australia is not without risk for C. By reference to the considerations set out above I note the following.
The applicant has a long relationship with C which has lasted from his birth in 2008 until the applicant ceased living with C in 2018. In that time the applicant played the role of a parent either with Jenna, or as a single father. The applicant may have gilded the lily about his qualities as a parent in some of his evidence, but there is a continuity of care and stability which the applicant offered which I accept, and which is to be applauded.
However, doubts remain about whether the applicant will ever be able to resume significant contact with C even if he remains in Australia. Further, there are significant risks for C associated with the applicant’s plan to resume a parental relationship.
In relation to the question of whether the applicant will be able to resume a parental relationship with C the following matters are relevant. C is in the custody of Jenna and there is a domestic violence order in place against the applicant which does not expire until November 2023. Although the order does not exclude the applicant from being in contact with C and Jenna, Jenna is at present limiting the applicant’s access to C to fortnightly telephone contact. If Jenna’s attitude remains the same, it will make contact difficult into the future. Any change to the arrangement will require court intervention. It is uncertain whether, given the applicant’s history, a court would intervene to disrupt the existing arrangement. Accordingly, my assessment of C’s best interests proceeds on the basis that if the applicant remains in Australia there is no guarantee that he will resume a parental relationship and there is a significant prospect that his contact will be limited to telephone calls.
Even if the applicant does execute his plan to resume the primary carer role in relation to C, it is not clear that the ensuing disruption and conflict would be in C’s best interests. Anything that brings the applicant and Jenna into contact on an ongoing basis, which any kind of shared custody or access arrangement would, runs a significant risk of exposing C to further violence between his parents.
Turning then to the factors in paragraphs (c) to (h).
The applicant’s past conduct in relation to C has, on a number of occasions, likely had a negative impact on C. One would have to expect that the applicant’s behaviour in 2012, which resulted in C being carried down the street while his parents assaulted each other, would have had a negative impact on C. The incident in October 2012 where the applicant ended up outside the balcony railing of the family’s apartment and numerous police inside the apartment could well have had a negative effect. Similarly, the applicant resuming his relationship with Jenna and then abandoning C to her care in 2018 would also have had a negative impact on C. Accepting for present purposes the applicant’s description of Jenna, by 2018 the applicant knew the kind of person she was and yet he exposed his son to all the risks of letting her back into their lives. The destabilising effect on the applicant’s and C’s life could have been readily anticipated. This conduct, on the applicant’s own testimony, left his son in the care of an unfit mother. Such behaviour must have had a negative impact on C.
It is difficult to gauge the effect on C that deportation of the applicant will have. During 2019 and the early part of 2020, when the applicant was living in the community, he only saw C once. He now speaks to C less than once a week and does not know where he or his mother lives.[41]
[41] Transcript of proceedings, 5 January 2022, 34.
If the applicant remains in Australia there is no doubt that it will be difficult for the applicant to resume close personal contact with C. C is in the care of his mother and his mother seems determined to limit C’s contact with the applicant. The applicant’s contention that he will resume custodial parenting of C depends upon an application being made to the Family Court and the application succeeding. Notwithstanding the very serious claims that the applicant has made about Jenna, and assuming that they are all true, it is hard to predict what the Family Court is likely to do about the situation. Even if the Court were persuaded that C’s circumstances need to change, it is difficult to accept that the Family Court is likely to hand over a child to the care of a man convicted of trafficking dangerous drugs who has had only a single in-person contact with the child in three and a half years. In my assessment it is safer to proceed on the basis that if the applicant remains in Australia, his in-person contact with C will be limited. In such circumstances, the effect on C of the separation resulting from deportation will be minimal when compared with the applicant remaining in Australia. On either scenario the applicant’s contact with C will be limited. If the applicant is deported to New Zealand he will still be able to have regular phone contact with C which is a similar level of contact that the two had between mid-2018 and the present.
Regrettably, if the applicant is removed from Australia it is not clear that there is another person suitable to fulfil a parental role in relation to C. The evidence before this Tribunal, which I have accepted for present purposes, is that Jenna is not an appropriate person to fulfil a parental role in relation to C. However, it is not clear that the applicant would be regarded as the appropriate alternative person to fulfil that role should he remain in Australia. I note the favourable character references in the G Documents that support the conclusion that the applicant is a loving and devoted parent. Such assessments could only be historical. The applicant has not had regular in-person contact with C since the middle of 2018 and the applicant’s conduct since then has not been consistent with the conduct of a devoted parent. The concerns about C’s circumstances date from at least the middle of 2018 and the applicant was not incarcerated until July 2020. At no time in that period, even when he was living drug free in the community with his partner Hayley, were steps taken to remove C from his mother’s care and place him with his father and Hayley. The applicant has not made any serious attempts to have C moved to a place of greater safety. There is no clear solution to C’s circumstances, but I am satisfied that removing the applicant from the picture will not worsen the problem.
C’s views on the question of his father being removed to New Zealand are unknown.
If the applicant remains in Australia, it carries with it a risk that C will be exposed to further family violence perpetrated by the applicant on Jenna.
There is no evidence that C has suffered trauma as a result of the applicant’s conduct.
In light of the conclusions above, I am not satisfied that this consideration weighs in favour of the applicant being permitted to remain in Australia, but not very strongly. It is a serious matter to separate a child from his father, particularly where the father has, for an extended period, played an important role in the child’s life. For that reason this consideration weighs in favour of revocation. But, I am not satisfied that given the terrible circumstances that have played out for C since 2018, that it is clearly in his best interests for his father to remain in Australia and set up further disputation with Jenna.
I accept that deportation carries with it a risk that C may end up in foster care which would be very undesirable in most circumstances. However, in the present case, I am not satisfied that it would necessarily be a worse outcome when compared to the applicant re-entering C’s life and commencing a custody dispute with C’s mother. Even with Court supervision of any process, I am not satisfied that the violence which has been a feature of C’s parents’ relationship would not re-emerge.
In those circumstances I consider that as far as this factor concerns C it favours only very weakly the revoking the cancellation.
In relation to J it is uncertain whether he is the applicant’s biological child and it is certain that the applicant has never met J. The relationship between Jenna and the applicant make it difficult to accept that any kind of joint custody arrangement could work, and it is extremely unlikely that a court would award the applicant custody even if J was the applicant’s biological child. A court may not even grant access given the volatility in the parental relationship and Jenna’s unwillingness to facilitate contact. It is unlikely that removing the applicant from Australia would have any impact on J in these circumstances.
In relation to J I am not satisfied that it is in his best interests for the applicant to remain in Australia given the potential for significant disruption to be caused by any ongoing custody dispute between the applicant and Jenna.
The best interests of C and J do not significantly favour revoking the cancelation. I reject the submission that this consideration should have determinative weight in favour of revoking the cancellation.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition…non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is 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…cancel [a non-citizens visas] if they raise serous character concerns through conduct, in Australia or elsewhere, of the following kind:
a.Acts of family violence; or
b.…
c.…
d.Commission of crimes against government… officials…in the performance of their duties; or
e.…
f.…
(3)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.
(4)This consideration is about the expectations of the Australian community as a whole and in this respect decision-makers should proceed on the basis of the government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph (4) in particular reflects the Full Court of the Federal Court’s decision in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’) which found in relation to an earlier direction that the expectations of the Australian Community are not matters for evidence. They are expressed normatively and the expectations are what the Government says they are, even though in actual fact, if they were ascertainable, community expectations might be quite different.[42]
[42] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [91] per Stewart J (FYBR).
Accordingly, the expectation of the Australian community, as expressed in the Direction, is that a person like the applicant who has failed to obey the law will not be allowed by the Government to remain in Australia. Also, non-revocation may be appropriate simply because of the nature of the applicant’s offences. The expectation is that the Government should cancel a visa if offences raise character concerns of particular kinds. Acts of family violence and the commission of crimes against officials in the performance of their duties are offences which raise such concerns.
However, to apply the consideration correctly it needs to be kept in mind that the Principles in paragraph 5.2 of the Direction make clear that the consideration does not operate in a uniformly harsh way where an applicant has breached Australian law. How heavily the consideration weighs against the applicant in circumstances where the applicant has not obeyed the law remains a matter of discretion for the decision-maker, and how much weight the consideration is given relative to the other considerations is also a matter for the decision-maker. A higher level of tolerance can be afforded if an applicant has lived in Australia for most of their life or from a very young age. The principles also make clear that the presence of family violence is so serious that even strong countervailing considerations may not be sufficient in some circumstances to justify an exercise of the discretion in favour of the applicant – even if there is no measurable risk of the applicant causing physical harm to the Australian community.[43] These matters need to be carefully weighed.
[43] See Principles in the Direction at paragraph 5.2(4) and (5).
In weighing this factor I note the following:
(a)The applicant has lived in Australia for almost half his life;
(b)the applicant was an involved father to his son C until 2018 and was sole parent for a significant period of time;
(c)the applicant has a partner in Australia, Ms Hughes;
(d)the applicant has in various periods held down jobs in Australia;
(e)the applicant’s mental health is poor and that is now being addressed through medication, counselling and his GP;
(f)since his arrest in 2019, the applicant has lived in the community for a period and not resorted to drugs nor committed any crime;
(g)the applicant has few ties back in New Zealand.
The length of the applicant’s stay in Australia in particular favours the view that this consideration should not weigh so strongly against the applicant.
However, the applicant has a long history of failing to obey the law. His offending began within a short period of him settling in Australia. His offending continued from 2004 to 2019. His offending became more serious over time and his offending involved family violence.
The applicant has repeatedly failed to live up to the Australian community’s expectation that as a non-citizen he will obey the law. The ways in which he has breached the law discloses serious concerns about his character. The applicant’s conduct therefore places him squarely within the category of person who the community expects[44] would not be allowed to remain in Australia.
[44] In the sense in which that notion is implemented in the Direction.
In these circumstances the consideration weighs strongly against the applicant.
OTHER CONSIDERATIONS
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J relevantly observed in relation to an earlier iteration of the Direction in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
... Direction 65 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.
International non-refoulement obligations
The applicant submits that this matter is not relevant to the applicant’s circumstances. I accept that submission.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The applicant is a citizen of New Zealand. He is 44 years of age. The applicant appears to be in good physical health, but he has significant underlying mental health issues. There are no language or cultural barriers which would prevent him from establishing and maintaining basic living standards in New Zealand. The applicant has a reasonably good work history and has shown an ability and willingness to establish businesses. The applicant is likely to have the ongoing economic support of his partner Ms Hughes who is currently working. While it will not be easy for the applicant, with the exception of his mental health, there do not appear to be any significant barriers to him establishing and maintaining basic living standards.
The applicant makes the following submissions in relation to his mental health:
…[the applicant’s mental health problem] has been clinically diagnosed as anxiety and depression.
The Applicant has worked hard on improving himself and engaged with rehabilitation services pre-sentence, as well as within the confines of what has been available in custodial and immigration detention. His motivation is reflected in his proactive measures of researching and engaging with supports and services which will be available to him in the Australian community. It is submitted that a non-revocation outcome will make those efforts futile, and most likely send him into a downward spiral, so undoing all the rehabilitation progress he has made as a result of removing him from his significant support and ties, and current mental health care plan in Australia (which are integral components to any person partaking in drug rehabilitation and mental health treatment).
I do accept that there is a significant risk that the applicant’s mental health will deteriorate very significantly if he is returned to New Zealand. In and of itself this is a matter to consider carefully before making a decision in this case. It weighs in favour of revoking the cancellation.
In the context of the ‘impediments if removed from Australia’ consideration it is also significant. Any mental deterioration brought about by the applicant’s return to New Zealand will inhibit his ability to earn a living and may see him return to the use of illegal drugs which has in the past rendered him homeless. I am however satisfied that he will enjoy ongoing material support from Ms Hughes which will ensure that he is able to establish himself and maintain basic living standards in New Zealand.
The fact that the applicant’s mental health may deteriorate weighs strongly in favour of revocation. The impediments the applicant faces in establishing himself in New Zealand weighs in favour of revocation but not very strongly.
Links to the Australian Community - Strength nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction provides as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian communityb) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant submitted the following in relation to this consideration:
(a) the Applicant has lived in Australia since he was 21 years old (that is almost half of his life);
(b) the Applicant has positively contributed to the Australia through his employment and business, namely:
(i) excavator operator in 2012;
(ii) contract cleaner from 2013 to 2015;
(iii) delivery driver from 2017 to 2018, as a handyman in 2020; and
(iv) self-employed towing business in 2020.
(c) the Applicant has two minor aged children in Australia;
(d) the Applicant has intentions to pursue custody orders for the children, the efforts of which will be thwarted if he is deported;
(e) the entirety of the Applicant’s support network is in Australia; and
(f) the effect of a non-revocation decision on the Applicant’s immediate family in Australia who have the right to reside here indefinitely, being:
(i) his de facto partner (Ms Hughes) who he intends to marry, and whose evidence is that life will be completely destroyed and her mental health sent into decline should she have to uproot her life to move to New Zealand;
(ii) his father and step-mother, who he (and any future children) will not get to see due to their age and the cost of travel to New Zealand;
Accordingly this consideration should weigh strongly in favour of revoking the mandatory cancellation of the Applicant’s visa under s 501CA(4) of the Act.
The applicant has lived in Australia for almost half of his life and this weighs in his favour. However, because the applicant began offending soon after he arrived, this weighs less heavily in his favour than it otherwise would have.
I accept that the applicant’s ties with Australia are much stronger than the applicant’s ties with New Zealand. The applicant’s father and step-mother live in Australia. However, as a result of poor health and living in another state, they rarely see the applicant.[45] I do however accept that any decision not to revoke the cancellation will mean that it is unlikely that the applicant’s father will ever see him again in person. This is a very significant impact on both the applicant and his father.
[45] Transcript of proceedings, 5 January 2022, 38.
The applicant only has phone contact with his children now and it is unclear whether direct contact will be restored if the applicant remains in Australia. Accordingly, the impact on the applicant’s children is potentially significant but very uncertain.
The applicant identified two friends as supportive and a number of former associates provided references which are included in the G-Documents. The applicant will be effectively starting again, trying to make a new life as an adult in New Zealand. This will be very hard for him and pose an enormous challenge for him at his stage of life.
The applicant has an Australian partner. She has decided to follow the applicant to New Zealand if he is deported. Consequently, the effect of any decision not to revoke the cancellation on her will be enormous. She has had a difficult life to date with her closest relationship being with her brother. She grew up living in foster homes with her brother and has only recently reconnected with her mother and half-sister. It is clear that the impact on her of moving to New Zealand will be very significant. She has a history of poor mental health and there will undoubtedly be an impact on that from moving to New Zealand.
The severing of ties to Australia will be hard for both the applicant and Ms Hughes.
There is no doubt the applicant has significant ties to Australia and there will be an impact if he is deported on those in his family. This factor weighs strongly in favour of revoking the cancellation,.
Impact on Victims and Australian Business Interests
In the present case there is no information about the impact of the decision on victims or Australian business interests and accordingly the consideration does not affect my consideration.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the visa cancellation. The nature and seriousness of the Applicant’s offences are of concern, particularly the family violence and drug trafficking offences. There remains a risk that the applicant will re-offend if he resumes drug use or resumes his relationship with Jenna. Given his fragile mental health and history of maintaining contact and intimate relations with Jenna there is a material risk that one or both of these will occur if the applicant remains in Australia and is released into the community. There is no doubt that the Australian community would be best protected by the non-revocation of the visa cancellation.
Primary consideration 2, the family violence consideration favours non-revocation. The applicant has a long history of family violence. On the version of events which he provides he has assaulted his partner twice in a public place and breached a domestic violence order on one occasion. While the violence appears to be contained to the relationship with the mother of his children and is to a degree provoked by her violent and unstable conduct, the fact remains that the applicant has engaged in family violence and there is a risk he will do so again if he remains in Australia.
Primary Consideration 3 - the best interests of minor children – This consideration provides some support for revocation. The applicant had a significant relationship with his son C for the first ten years of C’s life. However, since 2018 the applicant has played a very distant role in C’s life. He has left C in the sole custody of his mother, potentially exposing him to significant physical and emotional risk. If the applicant were to remain in Australia it is unclear whether greater contact with his son would be the result. It is however clear that a revocation decision will trigger disputation between the applicant and C’s mother in the Family Court. It is unclear whether this is in C’s interests. The applicant pursuing custody in Australia appears likely to increase the risk of conflict and violence between C’s parents.[46]
[46] Transcript of proceedings, 6 January 2022, 88-89.
In relation to J, who may be the applicant’s son, no significant impact is likely to flow from a decision not to revoke the visa cancellation. I accept that such a decision will make it more difficult for J to have contact with a person who is potentially his biological father, but removal of the applicant from Australia will not adversely affect J’s interests in any other discernible way.
This consideration favours revocation of the cancellation but not significantly.
Primary Consideration 4 weighs against revocation of the visa cancellation as the expectations of the Australian community are that the Applicant’s serious offences should cause him to forfeit the privilege of remaining in Australia. His long period of offending and serious conduct which includes family violence mean that the community expectation is that he should not be allowed to remain in Australia. This consideration weighs heavily against revocation.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the visa cancellation decision.
The impediments he will face if returned to New Zealand also favour revocation as does the expected deterioration in his mental health and the mental health of his partner.
Having regard to all of these considerations, I am not satisfied that there is ‘another reason’ why the visa cancellation decision should be revoked. The applicant’s offending is extensive, is serious and there are good reasons to believe it may well be repeated in the future. The expectation of the Australian community is that a person with the applicant’s record of offending will not be allowed to remain in Australia, particularly given his history of family violence. None of the other considerations provide much support for a different decision. Accordingly, the reviewable decision should be affirmed.
DECISION
The Reviewable Decision dated 1 November 2021 is affirmed.
| I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O'Donovan |
.....................................[sgd]..............................
Associate
Dated: 21 January 2022
Date(s) of hearing: 5 and 6 January 2022 Solicitor for the Applicant: Jennifer Samuta, Samuta McComber Lawyers Solicitors for the Respondent: Kyu-Won Kim, Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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Standing
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